Moreover, “[i]t is not sufficient for the federal question to be raised in the answer or in the petition for removal.” Stump v. Potts, 322 Fed.Appx. 379, 380 (5th Cir. 2009) (citingMSOF Corp. v. Exxon Corp., 295 F.3d 485, 490 (5th Cir. 2002)). “There has never been a suggestion that a defendant could, by asserting an artful counterclaim, render a case removable in violation of the well-pleaded complaint rule.”
Stump v. Potts, 322 Fed.Appx. 379, 380 (5th Cir. 2009) (per curiam).
Moreover, “[i]t is not sufficient for the federal question to be raised in the answer or in the petition for removal.” Stump v. Potts, 322 Fed.Appx. 379, 380 (5th Cir. 2009) (citingMSOF Corp. v. Exxon Corp., 295 F.3d 485, 490 (5th Cir. 2002)). “There has never been a suggestion that a defendant could, by asserting an artful counterclaim, render a case removable in violation of the well-pleaded complaint rule.”
A. Federal Question JurisdictionIn Stump v. Potts, 322 F. App'x 379, 380 (5th Cir. 2009), the Fifth Circuit held that a defendant cannot remove a case to federal court and circumvent jurisdiction of a state county court in a simple forcible detainer proceeding or suit to evict brought under the Texas Property Code by asserting a possible federal question in an answer and counterclaim. The court in Stump reasoned, consistent with the authority cited herein by this court, that "a federal court has original or removal jurisdiction only 'if the federal question appears on the face of the plaintiff's well-pleaded complaint and there is generally no federal jurisdiction if the plaintiff pleads only a state law cause of action.'"
A. Federal Question JurisdictionPlaintiff cites Stump v. Potts, 322 F. App'x 379, 380 (5th Cir. 2009), for the proposition that a defendant cannot remove a case to federal court and circumvent jurisdiction of a state county court in a simple forcible detainer proceeding or suit to evict brought under the Texas Property Code by asserting a possible federal question in an answer and counterclaim. The court agrees.
The Fifth Circuit has held that forcible detainer, i.e. eviction, arises solely under state law and provides no basis for federal question jurisdiction. Stump v. Potts, 322 Fed.Appx. 379, 380 (5th Cir. 2009) (per curiam). Accordingly, courts in the Eastern District of Texas have explained that forcible detainer is a traditional state law claim that cannot be the basis for federal question jurisdiction.
It is not sufficient that the federal question is “raised in the answer or in the petition for removal.” Stump v. Potts, 322 Fed.Appx. 379, 380 (5th Cir. 2009) (per curiam).
Generally, under the “well[-]pleaded complaint” rule, a case does not arise under federal law, and thus is not removable, if the complaint does not affirmatively allege a federal claim and instead asserts only state law causes of action. See Kramer v. Smith Barney, 80 F.3d 1080, 1082 (5th Cir. 1996) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). Moreover, “[i]t is not sufficient for the federal question to be raised in the answer or in the petition for removal.” Stump v. Potts, 322 F. App'x 379, 380 (5th Cir. 2009) (citing MSOF Corp. v. Exxon Corp., 295 F.3d 485, 490 (5th Cir. 2002)); Tex. ex rel. Bd. of Regents of Univ. Tex. Sys. v. Walker, 142 F.3d 813, n.2 (5th Cir. 1998) (“There has never been a suggestion that a defendant could, by asserting an artful counterclaim, render a case removable in violation of the well-pleaded complaint rule.”)
Plaintiff avers that Defendants' assertion of any counterclaims cannot create federal question jurisdiction (Dkt. #35 at p. 2). Indeed, as the Magistrate Judge found, any defenses and/or counterclaims Defendants attempt to allege cannot be considered in determining the existence of removal jurisdiction. Stump v. Potts, 322 F. App'x 379, 380 (5th Cir. 2009) ("The complaint filed in the state court was a simple suit to evict arising under state law. The complaint provided no basis for federal question jurisdiction.
In addition, the federal defenses and/or counterclaims Defendant attempts to allege cannot be considered in determining the existence of removal jurisdiction. Stump v. Potts, 322 F. App'x 379, 380 (5th Cir. 2009) ("The complaint filed in the state court was a simple suit to evict arising under state law. The complaint provided no basis for federal question jurisdiction.