209 F.Supp.2d 1257 (2002)
The RETIREMENT SYSTEMS OF ALABAMA, consisting of the Employees Retirement System of Alabama and the Teachers Retirement System of Alabama, and as administrator of the Public Employees Individual Retirement Account Fund, pension funds of the State of Alabama, Plaintiffs,
v.
MERRILL LYNCH & CO., J.P. Morgan Chase & Co., Citigroup, Inc., Credit Suisse First Boston, Inc., Bank of America Corp., Arthur Andersen, L.L.P., Kenneth Lay, Jeffrey Skilling, Andrew Fastow, Defendants.
No. Civ.A. 02-A-452-N.
United States District Court, M.D. Alabama, Northern Division.
May 31, 2002.
*1258 Thomas T. Gallion, III, Haskell, Slaughter, Young & Gallion, LLC, Montgomery, AL, John Michael Rediker, Thomas L. Krebs, J. Vernon Patrick, Jr., Patricia C. Diak, Jeffrey V. Havercroft, Matthew T. Franklin, Haskell, Slaughter, Young & Rediker, LLC, Birmingham, AL, for Plaintiffs.
Richard H. Gill, Copeland, Franco, Screws & Gill, P.A., Montgomery, AL, N. Lee Cooper, Luther M. Dorr, Jr., A. Inge Selden, III, Maynard, Cooper & Gale, P.C., Birmingham, AL, Herbert Washer, James Miller, John Carroll, Clifford, Chance, Rogers & Wells, New York City, John W. Scott, Huckaby, Scott & Dukes, PC, Birmingham, AL, for Merrill Lynch & Co.
Richard H. Gill, Copeland, Franco, Screws & Gill, P.A., Montgomery, AL, Crawford S. McGivaen, Jr., Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, AL, Bruce Angiolillo, Thomas C. Rice, Jonathan K. Youngblood, David J. Woll, Simpson, Thacher & Bartlett, New York City, John W. Scott, Huckaby, Scott & Dukes, PC, Birmingham, AL, for J.P. Morgan Chase & Co.
Richard H. Gill, Copeland, Franco, Screws & Gill, P.A., Montgomery, AL, W. Stancil Starnes, Bryan O. Balogh, Jay M. Ezelle, W. Michael Atchison, Starnes & Atchison, Birmingham, AL, Richard Rosen, Jessie Janowitz, Robert S. Smith, Brad S. Karp, Ronald P. Replogle, Paul Weiss, Rifkind, Wharton & Garrison, New York City, for Citigroup, Inc.
Lee H. Copeland, Richard H. Gill, George W. Walker, III, Copeland, Franco, Screws & Gill, P.A., Montgomery, AL, Richard Clary, Julia North, Melissa Baily, *1259 Cravath, Swaine & Moore, New York City, John W. Scott, Huckaby, Scott & Dukes, PC, Birmingham, AL, for Credit Suisse First Boston, Inc.
Joseph C. Espy, III, James Flynn Mozingo, Melton, Espy, Williams & Hayes, P.C., Montgomery, AL, for Kenneth L. Lay.
Jeffrey K. Skilling, Houston, TX, pro se.
Andrew S. Fastow, Houston, TX, pro se.
Richard H. Gill, Copeland, Franco, Screws & Gill, P.A., Montgomery, AL, Warren B. Lightfoot, Ivan B. Cooper, Robin H. Graves, Lightfoot, Franklin & White, L.L.C., Birmingham, AL, Sharon Katz, David B. Loscano, Davis, Polk, & Wardwell, New York City, for Arthur Andersen, LLP.
Richard H. Gill, Copeland, Franco, Screws & Gill, P.A., Montgomery, AL, James C. Huckaby, Jr., John W. Scott, Huckaby, Scott & Dukes, PC, Birmingham, AL, Gregory Markel, Ronit Setton, Meredith Moss, Nancy I. Ruskin, Brobeck, Phleger & Harrison, New York City, for Bank of America Corp.

MEMORANDUM OPINION
ALBRITTON, Chief Judge.
This cause is before the court on Plaintiffs' Motion to Remand or Abstain (Doc. # 5) and Defendants' Motion to Transfer Venue (Doc. # 2).[1] This case was removed to this court under 28 U.S.C. § 1452[2] on April 22, 2002, from the Circuit Court of Montgomery County, Alabama.
For the reasons to be discussed, the court finds that Plaintiffs' Motion to Remand is due to be GRANTED. Defendants' Motion to Transfer and all other pending motions, with the exception of Defendant Kenneth Lay's Motion to Dismiss (Doc. # 12), are therefore due to be DENIED as moot. Because the case is being remanded, ruling on Lay's Motion to Dismiss will be left for the state court to consider.

I. REMAND STANDARD

Federal courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Burns v. Windsor Insurance Co., 31 F.3d 1092, 1095 (1994); Wymbs v. Republican State Executive Committee, 719 F.2d 1072, 1076 (11th Cir.1983), cert. denied, 465 U.S. 1103, 104 S.Ct. 1600, 80 L.Ed.2d 131 (1984). They may only hear cases that they have been authorized to hear by the Constitution or the Congress of the United States. See Kokkonen, 511 U.S. at 377. The Eleventh Circuit favors remand of removed cases where federal jurisdiction is not absolutely clear. See Burns, 31 F.3d at 1095.

*1260 II. BACKGROUND

This case was precipitated by the recent collapse of Enron Corporation. The Retirement Systems of Alabama and its constituent pension funds (collectively "RSA") have sued a number of entities and persons allegedly involved in, and/or with culpable knowledge of, the events and transactions leading to Enron's filing for bankruptcy. The suit makes claims under the Securities Act of Alabama, Ala. Code § 8-6-1 et seq., the Alabama statutory and common law of fraud, including Ala.Code § 6-5-100 et seq., the state common law of unjust enrichment and constructive trust, and the Securities Act of 1933, specifically 15 U.S.C. § 771(a)(2).[3] The chapter 11 reorganization of Enron is currently pending in the bankruptcy court for the Southern District of New York. Notably, Enron Corporation is not a defendant in this case.
The rapid devaluation of Enron securities has given rise to a large number of lawsuits across the nation. On April 16, 2002, the Judicial Panel on Multidistrict Litigation designated the United States District Court for the Eastern District of Texas as the MDL court for the growing number of suits being filed against Enron and related entities under the nation's securities laws. At present, there are at least 54 suits consolidated in Judge Harmon's court for discovery and pre-trial motion practice. With refreshing candor, the Defendants admit that, although their attempt at removal is based on 28 U.S.C. § 1452, the "bankruptcy removal" statute, their ultimate aim is to have the case transferred to the MDL court in Texas.
At some point during the initial organizational stage of the proceedings in Texas, RSA moved the MDL court to grant it status as an "advisory plaintiff" in Newby v. Enron Corporation, et al., one of the class actions pending before Judge Harmon. The court denied the motion on the basis that the law does not provide for an "advisory plaintiff" under Fed.R.Civ.P. 23. After the court denied the motion, RSA opted out of the pending class action in which it was a putative class member, although not a named plaintiff, and filed this case in the Circuit Court of Montgomery County, Alabama.

III. DISCUSSION

Plaintiffs make a number of arguments in support their motion to remand or abstain, summarized as follows: (1) the removal of this case is procedurally defective, as some of the Defendants failed to join in the removal, (2) the court lacks subject matter jurisdiction under 28 U.S.C. § 1334(b), (3) RSA is an arm of the State of Alabama, and therefore partakes of the State's sovereign immunity, which bars the court from exercising removal jurisdiction over this case, (4) the court should abstain from hearing this case under the permissive abstention provision of § 1334, the mandatory abstention provision of § 1334, or the Burford or Younger abstention doctrines, and (5) the court should remand the case on equitable grounds pursuant to 28 U.S.C. § 1452(b).
Defendants counter that: (1) unanimity of defendants is not required for removals under § 1452, (2) this court does have "related to" bankruptcy jurisdiction over this case under § 1334(b), (3) sovereign immunity is not a bar to removal jurisdiction *1261 where the State is a plaintiff, (4) mandatory abstention under § 1334, and the Burford and Younger doctrines, are not applicable to this case, and the factors to be considered under the § 1334 permissive abstention analysis do not weigh in favor of abstention, and (5) the facts and procedural posture of this case do not support remand under § 1452(b).
In support of their Motion to Transfer, the Defendants contend that the proper way for this court to proceed is to transfer the case under 28 U.S.C. § 1412 or § 1404, or both, to the United States District Court for the Southern District of New York, where the case would immediately be referred to the "home" bankruptcy court there. Once there, Defendants argue, a court with extensive knowledge of the Enron bankruptcy will take up any pending matters, including RSA's motion to remand, unless the case is first transferred from there to Texas by the MDL Panel as a "tag along" action. Defendants cite several cases in support of this "conduit" procedure but concede that no authority compels this result.[4] In other words, Defendants appeal to what is essentially a prudential doctrine in furtherance of the efficiency policies intrinsic to bankruptcy law.[5]
After careful consideration of the parties' respective positions, the court finds that the circumstances of this case weigh in favor of first addressing the issues raised by the Motion to Remand.[6]

A. The Rule of Unanimity and 28 U.S.C. § 1452(a)
Plaintiffs contend that the Defendants' removal in this case is procedurally defective because not all of the Defendants have joined in the Notice of Removal. Defendants counter that unanimity is not required for removals under 28 U.S.C. § 1452, and therefore any Defendant could have removed this entire case without the consent of the others. Accordingly, the *1262 first issue for the court is whether 28 U.S.C. § 1452(a), similar to or by virtue of 28 U.S.C. § 1441(a), requires the joinder of all Defendants for the proper removal of a case based on "bankruptcy jurisdiction."
Generally, the removal of a case under 28 U.S.C. § 1441(a)[7] requires the joinder of all defendants. See, e.g., Northern Illinois Gas Co. v. Airco Indus. Gases, 676 F.2d 270, 272 (7th Cir.1982) ("As a general rule all defendants must join in a removal petition in order to effect removal."); Newman v. Spectrum Stores, Inc., 109 F.Supp.2d 1342, 1345 (M.D.Ala.2000).[8] Unanimity among the defendants must be expressed to the court "within thirty days after receipt by the defendant ... of the copy of the initial pleading" containing the removable claim. 28 U.S.C. § 1446(b).
Conceding the lack of unanimity with respect to the removal of this case, Defendants nonetheless contend that, unlike § 1441, § 1452 does not require that all defendants in a case must join in a petition to properly effect a removal. Chief among the cases cited for this proposition is Creasy v. Coleman Furniture Corp., 763 F.2d 656, 660 (4th Cir.1985) ("Under the bankruptcy removal statute ... any one party has the right to remove the state court action without the consent of the other parties").[9] The Creasy court cited no authority for this interpretation of 28 U.S.C. § 1452, and furthermore, the court forewent any analysis of the language of the statute. See id. In support of its holding, the court opined that "[o]therwise, the policy of having all related bankruptcy matters litigated in one forum would be unnecessarily restricted." Id. at 661 (no citation).
Some courts have relied on Creasy without undertaking any independent analysis of § 1452. See, e.g., Plowman v. Bedford Fin. Corp., 218 B.R. 607, 616 (Bankr. N.D.Ala.1998); In re Eagle Bend Dev., 61 B.R. 451, 456-57 (Bankr.W.D.La.1986). Other courts have simply asserted that § 1452 allows one defendant to remove an entire case, merely citing the statute as support. See, e.g., Daleske v. Fairfield Communities, Inc., 17 F.3d 321 (10th Cir. 1994); Roper v. American Health & Fire Ins. Co., Commercial Credit Corp., 203 B.R. 326, 331 n. 3 (Bankr.N.D.Ala.1996). In another case cited by Defendants, In re *1263 Lazar, 237 F.3d 967, 973 n. 2 (9th Cir. 2001), the Ninth Circuit quoted its own prior opinion, stating that "`those matters falling under the heading of concurrent jurisdiction (i.e., civil actions involving claims that arise under or in or are related to Title 11 proceedings) may be filed originally in state court, then subsequently removed by one of the parties to federal district court.'" Id. (quoting In re Harris Pine Mills, 44 F.3d 1431, 1435 (9th Cir. 1995) (offering no analysis for this interpretation)).
The Lazar court also cited 16 James Wm. Moore et al., Moore's Federal Practice § 107.15[8][b] (3d ed.2000), for the proposition that "unlike the general removal statute [§ 1441], which authorizes only defendants to remove, the bankruptcy removal statute authorizes any party to remove." 237 F.3d at 973 n. 2. While it is true that the referenced section of Moore's Federal Practice does contain that statement, just a few lines down it reads, "[b]ankruptcy removal applies only to the claims supported by bankruptcy jurisdiction, rather than the entire civil action, unless the federal district court has jurisdiction over the other claims." Moore's, § 107.15[8][b] (citing 28 U.S.C. § 1452) (emphasis added).
The only case cited by Defendants that offers any textual analysis of § 1452(a) vis a vis § 1441(a) is Sommers v. Abshire, 186 B.R. 407, 408-09 (E.D.Tex.1995), in which the court held that "section 1452 does not require that all defendants join in the removal of a state court proceeding." The Sommers court emphasized that, in contrast to § 1441(a), § 1452 provides that "`[a] party may remove any claim or cause of action in a civil action...." 186 B.R. at 409. Citing Creasy and noting the obvious difference between "[a] party" and "the defendants," the court went on to hold that "any defendant has the right to remove a state court action without the consent of the other parties." Id.
In Ross v. Thousand Adventures of Iowa, 178 F.Supp.2d 996, 1001-02 (S.D.Iowa 2001), the court disagreed with the analysis of Sommers, opining that the Sommers court's "attachment of significance to the use of the term `a party' seems misplaced." The court reasoned:
[28 U.S.C. §] 1446(a)[10] also states that "[a] defendant" can file a notice of removal, yet there is no question that the unanimity rule applies. The fact that "a defendant" or "a party" may file the notice of removal, based on federal question jurisdiction or related-to-bankruptcy jurisdiction, does nothing to dilute the unanimity rule when multiple defendants seek to remove a case to federal court. Under either scenario, if one properly served defendant does not join in removal and is not excused from joinder by one of the three exceptions, the case is not properly removed and should be remanded.
Id. at 1002. It appears to this court that the Ross court's comparison of the language of § 1452(a) to that of § 1446(a) may be unavailing, as § 1446 provides the procedure for removal, whereas § 1441 authorizes removal based on federal question or diversity jurisdiction.[11] Similarly, *1264 § 1452(a) authorizes bankruptcy jurisdiction removal. The analysis, however, does raise an important question: does the Sommers court's rationale place too much weight on the "a party" language of § 1452(a)?
To reiterate, § 1452 reads, in pertinent part: "[a] party may remove any claim or cause of action in a civil action ...." (emphasis added). In the opinion of this court, it is a misreading of the plain language of § 1452 to interpret "claim or cause of action in a civil action" as authorizing "a party" to remove an entire case, a "civil action," from state court. If authorizing the removal of an entire case by any party asserting or defending against a claim related to a bankruptcy was the intent of Congress, why would it use language that markedly differs from that of § 1441(a) ("any civil action ... may be removed")? The more sensible reading seems to be that § 1452 authorizes a party to remove a particular "claim or cause of action" that touches on the administration of a bankruptcy estate, but not an entire "action" involving claims and other parties that may have nothing to do with the bankruptcy.[12] Section 1452 does refer to "any claim or cause of action," but interpreting this phrase as allowing a defendant to remove a claim against another defendant, over that defendant's and the plaintiff's objections, would raise serious due process questions. As noted earlier, one of the Defendants in this case, Arthur Andersen, L.L.P., not only did not consent to removal of the claims against it but, in the Motion to Transfer, specifically stated that it did not "voluntarily consent or submit to the jurisdiction of the Bankruptcy Court."
Cognizant of the many courts that have held to the contrary, this court is hesitant to base its decision to remand on the ground that Defendants' removal in this case was procedurally defective. The foregoing discussion, however, illustrates a very serious concern this court has regarding the proper use of the procedure by which this case has come before the court.[13]

*1265 B. "Related To" Jurisdiction
RSA also argues that the court should remand this case for lack of subject matter jurisdiction, as the claims involved in this case are not within the ambit of § 1334(b)'s "related to" jurisdiction. Essentially, RSA contends that the claims in this case are too remote from the Enron bankruptcy to sustain "related to" jurisdiction. The Defendants assert, however, that this case could give rise to enforceable indemnities and rights to contribution against Enron under various statutes, contracts, and Director & Officer insurance policies. Accordingly, Defendants contend, the outcome of this case could substantially affect the administration of the Enron bankruptcy estate. RSA counters that unliquidated, speculative claims for indemnity or contribution do not give rise to "related to" jurisdiction under § 1334(b).
The Eleventh Circuit has expressly adopted the "related to" jurisdiction test expounded by the Third Circuit in Pacor v. Higgins, 743 F.2d 984, 994 (3d Cir.1984), where the court stated:
The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy. (citations omitted). Thus, the proceeding need not necessarily be against the debtor or against that debtor's property. An action is related to bankruptcy if the outcome could alter the debtor's rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate.
See In re Toledo, 170 F.3d 1340, 1345 (11th Cir.1999) (citing In re Lemco Gypsum, Inc., 910 F.2d 784, 788 (11th Cir.1990)). In Toledo, the court noted that "[t]he key word in the Lemco Gypsum / Pacor test is `conceivable,' which makes the jurisdictional grant extremely broad." 170 F.3d at 1345 (citing In re Marcus Hook Dev. Park, Inc., 943 F.2d 261, 264 (3rd Cir.1991)).
The Pacor court, however, tempered its broad definition of "related to" with the following passage:
On the other hand, the mere fact that there may be common issues of fact between a civil proceeding and a controversy involving the bankruptcy estate does not bring the matter within the scope of [former] section 1471(b). Judicial economy itself does not justify federal jurisdiction. See generally Aldinger v. Howard, 427 U.S. 1, 15, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976).
743 F.2d at 994. Analyzing a situation quite similar to the one presently before the court, the Pacor court went on to hold:
Our examination of the Higgins-Pacor-Manville controversy leads us to conclude that the primary action between Higgins and Pacor would have no effect on the Manville bankruptcy estate, and therefore is not "related to" bankruptcy within the meaning of [former] section 1471(b). At best, it is a mere precursor to the potential third party claim for indemnification by Pacor against Manville. Yet the outcome of the Higgins-Pacor action would in no way bind Manville, in that it could not determine any rights, liabilities, or course of action of the debtor. Since Manville is not a party to the Higgins-Pacor action, it could not be bound by res judicata or collateral estoppel. (citations omitted). Even if *1266 the Higgins-Pacor dispute is resolved in favor of Higgins (thereby keeping open the possibility of a third party claim), Manville would still be able to relitigate any issue, or adopt any position, in response to a subsequent claim by Pacor. Thus, the bankruptcy estate could not be affected in any way until the Pacor-Manville third party action is actually brought and tried. Id. at 995. Accordingly, it appears that under the Pacor test, actions between non-debtors that may give rise to indemnity claims against a bankruptcy estate are not sufficiently "related to" bankruptcy so as to support jurisdiction under § 1334(b). See also Wise v. Travelers Indemnity Co., 192 F.Supp.2d 506, 514-517 (N.D.W.Va.2002) (collecting cases); In re Asbestos Litigation, 2002 WL 649400, *4 (D.Or.2002); Armstrong v. Honeywell Int'l, Inc., 2002 WL 744676, *1 (S.D.Tex.2002); In re VideOcart, Inc., 165 B.R. 740, 744 (Bankr.D.Mass.1994); Da Silva v. American Savings, 145 B.R. 9, 12 (S.D.Tex.1992).
At least two courts have held, however, that potential claims for indemnity or contribution against a debtor in bankruptcy can indeed give rise to bankruptcy jurisdiction under § 1334(b). See Belcufine v. Aloe, 112 F.3d 633, 636-37 (3d Cir.1997); In re Dow Corning Corp., 86 F.3d 482, 490-494 (6th Cir.1996). In Dow Corning, the Sixth Circuit noted that "[i]t has become clear following Pacor that `automatic' liability is not necessarily a prerequisite for a finding of `related to' jurisdiction." 86 F.3d at 491 (citing In re Marcus Hook Dev. Park Inc., 943 F.2d 261, 264 (3d Cir.1991)). In Marcus Hook, the Third Circuit commented:
A key word in [the] test is "conceivable." Certainty, or even likelihood, is not a requirement. Bankruptcy jurisdiction will exist so long as it is possible that a proceeding may impact on "the debtor's rights, liabilities, options, or freedom of action" or the "handling and administration of the bankruptcy estate."
943 F.2d at 264.
Marcus Hook, however, did not involve potential indemnity claims, but rather a motion for a final decree closing a bankruptcy case. See id. at 262. Accordingly, interpreting Marcus Hook as an abrogation or modification of the Pacor test is a questionable proposition. Nevertheless, the Dow Corning court held that bankruptcy jurisdiction did exist based on potential claims for indemnity between a debtor and several solvent co-defendants, largely basing its decision on the "qualitative difference" between the single suit in Pacor and the "thousands of potential indemnification claims" attendant to the breast implant litigation involving Dow Corning and its co-defendants. 86 F.3d at 494.
In Belcufine, the suit at issue potentially implicated contractual indemnity claims by officers against their bankrupt company. 112 F.3d at 634. Without addressing the question of whether such claims might be litigated by the bankrupt company subsequent to a judgment against the defendant officers, the court held that the broad language of Pacor, coupled with that case's recognition (in dicta) that contractual indemnity claims could have an effect on a bankruptcy estate, supported bankruptcy jurisdiction over the suit between employees of the company and the non-debtor officers. Id. at 636-37. The situation in Belcufine, however, was somewhat unique. The third party suit resulted from the officers' failure to direct payment of the employees' wages, but the officers were prevented from doing so by operation of bankruptcy law. Id. at 634. Furthermore, the company's liability for the officers' potential liability was clear from the company's bylaws and apparently undisputed. Id. at 636. Accordingly, Belcufine is best *1267 interpreted as an exception or special case in the context of the Pacor test.
In discussing the Pacor test, the Eleventh Circuit has emphasized the breadth of "related to" jurisdiction by echoing the Marcus Hook court's focus on the word "conceivable." See In re Toledo, 170 F.3d at 1345. Toledo involved a suit that had the potential to affect the value of a property interest that was an asset of the subject bankruptcy estate. Id. at 1345-46. Although the outcome of the suit had no actual effect on the estate, the court held that some effect was conceivable at the time the bankruptcy court heard the case, and this was enough to support jurisdiction. Id.
The Toledo court's stress on "conceivable" may suggest that the Eleventh Circuit is more inclined to follow the Sixth Circuit's lead in Dow Corning, rather than follow the holding of Pacor. Since Toledo did not involve potential indemnity claims, however, this is to some degree a matter of speculation. At bottom, the question is whether "any conceivable effect" means that the potential outcome of a case, however remote a possibility, will have a direct effect on a bankruptcy estate, or that the outcome of a case may give rise to a potential effect. Given the current state of the law, this appears to be an open question in the Eleventh Circuit.
The Defendants have produced a number of excerpts from agreements between them and Enron that, they claim, establish rights of indemnity against Enron in the event that they are held liable in this case. Furthermore, Defendants argue, they will be entitled to indemnification and contribution from Enron pursuant to the state and federal laws that form the basis of this suit. The Defendants concede, however, that there is some uncertainty with respect to the viability of these potential claims. See Transcript of Hearing on Outstanding Matters at 23-24. Accordingly, the court is of the opinion that, at the very least, subject matter jurisdiction in this case is rather unclear. Like the aforementioned uncertainty with respect to the procedural propriety of the Defendants' removal, this question about subject matter jurisdiction gives the court great pause with regard to whether it should proceed with this case.

C. Discretionary Abstention Under § 1334(c)(1)
RSA also contends that, even assuming this case was properly removed and this court has jurisdiction under § 1334(b), the court should abstain under the permissive abstention provision of § 1334. Section 1334(c)(1) provides:
Nothing in this section prevents a district court in the interest of justice, or in the interest of comity with state courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11.[14]
Although this provision does not provide specific factors to be considered, courts have developed a set of considerations to aid in the determination of whether abstention in this context is warranted: (1) the effect, or lack thereof, on the efficient administration of the bankruptcy estate if *1268 the discretionary abstention is exercised, (2) the extent to which state law issues predominate over bankruptcy issues, (3) the difficulty or unsettled nature of the applicable state law, (4) the presence of related proceedings commenced in state court or other non-bankruptcy courts, (5) the jurisdictional basis, if any, other than § 1334, (6) the degree of relatedness or remoteness of the proceedings to the main bankruptcy case, (7) the substance rather than the 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 on 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 jury trial, and (12) the presence in the proceeding of non-debtor parties. See Cassidy v. Wyeth-Ayerst Laboratories, 42 F.Supp.2d 1260, 1263 (M.D.Ala.1999) (citing Matter of Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 6 F.3d 1184, 1189 (7th Cir.1993)).
RSA argues that several factors present in this case weigh in favor of discretionary abstention: (1) state law issues predominate over the bankruptcy aspect of this case, (2) there is no other jurisdictional basis for removal of this case besides § 1452, (3) all of the parties to this case are non-debtors, (4) the Defendants are using the bankruptcy jurisdiction of the federal courts to forum-shop, (5) RSA would not be a party to any proceeding involving the indemnity or contribution claims by these Defendants against Enron, and (6) the assertion of bankruptcy jurisdiction over this case may interfere with RSA's right to a trial by jury.
Defendants argue that this case will necessarily affect the administration of the bankruptcy estate and therefore abstention is not warranted. Additionally, Defendants cite Wilson v. Alfa Cos., 207 B.R. 241, 249 (Bankr.N.D.Ala.1996), for the proposition that the potential for "duplicative and uneconomical use of judicial resources" is another factor to be considered. Defendants assert that if this case is remanded and allowed to proceed in state court, it will entail a wasteful and duplicative use of judicial resources. Furthermore, Defendants argue, if this case proceeds in state court it may have a disruptive effect on the centralized litigation of Enron-related matters by potentially creating collateral estoppel effects.
It is undisputed that there are significant differences between the federal securities laws and the securities laws of Alabama. See Transcript of Hearing on Outstanding Matters at 72. RSA points to significantly less burdensome proof elements and the existence of liability for aiders and abettors in securities fraud cases. Id. at 61-64. Without contesting these differences, the Defendants argue that the Alabama securities laws do not present difficult or undecided questions of state law uniquely suited for determination by the state courts of Alabama. Id. at 72. Without more guidance from the parties, it is difficult for the court to know whether the parties' contentions have merit. But two points are clear  this suit is primarily based on state law, and there is an absence of any per se bankruptcy issues.
Furthermore, Defendants concede there is no other jurisdictional basis for this case besides § 1452 and § 1334(b), and that the bankruptcy jurisdiction provisions are being used in an attempt to get the case to Texas. While this case does share important elements with the cases consolidated in Judge Harmon's MDL court, the fact that Defendants admit that their ultimate aim is to have it transferred to Texas, and, *1269 in fact, have now actually obtained a conditional transfer, only underscores the remoteness of this case from the Enron bankruptcy. Furthermore, RSA has demanded, and has a right to, a jury trial in this case, which would be problematic in the event of a transfer to a bankruptcy court.
There are two other considerations under the comity rubric that weigh heavily in favor of permissive abstention pursuant to § 1334(c)(1). The first is the special interests of states in the context of securities litigation, as embodied in 15 U.S.C. § 77p(d)(2)(A) and § 77v(a). 15 U.S.C. § 77p(d)(2)(A) exempts from the preemption provisions of the Securities Litigation Uniform Standards Act ("SLUSA") state governments and specifically state pension plans. This exemption, it is argued, embodies a Congressional recognition of the special needs of state governments and pension plans to be able to pursue state law remedies in state courts in order to protect their pensioners and taxpayers from securities fraud. 15 U.S.C. § 77v(a) disallows the removal of actions under the Securities Act of 1933 from any state court of competent jurisdiction. At a minimum, these provisions clearly evince a policy of special respect for the forum choices of state pension plans with regard to securities claims and for state courts whose jurisdiction is invoked to hear them, and adds a strong reason for abstention in this case not present in most other cases.
The second consideration centers around the legal uncertainty inherent in the procedural propriety of the Defendants' removal and the question of whether subject matter jurisdiction exists in this case, discussed supra. As noted, the Eleventh Circuit favors remand in situations where a court's subject matter jurisdiction is unclear. See Burns, 31 F.3d at 1095. Furthermore, it is a long-standing principle of federal jurisdiction that because of the comity and federalism concerns attendant to the removal of cases from state courts, federal courts should remain evervigilant over the limits of their own jurisdiction. See, e.g., Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Adams v. Aero Services Int'l, Inc., 657 F.Supp. 519, 521 (E.D.Va.1987) ("Removal of cases to federal court is an infringement on state sovereignty.") In Shamrock Oil, the Court opined:
Not only does the language of the Act of 1887 evidence the Congressional purpose to restrict the jurisdiction of the federal courts on removal, but the policy of the successive acts of Congress regulating the jurisdiction of federal courts is one calling for the strict construction of such legislation. The power reserved to the states under the Constitution to provide for the determination of controversies in their courts, may be restricted only by the action of Congress in conformity to the Judiciary Articles of the Constitution. "Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined."
313 U.S. at 108-09 (quoting Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 78 L.Ed. 1248 (1934)).
As demonstrated by the discussions in the foregoing sections of this memorandum opinion, serious questions pervade the court's alleged jurisdiction over this case. Given the attenuated connection between this case and the Enron bankruptcy, this case is at best somewhere on the margin of federal jurisdiction, and therefore comity and respect for state law militate in favor of abstention under § 1334(c)(1). The court recognizes that the ends of judicial *1270 economy might be well-served by the consolidation of this case with others before the MDL court, but judicial economy alone is not enough to override the comity concerns embodied in § 1334(c)(1). See Pacor, 743 F.2d at 994. The factors favoring abstention far outweigh those against it. Accordingly, the court concludes that, assuming it has jurisdiction in the first instance, as contended by the removing Defendants, it should abstain from hearing this case. Therefore, the case will be remanded to the Circuit Court of Montgomery County, Alabama. Because of the decision to abstain under § 1334(b), the court does not reach the additional issues raised by RSA.
A separate Order will be entered in accordance with this Memorandum Opinion.

ORDER
In accordance with the Memorandum Opinion entered on this day, it is hereby ORDERED as follows:
1. Plaintiff's Motion to Remand or Abstain is GRANTED.
2. Defendants' Motion to Transfer Venue and all other pending motions except Defendant Kenneth Lay's Motion to Dismiss are DENIED as moot.
3. This case is REMANDED to the Circuit Court of Montgomery County, Alabama. The clerk is DIRECTED to take appropriate steps to effect the remand.
4. Defendant Kenneth Lay's Motion to Dismiss is left for disposition by the state court.
NOTES
[1]  The court notes that Defendants Kenneth Lay, Jeffrey Skilling, and Andrew Fastow did not join in this Motion to Transfer, nor in the Notice of Removal (Doc. # 1). Also, Defendant Arthur Andersen L.L.P. did not join in the Notice of Removal, and furthermore, the Defendants' Motion to Transfer states that "[b]y joining in this motion, Arthur Andersen L.L.P. does not voluntarily consent or submit to the jurisdiction of the Bankruptcy Court." Motion to Trans. at 1 n. 1.
[2]  28 U.S.C. § 1452(a) provides:

A party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental unit's police or regulatory power, to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title.
28 U.S.C. § 1334 provides, in pertinent part:
(a) Except as provided in subsection (b) of this section, the district court shall have original and exclusive jurisdiction of all cases under title 11.
(b) Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.
[3]  Although RSA asserts this federal claim, removal under 28 U.S.C. § 1331 on the basis of federal question jurisdiction is proscribed by the Securities Act of 1933 itself: "[n]o case arising under this subchapter and brought in any state court of competent jurisdiction shall be removed to any court of the United States." 15 U.S.C. § 77v(a). Therefore, Defendants recognize that the only possible basis for removal is "related to" bankruptcy jurisdiction, pursuant to 28 U.S.C. § 1452.
[4]  See, e.g., In re Aztec Industries, Inc., 84 B.R. 464, 467 (Bankr.N.D.Ohio 1987) (holding that "Plaintiffs removal of the state court action to this District, in order to transfer the case to the Bankruptcy Court for the Northern District of Oklahoma, appears to be the correct procedural approach."). The court reasoned:

The venue issues raised by the parties require an examination of both the case to be transferred and its relationship to the Aztec Bankruptcy case. Obviously, the Oklahoma Court is more familiar with the pending Bankruptcy case and what may be required for its efficient administration. In addition, the Court which would try the case can better evaluate all the interests involved, and determine its own expertise in the particular areas of the law which form the basis of the action, as well as its own scheduling and time constraints. This Court's speculation on these matters would not be an adequate substitute for a knowledgeable determination based upon the actual facts and circumstances.
Id. But see Renaissance Cosmetics, Inc. v. Development Specialists Inc., 277 B.R. 5, 11 (S.D.N.Y.2002) ("courts faced with cross-motions for remand and change of venue [in bankruptcy removal cases] consider the remand motion first and, if remand is denied, turn to the motion for change of venue" and collecting cases).
[5]  On May 24, 2002 the MDL Panel entered a Conditional Transfer Order conditionally transferring this case, at the request of Defendants, directly from this court to the Southern District of Texas as a "tag along action." This conditional transfer, of course, does not affect pretrial proceedings in this court (Panel Rule 1.5, 199 F.R.D. 425, 427 (2001)), but it does call this argument into question.
[6]  Additionally, there is some question as to whether 28 U.S.C. § 1412 is applicable to the proposed transfer. Some courts have held that § 1412 does not apply to the transfer of "related to" bankruptcy cases. See, e.g., Rumore v. Wamstad, 2001 WL 1426680, *2, 2001 U.S.Dist. LEXIS 19064, *7 (E.D.La.2001). If § 1412 is inapplicable, the presumption in favor of the "home" bankruptcy court would not be present.
[7]  28 U.S.C. § 1441(a) provides, in pertinent part:

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
[8]  There are three generally recognized exceptions to the rule of unanimity: (1) a co-defendant has not been served at the time the removal petition was filed, (2) a co-defendant is only a nominal defendant, and (3) the removed claim is separate and independent under 28 U.S.C. § 1441(c). See, e.g., Jones v. Kremer, 28 F.Supp.2d 1112, 1113 n. 2 (D.Minn.1998). Assuming the rule of unanimity is applicable to this case, the court notes that the only exception that colorably applies here is the first, as Kenneth Lay alleges in a motion to dismiss that he was not properly served. Defendants have not argued the exceptions, and in any event, the service-after-the-petition exception would not apply to the three other Defendants who have not joined in the removal (Fastow, Skilling, and Arthur Andersen).
[9]  Citing the court to 9 Am.Jur.2d Bankruptcy § 664, the Defendants argue that this proposition is "recognized as hornbook law." Def. Brief in Further Support (Doc. # 30) at 2. That section does indeed state that "[u]nder the bankruptcy removal statute, any one party has the right to remove a state court action without the consent of the other parties...." Id. The authority relied upon for this proposition, however, is the Creasy decision. See id.
[10]  28 U.S.C. § 1446(a) provides:

A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
[11]  See note 3, supra ("the defendant or the defendants").
[12]  This interpretation makes even more sense when considered in the context of a district court's "related to" jurisdiction under § (1334(b)), discussed infra in section III.B. of this memorandum opinion. Aware of the constitutional problems lurking on the margins of bankruptcy jurisdiction, Congress perhaps sought to avoid an overbroad grant of removal jurisdiction that would improperly bring parties and claims with no relationship to a bankruptcy case into federal court. See Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982).
[13]  This concern is deepened by the Supreme Court's decision in Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995). The Court held that the bar to appellate review of remand orders embodied in 28 U.S.C. § 1447(d), which applies to remand orders pertaining to cases removed on the bases of federal question and diversity jurisdiction, also applies to remand orders in cases removed under § 1452(a). Id. at 128. The court reasoned:

There is no express indication in § 1452 that Congress intended that statute to be the exclusive provision governing removals and remands in bankruptcy. Nor is there any reason to infer from § 1447(d) that Congress intended to exclude bankruptcy cases from its coverage. The fact that § 1452 contains its own provision governing certain types of remands in bankruptcy, see § 1452(b) (authorizing remand on "any equitable ground" and precluding appellate review of any decision to remand or not on this basis), does not change our conclusion. There is no reason §§ 1447(d) and 1452 cannot comfortably coexist in the bankruptcy context. We must, therefore, give effect to both. Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992).
Id. at 129. See also Belcufine v. Aloe, 112 F.3d 633, 637 n. 6 (3rd Cir.1997) (acknowledging that the circuit's prior position that "sections 1441-1447 were never meant to be read into the procedures for bankruptcy removals" was called into question by the Supreme Court's decision in Petrarca). Accordingly, there is a substantial possibility that the unanimity requirement of § 1441 is also applicable to removals under § 1452, at least where a group of defendants seeks to remove an entire case or "civil action."
[14]  It has been noted that § 1334(c)(1) "is substantially the same as former section 1471(d) of title 28." In re Pan American Corp., 950 F.2d 839, 845 (2d Cir.1991). Accordingly, "the legislative history of former section 1471(d) remains an important reference when construing its successor." Id. The House Report accompanying the 1978 legislation comments that the permissive abstention provision functions "to insure that [bankruptcy jurisdiction] is exercised only when appropriate to the expeditious disposition of bankruptcy cases...." H.R.Rep. No. 595, 95th Cong., 1st Sess. 51 (1977), reprinted in 1978 U.S.Code Cong. & Admin. News 5963, 6012.


688 F.2d 826
U. S.v.Peacock
82-5017
UNITED STATES COURT OF APPEALS Third Circuit
6/18/82

1
D.N.J.

AFFIRMED


676 So.2d 1068 (1996)
STATE of Louisiana
v.
Sydney SMITH.
No. 95-K-0061.
Supreme Court of Louisiana.
July 2, 1996.
Rehearing Denied September 3, 1996.
Richard P. Ieyoub, Attorney General, Harry F. Connick, District Attorney, and Jack Peebles, Asst. Dist. Attorney, for Applicant.
Sherry Watters, New Orleans, for Respondent.
JOHNSON, Justice.[*]
We granted certiorari in this case to determine whether the defendant's right against double jeopardy was violated. After the trial concluded, a jury convicted defendant of both manslaughter and second degree feticide. He was sentenced to concurrent terms of 30 years at hard labor and 10 years at hard labor respectively. Defendant appealed his convictions to the fourth circuit. The appellate court pretermitted relator's constitutional challenge to the facial validity of Louisiana's feticide statute along with his argument that the trial court's sentences were excessive. However, they concluded that because "the same evidence" used to convict defendant of manslaughter was also used to convict him of second degree feticide, his rights against double jeopardy were violated. The conviction and sentence for second degree feticide were vacated but the conviction for manslaughter was affirmed. The sentence for the manslaughter conviction was also vacated with the case being remanded for resentencing. State v. Smith, 94-0621, 647 So.2d 1321 (La.App. 4th Cir.1994). For the reasons that follow, we hold that there was no violation of defendant's right against double jeopardy, reverse the decision rendered by the court of appeal, and reinstate the convictions and sentences imposed by the trial court.

FACTS AND PROCEDURAL HISTORY
The facts of this matter are undisputed. Defendant and decedent, Rosalyn Collins were living together in an apartment in New Orleans, Louisiana. During the evening hours of June 17, 1993, the couple apparently argued over defendant's drinking. Defendant choked Ms. Collins and then fell asleep. After being unsuccessful in trying to wake *1069 her the next morning, defendant asked decedent's sister, Wanda Trepagnier and her boyfriend, Kenneth Bodden to accompany him to their apartment. Paramedics were summoned to the scene. Cornell Wolfe, an emergency medical technician testified at trial that when he touched the victim, she was cold and that rigor mortis had set in.
Luther Lumpkin of the New Orleans Police Department was the first officer to arrive at the scene. At trial, Officer Lumpkin testified that the victim's bedroom indicated that a struggle had taken place because things had been knocked around and the mattress was pushed off the bed. Defendant informed Ms. Trepagnier, Mr. Bodden, Mr. Wolfe and Officer Lumpkin that he strangled the victim.
On August 5, 1993, the state charged defendant in a single bill of information with second degree murder and second degree feticide. The charges stemmed from the deaths of both Ms. Collins and the fetus she carried. After the trial was complete, defendant was convicted of manslaughter for killing Ms. Collins. The jury found him guilty on the charge of second degree feticide.
On appeal, defendant's conviction and sentence was affirmed in part, vacated in part and remanded. In his application to the court of appeal, defendant argued that the trial court erred in denying his motion to quash the indictment based on a violation of his right against double jeopardy. The court of appeal agreed finding that because the same evidence used to convict defendant of manslaughter was also used to convict on the charge of second degree feticide. The court stated that "it is apparent that the defendant's convictions for manslaughter and second degree feticide violate his right against double jeopardy."[1]

DISCUSSION
Both the United States and the Louisiana Constitutions protect individuals against the peril of twice being put in jeopardy for the same offense. In pertinent part, the Fifth Amendment of the U.S. Constitution provides "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." Similar language is contained in the Louisiana Constitution. See La. Art. 1 § 15.[2]
Protection against double jeopardy is divided into three fundamental guarantees, namely: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and, (3) protection against multiple punishment for the same offense. State v. Mayeux, 498 So.2d 701 (La.1986). North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1989).
Louisiana courts have applied two distinct tests to determine whether offenses are the same for double jeopardy purposes. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the U.S. Supreme Court set out a precise rule of law to determine if a double jeopardy violation has transpired. The Blockburger test is as follows:
"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions the test to be applied to determine whether there are two different offenses or only one, is whether each provision requires proof of an additional fact which the other does not."
See State v. Coody, 448 So.2d 100 (La.1984); State v. Vaughn, 431 So.2d 763 (La.1983); State v. Knowles, 392 So.2d 651 (La.1980); and State v. Doughty, 379 So.2d 1088 (La. 1980).
The other standard employed by our courts is the "same evidence" test. This test tell us:
"If the evidence required to support a finding of guilt of one crime would also have supported a conviction for the other, the two are the same under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for a *1070 conviction, not all of the evidence introduced at trial."
See Coody, supra at 102; Vaughn, supra at 766; and State v. Steele, 387 So.2d 1175 (La.1980). Also see State v. Miller, 571 So.2d 603 (La.1990).
Additionally, with instances involving multiple punishment, legislative intent must be examined. Even when offenses are the same because each crime does not require proof of a fact that the other does not or because the evidence required to sustain a conviction for one offense may also sustain a conviction for the other, a clear expression of the legislature may overcome the presumption against multiple punishment and sanction cumulative penalties in a single proceeding. In Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the court stated "[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended."[3] In each instance, legislative intent must be ascertained. If the legislature has failed to reveal its intention, courts should proceed cautiously and remain sensitive to the interests of both the defendant and society. All relevant evidence must be considered and common sense will often be the most useful technique. See State v. Smith, 475 So.2d 331 (La.1985).
Because the court of appeal set aside the conviction for second degree feticide using the same evidence test, our focus will be directed there. The jury convicted defendant for both manslaughter and second degree feticide. Louisiana R.S. 14:31.A defines manslaughter as:
(1) A homicide which would be murder under either Article 30 (first degree murder) or 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed; or
(2) A homicide committed, without any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or any intentional misdemeanor directly affecting the person; or
(b) When the offender is resisting arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the killing would not be murder under Article 30 or 30.1.
Feticide is not a crime which is suis generis to our state. California defines murder, in part as the unlawful killing of a "human being or fetus with malice aforethought."[4] Arizona punishes the killing of an unborn child as fetal manslaughter.[5] Indiana punishes feticide as a Class C felony and is defined as the knowing or intentional termination of pregnancy, with the intention other than to produce life.[6] In Louisiana, the crime of feticide was added by acts 1989, No. 777 § 1 and is classified into three categories, First degree, Second degree or Third degree.[7] Second degree feticide is defined in La.R.S. 14:32.7 as:
(1) The killing of an unborn child which would be first degree feticide, but the offense is committed in sudden passion or heat of blood immediately caused by the provocation of the mother of the unborn child sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a first degree feticide if the jury finds that the offender's blood had actually cooled, or that an average *1071 person's blood would have cooled, at the time the offense was committed.
(2) A feticide committed without any intent to cause great bodily harm:
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 32.6 (first degree feticide), or of any intentional misdemeanor directly affecting the person; or
(b) When the offender is resisting lawful arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the killing would not be first degree feticide under Article 32.6.
Since this court has never faced the underlying issue, we look to other jurisdictions. In Ward v. State, 262 Ga. 293, 417 S.E.2d 130 (1992), following a jury trial, the defendant was convicted of several crimes including murder and feticide. Ward contended that state law precluded a conviction for both murder of the mother and feticide. The Georgia Supreme Court disagreed and affirmed the convictions finding that Ward's analysis was improper. The court stated "the `"same evidence"' of an accused may support his conviction of more than one crime so long as one crime is not included in the other as a matter of law or fact." Ward, supra at 137.
In People v. Shum, 117 Ill.2d 317, 111 Ill.Dec. 546, 512 N.E.2d 1183 (1987), defendant was convicted of murder, feticide and other crimes. Shum argued that his feticide conviction should have been reversed because it arose from the single act of killing the mother. In affirming his convictions for both feticide and murder, the Supreme Court of Illinois stated "in the instant cause of action there were two distinct victims of the defendant's single action, Gwendolyn Whipple and her unborn child." Shum, supra, 111 Ill.Dec. at 564, 512 N.E.2d at 1201. On appeal to the U.S. Supreme Court, the petition for writ of certiorari was denied. See Keith Shurn v. Illinois (No. 87-6014) 484 U.S. 1079, 108 S.Ct. 1060, 98 L.Ed.2d 1022 (1988); Rehearing denied, 485 U.S. 1015, 108 S.Ct. 1492, 99 L.Ed.2d 719 (1988).
Although defendant was charged with committing second degree murder, the jury found that the evidence introduced at trial proved defendant's act in killing Ms. Collins equated to manslaughter. Expert testimony showed that the victim suffered a fracture of the hyoid bone and was four months pregnant when she died at the hands of defendant.[8] Undoubtedly, the evidence used to convict defendant of manslaughter, i.e. his strangulation of the victim, was the underlying cause for the fetus' death, therefore, the court of appeal concluded that defendant's multiple convictions violated his right against double jeopardy because the "same evidence" was used.
This conclusion is flawed for several reasons. While an argument may be made such that the principles of double jeopardy may prohibit successive trials for second degree murder and second degree feticide, or even manslaughter and second degree feticide if the "same evidence" is used to convict a defendant of murder or manslaughter for the death of the mother and then for the termination of the unborn fetus, such argument is meritless. The facts of this case show that defendant's convictions resulted in cumulative punishments and were obtained at a single proceeding, therefore, we look to the intent of the legislature.
As an element of manslaughter (La.R.S. 14:31), the legislature explicitly states that a homicide or killing of an individual must take place.[9] As an element of second degree feticide or any other grade, the legislature states that the killing of an unborn child must take place. Therefore, it is abundantly clear that the legislature intended that the two instant *1072 crimes are separate and distinct, and are not lesser or included offenses of each other.[10]
Applying the principle of "common sense" enunciated in State v. Smith, supra, had the legislature not intended that a perpetrator be penalized separately for killing an unborn child where the mother is also killed, it would not have made feticide a crime. The two statutes were aimed at different evils which proves that the court of appeal erred when the conviction for second degree feticide was set aside based on the "same evidence" test. Killing the mother was an element of manslaughter, not second degree feticide, whereas killing of the unborn child was an element of second degree feticide and not manslaughter. These two crimes involve different elements and require different proof. Hence, the jury did not violate the defendant's right against double jeopardy when it imposed separate punishments.

DECREE
For the reasons assigned, the Fourth Circuit's judgment is reversed and this case is remanded to the court of appeal to consider any remaining assignments of error consistent with the views expressed herein.
REVERSED AND REMANDED.
NOTES
[*]  Because of the vacancy created by the resignation of Dennis, J., now a judge with the United States Court of Appeals for the Fifth Circuit, there was no justice designated "not on panel" under Rule IV, Part II, § 3. The panel included Justice Johnson, Chief Justice Calogero and Justices Marcus, Watson, Lemmon, Kimball and Victory.
[1]  Id. at 1326.
[2]  In part, the article states "No person shall be twice placed in jeopardy for the same offense, except on his application for new trial, where mistrial is declared, or when a motion in arrest of judgment is sustained."
[3]  Id. 459 U.S. at 366, 103 S.Ct. at 678.
[4]  Cal.Penal Code § 187.
[5]  A.R.S. § 13-1103(A)(5) ("[k]nowing or recklessly causing the death of an unborn child at any stage of its development by any physical injury to the mother ... which would be murder if the death of the mother had occurred.").
[6]  I.C. XX-XX-X-X.
[7]  La.R.S. 14:32.5.
[8]  Dr. Richard Tracey, an expert in forensic pathology performed the autopsy and testified that the victim was four months pregnant and evidence at trial proved that defendant was aware of the pregnancy. Also, Dr. Tracy testified that the hyoid bone is little bone located at the base of the tongue which can only be broken during manual strangulation. He further testified that the fetus was alive at the time of the mother's death and appeared to be progressing normally. See court of appeal opinion at 1323.
[9]  See La.R.S. 14:29.
[10]  See La.R.S. 14:5.


                          NONPRECEDENTIAL DISPOSITION
                  To be cited only in accordance with Fed. R. App. P. 32.1

                  United States Court of Appeals
                                   For the Seventh Circuit
                                    Chicago, Illinois 60604

                                   Submitted April 13, 2016
                                    Decided April 13, 2016

                                            Before

                            JOEL M. FLAUM, Circuit Judge

                            KENNETH F. RIPPLE, Circuit Judge

                            DAVID F. HAMILTON, Circuit Judge

No. 15‐2723
                                                    Appeal from the United States District
UNITED STATES OF AMERICA,                           Court for the Northern District of Illinois,
      Plaintiff‐Appellee,                           Eastern Division.

      v.                                            No. 10 CR 143

EDGAR HERNANDEZ,                                    Samuel Der‐Yeghiayan,
      Defendant‐Appellant.                          Judge.

                                           O R D E R

       This is a direct appeal from a resentencing following our remand in United States
v. Hernandez, No. 14‐3046 (7th Cir. Mar. 6, 2015). Edgar Hernandez’s appointed attorney
asserts  that  the  appeal  is  frivolous  and  moves  to  withdraw  under  Anders  v.  California,
386 U.S.  738  (1967).  Hernandez  has  not  responded  to  our  invitation  to  comment  on
counsel’s motion. See CIR.  R. 51(b). Counsel’s brief explains the nature of this case and
addresses the potential issues that an appeal of this kind might be expected to involve.
Because  the  analysis  in  the  brief  appears  to  be  thorough,  we  limit  our  review  to  the
subjects that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014);
United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
No. 15‐2723                                                                               Page 2

       Criminal charges were brought against Hernandez after his girlfriend discovered
videos  of  child  pornography  on  his  cell  phone.  Hernandez  fled  to  his  native  Mexico,
where  he  eventually  was  detained  by  Mexican  authorities  for  six  months  and  then
transferred to the custody of the U.S. Marshals Service. He pleaded guilty to production
and possession of child pornography, see 18 U.S.C. §§ 2251(a), 2252A(a)(5)(B), and was
sentenced to 480 months’ imprisonment (consecutive prison terms of 360 months for the
production charge and 120 months for the possession charge), plus 10 years of supervised
release. Hernandez appealed, challenging only certain conditions of supervised release,
and at the parties’ joint request we remanded for resentencing in light of United States v.
Thompson, 777 F.3d 368 (7th Cir. 2015). On remand the district court reduced Hernandez’s
prison  term  by  six  months  (to  credit  the  time  he  had  spent  in  Mexican  custody)  and
accepted  the  parties’  joint  request  to  have  the  ten‐year  supervised‐release  term
reimposed, and only under those conditions to which the parties jointly had agreed.

       We agree with counsel that Hernandez has waived any issue that he could have
raised—but did not raise—in his first appeal. See United States v. Whitlow, 740 F.3d 433,
438 (7th Cir. 2014); United States v. Barnes, 660 F.3d 1000, 1006 (7th Cir. 2011).

        Counsel goes on to consider challenging the reasonableness of Hernandez’s new
474‐month  total  prison  term  but  properly  concludes  that  such  a  challenge  would  be
frivolous. This sentence is six months below his guideline range (capped at 480 months,
the  statutory  maximum  for  the  two  offenses),  and  below‐guidelines  sentences  are
presumptively reasonable. See Rita v. United States, 551 U.S. 338, 347 (2007); United States
v.  Womack,  732 F.3d  745,  747  (7th Cir.  2013).  Counsel  has  not  identified  any  reason  to
disturb that presumption, nor can we. At resentencing, the district court acknowledged
Hernandez’s  expressions  of  “extreme  remorse”  and  incorporated  its  rulings  from  the
original  sentencing,  at  which  it  considered  the  relevant  18 U.S.C.  § 3553(a)  factors,
including Hernandez’s history and characteristics (observing that he lacked any criminal
history), the nature and circumstances of his offenses (stressing that the crimes involved
“reprehensible  conduct  that  caused  not  only  significant  but  uncalculated  harm  to  the
minor  victims”),  and  the  need  to  punish  Hernandez  adequately  and  deter  him  from
committing another “despicable offense.”

       Counsel  also  considers  whether  Hernandez  could  challenge  the  term  and
conditions of his supervised release. Counsel notes that the parties jointly proposed the
term  and  conditions,  which  all  were  pronounced  by  the  district  judge  in  open  court.
See United States v. Kappes, 782 F.3d 828, 838–39 (7th Cir. 2015). Counsel does not mention,
however,  that  two  of  these  conditions  are  among  those  we  previously  have  criticized.
No. 15‐2723                                                                                Page 3

First,  the  condition  barring  Hernandez  from  leaving  the  judicial  district  without
permission “improperly imposes strict liability” because it lacks a scienter requirement.
Id. at 849–50. Second, the condition requiring Hernandez to notify the probation office of
any  change  in  employment  leaves  unclear  whether  this  condition  applies  only  to
“changing employers or also includes changing from one position to another for the same
employer at the same workplace.” Thompson, 777 F.3d at 379. But we have no reason to
believe that Hernandez would now wish to challenge these conditions, as counsel has not
identified a potential argument related to them and Hernandez has not responded to the
Anders  brief.  See United States  v.  Bryant,  754 F.3d  443,  447  (7th Cir.  2014).  If  Hernandez
later  finds  the  conditions  problematic  in  application,  he  can  seek  modification  to  the
extent  authorized  by  18  U.S.C.  § 3583(e)(2).  See United States  v.  Neal,  810 F.3d  512,  516,
519–20 (7th Cir. 2016).

       Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.


539 So.2d 1212 (1989)
Donald J. KIMBLE and Sheila Smith Kimble, wife of Donald Kimble
v.
WAL-MART STORES, INC.
No. 88-C-1949.
Supreme Court of Louisiana.
March 13, 1989.
Rehearing Granted in part and Denied in part May 12, 1989.
*1213 John Olivier, Olivier and Brinkhaus, Sunset, for applicant.
Frank Flynn, Allen, Gooch, Bourgeois, Breaux, Robison & Theunissen, P.C., Lafayette, for respondent.
WATSON, Justice.
At issue in this slip and fall case is the apportionment of comparative negligence. The trial court found defendant Wal-Mart 100% negligent. The court of appeal amended the judgment, deciding that plaintiff Donald Kimble was 50% at fault.[1] A writ was granted[2] to weigh the parties' comparative fault in light of the factors enunciated in Watson v. State Farm Fire & Cas. Ins. Co.[3]

FACTS
On September 24, 1984, plaintiff Kimble, age twenty-four, was shopping during his lunch hour at a Wal-Mart store in Lafayette, Louisiana. Seeking gifts for his two children, he walked the length of an aisle in the toy department. As he turned into the next aisle, Kimble tripped, cut his forehead on a shelf, and fell to the floor on his back. When Kimble "came to" a moment later, there were three red toy rocking chairs on the white floor of the aisle, the unobserved cause of his fall. Donald Kimble sued Wal-Mart Stores, Inc., claiming that injuries to his head, jaw, neck, shoulder and back disabled him through the time of trial and into the future. His wife, Sheila, joined in the suit claiming loss of consortium.
Although there were no witnesses to Kimble's fall, it is undisputed that the three rockers clogged the aisle. They are approximately eighteen inches tall. With two of them upright and one lying on its back, Kimble's passage was effectively blocked. Todd Crawford, assistant manager of the store; Judy Reed, head of the toy department; and Marella Hefner, the first Wal-Mart employee to reach Kimble, all confirmed that the three toy rockers were in the aisle. Part of Judy Reed's normal daily routine is checking the aisles of the toy department. Five to fifteen minutes before Kimble's fall, two of the toy rockers were on the floor where the accident occurred, and she replaced them on the shelf.
*1214 Although Kimble stated in deposition that he was watching where he was going, it is likely that he failed to glance down at his feet because he was perusing items on the shelves. Kimble's description of the accident never varied. He told the employee who first found him, each of the treating doctors, the attorney deposing him, and the court that he was walking around the end of one aisle and tripped as he turned into the next aisle.
Crawford, the assistant manager, stated that merchandise was usually placed on the "end cap", the section of shelving across the ends of two aisles, "to draw additional sales". Because the accident happened on an "inventory" day, Wal-Mart's employees had more time than usual to spend on the floor where they would have been expected to notice and remove the fallen chairs.
The trial court awarded medical expenses of $13,033.57; $25,000 as lost wages; $50,000 for general damages; and $10,000 to Sheila for loss of consortium. The court of appeal affirmed these awards but deleted $5,000 for future medical expenses, which it deemed speculative.

LAW
When a customer proves that a foreign substance or object on a store's floor presented an unreasonable risk of injury which caused a damaging fall, the store must exculpate itself from a presumption of negligence. Brown v. Winn-Dixie Louisiana, Inc., 452 So.2d 685, 686 (La.1984).[4]
An actor's duty to keep a proper lookout is diminished when shelved merchandise distracts his attention. See Kavlich v. Kramer, 315 So.2d 282 (La.1975).
Apportionment of the parties' relative degree of fault involves weighing their conduct in light of the five Watson factors:[5]
"(1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought."

CONCLUSION: LIABILITY
Shortly before Kimble's fall, Wal-Mart's employee Reed re-stacked two toy rockers. The most probable inference is that she re-stacked them improperly, allowing three to fall into the aisle. The chairs' red color was offset by their location at the end of an aisle and entirely across it. One rocker was lying on its back with only its spindly rungs in view.
The factors enumerated in Watson weigh in favor of Donald Kimble. Kimble's action in failing to look at the floor was inadvertent; one of Wal-Mart's employees knew that two rockers had previously fallen into the aisle, creating a likelihood that they might fall again. The risk created by Wal-Mart's negligence could have resulted in a more serious accident than that which occurred, particularly with an elderly or infirm victim.
Kimble's conduct was neither more nor less significant than that of any other shopper and was not inappropriate. Defendant's action in negligently stacking the toy chairs served no purpose.
Wal-Mart had a superior capacity to act because its employee Reed knew that the chairs had fallen into the aisle and might do so again.
Kimble's fault in failing to see the toy rockers was extenuated by his attention to the merchandise displayed on the shelves.
The Watson factors require a reapportionment of these parties' fault. None of the five Watson factors weigh in Wal-Mart's favor. Each weighs in Kimble's favor. The degree of fault assigned to Donald Kimble can be no more than 25% with the balance of 75% assigned to Wal-Mart Stores, Inc.

*1215 QUANTUM
Donald Kimble was treated at Our Lady of Lourdes Hospital and released on the day of the accident, to be readmitted the following day for an eleven day stay. His symptoms on admission were pain in the head and neck, and a large visible swelling on his back in the area below the left shoulder. Kimble's long-term symptoms include pain in his neck; pain, numbness, and tingling in his arm; constant severe headaches; episodes of syncope; and temporomandibular joint syndrome (TMJ).
Kimble had only worked at jobs requiring some heavy physical labor. Kimble's doctors testified that his pain and episodes of dizziness would restrict his ability to work.
A number of Kimble's relatives and friends testified that the accident and resulting disability had made Kimble depressed, impatient and difficult, thereby affecting his marriage. Donald Kimble and his wife Sheila testified that they no longer enjoyed their former satisfying emotional life and that they seldom had sexual relations.
Plaintiffs assign as error the court of appeal's failure to increase both the general damages and the award for lost wages. Plaintiffs also contend that the $5,000 award for future medical expenses is supported by the deposition testimony of several physicians. Dr. DeSonnier, a dentist who limits his practice to treatment of TMJ, stated that Kimble may need corrective dentistry in the future. Dr. Cobb, an orthopaedic surgeon who treated Kimble for the soft tissue injury to his back, said that Kimble might require medical visits and therapy through June, 1987. Dr. Domingue, a neurologist who treated Kimble for his headaches and dizziness, thought that Kimble might need follow-up care and medication until September of 1987. No dollar amounts were estimated by two of these physicians, Drs. DeSonnier and Domingue. Dr. Cobb suggested that Kimble might need six medical visits and two to three weeks of physical therapy at a maximum cost of $50 per visit.
Under these circumstances, an award of $2,500 for future medical expenses is appropriate. The judgment of the court of appeal is amended accordingly. See Briggs v. Hartford Ins. Co., 532 So.2d 1154, 1158 (La.1988); Guillory v. Avondale Shipyards, Inc., 448 So.2d 1281, 1287 (La.1984). The court of appeal was correct in finding no abuse of discretion in the other damages awarded.

DECREE
For the foregoing reasons, the judgment of the court of appeal is affirmed except as to the apportionment of fault and the award of future medical expenses. The judgment of the court of appeal is amended as to the amount of future medical care, which is fixed at $2,500, and as to the percentages of fault, which are fixed at 25% for Donald Kimble and 75% for Wal-Mart Stores, Inc.
AFFIRMED IN PART; AMENDED IN PART; AND RENDERED.
DENNIS, J., concurs.
LEMMON, J., dissents and assigns reasons.
LEMMON, Justice, dissenting.
When one considers the significant duty placed on a merchandiser to provide a safe place for shoppers whose attention is attracted away from the floor by displays on the shelves, as compared to the lesser duty of a shopper to exercise care to protect himself from reasonably foreseeable hazards, there was no manifest error in the trial court's assessing 100% of the fault to the merchandiser. The court of appeal substituted its judgment for that of the trier of fact, and the trial court's apportionment of fault should be reinstated.

ON APPLICATION FOR REHEARING PER CURIAM
Our decree amended the judgment of the court of appeal as to quantum and percentages of fault, otherwise affirming its judgment. Costs were taxed by the court of appeal at 50% to plaintiffs and 50% to the defendant. We find merit in plaintiffs' argument that defendant should be cast for all costs and, accordingly, amend our decree to so provide. Plaintiffs' application for rehearing is denied in all other respects.
NOTES
[1]  527 So.2d 1163 (La.App. 3 Cir.1988).
[2]  532 So.2d 164 (La.1988).
[3]  469 So.2d 967 (La.1985).
[4]  Cf. Act 714 of 1988.
[5]  Watson v. State Farm Fire & Cas. Ins. Co., supra, 469 So.2d at 974.


                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       April 29, 2013

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                        No. 12-2186
                                                (D.C. No. 1:11-CR-01691-WJ-1)
ALONSO ANILES-MARQUEZ,                                     (D. N.M.)

             Defendant-Appellant.

                           ORDER AND JUDGMENT*

Before BRISCOE, Chief Judge, LUCERO and GORSUCH, Circuit Judges.

      This matter is before the court on the government’s motion to enforce the

appeal waiver contained in defendant Alonso Aniles-Marquez’s plea agreement. We

grant the government’s motion and dismiss the appeal.

      Mr. Aniles-Marquez pled guilty pursuant to a plea agreement to one count of

possession with intent to distribute more than five grams of methamphetamine, in

*
       This panel has determined that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument. This order and judgment
is not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and one count of possession with intent

to distribute a mixture and substance containing a detectable amount of

methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C).

Mr. Aniles-Marquez stipulated in his plea agreement that “[a]t least 35 grams but less

than 50 grams of methamphetamine (actual) are attributable to [him].” Mot. to

Enforce, Attach. # 1 (Plea Agreement), at 5. He also acknowledged in the plea

agreement that the maximum term of imprisonment the court could impose was

“a period of not less than 5 years nor more than 40 years.” Id. at 2. The district court

accepted his guilty plea and, after calculating his sentencing guideline range to be

87 to 108 months, sentenced him to 92 months’ incarceration on each count, to run

concurrently.

      As part of his plea agreement, Mr. Aniles-Marquez “knowingly waive[d] the

right to appeal [his] conviction(s) and any sentence, including any fine, at or under

the maximum statutory penalty authorized by law.” Id. at 10. He nonetheless filed

an appeal, which prompted the government to file the current motion to dismiss in

accordance with United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004)

(en banc) (per curiam). Mr. Aniles-Marquez’s court-appointed attorney filed a

response to the government’s motion stating that “after a conscientious examination

of the record,” he concluded “that only frivolous grounds exist by which to oppose

the government’s motion,” and he asked to withdraw from representation. Resp. to

Mot. to Enforce at 1; see also Anders v. California, 386 U.S. 738 (1967). In light of

                                         -2-
counsel’s response, we invited Mr. Aniles-Marquez to file a pro se response, which

he did.

        Mr. Aniles-Marquez lists eleven errors in his response that he contends

warrant allowing him to proceed with his appeal. Most of them involve alleged

sentencing errors, one involves an alleged error in the government’s statement of

facts supporting his guilty plea, and another involves his trial counsel’s alleged

ineffective assistance in not advising him of the immigration consequences of his

plea.

        We will enforce an appeal waiver as long as three elements are met: (1) “the

disputed appeal falls within the scope of the appellate waiver”; (2) “the defendant

knowingly and voluntarily waived his appellate rights”; and (3) “enforcing the waiver

will [not] result in a miscarriage of justice.” Hahn, 359 F.3d at 1325, 1327. The first

factor is satisfied because none of the issues Mr. Aniles-Marquez raises falls outside

the scope of his appeal waiver.

        The second factor is also satisfied. Mr. Aniles-Marquez does not argue that

his waiver of appellate rights was not knowing and voluntary, an element on which

he bears the burden of proof, see United States v. Salas-Garcia, 698 F.3d 1242, 1254

(10th Cir. 2012). Further, our independent review of the plea agreement and the

Rule 11 colloquy demonstrates that his waiver was knowing and voluntary. See id.

(“[T]he court examines whether the language of the plea agreement states that the

                                          -3-
defendant entered the agreement knowingly and voluntarily, and whether there was

an adequate Federal Rule of Criminal Procedure 11 colloquy.”).

      Although Mr. Aniles-Marquez alleges that he was not adequately advised of

the immigration consequences of his guilty plea, the plea agreement itself clearly

explains those consequences:

      [P]leading guilty may have consequences with respect to Defendant’s
      immigration status if Defendant is not a citizen of the United States.
      Under federal law, a broad range of crimes are removable offenses,
      including the offenses to which Defendant is pleading guilty. Indeed,
      because Defendant is pleading guilty to violations of 21 U.S.C.
      §§ [841](a)(1), (b)(1)(B) and (b)(1)(C), removal is presumptively
      mandatory. . . . Defendant nevertheless affirms that Defendant wants to
      plead guilty regardless of any immigration consequences that
      Defendant’s plea may entail, even if the consequence is Defendant’s
      automatic removal from the United States.

Plea Agreement at 9-10. And the court discussed the immigration consequences of

his plea with him as part of the Rule 11 colloquy:

            THE COURT: And as part of your agreement, you’re agreeing to
      be deported following your service of incarceration. You’re giving up
      any hearing before you are deported. Do you understand that?

               THE DEFENDANT: Yes, ma’am.

            THE COURT: And with that deportation and this criminal
      conviction, it will be impossible for you to enter the United States
      lawfully in the future. Do you understand that?

               THE DEFENDANT: Yes, ma’am.

Mot. to Enforce, Attach. 2 (Plea Hrg. Tr.), at 9. Accordingly, we see no basis for

concluding that Mr. Aniles-Marquez did not waive his appellate rights knowingly and

voluntarily.

                                         -4-
      “Under the final factor of Hahn, the court will enforce an appellate waiver

unless it finds that the enforcement of the waiver would constitute a miscarriage of

justice.” Salas-Garcia, 698 F.3d at 1255 (internal quotation marks omitted).

Enforcement of the waiver will constitute a miscarriage of justice only if one of the

following circumstances is present: (1) “the district court relied on an impermissible

factor such as race”; (2) the “ineffective assistance of counsel in connection with the

negotiation of the waiver renders the waiver invalid”; (3) “the sentence exceeds the

statutory minimum”; or (4) “the waiver is otherwise unlawful.” Id. (internal

quotation marks omitted). None of these circumstances are present here.

Mr. Aniles-Marquez does contend that his trial counsel was ineffective in advising

him of the immigration consequences of his guilty plea, but even if this claim

somehow relates to the negotiation of the appeal waiver, Mr. Aniles-Marquez must

wait to raise it in a separate proceeding under 28 U.S.C. § 2255. See United States v.

Novosel, 481 F.3d 1288, 1295 (10th Cir. 2007) (per curiam).

      Accordingly, we grant the government’s motion to enforce the appeal waiver

and dismiss the appeal. Defense counsel’s request to withdraw is denied without

prejudice to renewal in a proper motion that comports with 10th Cir. R. 46.4.

Mr. Aniles-Marquez’s request for appointment of counsel is denied as moot.

                                                Entered for the Court
                                                Per Curiam

                                          -5-


                                                                               FILED
                             NOT FOR PUBLICATION                               AUG 03 2011

                                                                           MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS

                             FOR THE NINTH CIRCUIT

 BIN-JIANG TAO,                                   No. 09-56992

               Plaintiff - Appellant,             D.C. No. 2:09-cv-5722-R-MLR

   v.
                                                  MEMORANDUM1
 CITIBANK, N.A. and
 COMPUTERSHARE TRUST
 COMPANY, N.A.,

               Defendants - Appellees.

                     Appeal from the United States District Court
                        for the Central District of California
                      Manuel L. Real, District Judge, Presiding

                          Argued and Submitted June 10, 2011
                                  Pasadena, California

Before: RYMER, TROTT, Circuit Judges, and MCNAMEE,2 Senior District
Judge.

        Appellant Bin-Jiang Tao (“Tao”) appeals the district court’s (1) denial of his

motion to remand based on the existence of federal jurisdiction under 12 U.S.C. §

        1
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        2
             The Honorable Stephen M. McNamee, Senior United States District
Judge for the District of Arizona, sitting by designation.
632 and (2) dismissal of his claims under Federal Rule of Civil Procedure 12(b)(6)

as barred by New York’s statutes of limitations. We affirm.

      The district court properly found jurisdiction and denied Tao’s Motion to

Remand. First, contrary to Tao’s assertions, under the plain language of § 632 “any

defendant” may remove an action to federal court. See Weznoski v. Citicorp, 480

F. Supp. 1056, 1058 (N.D. Cal. 1979); compare 28 U.S.C. § 1441(a) (requiring

removal by “the defendant or defendants”). Thus, removal was proper even if

Computershare, NA failed to join the removal petition.

      Second, Citibank satisfied the requirement under § 632 that the defendant

must be an American corporation. Tao, in his Complaint alleges Citibank was an

American corporation, and he provides no reason for us to doubt this allegation.

See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

      Third, Tao’s contention that his claims based on the 1933 transaction do not

arise from international banking or financial operations and require remand is

unpersuasive. When viewed as a deposit of gold and foreign currency, as Tao’s

fifth and sixth claims allege, the transaction would clearly fall within § 632’s

definition of banking activities or services. Alternatively, if the transaction is

viewed as a purchase and sale of 300 million shares of Citibank stock, as Tao’s

fourth claim requests, the claims would still arise from “international or foreign

                                           -2-
financial operations,” which are defined to include operations by banks or

corporations to raise capital, including through the sale of securities. See Black’s

Law Dictionary 707 (9th ed. 2009) (defining “financing” as “[t]he act or process of

raising or providing funds”); id. (defining “equity financing” as “[t]he raising of

funds by issuing capital securities (shares in the business) rather than making loans

or selling bonds”); see also Bank of Am. Corp. v. Lemgruber, 385 F. Supp. 2d 200,

215 n.13 (S.D.N.Y. 2005); Stamm v. Barclays Bank of N.Y., 960 F. Supp. 724,

728 (S.D.N.Y. 1997); Travis v. Nat’l City Bank of N.Y., 23 F. Supp. 363, 366

(E.D.N.Y. 1938).

      Tao next contends that the district court erred in dismissing his claims as

barred by New York’s statutes of limitations. The district court relied on our

decision in Huynh v. Chase Manhattan Bank, 465 F.3d 992 (9th Cir. 2006), to

determine that Tao’s claims were barred by New York law. In Huynh, a proposed

class of Vietnamese investors sought the return of deposits made in the Saigon

branches of Citibank, Chase Manhattan, and Chiang Tung Bank before the

branches closed in April 1975. Id. at 996. The Court conducted a choice-of-law

analysis to determine that (1) California did not have a substantial interest in the

plaintiffs’ claims, (2) New York had a more significant interest in the claims, and

(3) New York statutes of limitation began to run when the Saigon branch closed.

                                          -3-
Id. at 1001-04. Under New York’s six-year statute of limitations for bank deposits,

Plaintiff’s claims were barred. Id. at 1003.

      As in Huynh, New York law applies to this case and bars Tao’s claims. First,

maintenance of Tao’s claims would serve no substantial interest of California. Tao

asserts that California has a substantial interest in his claims as the place of his

permanent residence and place of demand. We have previously rejected this

argument. As in Huynh, California is merely Tao’s current residence and the place

where he happened to seek performance. See Huynh, 465 F.3d at 1001-02.

California had no connection with this case when the deposits were made or when

the Shanghai Branch closed. The alleged contracts were executed in China with a

New York bank. See id. Further, assuming demand was possible in California, the

fact that Tao presented the notes there is itself insufficient to create a substantial

interest. See id.; see also Edelmann v. Chase Manhattan Bank, 861 F.2d 1291,

1296 (1st Cir. 1988) (stating that the place of demand had merely a “fortuitous”

connection and no substantial interest in certificates of deposits redeemable

worldwide).

      Second, New York has a more significant relationship to the parties and

occurrence than California. Excepting China, New York was the only jurisdiction

connected to the case at the time of contract and was the law the parties might have

                                           -4-
reasonably expected to govern disputes over the transactions. Furthermore,

Citibank’s New York headquarters, not the Los Angeles Branch, is the site of any

debt owed Tao and is ultimately responsible for the repayment of any deposits

made in the Shanghai Branch in the 1930s. See Huynh, 465 F.3d at 1002 n.10

(citing Edelmann, 861 F.2d at 1294-96).

      Finally, New York law bars Tao’s claims. Under New York law, a cause of

action on a bank deposit generally begins to accrue “from the demand for

repayment or return.” N.Y. C.P.L.R. 206(a)(2). Similarly, a cause of action for

conversion begins to accrue after the refusal of a demand for return of the property.

N.Y. C.P.L.R. 214. Even assuming demand was not rendered futile by the closing

of the Shanghai branch, Tao’s claims are barred by unreasonable delay. Under

New York law, “[w]here demand and refusal are necessary to start a limitations

period, the demand may not be unreasonably delayed.” DeWeerth v. Baldinger,

836 F.2d 103, 107 (2d Cir. 1987) (citing cases). This is particularly true when the

delayed demand would result in a defendant being subject to “ancient obligations”

where “[t]he evidence has been lost, memories have faded, and witnesses have

disappeared.” Duffy v. Horton Mem’l Hosp., 488 N.E.2d 820, 823 (N.Y.

1985)(internal quotation marks omitted); see also Rahanian v. Ahdout, 694

N.Y.S.2d 44, 47 (N.Y. App. Div. 1999).

                                          -5-
      This transaction took place nearly 80 years ago. Even disregarding the 60

years between the transactions and Tao’s receipt of the certificates, it is undisputed

that Tao took possession of the certificates and lived in the United States for nearly

two decades before making demand. Such a delay is unexplained, and, under the

circumstances of this case, unreasonable. Therefore, Tao’s first, second, third, and

sixth claims concerning return of a bank deposit and conversion are barred due to

unreasonable delay.

      Tao’s fifth claim arises out of a transaction Tao characterizes as both a

deposit and a stock purchase. If the transaction were a deposit, then the claim is

barred due to unreasonable delay in rendering a demand. If it were a stock

purchase, then the claim is barred due to unreasonable delay in demanding a stock

transfer. Finally, if Tao instead is seeking to rescind the stock purchase agreement,

he has failed to allege mistake or fraud. N.Y. C.P.L.R. 213(6).

      The fourth claim asks us to declare his rights under a will. Assuming we

have jurisdiction to do so, the Complaint fails to set forth facts showing the

existence of an actual controversy between the parties. See Marshall v. Marshall,

547 U.S. 293, 310-11 (2006); City of Colton v. Am. Promotional Events, Inc.-

West, 614 F.3d 998, 1004-05 (9th Cir. 2010).

      Tao attempts to distinguish his claims on the 1930 deposit by arguing that

                                          -6-
the bank notes he presented are negotiable instruments of unlimited duration under

New York’s Uniform Commercial Code (“U.C.C.”). Under the U.C.C., he

contends, the statutes of limitations could not have started to run until 2008 when

he presented the notes and Citibank refused to pay. Tao’s appeal to the U.C.C. is

unavailing. Even if the notes are considered negotiable instruments, the New York

U.C.C., by its terms, does not apply to transactions entered into before 1964. N.Y.

U.C.C. §§ 13-102, 13-105. Transactions entered before that date are subject to the

New York Negotiable Instrument Law (“NIL”). See In re Appliance Packing &

Warehousing Corp., 475 F.2d 1011, 1012-13 (2d Cir. 1973). Under the NIL,

“where it [the instrument] is payable on demand, presentment must be made within

a reasonable time after its issue.” 1909 N.Y. Neg. Inst. Law § 131 (Heinonline

1909) (repealed effective Sept. 27, 1964 as to transactions occurring after that

date); Commercial Nat’l Bank v. Zimmerman, 77 N.E. 1020, 1021 (N.Y. 1906)

(interpreting substantively identical 1896 version of the statute). As we have noted,

Tao’s demand was not made within a reasonable time. Therefore, under the NIL,

Tao’s claims are barred.

      All of Tao’s claims are barred by the statutes of limitations of New York, a

state that has a more significant relationship to the parties and the occurrence than

                                          -7-
California.3

      Finally, Tao contends he should be given leave to amend his Complaint.

However, leave to amend need not be granted if amendment is futile. See Foman v.

Davis, 371 U.S. 178, 182 (1962). Regardless of the way Tao characterizes the

transactions or the attached exhibits, his claims are time-barred by the statutes of

limitations and he could not amend the Complaint in such a manner as to assert

viable claims. Albrecht v. Lund, 845 F.2d 193, 195-96 (9th Cir. 1988).

      For the foregoing reasons, the decision of the district court is AFFIRMED.

      3
        At oral argument, Tao’s counsel, for the first time, argued that California’s
borrowing statute, Cal. Civ. Proc. Code § 361, applies to the case. Tao has waived
this argument. See Christian Legal Soc’y of Univ. Of Cal. V. Wu, 626 F.3d 483,
485 (9th Cir. 2010).
                                          -8-