ERNEST B. FENTON and LAW OFFICE OF ERNEST B. FENTON, P.C., Plaintiffs-Appellees,
KELLI DUDLEY; LAW OFFICE OF KELLI DUDLEY; ANDREW SIDEA; and LAW OFFICE OF ANDREW SIDEA, P.C., Defendants-Appellants
Argued May 28, 2014
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13-cv-05019 -- Rebecca R. Pallmeyer, Judge.
For Ernest B. Fenton, Law Office of Ernest B. Fenton, P.C., Plaintiffs - Appellees: Ernest B. Fenton, Attorney, Law Office of Ernest B. Fenton, P.C., Homewood, IL.
For Kelli Dudley, Law Office of Kelli Dudley, Andrew v. Sidea, Law Office of Andrew Sidea, Defendants - Appellants: Robert Brand Newman, Attorney, Newman & Meeks, Cincinnati, OH.
Before FLAUM, MANION, and TINDER, Circuit Judges.
Flaum, Circuit Judge.
This appeal concerns the conditions under which a defendant may remove a case to federal court pursuant to the civil rights removal statute, 28 U.S.C. § 1443. We conclude that § 1443 was not satisfied in this case, and therefore affirm the district court's remand order.
In 2010, Tonya Davis retained Ernest Fenton to represent her in connection with a home foreclosure proceeding. Davis later sued Fenton for malpractice. Davis claimed that, although she paid Fenton several thousand dollars for legal assistance, he did virtually nothing to help her keep her home. She also claimed that he targeted her for inferior service based on her race, in violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq. That case,
Davis v. Fenton, is currently stayed in federal district court pending arbitration. No. 1:13-cv-3224, 2014 WL 544974 (N.D.Ill. Feb. 7, 2014).
The complaint in the Davis case was filed in 2013. Shortly thereafter, Fenton brought his own lawsuit in state court, not against Davis but against Davis's lawyers: Kelli Dudley and Andrew Sidea. Fenton alleged that Dudley and Sidea had intentionally spread false information about him to his clients and business associates. Fenton also alleged that Sidea, who had previously worked at Fenton's law office, had improperly obtained confidential information about Fenton's clients and shared it with Dudley. The complaint advanced claims of conversion, tortious interference with a business relationship, and defamation, and it sought damages and an injunction.
After learning of Fenton's state-court complaint, Dudley and Sidea filed a notice of removal in federal district court. They asserted as bases for removal both the general removal statute, 28 U.S.C. § 1441, and the more specialized civil rights removal statute, 28 U.S.C. § 1443. Three days later, despite acknowledging the ongoing removal proceedings, the Cook County Circuit Court entered an ex parte preliminary injunction against Dudley and Sidea. The injunction ordered them to stop defaming Fenton and to cease contact with any of his current or former clients.
Back in federal court, Fenton filed a motion to remand the Fenton v. Dudley case to state court. The district court found that the case did not meet the removal requirements under either 28 U.S.C. § 1441 or § 1443 and granted the motion. Generally, remand orders are not appealable, but there is an exception when a case is removed pursuant to § 1443. See 28 U.S.C. § 1447(d). We must therefore decide whether the district court was correct to return the case to state court or whether the district court in fact had jurisdiction under the civil rights removal statute.
As a preliminary matter, we note that the Cook County Circuit Court's decision to enter an injunction after the case had been removed to federal court is clearly contrary to 28 U.S.C. § 1446(d), which provides that, once a defendant has filed a notice of removal with the state court, the state court may " proceed no further unless and until the case is remanded" (emphasis added). See also Ackerman v. ExxonMobil Corp., 734 F.3d 237, 249 (4th Cir. 2013) (" [A]ny post-removal actions taken by the state court in the removed case action are void ab initio." ). Dudley and Sidea have not asked us to take any action with respect to the state-court injunction, although we understand that they hope to move the district court to dissolve the injunction following our decision on removal. Nevertheless, like the district court, we are troubled that a state court would disregard § 1446's clear command, especially because the face of the injunction order reveals that the state court recognized that the defendants had initiated removal.
The civil rights removal statute provides for the removal from state court of any civil action or criminal prosecution " [a]gainst any person who is denied or ...