Opinion
Case No. 03-4228-SAC
April 21, 2004
ORDER TO SHOW CAUSE
On February 11, 2004, the court ordered defendant's attorney to show cause why motions to dismiss defendant's counterclaims should not be granted as uncontested. Defendant's counsel responded to that show cause order. In reviewing the pleadings, the court has noted an issue of subject matter jurisdiction which must be resolved before reviewing the merits of defendant's response to the previous show cause order. A district court may, at any time, and without motion by a party, examine or reexamine the issue of its subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3)
("[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action"); United States ex rel. King v. Hillcrest Health Center, Inc., 264 F.3d 1271, 1281-82 (10th Cir. 2001).
A defendant may remove to federal court "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). Defendant's petition for removal alleges jurisdiction only under 28 U.S.C. § 1331, an "action arising under the Constitution, laws, or treaties of the United States." Id. Under the "well-pleaded complaint" rule, an action arises under federal law "only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (citing Gully v. First Nat'l Bank, 299 U.S. 109, 112-13 (1936)). In determining the existence of "federal question" jurisdiction justifying removability from a state court to a federal court, one must look solely at the plaintiff's complaint rather than to any subsequent pleading or the petition for removal. Mountain Fuel Supply Co. v. Johnson, 586 F.2d 1375, 1380 (10th Cir. 1978). The court has reviewed plaintiff's complaint, and finds that it contains no question arising under federal law.
Removal cannot be predicated on allegations contained in a counterclaim, as defendant asserts here. (Dk. 1, p. 2 "It is the counterclaim for which this court has jurisdiction . . .") 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." Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987). This is so even where a counterclaim alleges claims within the exclusive jurisdiction of federal court. See American Oil Co. v. Egan, 357 F. Supp. 610, 612 (D.C. Minn. 1973) (where the only basis for federal jurisdiction of action instituted in state court appeared in defendant's counterclaim in which violations of antitrust laws were alleged, removal of case to federal district court was improper).
Defendant is hereby ordered to show good cause by a pleading filed on or before April 30, 2004, why this case should not be remanded to state court for lack of subject matter jurisdiction.
SO ORDERED.