Opinion
CIVIL ACTION NO: 03-3635, SECTION: "R".
June 10, 2004
ORDER AND REASONS
Before the Court is the motion of plaintiff, Commercializadora Portimex, S.A. de C.V., to remand The Court held oral argument on plaintiff's motion on March 10, 2004. After oral argument, third-party defendant Zen-Noh Grain Corporation moved for a permanent injunction. The Court considered the parties' briefs and arguments made during oral argument, and for the following reasons, the Court grants Portimex's motion to remand and denies Zen-Noh's motion for a permanent injunction.
I. Background
A. Procedural Background
In two separate contracts, plaintiff Commercializadora Portimex, S.A. de C.V., agreed to buy and third-party defendant Zen-Noh Grain Corporation agreed to sell two shipments of sorghum. On April 19, 2002, Portimex filed a lawsuit in this Court against Zen-Noh in which it alleged that Zen-Noh breached both contracts by delivering sorghum with a mycotoxin, zearlenone, in excess of the contractual limit. On September 12, 2002, the Court granted defendant's motion for summary judgment as to the first shipment of sorghum. The Court held a three-day trial on the second shipment of sorghum. In an Order and Reasons dated November 1, 2002, the Court found that Zen-Noh fully complied with its contractual obligations to Portimex. The Court entered judgment against Portimex and dismissed its complaint with prejudice on November 6, 2002.
Eastern District of Louisiana Civil Action No. 02-1185.
On December 19, 2002, Portimex filed a lawsuit against defendant Thionville Laboratories, Inc. and its insurer in the 24th Judicial District Court of the State of Louisiana, in which Portimex alleged claims based on negligence, breach of contract, violation of the Louisiana Unfair Trade Practices Act, breach of covenant of good faith and fair dealing, detrimental reliance, and intentional or negligent misrepresentations. Thionville is the independent laboratory that Zen-Noh hired to test the sorghum sold to Portimex and to certify, among other things, that the zearlenone level did not exceed the contractual limit. Thionville filed a third-party complaint against Zen-Noh in the state proceedings, in which Thionville alleges that Zen-Noh is liable to it for the amount of any judgment Portimex secures against it, as a result of Zen-Noh's negligence, fault, and/or breach of duty, warranty or contract. Zen-Noh removed the case to this Court. In its Notice of Removal, Zen-Noh asserts that this Court has supplemental jurisdiction over the claims in this case under 28 U.S.C. § 1367 because the claims in this case are related to the claims in Portimex's previous lawsuit, Civil Action No. 02-1185, over which the Court had jurisdiction. Zen-Noh also asserts that this suit attacks the findings, conclusions, order and judgments of this Court in Civil Action No. 02-1185, and thus this Court has jurisdiction under the All Writs Act, 28 U.S.C. § 1651. Further, Zen-Noh contends that federal question jurisdiction exists over the instant action because Portimex's claims attack the method and procedure of grain sampling utilized by the Federal Grain Inspection Service under the United States Grain Standards Act, 7 U.S.C. § 71, et seq.
The All Writs Act authorizes federal courts to "issue all writs necessary or appropriate in aid of their . . . respective jurisdiction[.]" 28 U.S.C. § 1651. The All Writs Act is not an independent source of federal court jurisdiction. See In re Fraser, 75 F. Supp.2d 572, 578 (E.D.Tex. 1999) (citing Westinghouse Elec. Corp. v. Newman, 992 F.2d 932, 937 (9th Cir. 1993)), but it allows federal courts "to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained." United States v. New York Telephone Co., 434 U.S. 159, 172 (1977) (citing Harris v. Nelson, 394 U.S. 286, 299 (1969)).
B. Factual Background
The following factual background is adapted from this Court's opinion in which it granted summary judgment in favor of Zen-Noh on Portimex's claims based on the first contract and the findings of fact in its opinion in which the Court rejected Portimex's allegations that Zen-Noh was in breach of the second contract.
Civil Action No. 02-1185, Rec. Doc. 50, Order and Reasons dated Sep. 12, 2002, Rec. Doc. 105, Order and Reasons dated Nov. 1, 2002.
Portimex is a Mexican corporation engaged in the importation of grain, including sorghum. Zen-Noh is a Louisiana corporation that exports grain, including sorghum, from its grain elevator on the Mississippi River in Convent, Louisiana. Thionville is a Louisiana corporation that inspects and analyzes grain cargoes.
Zen-Noh purchases grain and stores it in silos at its elevator along the Mississippi River. When it sells the grain, it unloads the grain from the silos and places it on a vessel provided by the purchaser. More specifically, the grain flows from the silo to one or more "shipping bins." During the transfer from the silo to the shipping bins, the Federal Grain Inspection Service ("FGIS") sets aside a random selection of grain for sampling and testing. The FGIS is an agency of the United States Department of Agriculture ("USDA"). The amount of grain in the shipping bins that the FGIS weighs, analyzes, and releases for loading is referred to as a "sublot." The entire shipment of grain loaded onto the barge is referred to as a "lot" or "shiplot" of grain.
The maximum size of each "sublot" may be specified by contract, and each sublot may comprise more than one shipping bin.
The FGIS typically tests grain for certain grade factors before the grain is loaded onto the vessel. There are, however, certain quality factors for which FGIS does not perform tests. For example, FGIS does not test for the mycotoxin zearlenone. Zearlenone is a by-product of mold that can cause harm to animals when the grain is used as animal feed. If a contract requires testing for zearlenone, the contract typically provides for the seller to select an independent lab to test the grain and certify the results. Unlike the tests conducted by FGIS, tests conducted by independent labs do not take place at the dock during loading. Rather, sealed samples of the grain must be sent to the independent lab. Certification of the grain's quality can take several days and may not be known until after the vessel has completed loading and left port. Furthermore, test results can vary considerably depending on the sample taken, the lab performing the testing, and the method that the laboratory uses. Test results may vary even when the same laboratory uses the same test method on the same sample.
The grain export industry utilizes three methods for testing the grade and quality of grain. In the contracts between Portimex and Zen-Noh, Zen-Noh agreed to test the grain for certain qualities utilizing the "Sublot Basis" method. To test on a Sublot Basis, a sample of the grain is taken from each individual sublot. Each sample is tested, and the results of the tests are averaged to determine the overall quality of the shiplot. The contracts between Portimex and Zen-Noh specify that the "[s]eller shall provide an independent laboratory analysis certifying on a sublot basis . . . [a] Maximum 100 ppb zearlenone." The contracts also provide that "FGIS weights and grades final at port and time of loading," and that "[c]ertification of quality and weight at [origin] will be final for both parties. However, buyer has the right to appeal following the procedures established by FGIS in this respect." Most of Zen-Noh's buyers do not request testing for zearlenone. Portimex, however, intended to sell the sorghum for use as animal feed and therefore specified that the sorghum contain a maximum 100 ppb zearlenone, and Zen-Noh agreed to this term in both contracts.
Zen-Noh loaded the first shipment of sorghum in 18 sublots onto Portimex's barge on December 20, 2001. Zen-Noh selected Thionville to test and certify the shiplot for, among other things, zearlenone in excess of 100 parts per billion. Thionville reported that each sublot tested "negative" for zearlenone in excess of 100 parts per billion. In January of 2002, several weeks before Zen-Noh was to load the second shipment of sorghum onto a vessel provided by Portimex, Portimex became concerned that Zen-Noh's supply of sorghum contained high levels of zearlenone. This concern stemmed from the first shipment of sorghum that Zen-Noh delivered to Portimex in December of 2001. Portimex was so concerned about the quality of Zen-Noh's sorghum that it sought to cancel the second contract. Zen-Noh refused to cancel the contract. Portimex then requested that it be allowed to select the independent laboratory that would test the sorghum for zearlenone. Again Zen-Noh refused. Portimex then requested that it be allowed to send a representative to the loading of its vessel and that this representative be given samples sealed by FGIS to send to another lab for testing. As it is customary in the grain industry for the buyer to send a representative to the loading of a vessel and to obtain sealed samples of the grain, Zen-Noh acceded to this request. Zen-Noh also agreed to a request that the independent tester selected by Zen-Noh use a particular method to test the sorghum for the presence of zearlenone.
Portimex nominated the M/V MELINI to carry sorghum from Zen-Noh's facility on the Mississippi River to Tuxpan, a port city in Mexico on the Gulf of Mexico. Zen-Noh loaded the second shipment of sorghum onto the MELINI on February 2 and 3, 2002. The shiplot was comprised of 18 sublots. Zen-Noh again selected Thionville to test and certify the sorghum. Portimex obtained samples sealed at loading and sent these to CII Laboratory Services, an independent lab in Kansas City, Missouri.
The MELINI left port on February 3, 2002, and arrived in Tuxpan, Mexico several days later. On February 6, 2002, Thionville reported its test results. Using the method required by Portimex, Thionville determined that one sublot contained 180 ppb zearlenone and the remaining 17 sublots contained less than 100 ppb. Thionville determined that the mathematical average of the 18 test results equaled 20 ppb, so Thionville certified that the sorghum contained less than 100 ppb. Portimex could have attended Thionville's testing, but it did not. Portimex could have requested hard copies of Thionville's laboratory results, but it did not. On February 8, 2002, CII reported that eight of the 18 sublots contained zearlenone in excess of 100 ppb. CII also conducted a 19th test on a composite sample drawn from the entire shiplot loaded onto the MELINI. The test of the composite sample indicated that zearlenone did not exceed 100 ppb.
When the MELINI arrived in Tuxpan, buyers requested that the sorghum be tested for zearlenone. The test results revealed zearlenone levels greater than 100 ppb, and the buyers refused to purchase the sorghum. In its complaint against Thionville, Portimex asserts that it suffered substantial money damages because of the high levels of zearlenone in the sorghum. Portimex alleges several claims against Thionville. Portimex alleges that Thionville was negligent in failing to properly perform its inspection, analysis and certification of the two shipments of sorghum; that Thionville breached the oral contract between Thionville and Zen-Noh, to which Portimex is a third-party beneficiary; that the acts and omissions of Thionville constitute unfair methods of competition and/or unfair or deceptive acts or practices in the conduct of trade or commerce; that Thionville breached the covenant of good faith and fair dealing when it failed to follow the instructions from Zen-Noh in good faith and failed to detect the unacceptably high levels of zearlenone in the sorghum; that Portimex detrimentally relied on Thionville's representations; and that Thionville made intentional misrepresentations, or in the alternative, negligent misrepresentations, to Portimex.
II. Discussion
Generally, a defendant may remove a civil action filed in state court if a federal court would have had original jurisdiction. See 28 U.S.C. § 1441(a). "The removing party bears the burden of establishing that federal jurisdiction exists" at the time of removal. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). Because the exercise of removal jurisdiction raises significant federalism concerns, the removal statutes are strictly construed. See Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 106 (5th Cir. 1996). Zen-Noh asserts three bases for original jurisdiction in this Court: (1) federal question jurisdiction, (2) jurisdiction under the Court's Article III powers, (3) jurisdiction conferred by the All Writs Act.
A. Removal by Third-Party Defendant Zen-Noh
The Court first considers whether Zen-Noh, as a third-party defendant, may remove this action, which is an issue that neither party addressed. The Court notes that defendant in this action, Thionville, did not seek removal. Zen-Noh's Notice of Removal does not specify under which statute it seeks removal. Title 28 United States Code Section 1441(a) provides:
Except as otherwise expressly 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) (emphasis added). The Court considers the question of whether Zen-Noh, as a third-party defendant, is a "defendant" within the meaning of Section 1441(a). In BJB Co. v. Comp Air Leroi, 148 F. Supp.2d 751 (N.D.Tex. 2001), Judge Cummings concluded that although "circuit courts have not have not directly addressed the issue of whether § 1441(a) permits removal by third-party defendants, district courts throughout the country have, in relative unison, determined that third-party defendants are not defendants within the meaning of § 1441(a)." Id. at 752-53 (citing cases). Since BJB Co., the Sixth Circuit joined the "majority view" and concluded that Section 1441(a) does not provide third-party defendants with the right to remove a case to federal court. See First Nat'l Bank of Pulaski v. Curry, 301 F.3d 456, 461-62 (6th Cir. 2002).
Zen-Noh states in its Notice of Removal that Portimex's claims against Thionville are within this Court's jurisdiction because there is complete diversity between Portimex and defendants and the amount in controversy exceeds $75,000, which implies that Thionville could have removed this case. Thionville could not remove the case in the absence of federal question jurisdiction, however, due to the prohibition in 28 U.S.C. § 1441(b), which provides:
Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.28 U.S.C. § 1441(b). Because Thionville is a Louisiana citizen, Section 1441(b) prohibited it from removing the case to federal court in the absence of federal question jurisdiction. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996).
Although Zen-Noh may not remove the state court action under Section 1441(a), Fifth Circuit law does permit a third-party defendant to remove an action under Section 1441(c). See Carl Heck Engineers, Inc. v. Lafourche Parish Policy Jury, 622 F.2d 133, 136 (5th Cir. 1980). Section 1441(c) provides:
Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.28 U.S.C. § 1441(c). Section 1441(c) is inapplicable here, however, because none of Thionville's claims against Zen-Noh qualifies as a "separate and independent within the jurisdiction conferred by section 1331[.]" Id. Thionville's claims do not raise federal questions under Section 1331 because they are based on negligence, fault and breach of duty, warranty and contract. Accordingly, removal under Section 1441(c) is improper.
Because the Court finds that removal of the instant action by Zen-Noh is not authorized by either Section 1441(a) or (c), the Court grants plaintiff's motion to remand
B. Zen-Noh's Burden
Even if removal by Zen-Noh as a third-party defendant were statutorily permitted under Section 1441(a), the Court finds that remand would still be appropriate because Zen-Noh fails to meet its burden to establish a basis for original jurisdiction over this case. As noted above, Section 1441(a) permits removal of cases over which the district courts have "original jurisdiction." 28 U.S.C. § 1441(a). None of the three bases espoused by Zen-Noh establish original jurisdiction in this Court. The Court considers each basis in turn. 1. Federal Question Jurisdiction
Federal district courts have jurisdiction over cases "arising under the Constitution, law, or treaties of the United States." 28 U.S.C. § 1331. The question of whether a claim arises under federal law "must be determined by reference to the `well-pleaded complaint.'" Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9-10 (1983)); Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). "Since a defendant may remove a case only if the claims could have been brought in federal court, . . . the question for removal jurisdiction must also be determined by reference to the `well-pleaded complaint.'" Merrell Dow, 478 U.S. at 808 (citation omitted). The well-pleaded complaint rule "requires disclosure of the federal question on the face of the complaint." Torres v. Southern Peru Copper Corp., 113 F.3d 540, 542 (5th Cir. 1997).
The parties do not dispute that the face of Portimex's complaint does not reveal the existence of a federal question. Portimex asserts only state law claims against Thionville. Zen-Noh asserts that this Court nonetheless has federal question jurisdiction over this matter because plaintiff's complaint accuses Zen-Noh and Thionville of committing acts prohibited by the United States Grain Standards Act (the "Grain Standards Act" or the "Act"), 7 U.S.C. § 71, et seq. The Act provides that
No person shall, in any sale, offer for sale, or consignment for sale, of any grain which involves the shipment of grain from the United States to any place outside thereof, knowingly describe such grain by any official grade designation, or other description, which is false or misleading.7 U.S.C. § 78; see also 7 U.S.C. § 87b Prohibited Acts ("No person shall . . . violate section . . . 78 . . . of this title"). Zen-Noh contends that Portimex's allegations of fraud, deceit and misrepresentation constitute allegations that Thionville and Zen-Noh committed acts prohibited under the Act. Zen-Noh asserts that this case therefore arises under the Act, and per 7 U.S.C. § 87f(h), the Court has jurisdiction over cases that arise under the Act.
"A corollary to the well-pleaded complaint doctrine `is that Congress may so completely preempt a particular area that any civil complaint raising this select group of claims is necessarily federal in character.'" Johnson v. Baylor University, 214 F.3d 630, 632 (5th Cir. 2000) (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987)); see also America First Comm., Inc. v. Shadowlands Comm., L.L.C., 2004 WL 32936 (E.D.La.). "`Complete preemption,' which creates federal removal jurisdiction, differs from more common `ordinary preemption' . . . which does not." Id. The Fifth Circuit has distinguished between the two types of preemption:
Ordinarily, the term federal preemption refers to ordinary preemption, which is a federal defense to the plaintiff's suit and may arise either by express statutory term or by a direct conflict between the operation of federal and state law. Being a defense, it does not appear on the face of a well-pleaded complaint, and, thus, does not authorize removal to federal court. By way of contrast, complete preemption is jurisdictional in nature rather than an affirmative defense to a claim under state law. As such, it authorizes removal to federal court even if the complaint is artfully pleaded to include solely state law claims for relief or if the federal issue is initially raised solely as a defense.Id. (quoting Heimann v. Nat'l Elevator Indus. Pension Fund, 187 F.3d 493, 500 (5th Cir. 2000), overruled on other grounds by Arana v. Ochsner Health Plan, 338 F.3d 433, 440 (5th Cir. 2003)).
The Fifth Circuit has held, however, that complete preemption is a narrow exception to the well-pleaded complaint rule. See id. "`The Supreme Court has clearly sanctioned the rule only in the area of federal labor relations and the Employee Retirement Income Security Act of 1974.'" See id. (quoting Waste Control Specialists, LLC v. Envirocare, Inc., 199 F.3d 781, 784 (5th Cir.), opinion withdrawn and superceded in part on reh'g on other grounds, 207 F.3d 225 (5th Cir. 2000)). Zen-Noh argues that the Grain Standards Act preempts Portimex's state law claims and that this issue is a matter of first impression. To establish complete preemption, Zen-Noh must show that
(1) the statute contains a civil enforcement provision that creates a cause of action that both replaces and protects the analogous area of state law; (2) there is a specific jurisdictional grant to the federal courts for enforcement of the right; and (3) there is a clear Congressional intent that claims brought under the federal law be removable.Id. (quoting Heimann, 187 F.3d at 500). As the Fifth Circuit has noted, "`few federal statutes can meet such an exacting standard.'" Id.
Defendant fails to show that the Grain Standards Act meets this high bar. To begin with, the Act does not contain a civil enforcement provision that creates a private cause of action. The Act establishes that a person who commits a prohibited act listed in Section 87b shall be subject to criminal penalties, and it is within the discretion of the Secretary of Agriculture of the United States or his delegate whether to report minor violations of the Act for criminal prosecution. See 7 U.S.C. § 87c (establishing criminal penalties and Secretary's discretion); see also 7 U.S.C. § 75 (defining "Secretary"). Further, Section 86 of the Act allows the Secretary to assess a civil penalty against any person who has knowingly violated Section 87b or any other federal law with respect to the handling, weighing or official inspection of grain. See 7 U.S.C. § 86. Nothing in the act provides for a private cause of action based on the commission of prohibited acts. Accordingly, the Court concludes that the Grain Standards Act does not completely preempt state law, and Portimex's complaint does not establish federal question jurisdiction.
2. Supplemental Jurisdiction
Zen-Noh argues that the Court should exercise supplemental jurisdiction over Portimex's claims in this suit under 28 U.S.C. § 1367, which provides:
[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.28 U.S.C. § 1367(a). Zen-Noh asserts that the Court should exercise jurisdiction over the claims in this suit because they form part of the same case or controversy as the original suit that Portimex filed against Zen-Noh in this Court, Civil Action No. 02-1185. Zen-Noh contends that Portimex's claims are factually interdependent on the claims that this Court previously adjudicated, and this Court should therefore exercise jurisdiction over the instant suit also.
To begin with, the Court finds that the previous federal lawsuit is insufficient to confer supplemental jurisdiction over Portimex's claims against Thionville. The Supreme Court has held that "[i]n a subsequent lawsuit involving claims with no independent basis for jurisdiction, a federal court lacks the threshold jurisdictional power that exists when ancillary claims are asserted in the same proceeding as the claims conferring federal jurisdiction." Peacock v. Thomas, 516 U.S. 349, 355 (1996) (citing Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 380-81 (1994)). The Peacock Court held that "claims alleged to be factually interdependent with and, hence, ancillary to claims brought in an earlier federal lawsuit will not support federal jurisdiction over a subsequent suit." Id. at 381. The Court has "reserved the use of ancillary jurisdiction in subsequent proceedings for the exercise of a federal court's inherent power to enforce its judgments." Id. at 356. In its complaint filed against Thionville in state court, Portimex alleges state law claims based on, inter alia, negligence, breach of contract, and misrepresentation. Although the claims are factually interdependent with the claims that Portimex asserted against Zen-Noh in this Court, the previous federal lawsuit alone is insufficient to support the exercise of ancillary jurisdiction over Portimex's claims against a different defendant.
Zen-Noh attempts to distinguish the Peacock case because that case was founded upon different facts and different theories of liability than the initial action. Here, however, Portimex is suing a different defendant in the state court action than it sued in the earlier federal court action. Portimex's theories of liability differ in that they are now based on the actions of Thionville and on the oral contract between Zen-Noh and Thionville, as compared to the previous claims that were based on the actions of Zen-Noh and the written contracts between Portimex and Zen-Noh. Consequently, this case is not materially distinguishable from the Peacock case in the manner in which Zen-Noh asserts.
More importantly, even if the Court could exercise ancillary jurisdiction over Portimex's claims against Thionville based on the earlier lawsuit, ancillary jurisdiction is not original jurisdiction. See Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 34 (2002). Because Section 1441(a) permits removal only when this Court has original jurisdiction, Zen-Noh cannot remove claims over which the Court has only supplemental jurisdiction. The Syngenta Court acknowledged that ancillary jurisdiction may provide a court with jurisdiction over related claims in a later lawsuit to enable the court to enforce its judgment, see Peacock, 516 U.S. at 356, but the invocation of ancillary jurisdiction "does not dispense with the need for compliance with statutory requirements" for removal under Section 1441. Syngenta, 537 U.S. at 34. Because ancillary jurisdiction is not original jurisdiction, it cannot support removal under Section 1441(a).
3. The All-Writs Act
Lastly, Zen-Noh argues that the Court has jurisdiction under the All Writs Act, 28 U.S.C. § 1651. Section 1651 provides that "courts . . . may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Zen-Noh asserts that this Court should retain jurisdiction over this case to enforce the judgment rendered in Portimex's earlier lawsuit in this Court. This case is very similar to the Syngenta case. See 537 U.S. 28. In Syngenta, the federal district court approved a settlement in a case before it. Petitioners then removed a later, related case to federal court, asserting jurisdiction based on the All Writs Act and supplemental jurisdiction under 28 U.S.C. § 1367. Petitioners asserted that the district court had jurisdiction because the state court action undermined the settlement in the first case, and the district court could assert jurisdiction over the state law action to protect the judgment in the earlier case. The Supreme Court focused on the requirement that the federal court must have original jurisdiction over a case to permit removal under Section 1441. The Court concluded that "[b]ecause the All Writs Act does not confer jurisdiction on the federal courts, it cannot confer the original jurisdiction required to support removal pursuant to § 1441." Syngenta, 537 U.S. at 33. The Court affirmed the Court of Appeals' finding that the state action was improperly removed to federal court. Similarly, the Court finds here that Zen-Noh fails to establish a basis for original jurisdiction over Portimex's lawsuit based on the All Writs Act.
In light of the above, even if Zen-Noh could remove the case as a "defendant" under Section 1441(a), Zen-Noh fails to meet its burden to establish that removal is proper because it does not establish any basis for original jurisdiction by this Court over Portimex's claims against Thionville.
C. Portimex's Request for Costs and Expenses
In its motion for remand, Portimex argues that Zen-Noh's removal was objectively unreasonable and it is therefore entitled to costs and attorney's fees associated with the remand of the case back to state court. Title 28, United States Code Section 1447(c) provides that "[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." An award of costs and expenses under § 1447(c) is discretionary. See 28 U.S.C. § 1447(c); Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 292 (5th Cir. 2000). The Court must determine whether the "defendant had objectively reasonable grounds to believe the removal was legally proper." Id. at 293; see also Avitts v. Amoco Prod. Co., 111 F.3d 30, 32 (5th Cir. 1997) (citing Miranti v. Lee, 3 F.3d 925, 929 (5th Cir. 1993)). Even if the Court finds that a defendant improperly removed a matter from state court, the Court has wide discretion with regard to whether to award costs and attorney's fees and may take into account, among other things, the complexity and uncertainty of the removal issue. See Miranti, 3 F.3d at 928 (and cases cited therein).
Although the Court remands this matter, the Court does not find any improper purpose underlying defendant's notice of removal. In light of the complex relationship between this case and the case the Portimex previously filed against Zen-Noh, Zen-Noh's removal was not objectively unreasonable. The Court therefore declines to award Portimex costs and expenses.
D. Zen-Noh's Motion for a Permanent Injunction
Because the Court concludes that it lacks jurisdiction over this suit, the Court cannot issue a permanent injunction in the context of this removed action. In support of its argument that the Court may still consider its motion for a permanent injunction in spite of the Court's finding that it lacks jurisdiction, Zen-Noh cites the case of HHC v. New York Inc. Cos., 994 F. Supp. 717 (E.D.Va. 1998). In HHC, the magistrate judge remanded the case and then considered the defendant's alternative request in its Notice of Removal for a permanent injunction to enjoin the state court proceedings. See id. at 724-25. The Court notes, however, that the magistrate issued the HHC opinion before the Supreme Court issued its opinion in Syngenta. In light of the Court's conclusion in Syngenta that the All Writs Act does not provide the original jurisdiction required for removal, the Court concludes that it lacks jurisdiction in this matter and therefore cannot rule on the merits Zen-Noh's motion for a preliminary injunction. As a result, the Court denies Zen-Noh's motion.
III. Conclusion
For the foregoing reasons, the Court grants Portimex's motion to remand and denies Zen-Noh's motion for a permanent injunction.