                              NOT FOR PUBLICATION                         FILED
                         UNITED STATES COURT OF APPEALS                   APR 26 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT


 NAZIE AZAM,                                       No. 15-60051

            Appellant,                             BAP No. 13-1538

   v.

 U.S. BANK, N.A.,                                  MEMORANDUM *

             Appellee.


                              Appeal from an Order of the
                     Bankruptcy Appellate Panel of the Ninth Circuit

                               Submitted April 6, 2017 **
                                 Pasadena, California

Before: M. SMITH and N.R. SMITH, Circuit Judges, and FEINERMAN, District
Judge. ***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Gary Feinerman, District Judge for the United States
District Court for the Northern District of Illinois, sitting by designation.
                                           1
      Nazie Azam appeals from a decision of the Bankruptcy Appellate Panel

(BAP) that: (1) dismissed her appeal of the bankruptcy court’s denial of her request

for a temporary restraining order (TRO); (2) affirmed the bankruptcy court’s

remand of an unlawful detainer action that she had removed from state court; and

(3) affirmed the bankruptcy court’s decision to abstain from considering an

adversary proceeding brought by her. We affirm.

      The BAP’s opinion ably sets forth the facts and procedural history, which

will not be repeated here. See In re Azam, 2015 WL 2180319, *1-6 (B.A.P. 9th

Cir. May 8, 2015).

      1. The BAP correctly dismissed as moot Azam’s appeal as to the denial of

the TRO. “The test for mootness of an appeal is whether the appellate court can

give the appellant any effective relief in the event that it decides the matter on the

merits in his favor.” Castaic Partners II, LLC v. Daca-Castaic, LLC (In re Castaic

Partners II, LLC), 823 F.3d 966, 968-69 (9th Cir. 2016). Azam sought the TRO to

prevent her eviction from her residence. After the bankruptcy court denied the

TRO, Azam was evicted. That was over three years ago. Reversing the denial of

the TRO would provide Azam no effective relief, because an eviction that has

already occurred cannot be restrained. See Bernhardt v. Cty. of Los Angeles, 279

F.3d 862, 871 (9th Cir. 2002) (“Where the activities sought to be enjoined have

already occurred, and the appellate courts cannot undo what has already been done,

                                           2
the action is moot, and must be dismissed.”); cf. United States v. W.T. Grant Co.,

345 U.S. 629, 633 (1953) (“The purpose of an injunction is to prevent future

violations . . . .”) (emphasis added). Accordingly, the BAP correctly dismissed

Azam’s appeal as to the denial of the TRO.

      2. The BAP correctly affirmed the bankruptcy court’s remand of the

unlawful detainer action. To begin with, Azam has already litigated and lost this

issue before our court. Azam removed the unlawful detainer action to the district

court in April 2013, the suit was remanded, Azam appealed, and this court

affirmed. See U.S. Bank, N.A. v. Azam, 582 F. App’x 710 (9th Cir. 2014). The

removal petition here is materially identical to the earlier removal petition, and

Azam has provided no basis to reach a different result here.

      Even writing on a clean slate, remand was proper. The general rule holds

that a remand is not reviewable on appeal, but there is an exception if the suit was

removed under 28 U.S.C § 1443. See 28 U.S.C. § 1447(d). To justify removal

under § 1443, the defendant must invoke “rights that are given to [her] by explicit

statutory enactment protecting equal racial civil rights,” “assert that the state courts

will not enforce th[ose] right[s],” and support that assertion “by reference to a state

statute or a constitutional provision that purports to command the state courts to

ignore the federal rights.” Patel v. Del Taco, Inc., 446 F.3d 996, 999 (9th Cir.

2006) (first citing City of Greenwood v. Peacock, 384 U.S. 808, 824-28 (1966),

                                           3
Georgia v. Rachel, 384 U.S. 780, 788-92 (1966), then quoting California v.

Sandoval, 434 F.2d 635, 636 (9th Cir. 1970)). Although Azam’s removal petition

cites various state laws, it does not and could not explain how those laws

commanded the state court to ignore her civil rights. It follows that the bankruptcy

court was correct to remand the unlawful detainer action.

      3. The BAP correctly affirmed the bankruptcy court’s abstention from

Azam’s adversary proceeding. When a bankruptcy court faces issues that are

imminently pending in state court, it may abstain and lift the automatic stay. See

Christensen v. Tucson Estates, Inc. (In re Tucson Estates, Inc.), 912 F.2d 1162,

1166 (9th Cir. 1990). The following factors guide the decision whether to abstain:

      (1) the effect or lack thereof on the efficient administration of the
      estate if a Court recommends abstention, (2) the extent to which state
      law issues predominate over bankruptcy issues, (3) the difficulty or
      unsettled nature of the applicable law, (4) the presence of a related
      proceeding commenced in state court or other nonbankruptcy court,
      (5) the jurisdictional basis, if any, other than 28 U.S.C. § 1334, (6) the
      degree of relatedness or remoteness of the proceeding to the main
      bankruptcy case, (7) the substance rather than form of an asserted
      “core” proceeding, (8) the feasibility of severing state law claims from
      core bankruptcy matters to allow judgments to be entered in state
      court with enforcement left to the bankruptcy court, (9) the burden of
      the bankruptcy court’s docket, (10) the likelihood that the
      commencement of the proceeding in bankruptcy court involves forum
      shopping by one of the parties, (11) the existence of a right to a jury
      trial, and (12) the presence in the proceeding of nondebtor parties.

Id. at 1167 (brackets omitted).




                                          4
      Abstention was warranted here. Because the underlying bankruptcy case

had been dismissed, the adversary proceeding’s claims were as remote from the

main bankruptcy proceeding as they possibly could have been. Factors (2), (4),

and (10) all strongly supported abstention: the predominant claims were not

bankruptcy claims; related state proceedings had commenced; and, as the

bankruptcy court observed and Azam’s litigation history strongly suggests, there

was a likelihood that the proceedings were an attempt at forum shopping.

Accordingly, the bankruptcy court did not abuse its discretion in abstaining, and

the BAP did not err in affirming.

      Appellee’s pending motion for judicial notice is granted.

      AFFIRMED.




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