Opinion
CASE NO. 00-CV-70893-DT.
July 6, 2000.
OPINION AND ORDER
I. INTRODUCTION
This matter is before the Court on defendant's Notice of Removal and this Court's Order to Show Cause why this case should not be remanded to state court pursuant to 28 U.S.C. § 1447 (c) and Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. The parties have responded to the Order. The Court finds that the facts and legal arguments are adequately presented in the parties' briefs and the decisional process would not be significantly aided by oral argument. Therefore, pursuant to E.D. Mich. Local R. 7.1(e)(2), it is hereby ORDERED that the matter be resolved on the briefs submitted. For the reasons stated below, defendant's Notice of Removal is DENIED and the matter is REMANDED to the Wayne County Circuit Court.
II. BACKGROUND
Plaintiff originally filed this action in Wayne County Circuit Court on December 2, 1999 making numerous allegations. Defendant filed a Notice of Removal on February 17, 2000, because it interpreted plaintiffs complaint as making claims for relief under federal law. Due to the lack of clarity in plaintiffs complaint, the Court ordered both parties to show cause why this case should not be remanded to state court pursuant to 28 U.S.C. § 1447 (c) for lack of subject matter jurisdiction.
The Court would note that on August 25, 1998, it was assigned a case involving the same plaintiff and same facts in docket number 98-CV-73757-DT. In that case, plaintiff sued Wayne County in the Wayne County Circuit Court, raising nearly identical claims to those raised in the present case. Wayne County removed the case to this Court. On October 7, 1998, the Court remanded the case to the Wayne County Circuit Court, finding that plaintiff had not made any claims under federal law.
The facts in this case are not in dispute. On August 7, 1997, plaintiff was sunbathing in Hines Park while wearing a thong bathing suit. A Wayne County Sheriff's Deputy approached plaintiff and issued him a citation for indecent exposure. On December 10, 1997, this charge was dismissed due to a lack of probable cause.
Plaintiff filed this action in Wayne County Circuit Court alleging the following: malicious prosecution pursuant to M.C.L. § 600.2907 (Plaintiff's Complaint ¶ 21 and ¶ 33); violation of plaintiffs civil right not to be subjected to arbitrary arrest or detention pursuant to the International Covenant on Civil and Political Rights, UN General Assembly Resolution 2200A, Article 9, § 5 ( Id. at ¶¶ 22 and 24); and various violations of his constitutional rights ( Id. at ¶¶ 25, 26, 28, 29-32, 38-39, 42).
III. ANALYSIS
Removal is determined on the basis of the allegations in the complaint at the time it was filed. Alexander v. Electronic Data Systems, 13 F.3d 940, 946 (6th Cir. 1994). However, in Alexander the court stated that the district court should look beyond the complaint and make an independent inquiry based upon the pleadings, including the notice of removal and motion to remand, to determine whether removal was appropriate. Id. "The well-pleaded complaint rule generally provides that the plaintiff is the master of his complaint, and the fact that the wrong asserted could be addressed under either state or federal law does not ordinarily diminish the plaintiffs right to choose a state law cause of action." Alexander, 13 F.3d at 943.
28 U.S.C. § 1441 provides:
[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
Since there is no diversity of citizenship the propriety of the removal hinges on whether it is based on a federal question, that is, whether it "aris[es] under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.
Defendant points to numerous portions of plaintiffs complaint to support its argument that plaintiff has claims arising under federal law. The Court has reviewed plaintiff's complaint and finds that ¶¶ 1-34 are nearly identical to plaintiffs complaint in docket number 98-CV-73757-DT, a case which the Court remanded to the Wayne County Circuit Court on October 7, 1998. See, supra, n. 1. The only difference between the first 34 paragraphs of the complaint in the present case and the complaint in docket number 98-CV-73757-DT is that they refer to different defendants. Consequently, for the reasons stated in the Court's order of October 7, 1998, ¶¶ 1-34 are REMANDED to the Wayne County Circuit Court.
As to the remainder of plaintiffs complaint, ¶¶ 35-44, plaintiff uses terms such as "constitutional protection" ( Id. at 6 38) "freely associate" ( Id. at ¶ 39) and "well-established rights" ( Id. at ¶ 42). Plaintiff does not make specific claims under the United States Constitution. Further, in plaintiff's response to the Order to Show Cause, plaintiff makes statements such as defendant is trying "to assert federal jurisdiction over the state claims," and that "the state-law nature of plaintiff's claims [is] clear." Plaintiff's Brief p. 2. As stated in Alexander, "the plaintiff is the master of his complaint, and the fact that the wrong asserted could be addressed under either state or federal law does not ordinarily diminish the plaintiff's right to choose a state law cause of action." Alexander, 13 F.3d at 943. In the instant case, the Court finds that plaintiff, being the master of his complaint, has chosen to plead state law causes of action. Consequently, defendant's Notice of Removal is DENIED.
IV. CONCLUSION
Therefore, this Court has determined, pursuant to 28 U.S.C. § 1447 (d), that the Court lacks subject matter jurisdiction over the instant case. Plaintiffs "well-pleaded" complaint does not allege claims that "arise under" federal law for purposes of the federal question statute. 28 U.S.C. § 1331.
Accordingly, IT IS ORDERED that the instant case is hereby REMANDED to Wayne County Circuit Court, State of Michigan.
IT IS SO ORDERED.