Brobeck has not met his burden of establishing grounds for
federal jurisdiction in this case, which jurisdiction must be
determined by applying the "well pleaded Complaint rule."
The plaintiff's Motion for remand effectively forces
defendant — the party who invoked the Federal Court's removal
jurisdiction — to prove whatever is necessary to support the
Petition, e.g., the existence of diversity, the amount in
controversy or the federal nature of the claim. Salveson v.
Western States Bankcard Association (N.D.Cal. 1981),
525 F. Supp. 566, B., Inc. v. Miller Brewing Company (5th Cir.
1981), 663 F.2d 545.
The removal statutes are construed restrictively, so as to
limit removal jurisdiction. Doubts as to removability are
resolved in favor of remanding the case to the state court.
Shamrock Oil and Gas Corporation v. Sheets (1941),
313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214; Hedges v. Legal Services
Corporation (N.D.Cal. 1987), 663 F. Supp. 300.
The reason for strict construction is to prevent waste of
judicial resources, i.e., if it turns out that there is no
"federal question" or "diversity," the Federal Court's judgment
would have to be set aside on appeal. Jurisdictional concerns
can be avoided by remanding to state courts which have general
jurisdiction. Wenger v. Western Reserve Life Assurance Company
of Ohio (M.D.Tenn. 1983), 570 F. Supp. 8.
Whether the claim arises under "federal law" for removal
purposes is determined by the applying "well pleaded complaint
rule" which determines original federal jurisdiction.
Federal Courts have jurisdiction to hear, originally or by
removal, only those cases in which a 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.
Franchise Tax Board v. Construction Laborers Vacation Trust
(1983), 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420.
It is not enough for removal purposes that a federal question
may arise during the course of the litigation in connection
with some defense or counterclaim: "For better or worse . . .
a defendant may not remove a case to Federal Court unless the
plaintiff's complaint establishes that the case arises under
federal law." Franchise Tax Board v. Construction Laborers
Vacation Trust, id. at 10, 103 S.Ct. at 2847.
However, if federal law completely pre-empts the entire
subject matter, and supplants any state law claim with a
federal claim, that federal claim may then be removed even
though the Complaint alleges only a purported state claim. No
matter how pleaded in the Complaint, the only viable claim in
such cases is the one created under federal law.
Moreover, removal cannot be based simply on the fact that
federal law may be referred to in some context in the case. If
the claim does not "arise under" federal law, it is not
removable on federal question grounds. Incidental federal
issues are not enough. Merrell Dow Pharmaceuticals, Inc. v.
Thompson (1986), 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650.
The "well-pleaded complaint rule" makes the plaintiff the
master of the claim for purposes of removal jurisdiction. This
means that "absent diversity, a case is removable only where a
federal question is presented on the face of the plaintiff's
complaint." The party who brings the suit is master to decide
what law he will rely upon. Caterpillar, Inc., v. Williams
(1987), 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318.
Therefore, where plaintiff could maintain claims under both
federal and state law, plaintiff can prevent removal by
ignoring the federal claim and alleging only state law claims.
Hunter v. United Van Lines (9th Cir. 1984), 746 F.2d 635. It is
true that the rule that the plaintiff is the master of the
claim is subject to the limitation that the plaintiff cannot
defeat removal of federal claim by disguising or "artfully
pleading" it as a state claim. If the only
claim involved is one arising under federal law, the Federal
Court will "recharacterize" it accordingly, in order to uphold
removal. Federated Department Stores, Inc., v. Moitie (1981),
452 U.S. 394, Fn. 2, 101 S.Ct. 2424, 69 L.Ed.2d 103.
However, the artful pleading limitation refers to situations
where plaintiff's only claim is a federal one. It does not
apply where plaintiff has a viable state law claim as well as
a federal claim and simply chooses to sue on the state claim.
Such a case is not removable on federal question grounds.
Sullivan v. First Affiliated Sec., Inc. (9th Cir. 1987),
813 F.2d 1368.
As a practical matter, the artful pleading doctrine applies
primarily in areas completely pre-empted by federal law.
A review of the plaintiff's Complaint discloses that this is
not an action brought under federal law or statute. As
indicated, the Internal Revenue Service is not a party, nor is
any issue raised regarding any federal statute.
The plaintiff merely pleads that the subject property was
purchased from the Internal Revenue Service which originally
seized the property and then acquired title after a scheduled
tax sale did not produce the minimum bid.
Therefore, an appropriate Order will be entered remanding
this action to the Court of Common Pleas because it is clear
that there is no original jurisdiction over the quiet title
action in the Federal Court. The plaintiff's claim, therefore,
does not arise under federal law and removal is improper.
In his brief in opposition to the plaintiff's Motion to
remand to the Court of Common Pleas of Beaver County, Brobeck
states in pertinent part:
"However, if this Court finds that Civil Action
No. 89-1322 was improperly removed, defendant
Brobeck prays this Court to allow 20 days for
defendant Brobeck to amend his Answer and
Counterclaim in related Civil Action No. 87-2017
so as to join this plaintiff as a defendant on
counterclaim in Civil Action No. 87-2017."
Brobeck's request in this regard will be dismissed without
prejudice because it is not appropriately raised in this