Merkel v. Federal Express Corporation, Civil Action No. 2:93cv161-D-A (N.D. Miss. 1995), Civil Action No. 2:93cv161-D-A.
| Decision Date | 01 April 1995 |
| Docket Number | Civil Action No. 2:93cv161-D-A. |
| Parties | CHARLES M. MERKEL PLAINTIFF, v. FEDERAL EXPRESS CORPORATION DEFENDANT. |
| Court | U.S. District Court — Northern District of Mississippi |
Upon consideration of this matter, sua sponte, the court finds that it possesses no subject matter jurisdiction over the case at bar. Removal in this cause was improvident, and this matter shall be remanded to the County Court of Coahoma County, Mississippi.
The plaintiff Charles Merkel is an attorney in Clarksdale, Mississippi, and is an avid baseball card collector. In September of 1992, the plaintiff was considering the purchase of a set of 1960 Topps baseball cards from the Brigandi Coin Company ("Brigandi"), in New York, N.Y. Pursuant to this consideration, Brigandi sent the set (valued by the plaintiff at $7,500.00) to the plaintiff with instructions to return the set by September 25, 1992, or to remit payment for the cards. Mr. Merkel chose to return the set of cards, and on September 23, 1992, engaged Federal Express to deliver the set back to Brigandi. Federal Express took possession of the set, but Brigandi never received it and as of this date Federal Express cannot locate the package.
The plaintiff originally instituted this action in the County Court of Coahoma County, Mississippi, for the loss of the package. Merkel specifically alleged against Federal Express claims arising under Mississippi law, including claims of fraudulent and negligent misrepresentation. Federal Express removed the action to this court on October 21, 1993. The asserted basis for removal by Federal Express is that all of the plaintiff's claims are governed exclusively by federal law.
Concerned, as it must ever be, of its own subject-matter jurisdiction, this court directed the parties by order dated March 15, 1995, to submit additional briefs on the subject of the propriety of removal by Federal Express.
This court is required to remand any action over which it has no subject matter jurisdiction at any time before final judgment. Buchner v. F.D.I.C., 981 F.2d 816, 819 (5th Cir. 1993); 28 U.S.C. § 1447. An objection to the subject matter jurisdiction of this court may be raised by any party at any time in the course of these proceedings, and may even be raised by the court sua sponte. See Mall v. Atlantic Financial Federal, 127 F.R.D. 107 (W.D. Pa. 1989); Glaziers, Glass Workers of Jacksonville v. Florida Glass and Mirror of Jacksonville, 409 F.Supp. 225, 226 (M.D. Fla. 1976); 28 U.S.C. § 1447. This court has concerns regarding its subject-matter jurisdiction in this cause, has raised the issue sua sponte, and has asked for further submissions from the parties on this matter.
In making determinations of whether remand is necessary, the defendant is the party who bear the burden of establishing that the removal to this court is proper. Jernigan v. Ashland Oil Co. Inc., 989 F.2d 812, 815 (5th Cir. 1993); LeJuene v. Shell Oil Co., 950 F.2d 267, 271 (5th Cir. 1992); B., Inc. v. Miller Brewing Company, 663 F.2d 545, 549 (5th Cir. 1981). Further, the removal statutes are strictly construed, and all doubts will be resolved against a finding of proper removal. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir. 1992); Butler v. Polk, 592 F.2d 1293, 1296 (5th Cir. 1979).
The defendants based their removal petition on the premise that federal common law controls the allegations of the plaintiff's complaint. Today this court need not reach that issue, for whether federal law controls the plaintiff's allegations and whether this action can be properly removed to this court are, although related, in fact separate and distinct questions.1
I. REMOVAL JURISDICTION
In determining if removal is proper, generally the determination that must be made is whether this court would have had original jurisdiction to hear this action if the case had been filed here instead of state court. Caterpillar v. Williams, 482 U.S. 386, 391-92, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987); Grubbs v. General Electric Credit Corp., 405 U.S. 699, 702, 92 S.Ct. 1344, 1347, 31 L.Ed.2d 612 (1972); 28 U.S.C. § 1332. Jurisdiction based on diversity of the parties is not at issue in this case2, and therefore there must exist some avenue of federal question jurisdiction to maintain the action in this court. In other words, some part of the action must be one "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. "A suit arises under the law that creates the cause of action." American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 60 L.Ed. 987, 36 S.Ct. 585 (1916) (Holmes, J.).
One powerful doctrine has emerged, however — the "well-pleaded complaint rule — which as a practical matter severely limits the number of cases in which state law "creates the cause of action" that may be initiated in or removed to federal district court . . .
As a consequence, the existence of a federal question will depend upon the application of the well-pleaded complaint rule. If the face of the plaintiff's complaint reveals no issue of federal law, there is no federal question jurisdiction. Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425, 96 L.Ed.2d at 327 ().
[W]hether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute . . . must be determined from what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.
Franchise Tax Board, 463 U.S. at 9, 77 L.Ed.2d at 430, 103 S.Ct. 2841 (1983) (quoting Taylor v. Anderson, 234 U.S. 74, 75-76, 58 L.Ed. 1218, 34 S.Ct. 724 (1914)). In the case at bar, the face of the complaint reveals no federal question jurisdiction but rather actions based on state substantive law. The application of the well-pleaded complaint rule in this case does not reveal any federal question which would give this court jurisdiction over this cause.
The defendant maintains that the plaintiff's claims are governed by federal common law. See, e.g., First Pennsylvania Bank v. Eastern Airlines, Inc., 731 F.2d 1113, 1122 (3rd Cir. 1984); Deiro v. American Airlines, Inc., 816 F.2d 1360, 1365 (9th Cir. 1987). Likewise, the defendant has recently asserted that the plaintiff's claims are preempted by § 1305 of the Airline Deregulation Act ("ADA"). 49 U.S.C. § 1305(a)(1) (Repealed 1994)3. If either of these assertions are true, then Federal Express is entitled to assert the defense of preemption against the plaintiff's state law claims. However, the mere fact that "preemption by federal law" is or may be raised as a defense does not permit removal to federal court:
[I]t is now well settled law 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, and even if both parties concede that the federal defense is the only question truly at issue.
Caterpillar, Inc. v. Williams, 482 U.S. at 391, 96 L.Ed.2d at 327, 107 S.Ct. 2425 (citing Franchise Tax Board, 463 U.S. at 12, 77 L.Ed.2d at 431, 103 S.Ct. 2841). The plaintiff's claims may indeed be preempted by federal law, be it common law or statutory4. This court does not make that determination, for it is irrelevant whether this case was properly removed to federal court.
The plaintiff's complaint does not on its face reveal a federal question, and the mere fact that the defendant may assert federal law as a defense to the plaintiff's claims does not sufficiently create jurisdiction in this court. The application of the well-pleaded complaint doctrine does not establish this court's jurisdiction. The doctrine, however, like virtually every rule of law, is augmented with exceptions.
One exception applied by federal courts is the "artful pleading" doctrine, "in which the court seeks to evaluate a plaintiff's motive for [his] failure to plead a federal cause of action." Aaron v. National Fire Ins. Co. of Pittsburg, 876 F.2d 1157, 1161 (5th Cir. 1989). "If the court concludes that the plaintiff's failure to plead [his] federal claim was not in good faith, but rather was an attempt to conceal the fact that [his] claim was truly federal, the court will allow the removal." Aaron, 876 F.2d at 1161; KVHP TV Partners, Ltd. v. Channel 12 of Beaumont, Inc., 874 F.Supp. 756, 759-60 (E.D. Tex. 1995); Gray v. Murphy Oil U.S.A., Inc., 874 F.Supp. 748, 753 (S.D. Miss. 1994).
In the case at bar, there has been no allegation by the defendant that the plaintiff lacked good faith in the assertion of his claims, and the court can find no evidence of an illicit or otherwise improper motive on Mr. Merkel's behalf in filing this lawsuit in state court and relying on state law tort claims to the exclusion of claims arising under federal law. See Beers v. North American Van Lines, 836 F.2d 910, 913 (5th Cir. 1988);5 Wallace v. Ryan-Walsh Stevedoring Co., Inc., 708 F.Supp. 144, 150 (E.D. Tex. 1989). The artful pleading doctrine does not operate in this case to create federal subject-matter jurisdiction.
Another avenue for establishing removal jurisdiction is the doctrine of complete preemption. Caterpillar, 482 U.S. at 391, 96 L.Ed.2d at 327; Aaron, 876 F.2d at 1161. In some instances, federal law can so completely preempt state law that the plaintiff's complaint must be considered as stating a...
To continue reading
Request your trial