Opinion
04 C 6089.
December 21, 2004
MOTION TO REMAND
Plaintiff Gilberto Chavarria filed an action for replevin in Illinois state court seeking the return of bakery equipment from Defendant Marco S. Perez. Both parties are residents of Illinois. Perez removed the case to federal court asserting federal question jurisdiction pursuant to 28 U.S.C. § 1441(b) and § 1443 (the petition for removal also alleges "supplemental jurisdiction," which I can only assume refers to 28 U.S.C. § 1367). Chavarria has moved to remand his case to state court, stating that removal was improper since his complaint was grounded in state law and contained no federal question.
Removal is proper in any case that could have been filed in federal court originally. 28 U.S.C. § 1441; see also Chase v. Shop `N Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir. 1997). Perez carries the burden of establishing that federal jurisdiction exists. Wilson v. Republic Iron Steel Co., 257 U.S. 92, 97 (1921). Because the parties are not diverse, Perez must demonstrate the presence of a federal question on the face of Chavarria's "well-pleaded" complaint. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).
Perez does not find the federal question on the face of Chavarria's complaint, which seeks only the return of property and/or damages in a replevin action, a matter squarely governed by state law. Rather, Perez alleges that the bakery equipment claimed by Chavarria is the subject of a lawsuit Perez filed in federal court. In that case, Perez (the Plaintiff) accuses Chavarria (the Defendant) of breach of contract, fraud, and violations of the RICO statute ( 18 U.S.C. § 1961 et seq.). Perez believes his federal RICO claim, involving "questions of law and fact" common to Chavarria's state law claim, subjects the state law claim to removal. In essence, Perez is asserting a federal law defense to Chavarria's state law claim, and using that defense as a ground for removal. This he cannot do. See Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1 (1983).
That case (04 C 5271) is currently pending before Judge Lefkow, who recently denied Perez's motion to consolidate the case with this removal action.
Nor can Perez ground his petition for removal on supplemental jurisdiction. Supplemental jurisdiction pursuant to 28 U.S.C. § 1367 "is not a source of original subject matter jurisdiction for federal question purposes and thus a removal notice under Section 1441(a) may not base removal subject matter jurisdiction on the supplemental jurisdiction statute." 14(b) Charles Alan Wright et al., Federal Practice and Procedure, § 3722, p. 384 (3rd ed. 1998). See also In re Estate of Tabas, 879 F.Supp. 464, 467 (E.D. Pa. 1995) ("[t]o remove the Petition from state court to federal court, [the defendant] must first find a federal claim in the Petition itself . . . [a]n already-existing federal action cannot provide the mechanism for removal of a non-removable state-court action"); and Sebring Homes, Corp. v. T.R. Arnold Assocs., 927 F. Supp. 1098, 1101-02 (N.D. Ind. 1995) (noting that 28 U.S.C. § 1367 "provides no original jurisdiction over a separate, but related suit, and so does not authorize removal from state court to federal court pursuant to § 1441"). Moreover, even if Perez had raised his RICO claims as a counterclaim to Chavarria's replevin action, removal would not be proper. Wright, § 3722 at pp. 407-414 ("nor is it sufficient for the federal question to enter the case as a counterclaim asserted by the defendant").
As the case now stands, there is no basis on which I can permit removal and exercise jurisdiction over Chavarria's state law claim of replevin. For these reasons, Plaintiff's Motion to Remand is GRANTED.