United States District Court, D. Arizona
ORDER REMANDING CASE
HONORABLE JAMES A. SOTO, UNITED STATES DISTRICT JUDGE.
April 4, 2018, Defendant Greg Shannon Levitt
(“Defendant”) filed a Notice of Removal (Doc 1)
in the District of Arizona. Defendant also filed an
Application to Proceed in District Court Without Prepaying
Fees or Costs (Doc. 2) and a Motion for an Extension of Time
to File a Copy of the Court Record (Doc. 6). Also pending
before the Court is Plaintiff's Motion to Remand (Doc.
7). On April 23, 2018, Plaintiff filed a Motion to Remand
(Doc. 7). Defendant filed a response (Doc. 8) and Plaintiff
has filed a reply (Doc. 9). The Court will grant the in
forma pauperis application (Doc. 2), only to the extent
he is not required to pay the filing fee to proceed in this
case,  and shall remand the Complaint.
Plaintiff's Motion to Remand (Doc. 7) shall be granted
and this matter shall be remanded. The Motion for an
Extension of Time to File a Copy of the Court Record (Doc. 6)
shall be denied as MOOT.
HISTORY AND FACTS
31, 2005, the State Bar of Arizona brought this action in
state court. This action did not arise under federal
law, but instead alleged that Defendant was practicing law
without authorization in violation of Arizona Supreme Court
Rules. Id. On November 17, 2005, the state court
filed a Cease and Desist Order and Judgment. On April 13,
2016, a Final Judgment and Order against Defendants was
filed, which rejected Defendant's claims of
constitutional protections. (Doc. 7 at 4:1-3.) More recently,
Plaintiff has petitioned the state court for an order to show
cause, alleging that Defendant persists in his unauthorized
practice of the law.
notice of removal of a civil action or proceeding shall be
filed within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial
pleading setting forth the claim for relief upon which such
action or proceeding is based, or within 30 days after the
service of summons upon the defendant if such initial
pleading has then been filed in court and is not required to
be served on the defendant, whichever period is
shorter.” 28 U.S.C. § 1446(b)(1).
did not timely file the notice of removal. The original
complaint was filed in state court on May 31,
2005. Pima County Superior Court filed the
original cease and desist order on November 17,
2005. Plaintiff filed the most recent petition
for order to show cause on February 15, 2018. (Doc. 7.) The
notice of removal was filed on April 4, 2018, well past the
30 day requirement. (Doc. 1.)
asserts that removal was timely due to 28 U.S.C. §
1446(g), which states that “Where the civil action or
criminal prosecution that is removable under section 1442(a)
is a proceeding in which a judicial order for testimony or
documents is sought or issued or sought to be enforced, the
30-day requirement of subsection (b) of this section and
paragraph (1) of section 1455(b) is satisfied if the person
or entity desiring to remove the proceeding files the notice
of removal not later than 30 days after receiving, through
service, notice of any such proceeding.” Defendant is
incorrect to rely on this subsection. This action is not
removable under section 1442(a).
1442 provides that a civil action “that is against or
directed to any of the following may be removed by them . .
.: (1) The United States or any agency thereof or any officer
(or any person acting under that officer) of the United
States or of any agency thereof, in an official or individual
capacity, for or relating to any act under color of such
office or on account of any right, title or authority claimed
under any Act of Congress for the apprehension or punishment
of criminals or the collection of the revenue. (2) A property
holder whose title is derived from any such officer, where
such action or prosecution affects the validity of any law of
the United States. (3) Any officer of the courts of the
United States, for or relating to any act under color of
office or in the performance of his duties; (4) Any officer
of either House of Congress, for or relating to any act in
the discharge of his official duty under an order of such
House.” 28 U.S.C. § 1442(a).
matter, Defendant appears to have been acting as an
individual with no relation to the Federal Government. This
suit relates to his actions as a citizen. Therefore removal
under section 1442 is inappropriate. This matter shall be
remanded for failure to timely file the notice of removal.
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute . . .
.” Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994) (citations omitted). The party
asserting jurisdiction in a United States District Court has
the burden of demonstrating jurisdiction. Id.
“The court accepts factual allegations in the complaint
as true and construes the pleadings in the light most
favorable to the nonmoving party.” Colony Cove
Properties, LLC v. City of Carson, 640 F.3d 948, 955
(9th Cir. 2011) (citing Outdoor Media Grp., Inc. v. City
of Beaumont, 506 F.3d 895, 899-900 (9th Cir.
2007)). Should the party asserting jurisdiction fail
to do so, the court will presume it lacks jurisdiction over
the matter. Id.
is available through several different statutes. See
28 U.S.C. §§ 1441, 1442, 1443, 1444. The general
rule is that a defendant may remove “any civil action
brought in a State court of which the district courts of the