Opinion
CIVIL ACTION NO. 03-CV-710
March 7, 2003
MEMORANDUM AND ORDER
Defendants removed this state court equity action in which the plaintiff, a Philadelphia Firefighter, requested an order requiring the defendants to promote him within the City of Philadelphia Fire Department as mandated by the defendant City's Civil Service Regulations. The defendants contend that even though not asserted by the plaintiff, the case is one that presents employment discrimination and civil rights claims under federal law. Defendants' Notice of Removal, ¶ 4. Contrary to the defendants' assertion, the action does not raise a federal question. Therefore, because this court lacks subject matter jurisdiction, this matter will be remanded to the state court from which it was removed.
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 (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 defendants state that the presence of a federal question provides the basis for removal under 28 U.S.C. § 1441(b). Defendant's Notice of Removal, ¶ 14. They cannot and do not rely upon diversity of citizenship. Thus, our analysis is confined to federal question jurisdiction.
In his complaint, the plaintiff alleged that the City failed to promote him to the rank of Fire Lieutenant in violation of the Civil Service Regulations. Plaintiff's Complaint, ¶ 40. Plaintiff seeks injunctive relief requiring the defendants to promote him and to enjoin the defendants from promoting other individuals ahead of him. In sum, he demands enforcement of the civil service regulations.
In support of removal, the defendants rely upon the plaintiff's deposition testimony that the defendants have a policy and a goal of promoting minority candidates in the Fire Department. Defendants' Notice of Removal, ¶ 4. The defendants contend that the plaintiff's testimony transforms his complaint into an action under 42 U.S.C. § 1983 for civil rights violations and for employment discrimination under Title VII. Notice of Removal, ¶ 4. Yet, the complaint does not state any such federally grounded claim.
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 the master of the complaint, may choose to have his 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 plaintiff's 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 (1983).
A suit to enforce a right which takes its origins in the laws of the United States is not necessarily one arising under the Constitution or laws of the United States within the meaning of the jurisdictional clauses. Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 814, 106 S.Ct. 3229, 3235 n. 12 (1986). "[T]he mere presence of a federal issue in a state cause of action does not automatically confer federal question jurisdiction." Id. at 813, 106 S.Ct. at 3234. "[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 (1914).
Here, Plaintiff's complaint does not allege racial discrimination in employment, nor does it assert a civil rights violation. Rather, plaintiff alleges that the defendants failed to follow their own regulations, specifically Civil Service Regulation 9.067, which required that he be promoted to lieutenant. He seeks enforcement of those regulations and money damages for his lost pay differential. The plaintiff chose not to present employment discrimination or civil rights claims in his complaint. The defendants cannot force him to do so.
Plaintiff's speculative deposition testimony offers a rationale for the defendants' failure to adhere to the civil service regulations. However, because the plaintiff has not affirmatively asserted a cause of action founded on either a civil rights or employment discrimination ground under federal law, his testimony cannot be used to convert his state court action into a federal case.
The plaintiff has not filed an amended complaint or any other pleading raising federal claims. Instead, the defendants have translated his deposition testimony into allegations of employment and civil rights violations based on racial discrimination. Nowhere in plaintiff's complaint are either of these federal statutes referenced. Unquestionably, plaintiff is not asserting that any federal law created his cause of action. See, Id. at 27-28, 103 S.Ct. at 2856. Nor is plaintiff's right to relief dependent on the resolution of any question of federal law. Id. Plaintiff's cause of action as stated in the complaint alleges that the defendants failed to administer the civil service regulations properly and nothing more.
Because neither in his complaint nor in any other pleading does the plaintiff assert any claim raising a federal question, this court lacks subject matter jurisdiction. Therefore, this matter must be remanded to the Court of Common Pleas of Philadelphia County.
ORDER
AND NOW, this 7th day of March, 2003, upon consideration of the Notice of Removal by Defendants, City of Philadelphia and The Philadelphia Fire Department (Document No. 1), it is ORDERED that this case is REMANDED to the Court of Common Pleas of Philadelphia County, Pennsylvania.