NEW ENG. EXPLOSIVES v. Maine Ledge Blasting Spec.

• Decision Date: 09 July 1982
• Docket Number: Civ. No. 80-1182-B.
• Citation: 542 F. Supp. 1343
• Parties: NEW ENGLAND EXPLOSIVES CORPORATION, Plaintiff, v. MAINE LEDGE BLASTING SPECIALIST, INC., Richard Purrington, and Charles H. Kimball, Defendants.
• Court: U.S. District Court — District of Maine

542 F. Supp. 1343

NEW ENGLAND EXPLOSIVES CORPORATION, Plaintiff, v. MAINE LEDGE BLASTING SPECIALIST, INC., Richard Purrington, and Charles H. Kimball, Defendants.

Civ. No. 80-1182-B.

United States District Court, D. Maine.

July 9, 1982.

Ronald Epstein, Portland, Maine, for plaintiff.

Paul Stern, S. Harpswell, Maine, for defendants.

MEMORANDUM DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT

CYR, District Judge.

In this action plaintiff seeks in Count I to enforce a mechanics' lien on certain property for which it alleges it supplied materials.

In Count II plaintiff demands judgment against the corporation with which it contracted to supply materials, as well as against its principal officer, "owner and alter ego."¹ A default judgment was entered on June 9, 1981 against both defendants under Count II, in the amount of $8,975.88. On February 4, 1981, judgment was entered in favor of the United States pursuant to an offer of judgment by the plaintiff which was accepted by the United States with the proviso that any sale of the real estate would be subject to the leasehold interest of the United States.² Presently before the Court are cross motions for summary judgment under Count I and a motion for the entry of final judgment under Count II against the two defaulted defendants.

I. STATEMENT OF THE CASE

On October 29, 1979 Charles H. Kimball leased a parcel of land to the United States of America acting through the Federal Aviation Administration (F.A.A.) for the construction and maintenance of an access road and radar facility. The United States contracted with a general contractor to make improvements on the property. The general contractor subcontracted with Earth, Inc. or Stanley Ames to perform earth work for the project. Either Earth, Inc. or Stanley Ames in turn subcontracted with Maine Ledge Blasting Specialist, Inc. (Maine Ledge), and its president and owner, Richard Purrington, who in turn subcontracted with the plaintiff for the provision of materials.

Plaintiff furnished Maine Ledge and Richard Purrington with explosives and related materials used in erecting, altering, moving and/or repairing a building and/or appurtenances on the project. Materials were last supplied on July 11, 1980. There remains due for materials the sum of $8,975.88.

Plaintiff's lien claim is predicated on title 10, Maine Revised Statutes Annotated, section 3251, which provides in pertinent part:

Whoever ... furnishes ... materials ... used in erecting, altering, moving or repairing a house, building or appurtenances ... including the clearing, grading, draining, excavating or landscaping of the ground adjacent to and upon which any such above-named objects are constructed, by virtue of a contract with or by consent of the owner, has a lien thereon and on the land on which it stands and on any interest such owner has in the same, to secure payment thereof, with costs. If the owner of the building has no legal interest in the land on which the building is erected or to which it is moved, the lien attaches to the building ... and ... may be enforced as provided. 10 M.R.S.A. § 3251 (1980). The theory of recovery under Count II is apparently predicated on article 2 of the Maine Uniform Commercial Code, 11 M.R.S.A. §§ 2-101 et seq.

No claim is asserted under any federal statute, including the Miller Act, 40 U.S.C. §§ 270a-270d.³

This action was brought in Somerset County Superior Court on November 6, 1980. On November 26, 1980 the United States removed the case to this Court. On January 30, 1981 plaintiff filed a motion to remand on the ground that it had consented to judgment in favor of the United States. On October 23, 1981 plaintiff withdrew its motion to remand for the reason that it considered remand no longer appropriate in light of the filing by defendant Kimball of a cross-claim against the United States.

II. JURISDICTION

If at any time before final judgment it appears that a case was improvidently removed or that the court lacks jurisdiction, the case must be remanded, see 28 U.S.C. § 1447(c); Thermtron Products Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), and the Court may act sua sponte, see McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). Neither the failure of a party to object to a defect in removal jurisdiction nor the agreement of the parties to remove a nonremovable case can vest a federal district court with jurisdiction. Gainesville v. Brown-Crummer Investment Co., 277 U.S. 54, 59, 48 S.Ct. 454, 455, 72 L.Ed. 781 (1928); Merritt v. Bowdoin College, 169 U.S. 551, 556, 18 S.Ct. 415, 417, 42 L.Ed. 850 (1898); Thompson v. Gillen, 491 F.Supp. 24, 26 (E.D.Va.1980).

It appears that this action was improvidently removed by the United States and that this Court lacks jurisdiction. The jurisdictional basis asserted in the removal petition, that the action involved a mechanics' lien claim against real property in which the United States held a leasehold interest, asserts no recognized ground for removal. Title 28, United States Code, section 1441 permits removal only where the federal court would have had jurisdiction over the action as originally filed by the plaintiff. See First National Bank v. Aberdeen National Bank, 627 F.2d 843, 848 (8th Cir. 1980); Betar v. De Havilland Aircraft of Canada, Ltd., 603 F.2d 30, 36 (7th Cir. 1979), cert. denied, 444 U.S. 1098, 100 S.Ct. 1064, 62 L.Ed.2d 785 (1980).⁴

A. Federal Question

Federal question jurisdiction extends to cases arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331(a). The federal question must be disclosed on the face of the complaint, affirmatively and distinctly. Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 127-28, 94 S.Ct. 1002, 1003-1004, 39 L.Ed.2d 209 (1974); Gully v. First Nat. Bank, 299 U.S. 109, 113, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936); Shulthis v. McDougal, 225 U.S. 561, 569, 32 S.Ct. 704, 706, 56 L.Ed. 1205 (1912); Standage Ventures, Inc. v. Arizona, 499 F.2d 248, 249 (9th Cir. 1974). "The federal law under which the claim arises must be a direct and essential element of plaintiff's cause of action." San Juan Legal Services, Inc. v. Legal Services Corp., 655 F.2d 434, 437 (1st Cir. 1981). Federal statutes asserted by way of defense do not confer federal question jurisdiction. Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908); Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. at 127-28, 94 S.Ct. at 1003-1004; Gully v. First Nat. Bank, 299 U.S. at 113, 57 S.Ct. at 97. Defendants cannot confer removal jurisdiction on the Court by pleading a federal question in defense. Guinasso v. Pacific First Federal Savings & Loan Association, 656 F.2d 1364, 1366 (9th Cir. 1981); Border City Savings & Loan Association v. Kennecorp Mortgage & Equities, Inc., 523 F.Supp. 190, 192 (S.D. Ohio 1981).

The present complaint discloses no federal question or claim whatever. The suit involves a state-law contract claim and a state-law claim for the enforcement of a mechanics' lien.⁵ The defense asserted by the United States, that the improvements upon which the lien claim is based are property of the United States and invulnerable to lien, did not give rise to federal question jurisdiction.⁶

B. Diversity

A state court civil action may be removed to a federal district court if none of the parties in interest properly joined and served as defendants is a citizen of the state in which the action has been brought. 28 U.S.C. § 1441(b). There must be complete diversity and the amount in controversy must exceed $10,000. Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3723. Diversity must exist at the time the complaint is filed in the state court and at the time the removal petition is filed. Kellam v. Keith, 144 U.S. 568, 569, 12 S.Ct. 922, 36 L.Ed. 544 (1892); Boesenberg v. Chicago Title & Trust Co., 128 F.2d 245, 247 (7th Cir. 1942); Kerstetter v. Ohio Casualty Insurance Co., 496 F.Supp. 1305, 1307 (D.Pa.1980).

However, in an action against a resident and a nonresident defendant, the action may become removable if the plaintiff voluntarily dismisses the action against the resident defendant. Powers v. Chesapeake & Ohio Railway Co., 169 U.S. 92, 98, 18 S.Ct. 264, 266, 42 L.Ed. 673 (1898); Simpson v. Providence Washington Insurance Group, 608 F.2d 1171, 1174 (9th Cir. 1979); Growth Realty Companies v. Burnac Mortgage Investors, Ltd., 474 F.Supp. 991, 995 (D.P.R. 1979). If the resident defendant is involuntarily dismissed from the action, the case does not thereby become removable. Lathrop, Shea & Henwood Co. v. Interior Construction and Improvement Co., 215 U.S. 246, 251, 30 S.Ct. 76, 78, 54 L.Ed. 177 (1909); Weems v. Louis Dreyfus Corp., 380 F.2d 545, 547 (5th Cir. 1967).

The Court cannot exercise diversity jurisdiction in the present action. Two of the four defendants in the state court action were citizens of Maine at the time the action was filed and when it was removed. The fact that the Maine defendants have since been defaulted does not confer diversity jurisdiction on this Court.⁷ There has been no voluntary dismissal of the action as against the Maine defendants, nor has any final judgment been entered against them. Aside from lacking the requisite diversity, the present action does not satisfy the jurisdictional-amount requirement for diversity jurisdiction, since the total demand for damages is $8,975.88.⁸

C. Cross-Claim Against United States

In its cross-claim against the United States, defendant Kimball seeks to be held harmless for any outstanding debts due for materials supplied for the construction project. The United States asserts federal jurisdiction under title 28, United States Code, sections 1441(a) and (c) and 1346(a)(2). The United States seems to contend that the cross-claim asserts a claim under the Tucker Act. See 28 U.S.C. § 1346(...