Opinion
Civil Action Versus No: 01-1559 Section: "J"(4).
June 21, 2001.
MINUTE ENTRY
Before the Court is a Motion for Stay of Proceedings (Rec. Doc. 2) filed by defendant Arnold Levin. Plaintiff opposes the motion. The motion was set for hearing on June 20, 2001, with oral argument.
After reviewing the motion and notice of removal, the Court sua sponte raised the issue of subject matter jurisdiction. The Court then ordered the parties to submit memoranda on the issue prior to oral argument. The parties complied, and Plaintiffs subsequently filed a motion to remand which is set for hearing on July 18, 2001. The Court heard oral argument on June 20, 2001, after which the Court took the matter under advisement.
Levin argues that removal was proper under 28 U.S.C. § 1441(b) because the Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. In particular, he argues that the instant lawsuit is an attempt by Plaintiffs to undermine a prior ruling issued by the district judge in the multidistrict litigation In re Orthopedic Bone Screw Products Liability Litigation, MDL 1014. Relying on Baccus v. Parrish, 45 F.3d 958 (5th Cir. 1995), Levin asserts that federal question jurisdiction exists, and removal is proper, where a claim brought in state court seeks to attack or undermine an order or judgment of a federal district court. Plaintiffs' state court petition ostensibly alleges only state law claims.
Levin also alleges that the Court has diversity jurisdiction under 28 U.S.C. § 1332 because defendant Cummings, a citizen of Louisiana, was fraudulently joined. The Court finds Levin's fraudulent joinder argument wholly unpersuasive and did not entertain oral argument on this allegation.
The party invoking the removal jurisdiction of federal courts bears the burden of establishing federal jurisdiction. Frank v. Bear Stearns Co., 128 F.3d 919, 921 (5th Cir. 1997) (citing Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365 (5th Cir. 1995)). The removal statute ties the propriety of removal to the original jurisdiction of the federal district courts. Id. Absent diversity of citizenship, removal is appropriate only for those claims within the federal question jurisdiction of the district courts. Id. (citing 28 U.S.C. § 1331).
It is well settled that federal question jurisdiction exists only when plaintiff's well-pleaded complaint raises issues of federal law. See Heimann v. National Elevator Indus. Pension Fund, 187 F.3d 493, 499 (5th Cir. 1999) (citing Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936); Louisville Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908)). However, where the artful pleading doctrine applies, the Court can look beyond the state law claims alleged in plaintiff's complaint to determine whether plaintiff's suit is truly federal in character. See Aaron v. National Union Fire Ins. Co., 876 F.2d 1157, 1161 (5th Cir. 1989).
Although Baccus supports Levin's position, the Court notes that subsequent to Baccus the Supreme Court decided Rivet v. Regions Bank, 522 U.S. 470, 118 S.Ct. 921, 113 L.Ed.2d 912 (1998). In Rivet, a unanimous Court held that claim preclusion by reason of a prior federal judgment does not provide a basis for removal jurisdiction. 470 U.S. at 477, 118 S.Ct. at 926. The Fifth Circuit has interpreted Rivet as holding that the artful pleading doctrine applies only in the context of complete preemption. Waste Control Specialists LLC v. Envirocare of Texas Inc., 199 F.3d 781, 783, superseded in part, 207 F.3d 225 (5th Cir. 2000); In re Texas, 110 F. Supp.2d 514, 524-25 (E.D. Tex. Aug. 15, 2000). Therefore, following Rivet and Waste Control Specialists, the viability of the type of removal permitted under Baccus is questionable to say the least.
In the instant case, complete preemption does not apply and removal pursuant to Baccus is Levin's only basis for this Court's jurisdiction. Given that the validity of Baccus has been cast in doubt, the Court concludes that Levin has failed to meet his burden of proving jurisdiction. And given that any doubt as to federal subject matter jurisdiction is to be resolved in favor of remand, Caliste v. AKMAR Shipping Trading Co., 2001 WL 435586, (E.D. La. Apr. 27, 2001) (citingHeaton v. Monogram, 1999 WL 1789422, *1 (E.D. La. Nov. 22, 1999)), the Court finds that remand to state court, pursuant to 28 U.S.C. § 1447(c), is appropriate.
Accordingly;
IT IS ORDERED that this suit is REMANDED to the Civil District Court for the Parish of Orleans;
IT IS FURTHER ORDERED that Levin's Motion for Stay of Proceedings (Rec. Doc. 2) should be and is hereby DENIED AS MOOT.