1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 MICHAEL LYLE ELWARD, Case No. 24-cv-03054-BLF

8 Plaintiff,

ORDER ADOPTING REPORT AND

9 v. RECOMMENDATION; REMANDING

CASE

10 ORLANDO MORENO CANO, [Re: ECF No. 5] 11 Defendant.

12 13 Before the Court is Magistrate Judge Susan van Keulen’s Report & Recommendation that 14 the Court remand the case to state court due to lack of subject matter jurisdiction. ECF No. 5 15 (“R&R”). For the reasons described below, the Court ADOPTS the Report & Recommendation 16 and REMANDS the case. 17 Defendant removed the case to this Court on May 21, 2024, and it was assigned to 18 Magistrate Judge Susan van Keulen. ECF No. 1. On May 31, 2024, Judge van Keulen ordered 19 the Clerk of the Court to reassign this case to a District Judge and issued a recommendation that 20 the District Judge remand this case to state court due to lack of subject matter jurisdiction. R&R. 21 The case was reassigned to the undersigned. ECF No. 6. On June 5, 2024, Defendant filed an Ex 22 Parte Motion for Order to Show Cause Why Attorney Kirkman J. Hoffman Should Not be Held in 23 Contempt, and Motion for Temporary Restraining Order and Why Preliminary Injunction Should 24 Not be Granted. ECF No. 7. The Court denied that motion, finding that the Defendant did not 25 establish a likelihood of success on the merits because he could not show that the Court has 26 subject matter jurisdiction. ECF No. 8. 27 The Court has reviewed Judge van Keulen’s Report & Recommendation. No objections to 1 (deadline for objections is fourteen days after being served). However, the Court treats 2 Defendant’s motion for a TRO and order to show cause, ECF No. 7, as an objection to the Report 3 & Recommendation. 4 Defendant bases removal solely on 28 U.S.C. § 1443(1), which provides for removal of 5 certain civil rights cases. ECF No. 1 § (removal is “pursuant to 28 U.S.C. §§ 1443, 1446, and 6 1447(b)”); see also id. at 2-4, 6, 8, 12 (citing to 28 U.S.C. § 1443(1)). A successful petition for 7 removal under section 1443(1) must satisfy a two-part test: (1) the petitioner must assert, as a 8 defense, rights that are given to him by explicit statutory enactment protecting equal racial civil 9 || rights; and (2) the petitioner must assert that the state court will not enforce that right, and that 10 allegation must be supported by reference to a state statute or a constitutional provision that 11 purports to command the state courts to ignore the federal rights. Liu v. Tan, No. 18-cv-00054- 12 || JSC, 2018 WL 1371252, at *2 (N.D. Cal. Feb. 26, 2018) (citing Patel v. Del Taco, Inc., 446 F.3d 5 13 996, 999 (9th Cir. 2006)). Judge van Keulen found in her Report & Recommendation that 14 || Defendant did not satisfy either prong described in Liu. R&R at 2-4. This Court independently 3 15 || came to the same conclusion in its order denying Defendant’s motion for a TRO: Defendant has 16 || not satisfied either Liu prong, and thus cannot establish subject matter jurisdiction. ECF No. 8 at 3 17 4-5. The Court finds the Report & Recommendation to be correct, well-reasoned, and thorough, 18 || and for the reasons described in ECF No. 8, the Court agrees with Judge van Keulen’s conclusion 19 that the Court does not have subject matter jurisdiction. 20 Judge van Keulen ordered “the Clerk of the Court to reassign this case to a District Judge” 21 with the recommendation that “the District Judge REMAND this case to state court due to lack of 22 || subject matter jurisdiction.” R&R at 1-2. 23 For the foregoing reasons, IT IS HEREBY ORDERED that: 24 1. The R&R is ADOPTED by the Court; 25 2. The case is REMANDED to state court. 26 Dated: June 17, 2024

BETH LABSON FREEMAN

28 United States District Judge