King Provision Corp. v. Burger King Corp., 90-310-Civ-J-14.

• Decision Date: 22 October 1990
• Docket Number: No. 90-310-Civ-J-14.,90-310-Civ-J-14.
• Citation: 750 F. Supp. 501
• Parties: KING PROVISION CORPORATION, a Florida corporation, Plaintiff, v. BURGER KING CORPORATION, a Florida corporation, Defendant.
• Court: U.S. District Court — Middle District of Florida

750 F. Supp. 501

KING PROVISION CORPORATION, a Florida corporation, Plaintiff, v. BURGER KING CORPORATION, a Florida corporation, Defendant.

No. 90-310-Civ-J-14.

United States District Court, M.D. Florida, Jacksonville Division.

October 22, 1990.

David M. Wells and William W. Deem, Mahoney, Adams & Criser, Jacksonville, Fla., for plaintiff.

James E. Cobb, Jacksonville, Fla., and Chris S. Coutroulis, Tampa, Fla., for defendant.

ORDER

SUSAN H. BLACK, District Judge.

This case is before the Court on the plaintiff's Motion to Remand, filed on May 18, 1990. The defendant filed its response in opposition on June 8, 1990. Pursuant to the Court's Order of June 5, 1990, the Attorney General of Florida was permitted to file a memorandum of law addressing the issues raised in the plaintiff's motion. The Court heard oral argument on July 26, 1990. Also pending is Defendant's Request, in the Alternative, for Stay and Certification of Order Granting Remand, filed on August 1, 1990, to which the plaintiff filed a response in opposition on August 2, 1990, and the defendant's Motion to File Supplemental Authority in Connection with Plaintiff's Motion to Remand, filed on September 18, 1990, to which the plaintiff filed a response in opposition on September 28, 1990.

This case was originally filed in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida. The Complaint alleges that the plaintiff, a Florida corporation operating from Jacksonville, and the defendant, a Florida corporation operating from Miami, pursuant to four distributorship agreements, competed to distribute supplies to Burger King's independent franchisees located in a number of states, including Florida. Complaint at 3-5, ¶¶ 4, 9, 10, 15, filed on April 20, 1990. The Complaint alleges that the defendant conceived and engaged in a course of conduct with the purpose and intent of eliminating the plaintiff as a competitor. Id. at 8-10, ¶¶ 26-27. The Complaint specifically alleges that, through this conduct, the defendant has monopolized trade and commerce in the State of Florida, id. at 15, ¶ 45; has attempted to monopolize trade and commerce in the State of Florida, id. at 17, ¶ 51; has entered into combinations and conspiracies to monopolize trade and commerce in the State of Florida, id. 19, at ¶ 56; and has entered into various contracts, combinations, and conspiracies to unreasonably restrain trade and commerce and substantially lessen competition in the State of Florida, all with the intent to injure the plaintiff and eliminate it as a competitor, id. at 20-21, ¶ 58.

I. THE PARTIES' CONTENTIONS

The defendant contends that, pursuant to the "artful pleading" exception to the well-pleaded complaint rule, it is entitled to removal jurisdiction. In support of this allegation, the defendant alleges that the plaintiff's Florida Antitrust Act claims are really federal Sherman Act claims in disguise, since they seek to redress not just alleged restraints on commerce in Florida, but also alleged restraints on commerce occurring wholly in other states. The defendant alleges that this broad claim is nationwide in scope, and, therefore, the claim is a federal antitrust claim to which the federal courts have exclusive jurisdiction. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 379-80, 105 S.Ct. 1327, 1331, 84 L.Ed.2d 274 (1985).

The plaintiff contends that the defendant has construed the artful pleading exception too broadly. The plaintiff alleges that there is no federal issue contained within the four corners of its Complaint nor are its causes of action dependent upon issues of federal law. Therefore, the plaintiff contends that the Court does not have subject matter jurisdiction and requests that the Court remand this case to state court. Lastly, the plaintiff requests costs and expenses as a result of the alleged improper removal.

II. REMOVAL AND THE WELL-PLEADED COMPLAINT RULE

A defendant may remove to a federal court any civil action "founded on a claim or right arising under the ... laws of the United States." 28 U.S.C. § 1441(b) (1988); Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). "There are two ways in which a case may, for removal purposes, `arise under' federal law. First, the plaintiff's well-pleaded complaint simply may raise issues of federal law. Second, ... the complaint may raise a select type of claim that has been singled out by Congress for federal preemption." Pruitt v. Carpenters' Local Union No. 225, 893 F.2d 1216, 1218 (11th Cir.1990).

Pursuant to the well-pleaded complaint rule, a court must look solely to the four corners of a complaint to determine whether or not a claim arises under federal law. Oklahoma Tax Comm'n v. Graham, 489 U.S. 838, 109 S.Ct. 1519, 1521, 103 L.Ed.2d 924 (1989); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987) (federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint unaided by the answer or by the petition for removal). Removal jurisdiction does not exist simply because the plaintiff could have chosen a federal claim instead of, or in addition to, the state claim advanced. Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 809 n. 6, 106 S.Ct. 3229, 3233 n. 6, 92 L.Ed.2d 650 (1986). Furthermore, a federal law defense will not support removal jurisdiction, even if the defense is anticipated in the complaint's allegations. Oklahoma Tax Comm'n v. Graham, 109 S.Ct. at 1519; Caterpillar, Inc., 482 U.S. at 393, 107 S.Ct. at 2430 ("it is now settled that a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint"). "The well-pleaded complaint rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar, Inc., 482 U.S. at 392, 107 S.Ct. at 2429.

III. THE ARTFUL PLEADING EXCEPTION

"In certain limited circumstances, a federal court may look behind the complaint to preclude a plaintiff from defeating federal question jurisdiction through `artful pleading,' that is, by disguising a federal claim as a claim arising under state law." Bowlus v. Alexander & Alexander Servs., Inc., 659 F.Supp. 914, 918 (S.D.N.Y.1987). One such circumstance involves state-law claims which have been completely preempted by federal law. In Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987), the United States Supreme Court explained the pre-emption exception to the well-pleaded complaint rule:

Federal pre-emption is ordinarily a federal defense to the plaintiff's suit. As a defense, it does not appear on the face of a well-pleaded complaint, and, therefore, does not authorize removal to federal court. One corollary of the well-pleaded complaint rule developed in the case law, however, is that Congress may so completely pre-empt a particular area, that any civil complaint raising this select group of claims is necessarily federal in character.

Metropolitan Life, 107 S.Ct. at 1546 (citation omitted).

The defendant conceded at oral argument that this is not a case in which federal statutes preempt state regulation of the subject matter. State courts are not precluded by federal antitrust law from adjudicating claims arising under state antitrust law.

The perimeter of the second circumstance in which courts have permitted removal in the absence of a federal question expressed on the face of the complaint constitutes the basis of the parties' dispute. It is the plaintiff's position that the second component of the artful pleading exception only arises when a plaintiff's choice of a state forum is motivated by the desire to evade the consequences of prior federal litigation. The defendant contends that the plaintiff's construction of this second circumstance is too narrow. Relying upon footnote two of Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 397, 101 S.Ct. 2424, 2427, 69 L.Ed.2d 103 (1981), the defendant contends that courts are permitted to peek behind the four corners of the complaint to determine whether the nature of the complaint is really federal; there need not be a prior federal adjudication.

1. Federated Department Stores v. Moitie

To understand the United States Supreme Court's decision in Moitie, it is necessary to trace the procedural and factual history of the case. In 1976, retail purchasers filed seven separate class actions against the owners of various department stores.¹ Id. at 395, 101 S.Ct. at 2526. The purchasers alleged that the stores agreed to fix the retail price of women's clothing sold in Northern California in violation of the Sherman Act, 15 U.S.C. § 1. Id. For reasons not relevant to this case, all of actions were dismissed. Id. While five of the class actions were appealed to the Ninth Circuit Court of Appeals, two actions were refiled in state court. Id. The refiled cases contained similar allegations to the previously dismissed federal action, yet raised only state-law claims. Id. The refiled cases were removed to federal court and were once again dismissed by the district court. Id. The district court held "that the complaints, though artfully couched in terms of state law, were `in many respects identical' with the prior complaints, and were thus properly removed to federal court because they raised `essentially federal law' claims." Id. However, this time the cases were dismissed due to the doctrine of res judicata. Id. at 396-97, 101 S.Ct. at 2426-27. The Ninth Circuit created a new exception to the doctrine of res judicata and reversed the district court. Id. at 397, 101 S.Ct. at 2427.

The Court finds that the defendant reads Moitie too broadly. The opinion clearly stated that "the only question presented in...