Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral Estoppel, the Law of the Case, or if the Opinion Has Persuasive Value on a Material Issue and No Published Opinion Would Serve As Well.city of Kansas City, Appellee, v. James Frederick Newport, Appellant, 78 F.3d 588 (8th Cir. 1996)

James Frederick Newport filed a petition to remove to federal court state criminal proceedings pending against him in the Sixteenth Judicial Circuit of Missouri, Kansas City Municipal Division. The district court determined that removal was improper because Newport alleged no causal connection between his purported duty as a member of the United States Army Reserves and the pending charges for littering and disorderly conduct. The district court dismissed the petition. We agree with the district court that Newport was not entitled to removal. See Maryland v. Soper, 270 U.S. 9, 33 (1926); Mesa v. California, 489 U.S. 121, 131-32 (1989). The appropriate course of action, however, was not dismissal, but remand to the state court. See 28 U.S.C. § 1446(c) (4) ("If it clearly appears ... that removal should not be permitted, the court shall make an order for summary remand."); 28 U.S.C. § 1446(c) (3) ("judgment of conviction [in the state criminal proceedings] shall not be entered unless the prosecution is first remanded"); Continental Cablevision of St. Paul, Inc. v. United States Postal Serv., 945 F.2d 1434, 1441 n. 3 (8th Cir. 1991).

We thus vacate the district court's dismissal order and remand to the district court for remand to the state court. Newport's motion to expand the record is granted.