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November 18, 1971

HOUSING AUTHORITY OF the CITY OF NEWARK, a corporation of the State of New Jersey, Petitioner,
Toby HENRY et al., Defendants

Lacey, District Judge.

The opinion of the court was delivered by: LACEY

LACEY, District Judge:

 This action was commenced in the Superior Court of New Jersey and was removed to this Court by the defendants, acting pursuant to 28 U.S.C. § 1443(1), which provides as follows:

Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof; * * *.

 The plaintiff then moved to remand under 28 U.S.C. § 1447(c): *fn1"

(c) If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs. A certified copy of the order of remand shall be mailed by its clerk to the clerk of the State court. The State court may thereupon proceed with such case.

 The "right" which defendants' Petition for Removal asserts is "denied" or "cannot [be] [enforced] in the courts" of the State of New Jersey is claimed under 42 U.S.C. § 1981: *fn2"

§ 1981. Equal rights under the law
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

 The § 1981 "right" is generated by the following facts. The plaintiff is a Housing Authority organized under N.J.S. 55:14A-1, et seq. It currently operates various housing projects in the City of Newark. The defendants are representatives of an association of tenants in certain of these projects. In April, 1970, numerous tenants began a so-called rent strike, pursuant to which they ceased to pay any rent. This step was taken to exercise economic leverage against the plaintiff to the end that recognition and suitable response would be forthcoming from the plaintiff of and to the tenants' demands for better living conditions in and about the concerned housing projects.

 Negotiations ensued but fell short of substantial accomplishment. The plaintiff then commenced a state court action seeking, among other relief, appointment of a receiver to hold past and future rents pending resolution of the underlying substantive differences. At the same time, the plaintiff obtained from the New Jersey Superior Court a temporary restraining order which, the defendants' Removal Petition states, compelled delivery to a receiver of all rents theretofore collected by the tenants' representatives. The fact is, however, that in subsequent proceedings, by agreement of the parties, it was provided otherwise. There never has been a turnover of rents to a state court receiver, and the defendants have never presented to a state court their objections to the appointment of a receiver. In any event, shortly after commencement of the state action, defendants' Petition was filed. It articulates defendants' § 1981 "right" to engage in a rent strike and to collect but withhold rent money without disclosing its whereabouts. The state court appointment of a receiver, it is argued, "jeopardizes the ability of the tenants to wield any meaningful leverage" in achieving their ends; and it has the further effect, it is contended, "to create a firm prediction that these black tenants are being, and will be, prevented, under color of state law, from leasing or contracting for habitable conditions on the same basis as whites in this society. * * *"

 The defendants have the burden of proving "that a federal court, a court of limited jurisdiction, has subject matter jurisdiction, and there is a presumption that a federal court lacks jurisdiction in a particular case until it has been demonstrated that subject matter jurisdiction exists. * * *" [Footnote omitted] Morgan v. Melchar, 442 F.2d 1082, 1085 (3 Cir. 1971).

 Thus, the generous interpretation accorded a complaint on a motion to dismiss for failure to state a claim [ Norwalk Core v. Norwalk Redevelopment Agency, 395 F.2d 920, 925-926 (2 Cir. 1968)] has no application to construction of a Removal Petition. Moreover, as has been stated (F.N. 1, supra), this Court can -- indeed, must -- dismiss cases for lack of subject matter jurisdiction, irrespective of the will of the parties or the practical considerations militating against dismissal. Morgan v. Melchar, supra, 442 F.2d at 1085; ...

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