Opinion
Case No. 02-2121-JWL
June 17, 2002
MEMORANDUM AND ORDER
Plaintiff filed a petition for interpleader in state court. Defendant Redie Lewis removed the case to this court. Plaintiff and four of the remaining defendants contend that removal is improper and have moved to remand the case to state court. Specifically, this matter is before the court on plaintiff's motion to remand (doc. #7); defendant Michael F. Brady's motion to remand (doc. #19); defendant Jamie Saunders' motion to remand (doc. #21); defendant First Federal Savings Loan's motion to remand (doc. #29); and defendant City of Merriam's motion to remand (doc. #31). For the reasons set forth below, plaintiff's motion to remand is granted and the remaining motions are moot.
After Ms. Lewis failed to respond to plaintiff's motion to remand within the time period set forth in this court's local rules, the court ordered Ms. Lewis to show good cause in writing why the "motion to remand should not be considered and decided as uncontested and granted forthwith." See D. Kan. R. 7.4. Ms. Lewis timely responded to the show cause order in which she both explained her reasons for failing to respond to the motion to remand and responded to the merits of the motion. The court concludes that Ms. Lewis has shown good cause for failing to respond to the motion and, thus, proceeds to analyze the merits of plaintiff's motion to remand.
Discussion
In her removal notice, defendant Redie Lewis maintains that federal jurisdiction is appropriate based on both the federal question statute, 28 U.S.C. § 1331, and the diversity jurisdiction statute, 28 U.S.C. § 1332. She further contends that removal is appropriate because this court has original jurisdiction under 28 U.S.C. § 1335 and § 1343. As set forth in more detail below, the court concludes that removal was improper under each of the grounds asserted by Ms. Lewis. The case is remanded to state court.The federal question statute confers jurisdiction over cases "arising under" federal law. For a case to arise under federal law, "the federal question must be apparent on the face of a well-pleaded complaint, and [the p]laintiff's cause of action must be created by federal law or, if it is a state-law cause of action, its resolution must necessarily turn on a substantial question of federal law, and that federal law in turn must create a private cause of action." See Rice v. Office of Servicemembers' Group Life Ins., 260 F.3d 1240, 1245 (10th Cir. 2001).
Generally, the "well-pleaded complaint" rule requires that the federal question appear on the face of the plaintiff's properly pleaded complaint. See Garley v. Sandia Corp., 236 F.3d 1200, 1207 (10th Cir. 2001) (citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) ("The presence or absence of federal-question jurisdiction is governed by the `well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.")). In other words, the plaintiff is considered to be the "master of the claim" since "he or she may avoid federal jurisdiction by exclusive reliance on state law." Id. (quoting Williams, 482 U.S. at 392).
It is clear from a review of the state court petition that federal question jurisdiction does not exist. The petition for interpleader relies exclusively on state law. Indeed, defendant seems to concede as much. She makes no argument that plaintiff's petition raises issues of federal law. Rather, she contends that she has "learned that this case may have Federal issues" based on her belief that one or more of her co-defendants has potentially violated various federal laws. However, Ms. Lewis's assertion of potential defenses, counterclaims or crossclaims raising federal questions does not give the court federal question jurisdiction. See id. (cases originally brought in state court may not be removed to federal court even if a federal 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"); Searcy v. Searcy, No. 95-3179, 1995 WL 397081, at *1 (10th Cir. July 6, 1995) ("Appellant's assertion of counterclaims raising federal questions does not give the court jurisdiction.").
In the absence of a sufficient showing of federal question jurisdiction, the court turns to Ms. Lewis's cursory suggestion that the court has diversity jurisdiction over the case. It is readily apparent that the case must be remanded to the extent removal is based on diversity as 28 U.S.C. § 1441(b) permits removal of diversity cases "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." The record before the court demonstrates that all of the defendants are citizens of Kansas (the state in which the action was brought). Thus, removal is prohibited by § 1441(b) and the case must be remanded to state court. See Feichko v. Denver Rio Grande Western Railroad Co., 213 F.3d 586, 588 n. 3 (10th Cir. 2000) (recognizing rule), cert. denied, 531 U.S. 1074 (2001).
Ms. Lewis's removal notice also cites 28 U.S.C. § 1335, statutory interpleader, as the basis of federal jurisdiction. Section 1335 provides original federal jurisdiction of interpleader actions when money or property valued at $500 or more is subject to claims by "[t]wo or more adverse claimants, of diverse citizenship." Thus, while section 1335 requires only minimal diversity (as opposed to complete diversity), Ms. Lewis still must show that at least two of the claimants are of diverse citizenship. See State Farm Fire Casualty Co. v. Tashire, 386 U.S. 523, 530-31 (1967). All of the potential claimants are citizens of Kansas. Thus, the requirements of § 1335 are not satisfied and the court would not have original federal jurisdiction over this interpleader action. Moreover, even if the court would have had original jurisdiction over this action, the restrictions in § 1441(b) still apply to removal under the diversity jurisdiction of § 1335. As explained above, § 1441(b) bars removal of this case because the defendants are all citizens of the state in which the action was brought. See, e.g., Allstate Life Ins. Co. v. Hanson, ___ F. Supp.2d ___, 2002 WL 949160 (E.D.Wis. May 3, 2002) (where federal jurisdiction was based on § 1335 and court would have had original jurisdiction over the case, removal was nonetheless barred under § 1441(b) where one of the defendants was a citizen of the state in which the action was brought); Mandalay Oil Gas, L.L.C. v. Energy Development Corp., No. Civ. A. 98-3080, 1998 WL 850531, at *1-2 (E.D.La. Dec. 8, 1998) (same).
Finally, Ms. Lewis contends that removal is proper because this court has original jurisdiction of the case pursuant to 28 U.S.C. § 1343. While § 1441(a) specifically provides that a defendant may remove "any civil action brought in a state court of which the district courts of the United States have original jurisdiction," Ms. Lewis nonetheless was not entitled to remove this case to federal court pursuant to § 1343 as plaintiff has clearly not alleged any civil rights claims. While Ms. Lewis asserts that she has filed with various federal agencies complaints of racial discrimination against plaintiff and several of her co-defendants, even assuming Ms. Lewis eventually sought to assert such claims in this case as counterclaims or crossclaims, that assertion would still be insufficient to give the court jurisdiction. See Searcy v. Searcy, No. 95-3179, 1995 WL 397081, at *1 (10th Cir. July 6, 1995) ("Appellant's assertion of counterclaims raising federal questions does not give the court jurisdiction.").
In sum, then, Ms. Lewis has failed to support her allegations of federal jurisdiction. For all of the foregoing reasons, removal was improper and the court is required to remand the case to state court. See 28 U.S.C. § 1447(c); International Primate Protection League v. Administrators of Tulane Educ. Fund, 500 U.S. 72, 87 (1991) ("Since the district court had no original jurisdiction over this case, a finding that removal was improper deprives that court of subject matter jurisdiction and obliges a remand under the terms of § 1447(c)." (internal citation omitted) (superseded by statute on other grounds)).
Several of the defendants also move for remand on the grounds that they did not consent to removal and the failure of all defendants to join in a removal petition renders the petition defective and subject to remand. While the court need not reach this argument in light of its conclusion that it lacks subject matter jurisdiction over plaintiff's claims, the court simply notes that defendants, having filed their motions to remand more than 30 days after the filing of the removal notice, have waived their right to object to this procedural defect. See 28 U.S.C. § 1447(c) (motion to remand based on procedural defect must be filed within 30 days after the filing of the notice of removal); 14C Charles Alan Wright, Arthur R. Miller Edward H. Cooper, Federal Practice and Procedure § 3739 at 454-56 (3d ed. 1998) (after expiration of the thirty-day period following the filing of a removal notice, the right to object to nonjurisdictional defects in the removal process is waived and the expiration of the period bars both a motion to remand and a sua sponte remand by the district court); see also Quested v. Mortgage Plus, Inc., No. 01-1394-WEB, 2002 WL 810301, at *2 (D.Kan. Apr. 15, 2002) (motion to remand based on failure of all defendants to join in removal petition is one based on a procedural defect that must be made within 30 days after the filing of the removal petition or is waived).
Before doing so, the court addresses one final issue — plaintiff's request for an award of attorneys' fees and costs associated with obtaining the remand order. See 28 U.S.C. § 1447(c) ("An order remanding may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal."). Ms. Lewis objects to this request. While the court appreciates plaintiff's interest in recouping any attorneys' fees and costs which were unnecessarily incurred as a result of Ms. Lewis's disregard for the statutory prerequisites to the removal of a state court action, the court is also sensitive to Ms. Lewis's status as a pro se litigant. Of course, Ms. Lewis's pro se status is not to be "taken as a license to transgress the clear commands of both Federal Statutes and the Federal Rules of Civil Procedure," see City of Superior v. Anderson, Civ. No. 5-95-290, 1995 WL 861008, at *2 (D.Minn. Dec. 18, 1995), but the court nonetheless believes that an award of fees and costs pursuant to § 1447(c) is not appropriate. See, e.g., Weatherall v. Weatherall, 83 F. Supp.2d 1003, 1005 (E.D.Wis. 1999) (declining to award fees and costs under § 1447(c) in light of defendant's pro se status even though plaintiff was entitled to such an award); Farm Credit Bank of Wichita, Kansas v. Devous, 933 F. Supp. 1028, 1029 (W.D.Okla. 1996) (despite pro se litigant's filing frivolous notice of removal to stall foreclosure process, court declined to award fees and costs associated with obtaining remand because such filing "while not to be condoned, might be an understandable reaction to such stress by a layman"; but cautioning that court "may not be so indulgent in the future" should litigant "engage in continued efforts to pursue removal").
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff's motion to remand (doc. #7) is granted. Defendant Michael F. Brady's motion to remand (doc. #19); defendant Jamie Saunders' motion to remand (doc. #21); defendant First Federal Savings Loan's motion to remand (doc. #29); and defendant City of Merriam's motion to remand (doc. #31) are all moot. The case is remanded to the District Court of Johnson County, Kansas. A certified copy of this order of remand shall be mailed by the clerk to the clerk of the state court.
IT IS SO ORDERED.