Opinion
No. 1:02-cv-086.
July 9, 2002
ORDER
In accordance with the accompanying memorandum of law, the motions to remand this action to state court [Court File No. 5 and No. 7] are GRANTED. The scheduling conference previously set for July 29, 2002, at 4:00 p.m. is CANCELLED. This entire case is hereby REMANDED to the Circuit Court of Hamilton County, Tennessee. Each party shall bear its own costs, expenses, and attorney's fees incurred in connection with the removal and motion to remand.
SO ORDERED.
MEMORANDUM
Plaintiff originally filed this action in the Circuit Court of Hamilton County, Tennessee. Defendants then removed the case to this federal district court pursuant to 28 U.S.C. § 1441. Defendants contend that this Court has federal question jurisdiction under 28 U.S.C. § 1331 because the complaint alleges violations of the plaintiff's rights under the First Amendment to the Constitution of the United States.
This matter is before the Court on plaintiff's motions for remand [Court File No. 5 and No. 7]. Plaintiff argues that removal is improper for several reasons: (1) no federal question has been presented; (2) the notice of removal is insufficient as a matter of law; (3) remand is proper where an issue may be decided on the basis of state law; and (4) defendant Associates in Diagnostic Radiology, P.C. ("ADR"), waived its right to remove this case to federal court by filing a motion to dismiss in state court. The defendants oppose the motions for remand.
After reviewing the record and conducting a hearing in this matter, the Court concludes that the motions for remand will be GRANTED. The Court concludes that the plaintiff did not allege a violation of her constitutional rights pursuant to 42 U.S.C. § 1983, and the resolution of plaintiff's state cause of action does not necessarily turn upon a federal question. It is not necessary for the Court to determine whether the notice of removal is insufficient as a matter of law nor whether defendant ADR waived its right to remove by filing a motion to dismiss in state court. For reasons expressed below, this case will be REMANDED to the Circuit Court of Hamilton County, Tennessee.
I. Facts
The defendants contend that the complaint clearly presents a federal question. Paragraph 25 of the complaint reads:
25. Erlanger, acting through its duly constituted Board of Trustees, acted maliciously toward Plaintiff and unlawfully intimidated her in an attempt to prevent her free exercise or enjoyment of rights guaranteed to her by the First Amendment to the Constitution of the United States and Article I, Section 19 of the Constitution of Tennessee. Erlanger is liable by reason of the doctrine of respondeat superior.
In a hearing conducted on June 28, 2002, plaintiff's counsel stated, on the record, that the plaintiff's intent was not to invoke federal jurisdiction by way of 42 U.S.C. § 1983. Plaintiff's counsel argued that the complaint referenced the First Amendment to the United States Constitution only to explain that the plaintiff's rights under the state constitution are coextensive with that of the federal constitution.
II. Analysis
Because diversity of citizenship is not alleged, removal is proper only where "the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States." 28 U.S.C. § 1441(b). Removal statutes are strictly construed against removal and in favor of state court jurisdiction. See Shamrock Oil Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 534 (6th Cir. 1999). In the interest of federalism, federal jurisdiction should be exercised only when it is clearly established. See Brierly, 184 F.3d at 534.
The burden of demonstrating the propriety of removal rests with the defendants. See Long v. Bando Mfg. of Am., Inc., 201 F.3d 754, 757 (6th Cir. 2000). The defendants must show that the Court has original jurisdiction over this action. See id. In determining whether removal is proper, this Court applies the "well-pleaded complaint" rule: "federal jurisdiction exists only when a federal question is presented on the face of a plaintiff's properly pleaded complaint." See id. at 758 (internal quotation marks omitted).
The defendants argue that paragraph 25 of the plaintiff's complaint alleges a violation of the plaintiff's First Amendment rights guaranteed by the Constitution of the United States and, thus, removal is appropriate.
However, the proper vehicle by which a party may complain of a violation of one's rights guaranteed by the Constitution of the United States is a 42 U.S.C. § 1983 action. See Thomas v. Shipka, 818 F.2d 496, 499 (6th Cir. 1987), vacated and remanded on other grounds, 488 U.S. 1036 (1989). The complaint does not allege a claim under § 1983 nor does it attempt to apply the First Amendment to a political subdivision of the state of Tennessee through the Fourteenth Amendment. This omission evinces plaintiff's intent not to invoke federal jurisdiction. The plaintiff chose instead to limit her cause of action to a violation of the state constitution. Although "the First Amendment to the Constitution of the United States" is referenced on the face of the complaint, the complaint asserts only a state-law cause of action.
Furthermore, because plaintiff has conveyed to the Court that she will not pursue any federal claim, it is clear that no federal question has been presented here, and that the resolution of plaintiff's claims will turn only on state law. See, e.g., Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983) (reasoning that federal jurisdiction exists in "only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law."); Long, 201 F.3d at 759 (concluding federal jurisdiction exists "if resolution of [a] federal question is necessary to the resolution of the state-law claim.");
III. Conclusion
Accordingly, the plaintiff's motions for remand [Court File No. 5 and No. 7] will be GRANTED. The entire case will be REMANDED to the Circuit Court of Hamilton County, Tennessee. An order will enter.