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City of Manchester v. Doctor Johns, Inc.

United States District Court, E.D. Missouri, Eastern Division

September 24, 2019

CITY OF MANCHESTER, MISSOURI, Plaintiffs,
v.
DOCTOR JOHNS, INC., Defendants.

          MEMORANDUM AND ORDER

          STEPHEN R. CLARK, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant Doctor Johns, Inc.’s Notice of Removal [1]. The Court, sua sponte, remands this matter back to the Circuit Court of St. Louis County for lack of subject-matter jurisdiction. See 28 U.S.C. §1447(c) (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”)

         This case comes to the Court in an unusual manner. Doctor Johns removed this matter to this Court on September 22, 2019, the intervening Sunday between the days the state court conducted, and was scheduled to resume, the evidentiary hearing on the merits of the case. Apparently, neither before nor during the September 19 evidentiary hearing did Doctor Johns make any mention to the state court of the possibility of removing the case to federal court. ECF No. 11-1. In its Notice of Removal, Doctor Johns asserts that the case first became ascertainable of removal on receipt of the deposition of Plaintiff City of Manchester’s representative, which was taken on September 4, 2019, or on receipt of Manchester’s discovery responses on August 30, 2019. Doctor Johns claims that Manchester’s complaint seeks to regulate areas preempted by federal law and that it necessarily incorporates federal law, specifically the First and Fourteenth Amendments to the U.S. Constitution. Doctor Johns offers no explanation of why it could not have filed its notice of removal in the intervening period between receipt of the discovery responses or deposition transcript and September 19, when the state court began the evidentiary hearing. ECF No. 1.

         A. Lack of Subject Matter Jurisdiction

         Generally, “Except as otherwise provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). Doctor Johns removed this case on the basis the action includes federal law claims and state law claims. So, the Court looks to the more specific § 1441(c), which addresses the joinder of federal law claims and state law claims. A party may remove a case to federal court in this instance:

(c)(1) If a civil action includes –
(A) a claim arising under the Constitution, laws, or treaties of the United States (within the meaning of section 1331[1] of this title), and
(B) a claim not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute, the entire action may be removed if the action would be removable without the inclusion of the claim described in subparagraph (B).

28 U.S.C. § 1441(c)(1). When the action does not qualify for diversity jurisdiction, the Court must look to whether the case arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. The Court must remand this case because on the face of the complaint, the matter does not arise under the Constitution, laws, or treaties of the United States, federal law does not completely preempt the matter, and, under Grable, [2] the federal issues in this matter do not create federal subject-matter jurisdiction.

         1. Jurisdiction on the Face of the Complaint

         On the face of Manchester’s complaint, this matter does not arise under the Constitution, laws, or treaties of the United States. It also does not depend on federal law. “It is settled doctrine that a case is not cognizable in a federal trial court, in the absence of diversity of citizenship, unless it appears from the face of the complaint that determination of the suit depends on a question of federal law.” Pan Am. Petroleum Corp. v. Superior Court of Del. In & For New Castle Cty., 366 U.S. 656, 663 (1961). In its complaint, Manchester seeks a declaratory judgment that Doctor Johns violated, and continues to violate, Manchester’s zoning laws. ECF No. 2. Doctor Johns concedes, in its notice of removal, that the complaint does not set forth a case removeable on its face. ECF No. 1, ¶¶ 2, 11.

         Furthermore, a case may not be removed to federal court on the basis of a federal defense. Markham v. Wertin, 861 F.3d 748, 754 (8th Cir. 2017); see also Caterpillar, Inc. v. Williams, 482 U.S. 386, 392-93 (1987) (“Thus, it is now 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.”). “A suggestion of one party that the other will or may set up a claim under the Constitution or laws of the United States does not make the suit one arising under the Constitution or those laws.” Skelly Oil Co. v. Phillips Petroleum, Co., 339 U.S. 667, 672 (1950). A counterclaim based on federal law also cannot create federal subject-matter jurisdiction. Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830-31 (2002) (“It follows that a counterclaim – which appears as part of the defendant’s answer, not as part of the plaintiff’s complaint – cannot serve as the basis for ‘arising under’ jurisdiction.”). Here, Doctor Johns bases for removal concern only a federal defense – that Manchester’s ordinance is unconstitutional under the First and Fourteenth Amendments of the U.S. Constitution. This does not create federal subject-matter jurisdiction.

         2. Jurisdiction Based on Complete Preemption

         Doctor Johns also argues federal law preempts Manchester’s complaint, thereby creating a basis for removal. The artful pleading doctrine allows removal where federal law completely preempts a plaintiff’s state-law claim. Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998). A plaintiff may not defeat removal by omitting necessary federal questions in its pleadings. Id. “If a court concludes that a plaintiff has ‘artfully pleaded’ claims in ...


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