Mickalis Pawn Shop, LLC v. Bloomberg
| Decision Date | 29 January 2007 |
| Docket Number | C.A. No.: 2:06-02794-PMD. |
| Citation | 482 F.Supp.2d 707 |
| Court | U.S. District Court — District of South Carolina |
| Parties | MICKALIS PAWN SHOP, LLC and Larry Mickalis, Individually, plaintiffs, v. Michael BLOOMBERG, Mayor of the City of New York, in his capacity as Mayor of New York City, and Individually; The City of New York, a New York Corporation; James Mintz Group, Inc., a Delaware corporation; Connie Reaves, a South Carolina Resident; and John Doe, Investigator, F.N.U/L.N.U., as yet unidentified, Defendants. |
Carl Everette Pierce, II, Pierce Hems Sloan and McLeod, Justin Simon Kahn, Kahn Law Firm, Charleston, SC, for plaintiff's.
George Trenholm Walker, Thomas H. Hesse, Pratt-Thomas Pearce Epting and Walker, Charleston, SC, Kenneth W. Taber, Pillsbury Winthrop Shaw Pittman, Melanie CT. Ash, Richard J. Costa, New York City Law Department, New York, NY, for Defendants.
This matter is before the court upon Plaintiff Mickalis Pawn Shop, LLC's ("Mickalis Pawn") and Plaintiff Larry Mickalis's ("Mr.Mickalis") Motion to Remand. For the reasons set forth herein, the court grants plaintiff's' Motion to Remand.
On May 15, 2006, the City of New York (the "City") filed suit in the United States District Court for the Eastern District of New York ("New York Action") against Mickalis Pawn, a pawn shop owned by Mr. Mickalis and located in Summerville, South Carolina. This suit also named fourteen other firearms dealers in Georgia, Ohio, Pennsylvania, and Virginia as defendants, alleging public nuisance and negligence against the firearms dealers for selling guns recovered from illegal possessors in the City or guns later connected with a crime in the City. In a press conference also held on May 15, 2006, Mayor Bloomberg stated,
Between 1994 and 2001, guns purchased from these 15 dealers had been traced to more than 500 serious crimes in New York City including 20 actual or attempted homicides. Sometimes, the crimes were committed just days or weeks after the gun was bought; a sure sign that they were purchased for resale on the streets or cities across America, including our great city.... Our suit offers clear and compelling evidence that guns sold by these dealers are used in crimes by people ineligible to own a gun far more frequently than guns from other dealers. In other words, these dealers are the worst of the worst. They were either intentionally or negligently selling handguns in a manner that violates Federal Law usually by selling to straw purchasers.
Michael Bloomberg, Mayor of the City of N.Y., Press Conference on Suit Against Firearms Dealers (May 15, 2006). Mayor Bloomberg further stated, "We targeted those irresponsible dealers and we caught many of them red-handed," and he described how undercover investigators made simulated straw purchases from the firearms dealers named in the City's suit. Id.
On August 16, 2006, Mickalis Pawn and Mr. Mickalis filed suit against Defendants in the Court of Common Pleas, Berkeley County ("South Carolina Action"). In the complaint, Mickalis Pawn and Mr. Mickalis allege that Mickalis Pawn "has never been charged by any law enforcement agency for illegally selling firearms" and that "Defendants manufactured the underlying lawsuit and published the false and defamatory statements about Mickalis Pawn Shop as a political maneuver." (Complaint ¶¶ 12, 40.) Mickalis Pawn and Mr. Mickalis thus brought the following causes of action against Defendants:
1. Conspiracy
2. Fraud
3. Constructive fraud
4. Libel and slander
5. Violation of the South Carolina Unfair Trade Practices Act
6. Violation of the South Carolina Frivolous Civil Proceedings Sanctions Act
7. Abuse of process, and
8. Intentional infliction of emotional distress/outrage.
(See Compl.) Defendants then filed Notice of Removal on October 6, 2006, asserting this court "has original jurisdiction over this civil action pursuant to 28 U.S.C. § 1331 because at least one of plaintiff's' claims ... `aris[es] under the Constitution, laws or treaties of the United States[.]'" (Notice of Removal ¶ 6.)
On November 3, 2006, plaintiff's filed a Motion to Remand. In their Motion to Remand and Supporting Memorandum, plaintiff's argue the case sub judice does not present a federal question as they have asserted only state law claims against Defendants. Defendants oppose plaintiff's' Motion, to Remand, asserting plaintiff's' "Complaint raises several substantial issues of federal law, including whether the conduct that forms the basis for [P]laintiffs' complaint violates the federal Gun Control Act of 1968 as determined through the `straw man' doctrine." (Defs.' Resp. in Opp'n at 1.)
A defendant may remove a civil action brought in state court if the case originally could have been brought in a federal district court. See 28 U.S.C. § 1441(a). Jurisdiction is established based on the allegations of the plaintiff's complaint filed in state court. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Federal courts are presumptively without jurisdiction over civil matters, and the burden of establishing the contrary rests upon the party seeking jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Removal jurisdiction is strictly construed; in doubtful cases, the action must be remanded. See Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir.1994).
In this case, Defendants assert that the federal courts have jurisdiction over this matter pursuant to 28 U.S.C. § 1331. Section 1331 provides that "district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Generally, the presence of federal question jurisdiction is determined by the well-pleaded complaint rule. Gully v. First Nat'l Bank, 299 U.S. 109, 112-13, 57 S.Ct. 96, 81 L.Ed. 70 (1936); Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908). In other words, federal question jurisdiction exists "only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425; see also King v. Marriott Int'l, Inc., 337 F.3d 421, 424 (4th Cir.2003). Thus, pursuant to the well-pleaded complaint rule, the plaintiff is the master of his claim, and he "may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425; see also Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 809 n. 6, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986) (); Great N. R.R. Co. v. Alexander, 246 U.S. 276, 282, 38 S.Ct. 237, 62 L.Ed. 713 (1918) (); The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716 (1913) (). Accordingly, courts "ordinarily ... look no farther than the plaintiff's complaint in determining whether a lawsuit raises issues of federal law capable of creating federal-question jurisdiction under 28 U.S.C. § 1331." Custer v. Sweeney, 89 F.3d 1156, 1165 (4th Cir.1996). Moreover, "[w]hen evaluating the propriety of removal, the district court must determine the nature of plaintiff's claims from the face of the complaint at the time the petition for removal was filed." Martin v. Lagualt, 315 F.Supp.2d 811, 814 (E.D.Va.2004) (citation omitted).
A lawsuit generally arises under the law creating the cause of action, and if federal law creates the cause of action, federal courts have subject matter jurisdiction. See Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir.2004). However, if state law creates the cause of action, the court "must determine whether [the] case is within the `small class of cases where ... the case's resolution depends on resolution of a federal question sufficiently substantial to arise under federal law within the meaning of 28 U.S.C. § 1331.'" Id. (quoting Ormet Corp. v. Ohio Power Co., 98 F.3d 799, 806 (4th Cir.1996)). Thus, as the Fourth Circuit stated in Dixon,
[I]n the absence of another jurisdictional ground, a defendant seeking to remove a case in which state law creates the plaintiff's cause of action must establish two things: (1) that the plaintiff's right to relief necessarily depends on a question of federal law, and (2) that the question of federal law is substantial. If either of these two elements is lacking, removal is improper and the case should be remanded to state court.
In the case sub judice, plaintiff's assert a cause of action under the South Carolina Unfair Trade Practices Act ("SCUTPA"). The SCUTPA states, "Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." S.C.ConE § 39-5-20. For a plaintiff to recover under the SCUTPA, he or she must show:
(1) the defendant engaged in an unfair or deceptive act in the conduct of trade or commerce; (2) the unfair or deceptive act affected public interest; and (3) the plaintiff suffered monetary or property loss as a result of the defendant's unfair or deceptive act(s).
Wright v. Craft, 372 S.C. 1, 53, 640 S.E.2d 486, 498 (Ct.App.2006). A trade practice is considered unfair "`when it is offensive to public policy or when it is immoral, unethical, or oppressive; a practice is deceptive when it has a tendency to deceive.'" Adams v. G.J. Creel & Sons, Inc., 320 S.C. 274, 279, 465 S.E.2d 84, 86 (1995) (quoting Young v. Century Lincoln-Mercury, 302 S.C. 320, 326, 396 S.E.2d 105, 108 (Ct.App. 198...
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