Opinion
CIVIL ACTION NO. 03-CV-3770
February 27, 2004
MEMORANDUM
Presently before the Court is City of Philadelphia's Motion to Remand ("Counterclaim Defendant") (Doc. 2), Greater Canaan Church of God in Christ and Reverend Vernon I. Prioleau's Opposition ("Counterclaim Plaintiffs") thereto (Doc. 3) and Counterclaim Defendant's Reply Brief (Doc. 4). For the following reasons City of Philadelphia's motion will be granted.
FACTUAL BACKGROUND
On February 21, 2003, the City of Philadelphia ("City") filed a complaint in the Court of Common Pleas for Philadelphia County ("Court of Common Pleas") against Greater Canaan Church of God ("Greater Canaan") as the defendant in an action to enforce an alleged violation of Section III.D(1) of the City of Philadelphia Noise and Excessive Vibration Code. The allegedly violated regulation is promulgated by the Philadelphia Department of Public Health, Air Management Services, pursuant to Title 10 of the Philadelphia Code of Ordinances. The City served its complaint on Greater Canaan on March 9, 2003.
The City's original Complaint named as a defendant Greater Canaan Church of God in Christ, c/o Reverend Vernon I. Prioleau. In subsequent filings, the defendant named both Greater Canaan Church of God in Christ and Reverend Vernon I. Prioleau as co-defendants. For purposes of this order, this Court will consider the Greater Canaan Church of God in Christ as the sole defendant.
On June 19, 2003, Greater Canaan filed its answer to the City's complaint. Simultaneously, Greater Canaan filed a counterclaim seeking injunctive relief and a declaratory judgment, arguing that the Noise and Excessive Vibration Code, as applied, unduly infringes upon its right of Freedom of Religion and Equal Protection of the Laws guaranteed by the First and Fourteenth Amendments of the United States Constitution. Allegedly, pursuant to 28 U.S.C. § 1446(a), and based upon its counterclaim, Greater Canaan filed a Notice of Removal from the Court of Common Pleas to this Court on June 23, 2003. In response to Greater Canaan's Notice of Removal, the City filed its Motion to Remand to the Court of Common Pleas on July 22, 2003. The matter is now before this Court.
LEGAL STANDARD
A defendant can remove an action from state court when there is diversity of citizenship with the requisite amount in controversy or a federal question. 28 U.S.C. § 1331, 1332 and 1441. Only state court actions which originally could have been filed in federal court can be removed by the defendant. Caterpillar, Inc. v. Williams. 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987); Bracken v. Matgouranis, 296 F.3d 160, 162 (3d Cir. 2002); Smith v. Indus. Valley Title Ins. Co.. 957 F.2d 90, 92 (3d Cir. 1992). The Greater Canaan states that the presence of a federal question provides the basis for removal under 28 U.S.C. § 1441(b). The removal sought by Greater Canaan is grounded in the federal question jurisdiction vested in this Court by 28 U.S.C. § 1331. Federal question jurisdiction is conferred upon "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Greater Canaan does not rely upon diversity of citizenship. Thus, our analysis is confined to removal pursuant to federal question jurisdiction.
Pursuant to the "well-pleaded complaint rule," federal jurisdiction exists only when a federal question is presented in the plaintiff's properly pleaded complaint. Caterpillar. 482 U.S. at 392, 107 S.Ct. at 2429. The plaintiff, as master of the complaint, may choose to have its case heard in state court by foregoing a federal claim. Id. at 399, 107 S.Ct. at 2433. Consequently, a defendant cannot remove a case to federal court unless the plaintiffs complaint establishes that the claim "arises under" federal law. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983).
Nor can a defendant transform the plaintiff's state law claim into one arising under federal law by injecting a federal question into plaintiffs claim. Caterpillar. 482 U.S. at 399. "[W]hether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute, . . . must be determined from what necessarily appears in the plaintiff's statement of his own claim . . ."Franchise Tax Bd., 463 U.S. at 10, (citing Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 58 L.Ed. 1218 (1914)).
DISCUSSION
In this case, the City argues that Greater Canaan's notice of removal to this Court was improper for the following reasons: (1) the removal was untimely because Greater Canaan exceeded the thirty (30) day period permitted under 28 U.S.C. § 1446(b); and (2) the City's complaint filed against Greater Canaan in the Court of Common Pleas did not raise a federal question under 28 U.S.C. § 1331 and 1441(b).
Greater Canaan does not contend that this action can be removed either on diversity, which it is clearly not, or on the grounds that a federal question appears on the face of the City's complaint. Instead, Greater Canaan contends that the action became removable upon its filing a counterclaim, which it labels as a separate independent claim, within this Court jurisdiction by virtue of § 1331.
Accepting the characterization of the counterclaim as separate and independent, there is no authority within the removal statute for Greater Canaan, the original Defendant, to remove the entire claim to this Court. Greater Canaan is not as regard to its counterclaim the Defendant, but simply a counterclaim Plaintiff. More importantly, removal is authorized only by the Defendant under § 1446. Accordingly, this Court will grant the City's motion to remand this matter to Court of Common Pleas for Philadelphia County.
CONCLUSION
Based on the foregoing reasons, this Court will grant City of Philadelphia's Motion to Remand. An appropriate order follows.
ORDER
AND NOW, this ___ day of February 2004, upon consideration of City of Philadelphia's Motion to Remand (Doc. 2), Greater Canaan Church of God in Christ and Reverend Vernon I. Prioleau's Opposition thereto (Doc. 3), and City of Philadelphia's Reply Brief (Doc. 4), IT IS HEREBY ORDERED AND DECREED that the City of Philadelphia's Motion is GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court shall remand this matter to the Court of Common Pleas for Philadelphia County, from which it was improperly removed.