Hazel Tatum Bowers Estate v. Cleveland Ellis

Eighth Circuit

Hazel Tatum Bowers Estate v. Cleveland Ellis

CourtCourt of Appeals for the Eighth Circuit

DecidedJanuary 23, 2009

Docket07-2776

StatusUnpublished

This text of Hazel Tatum Bowers Estate v. Cleveland Ellis (Hazel Tatum Bowers Estate v. Cleveland Ellis) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hazel Tatum Bowers Estate v. Cleveland Ellis, (8th Cir. 2009).

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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________

No. 07-2776 ___________

Florida Ewings, Administratrix of * Estate of Hazel Tatum Bowers with * will annexed, * * Appellee, * * v. * Appeal from the United States * District Court for the Cleveland Robert Ellis, * Eastern District of Arkansas. * Appellant, * [UNPUBLISHED] * v. * * Bank of America, * * Appellee. * ___________

Submitted: December 29, 2008 Filed: January 23, 2009 ___________

Before MELLOY, COLLOTON, and SHEPHERD, Circuit Judges. ___________

PER CURIAM. Cleveland Robert Ellis appeals the district court’s1 28 U.S.C. § 1447(c) order remanding this unlawful detainer action against him to state court. We first note that the remand order is unreviewable to the extent it was based on the district court’s lack of subject matter jurisdiction, but it is reviewable to the extent Ellis attempted to remove the action from state court based on 28 U.S.C. § 1443. See 28 U.S.C. § 1447(d) (remand order is not reviewable on appeal, except that remand of case that was removed pursuant to § 1443 is reviewable). Upon careful review of Ellis’s assertions to support removal under section 1443, we conclude that removal was not warranted under that provision. See Georgia v. Rachel, 384 U.S. 780, 800 (1966) (removal under § 1443(1) is warranted “only if it can be predicted by reference to a law of general application that the defendant will be denied or cannot enforce the specified federal rights in the state courts”); City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 814-15 (1966) (§ 1443(2) is available only to federal officers and persons assisting such officers in performance of official duties); see also Bizzle v. McKesson Corp., 961 F.2d 719, 721 (8th Cir. 1992) (in reviewing case on appeal, court may affirm on any ground supported by record, even though that ground was not addressed in court below).

Accordingly, we affirm. See 8th Cir. R. 47B. ______________________________

1 The Honorable J. Leon Holmes, Chief Judge, United States District Court for the Eastern District of Arkansas.

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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________

No. 07-2776 ___________

Florida Ewings, Administratrix of * Estate of Hazel Tatum Bowers with * will annexed, * * Appellee, * * v. * Appeal from the United States * District Court for the Cleveland Robert Ellis, * Eastern District of Arkansas. * Appellant, * [UNPUBLISHED] * v. * * Bank of America, * * Appellee. * ___________

Submitted: December 29, 2008 Filed: January 23, 2009 ___________

Before MELLOY, COLLOTON, and SHEPHERD, Circuit Judges. ___________

PER CURIAM. Cleveland Robert Ellis appeals the district court’s1 28 U.S.C. § 1447(c) order remanding this unlawful detainer action against him to state court. We first note that the remand order is unreviewable to the extent it was based on the district court’s lack of subject matter jurisdiction, but it is reviewable to the extent Ellis attempted to remove the action from state court based on 28 U.S.C. § 1443. See 28 U.S.C. § 1447(d) (remand order is not reviewable on appeal, except that remand of case that was removed pursuant to § 1443 is reviewable). Upon careful review of Ellis’s assertions to support removal under section 1443, we conclude that removal was not warranted under that provision. See Georgia v. Rachel, 384 U.S. 780, 800 (1966) (removal under § 1443(1) is warranted “only if it can be predicted by reference to a law of general application that the defendant will be denied or cannot enforce the specified federal rights in the state courts”); City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 814-15 (1966) (§ 1443(2) is available only to federal officers and persons assisting such officers in performance of official duties); see also Bizzle v. McKesson Corp., 961 F.2d 719, 721 (8th Cir. 1992) (in reviewing case on appeal, court may affirm on any ground supported by record, even though that ground was not addressed in court below).

Accordingly, we affirm. See 8th Cir. R. 47B. ______________________________

1 The Honorable J. Leon Holmes, Chief Judge, United States District Court for the Eastern District of Arkansas.

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