Opinion
Civil Action No: 04-2008, SECTION: "J" (3).
August 19, 2004
ORDER OF REMAND
This action was removed to this Court based on defendant's contention that the Court has original jurisdiction over the case pursuant to 28 U.S.C. § 1331, because the state court petition makes a reference to the Fifth Amendment.
Specifically, the prayer for relief in the petition seeks a declaration that "the change of the zoning classification of the Colonial Country Club Property . . . constitutes an unjust and illegal taking of Plaintiff's collateral in violation of Article I, Section IV of the Constitution of the State of Louisiana, and the Fifth Amendment of the United States Constitution." (Emphasis added.)
However, the Court's review of the petition indicates that this matter is one in which state law issues predominate. The main body of plaintiff's complaint makes no reference to federal law, and plaintiff's principal demand is for a declaration that "Ordinance No. 1449 adopted n June 17, 2004 to amend Ordinance No. 1333, Section Iv, District Regulation, A. General Provisions, Nos. 2 and 3, is null, void and unenforceable due to the fact that there was no finding of sufficient public necessity to justify the re-zone of the Property. . . ." Petition, ¶ 10. Thus, the claim arises under a state law or city ordinance which requires a finding of sufficient public necessity to re-zone property. The "takings" claims contained in the body of the petition is based solely on the Louisiana Constitution. Id. at ¶ 12. The reference to the Fifth Amendment of the United States Constitution is a cursory one in the prayer for relief, and does not form the basis of the complaint.
It is well-settled that "[a] federal question merely incidental or collateral to the main controversy is not the basis of the suit and is not enough to deprive the state court of jurisdiction upon petition for removal by the defendant." Armstrong v. Alliance Trust Co., Ltd., 126 F.2d 164, 167 (5th Cir. 1942). Moreover, under 28 U.S.C. § 1441 (c), "the district court . . . may remand all matters in which State law predominates." Courts considering this provision "have decided overwhelmingly that the provision . . . permits them to remand the entire action, federal claims and all, if the state law claims predominate." Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 105 (5th Cir. 1996). Because the Court finds that the reference to federal law in plaintiff's petition is merely collateral or incidental, and that state law issues predominate in this case,
IT IS ORDERED that this matter is hereby REMANDED to the 24th Judicial District Court for the Parish of Jefferson.