Opinion
Civil Action No. 3:02-CV-1728-G
January 10, 2003
MEMORANDUM ORDER
Before the court is the motion of the plaintiff Michael John Maguire ("Maguire") to remand this case to the state court from which it was previously removed. For the reasons set forth below, Maguire's motion is granted.
I. BACKGROUND
On May 31, 2002, Maguire filed suit against the defendants Telcom Global Solutions, Inc. ("Telcom") and Stan T. Waldrop ("Waldrop") in the 193rd Judicial District of Dallas County asserting claims for breach of contract, statutory fraud, common law fraud, and for violations of unspecified state and federal employment discrimination statutes. See Plaintiff's Original Petition ("Petition") ¶¶ 19-46, attached to Notice of Removal as Exhibit 3; Plaintiff's Motion to Remand and Supporting Brief ("Remand Motion") ¶¶ 1-6. Defendant Telcom is a Texas corporation with its principal place of business in Irving, Texas. Petition ¶ 2. Defendant Waldrop — Telcom's Chairman of the Board and Chief Executive Officer at all times relevant to Maguire's complaint — is a domiciliary and resident of Texas. Petition ¶ 3; Remand Motion ¶ 1. Maguire is also a domiciliary and resident of Texas. Petition ¶ 1.
Because Maguire failed to serve Waldrop with process for more than 120 days after the filing of his complaint, this court issued an order, pursuant to FED. R. CIV. P. 4(m), requiring Maguire to show cause, by December 30, 2002, why the claims against Waldrop should be retained on the docket. See Order, December 16, 2002. Although Maguire caused summons to Waldrop to issue on December 27, 2002, the court dismissed all claims against Waldrop on January 3, 2003 due to Maguire's failure to comply with the December 16 order, i.e., to show cause in writing why those claims should be retained on the docket. See Order, January 3, 2003.
On August 14, 2002, Telcom removed this action pursuant to 28 U.S.C. § 1441 on the basis of federal question jurisdiction. See Notice of Removal at 1. On September 11, 2002, Maguire filed the instant motion to remand the case back to state court alleging improper removal. See Docket Sheet; Remand Motion at 1.
II. ANALYSIS 1. Standard for Removal
Title 28 U.S.C. § 1441(a) permits removal of "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." Under this statute, "[a] defendant may remove a state court action to federal court only if the action could have originally been filed in the federal court." Aaron v. National Union Fire Insurance Company of Pittsburg, Pennsylvania, 876 F.2d 1157, 1160 (5th Cir. 1989), cert. denied, 493 U.S. 1074 (1990) (internal citations omitted). Removal jurisdiction must be strictly construed, however, because it "implicates important federalism concerns." Frank v. Bear Stearns Co., 128 F.3d 919, 922 (5th Cir. 1997); see also Willy v. Coastal Corporation, 855 F.2d 1160, 1164 (5th Cir. 1988). Furthermore, "any doubts concerning removal must be resolved against removal and in favor of remanding the case back to state court." Cross v. Bankers Multiple Line Insurance Company, 810 F. Supp. 748, 750 (N.D. Tex. 1992); see also Shamrock Oil Gas Corporation v. Sheets, 313 U.S. 100, 108-09 (1941); Healy v. Ratta, 292 U.S. 263, 270 (1934). The burden of establishing federal jurisdiction is on the party seeking removal. Frank, 128 F.3d at 921-22; Willy, 855 F.2d at 1164.
There are two principal bases upon which a district court may exercise removal jurisdiction: (1) the existence of a federal question and (2) complete diversity of citizenship among the parties. See 28 U.S.C. § 1331, 1332; Aaron, 876 F.2d at 1160. Because complete diversity is lacking in this case, the only issue before the court is whether Maguire's complaint presents a federal question. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987); Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d 922, 924 (5th Cir. 1997).
2. Federal Question Jurisdiction
District courts have federal question jurisdiction over civil cases "arising under the Constitution, laws, or treaties of the United States." See 28 U.S.C. § 1331; Frank, 128 F.3d at 922. A cause of action arises under federal law only when the plaintiff's well-pleaded complaint "establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Frank, 128 F.3d at 922; see also Metropolitan Life Insurance Company v. Taylor, 481 U.S. 58, 63 (1987). A defense based on federal law, however, is insufficient to create federal question jurisdiction. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 12 (1983). This scheme allows a plaintiff to be the "master to decide what law he will rely upon" in pursuing his claims. The Fair v. Kohler Die Specialty Company, 228 U.S. 22, 25 (1913); see also Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 809 n. 6 (1986); Aaron, 876 F.2d at 1161. Therefore, where potential remedies exist under both state and federal law, a plaintiff may choose to proceed only under state law and avoid federal court jurisdiction. Caterpillar, 482 U.S. at 392; Carpenter v. Wichita Falls Independent School District, 44 F.3d 362, 366 (5th Cir. 1995).
In the case sub judice, Telcom argues that Maguire's state court complaint clearly alleges claims arising under federal law. See Defendant Telcom Global Solutions, Inc.'s Response in Opposition to Plaintiff's Motion to Remand and Brief in Support ("Defendant's Response") at 2. In particular, Telcom argues that the averments in paragraph 25 of Maguire's complaint specifically allege violations of federal law and are sufficient to give this court "federal-question jurisdiction over [Maguire's] federal claims and supplemental jurisdiction over all of the state law claims." Defendant's Response at 4. The court is unpersuaded.
Paragraph 25, which is located within count two of Maguire's complaint, avers that:
The wrongful acts and omissions of Defendants [Telcom] and . . . Waldrop as alleged herein constitute breaches of state and federal statutes regulating employment and employment discrimination. This Court has pendent jurisdiction to determine such federal causes of action.
Petition ¶ 25 (emphasis added). While paragraph 25 does reference a violation of federal statutes as well as the state court's pendent jurisdiction over any such violations, this bare reference to federal law, without more, is insufficient to create federal question jurisdiction. See Ashley v. Southwestern Bell Telephone Company, 410 F. Supp. 1389, 1392 (W.D. Tex. 1976) ("mere reference to the Federal Constitution, laws, or treaties [is] not adequate to disclose a federal question"). The allegations in paragraph 25 in no way specify — or even remotely imply — any particular federal employment or employment discrimination statute. Indeed, a number of federal employment statutes could potentially apply to this case. Consequently, this court will not accept Telcom's invitation to engage in a futile exercise of trying to divine what federal statute or statutes Maguire may have meant in paragraph 25 or what he may ultimately choose to plead at some point in the future.
As Telcom correctly points out, those possibilities include the Americans with Disabilities Act, 42 U.S.C. § 12101-12213, and the Employee Retirement Income Security Act, 29 U.S.C. § 1001-1461. See Defendant's Response at 3 n. 7. In fact, due to the dearth of factual development in Maguire's complaint, it is unclear whether Maguire may have possible claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)(1)-(17), or perhaps even the Fair Labor Standards Act of 1938, 29 U.S.C. § 201-219.
In determining whether a civil case is one "arising under" federal law within the meaning of 28 U.S.C. § 1331, the Supreme Court has indicated that a case does not "arise under" federal law if the claim it asserts is supported by alternative theories of recovery, only one of which would sustain federal jurisdiction. See Christian v. Colt Industries Operating Corp., 486 U.S. 800, 811-14 (1998). The Fifth Circuit has so construed Christianson. Howery v. Allstate Insurance Company, 243 F.3d 912, 916-18 (5th Cir.), cert. denied, ___ U.S. ___ 122 S.Ct. 459 (2001); Willy, 855 F.2d at 1170-71 ("Our conclusion [that Willy's wrongful discharge claim does not arise under federal law] is strengthened by our view that the federal issues in Willy's claim are not ones in the forefront of the case, but are more collateral in nature, and are not substantial in relation to the claim as a whole, which is in essence one under state law."). See also Hinojosa v. Perez, 214 F. Supp.2d 703, 704-06 (S.D. Tex. 2002); Danfelt v. Board of County Commissioners of Washington County, Marland, 998 F. Supp. 606, 607-11 (D. Md. 1998).
Christianson considered whether a claim "arose under" the patent laws of the United States so as to confer subject-matter jurisdiction under 28 U.S.C. § 1338. Christianson's antitrust count contained a claim of monopolization under the Sherman Act. 486 U.S. at 804-06. Patent law, however, was relevant to only one of several theories under which Christianson could prove the monopolization claim. Id. at 810-14. Under these circumstances, the Court found that the case did not "arise under" the patent laws of the United States because the claim was supported by multiple alternative theories, only one of which was grounded in patent law. Id.
Most significantly for purposes of this case, the Court also concluded that the "arising under" language in 28 U.S.C. § 1338 should be interpreted in the same manner as the "arising under" language in 28 U.S.C. § 1331. Thus, the teaching of Christianson is that a state law claim for relief does not "arise under" federal law if it is based on multiple theories of liability, only some of which are federal in nature. Clearly, the allegation in ¶ 25 of Maguire's complaint that the defendants' conduct constituted "breaches of state and federal statutes regulating employment and employment discrimination" does not set forth a theory of liability that is exclusively federal.
Removal jurisdiction must be strictly construed, and Maguire's vague reference to federal law is simply insufficient to satisfy Telcom's burden of establishing that this case involves a federal question. See Frank, 128 F.3d at 922; Willy, 855 F.2d at 1164. Because "any doubts . . . must be resolved against removal," Cross, 801 F. Supp. at 750, Maguire's motion for remand is granted.
III. CONCLUSION
For the reasons discussed above, Maguire's motion for remand is GRANTED. This case is REMANDED to the 193rd Judicial District of Dallas County, Texas. The clerk shall mail a certified copy of this memorandum order to the district clerk of Dallas County, Texas.
Maguire has also requested that this court order Telcom to provide compensation "for his costs and legal fees occasioned by the wrongful removal of this matter." Remand Motion ¶ 18. An award of costs and attorney's fees, however, is not automatic upon a determination of improper removal. Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 292-93 (5th Cir. 2000). Rather, the decision is left to the discretion of the district court after a consideration of "the nature of the removal and the nature of the remand." Miranti v. Lee, 3 F.3d 925, 928 (5th Cir. 1993) (internal quotation omitted). After reviewing the facts concerning the removal and remand of this matter, the court concludes that an award of costs and attorney's fees is unwarranted.