holding in Georgia v. Rachel was significantly narrowed by the Court's decision in City of Greenwood v. Peacock6 . Defendants never address the impact of the City of Greenwood v. Peacock decision in their papers or in their rebuttal at oral argument, tacitly conceding that they were unable to meet the standard for § 1443(1) removal as identified in City of Greenwood v. Peacock and its progeny.
Because defendants' fail to meet the standard for § 1443(1) removal, I find that § 1443(1) is not an appropriate basis for removal of the state law defamation action.
III. 28 U.S.C. § 1441
Defendants also remove this case on § 1441 grounds. In order for a case to be properly removed under § 1441, a federal court must have original jurisdiction over the claim. See 28 U.S.C. § 1441. Because there is no federal question on the face of the state court complaint, defendants must demonstrate that federal law is an essential element of the state case. See Franchise Tax Bd. of the State of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 8-11, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983) (if complaint does not assert federal cause of action, removal is still appropriate if substantial, disputed question of federal law is a necessary element of one of the state claims).
Defendants argue that federal law is an essential element of the defamation action "because it arises under 42 U.S.C. § 1983, by reason of being a retaliatory action designed to deter Barnes' federal civil rights action". Joint Notice of Removal at P6. In their second set of papers, defendants argue that this case also "arises under" 42 U.S.C. 1985(3). See Defendants' Opposition to Plaintiffs' Motion to Remand at 10-11.
However, defendants never satisfactorily demonstrate how the state court defamation action, which will be resolved according to Pennsylvania tort law on defamation, depends on an analysis of federal law.
The mere fact that race is an element of the alleged defamatory remarks does not render this suit dependent in any way on § 1983 or § 1985(3) analysis. Indeed, unlike the cases cited by the defendants, the defamation claim here can be resolved without any reference to, or analysis of, a federal statute. Compare Food Lion, Inc. v. United Food & Commercial Workers Int'l Union, No. 6:93-0582-1 AJ, 1993 U.S. Dist. LEXIS 14669 at *6 (D.S.C. July 21, 1993) (ERISA is essential element of claim); Sweeney v. Abramovitz, 449 F. Supp. 213, 215-16 (D. Conn. 1978) (in malicious prosecution case, analysis of grounds of § 1983 claim is essential element of proving whether there was probable cause for bringing the § 1983 claim). In the case at bar, determining the truth or falsity of the alleged defamatory statement does not depend on interpreting § 1983 or any other statute. Therefore, defendants here fail to satisfy the Franchise Tax Bd. "necessary element" standard discussed above. See Franchise Tax Bd. of the State of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 8-11, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983).
Finally, the crux of the state action complaint stems from statements published in the Philadelphia Inquirer regarding plaintiffs' dishonesty in office (due to "thinly disguised racism"), and therefore the state action cannot be viewed solely as a retaliatory measure for bringing the federal claim, but is an independent defamation action in its own right.
I therefore find that this action fails to "arise under" federal § 1983 and § 1985 statutes, and find removal under § 1441 improper.
IV. ALL WRITS ACT, 28 U.S.C. § 1651
The third ground for removal cited in the removal petition is the All Writs Act, which states in pertinent part, "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law". 28 U.S.C. § 1651(a). In their removal petition, defendants argue that the All Writs Act "provides an additional source of removal authority in exceptional circumstances such as this, where government officials are attempting to frustrate the proper administration of justice. . . and there is the potential for conflicting judgments with respect to whether or not the government officials have taken action against Barnes for illegitimate motives, including invidious racial discrimination". Joint Notice of Removal at P7. Defendants further argue that § 1651 has been "frequently invoked...in cases such as this, where state court proceedings are being used to interfere with the orderly administration of federal jurisdiction." Defendants' Opposition to Plaintiffs' Motion to Remand at 14.
I find that defendants have not met their threshold burden in demonstrating the "extraordinary circumstances" that would justify removal under the All Writs Act in this case. See e.g. Pennsylvania Bureau of Correction v. United States Marshals Serv., 474 U.S. 34, 43, 106 S. Ct. 355, 88 L. Ed. 2d 189 (1985) (courts should rarely exercise § 1651 authority). I further find that defendants have not adequately demonstrated how remanding this action to state court will interfere with the "orderly administration of federal jurisdiction", or how a ruling in state court on whether or not plaintiffs were defamed would conflict with a federal ruling on the § 1983 claims of the Barnes Foundation.
For these reasons, I find that the All Writs Act is an inappropriate basis for removal of the state law action.
The three grounds for removal offered by defendants' in their Joint Notice of Removal are insufficient, and I therefore order the following: ORDER
AND NOW, this 1st day of April, 1996, for the reasons stated in the Memorandum accompanying this Order, IT IS ORDERED that plaintiff's Motion to Remand is GRANTED.
ANITA B. BRODY, J.