Brunwasser v. Mulvihill, Civ. A. No. 80-557.
| Decision Date | 29 May 1980 |
| Docket Number | Civ. A. No. 80-557. |
| Citation | 490 F. Supp. 965 |
| Parties | Allen N. BRUNWASSER, Plaintiff, v. Mead J. MULVIHILL, Jr., as then acting Mayor of the City of Pittsburgh and as Solicitor of the City of Pittsburgh, Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Allen N. Brunwasser, Pittsburgh, Pa., for plaintiff.
Marvin A. Fein, Pittsburgh, Pa., for defendant.
Plaintiff, Allen N. Brunwasser, filed a complaint in mandamus in the Court of Common Pleas of Allegheny County, Pennsylvania, seeking to prevent the City of Pittsburgh from providing legal representation for three defendants in a federal civil rights action that plaintiff filed in this Court at CA 79-1561. The Common Pleas complaint asserts that the representation being provided to these individuals is in violation of the Charter of the City of Pittsburgh. The defendant, Mead J. Mulvihill, Jr., a former "acting mayor" and solicitor of Pittsburgh, petitioned to remove the matter pursuant to 28 U.S.C. § 1441 as a case which should be consolidated with the civil rights action. Defendant argues in his motion that this Court has jurisdiction to determine whether counsel who files an appearance in a pending case should be disqualified. He has followed this petition with a Motion for Summary Judgment and an Answer to the Complaint in Mandamus.
The plaintiff has responded with a motion to remand under 28 U.S.C. § 1447(c).
A state court action may properly be removed to a federal district court only if it is an action over which the district court would have had original jurisdiction. Snow v. Ford Motor Co., 561 F.2d 787, 789 (9th Cir. 1977) (); Housing Authority v. Danner, 448 F.Supp. 152, 154 (M.D.Pa.1978) (). The defendant, by arguing that this case is really part of a pending federal suit, seems to be asserting only pendent jurisdiction. The complaint in mandamus, challenging the affairs of Pittsburgh's legal department, is one which raises only questions of state, or local, law. No disputed federal question is apparent. The burden to demonstrate federal jurisdiction is on the party seeking removal. Wolgin v. State Mutual Investors, 442 F.Supp. 974, 978 (E.D.Pa.1977).
It has often been said that the Congressional purpose behind 28 U.S.C. § 1441 was to narrowly restrict the availability of removal from state to federal courts. E. g., American Fire & Casualty Co. v. Finn, 341 U.S. 6, 10, 71 S.Ct. 534, 538, 95 L.Ed. 702 (1951); LaChemise Lacoste v. Alligator Co., Inc., 506 F.2d 339 (3d Cir. 1974); cert. denied 421 U.S. 937, 95 S.Ct. 1666, 44 L.Ed.2d 94 (1975); City of New York v. New York Jets Football Club, Inc., 429 F.Supp. 987 (S.D.N.Y.1977). For a case to fit within the strict construction of § 1441 a federal right or remedy must be obvious on the face of the original complaint. Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 127-28, 94 S.Ct. 1002, 1003-04, 39 L.Ed.2d 209 (1974); Norton Coal Co. v. U. M. W. of America, Dist. 28, 387 F.Supp. 50 (W.D.Va.1974).
The complaint in this case asserts no claim arising under any federal law, nor is the relief sought pursuant to any federal statute. See Wolgin, supra, 442 F.Supp. at 976-977. We can ascertain no basis under federal law for preventing the representation of certain individuals by the city's law department. The fact that the representation involves a pending federal suit is incidental.
Finally, we note that the authority that this Court has over attorneys practicing before it does not extend to disputes between attorney and client. See Local Rules 1, 2, and 22. The question raised by the complaint in mandamus is clearly a challenge to the propriety of representation by a governmental unit pursuant to whatever regulations govern such representation. Although it is a challenge by a third party and not by the clients, it goes to the nature of the attorney-client relationship and raises no issue for ...
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