The opinion of the court was delivered by: TIMOTHY K. LEWIS
On September 17, 1992, this court heard oral argument on motions to remand pending in a number of cases before it.
The cases, which are all substantially similar, allege that national banks have improperly assessed certain late fees and overdraft charges against their credit card holders. All of the complaints purport to set forth class actions.
For purposes of briefing and oral argument, the parties have used the case of Ament v. PNC National Bank, 825 F. Supp. 1243, as illustrative of all of the cases. The court will do likewise. Thus, the Ament facts follow, and references are to the Ament amended complaint.
Plaintiff Virginia Ament holds a VISA card issued by defendant PNC National Bank ("PNC"). The cardmember agreement issued when she obtained her VISA card did not disclose that Pennsylvania law limits annual fees, late payment charges, returned check charges and over-credit limit charges. Such fees and charges are not included in any computation of the annual percentage interest rate which is applied to carryover balances. PNC has assessed, and in some cases Ament has paid, certain of these fees and charges.
Ament claims that by contracting to charge, charging and collecting annual fees, late payment charges, returned check charges and over-credit limit charges, PNC violated the Pennsylvania Goods and Services Installment Sales Act, 69 P.S. §§ 1101 et seq. (Counts 1 through 4); the Pennsylvania Banking Code of 1965, 7 P.S. §§ 101 et seq., and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §§ 201-1 et seq. (Count 7).
In Ament, the plaintiff requests damages (trebled under the Unfair Trade Practices and Consumer Protection Law), interest, attorneys' fees, costs, and an injunction prohibiting PNC from charging the offending fees and charges. This is the one respect in which the Ament complaint differs materially from the complaints filed in the other cases; plaintiffs in the other cases do not seek injunctions.
All of the cases before this court were originally filed in state court and then removed to this court. Plaintiffs have moved to remand to state court. Defendants claim that this court has jurisdiction over the cases based upon both diversity of citizenship and the presence of a federal question. This court finds jurisdiction based upon the presence of a federal question.
Title 28, United States Code, section 1441, provides in part:
Except as otherwise expressly provided by Act of Congress, any 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.
28 U.S.C. § 1441(a) (emphasis added).
Thus, "only state court actions that originally could have been filed in federal court may be removed to federal court by the defendant." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 96 L. Ed. 2d 318, 107 S. Ct. 2425 (1987). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).
Removing defendants bear the burden of proving that this court has jurisdiction. Abels v. State Farm Fire & Casualty Co., 770 F.2d 26, 29 (3d Cir. 1985), citing Pullman Co. v. Jenkins, 305 U.S. 534, 537, 83 L. Ed. 334, 59 S. Ct. 347 (1939). The removal statutes are strictly construed, and all doubts are to be resolved in favor of remand. Steel Valley Authority v. Union Switch & Signal Division, 809 F.2d 1006, 1010 (3d Cir. 1987). At the same time, however, although the court should be wary of any improper basis for invoking federal jurisdiction, it should not erroneously deprive a defendant of the right to a federal forum because a decision to remand may not be reviewed. 28 U.S.C. § 1447(d); Cheshire v. Coca-Cola Bottling Affiliated Inc., 758 F. Supp. 1098, 1100 (D. S.C. 1990); Crier v. Zimmer, Inc., 565 F. Supp. 1000, 1001 (E.D. La. 1983), citing 14A Wright & Miller Federal Practice and Procedure, § 3721 pp. 218-19 ("since the remand of a case to a state court is not a reviewable order, the federal court should be cautious about remand") (footnote omitted). Cf. Rothner v. City of Chicago, 879 F.2d 1402, 1407 (7th Cir. 1989).
There are two means by which a district court may exercise original jurisdiction over a case. The first, of course, is when the case involves "federal question jurisdiction." Title 28, United States Code, section 1331, provides that "the district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." The second, diversity jurisdiction, is present when the case is between citizens of different states and the amount in controversy, exclusive of interest and costs, is more than $ 50,000. 28 U.S.C. § 1332. Of course, the court need only find one basis for jurisdiction; if there is federal question jurisdiction the case need not meet the requirements for diversity jurisdiction, and vice versa.
I. Removal Based Upon Federal Question Jurisdiction: Legal Principles
The first ground defendants advance as a basis for this court's jurisdiction is the presence of a federal question. Under the "well-pleaded complaint rule," a defendant may only remove a case to federal court if the claims contained within the plaintiff's complaint, exclusive of any anticipated defenses, "arise under" federal law. See Franchise Tax Board v. Laborers Vacation Trust, 463 U.S. 1, 10, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983) ("For better or worse, under the present statutory scheme . . ., a defendant may not remove a case to federal court unless the plaintiff's complaint establishes that the case 'arises under' federal law." (Emphasis in original.)); Gully v. First National Bank in Meridian, 299 U.S. 109, 112, 81 L. Ed. 70, 57 S. Ct. 96 (1936) ("A right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action.").
Thus, in the usual case, a defendant may not remove a complaint because federal law may prevent plaintiff from recovering on his or her claim. See Franchise Tax Board, 463 U.S. 1, 77 L. Ed. 2d 420, 103 S. Ct. 2841 ; Railway Labor Executives Association v. Pittsburgh & Lake Erie Railroad Co., 858 F.2d 936, 942 (3d Cir. 1988). Similarly, a normal preemption defense -- that federal law preempts one or more of plaintiff's claims -- will not support removal. United Jersey Banks v. Parell, 783 F.2d 360, 367 (3d Cir. 1986) ("The fact that [plaintiff's] claim under state law may be defeated because of the preemptive effect of federal banking laws does not mean that such federal laws provide the basis of the cause of action, as in the case of § 301 of the LMRA.").
In cases in which a plaintiff's complaint on its face contains only state law causes of action, removal still may be proper if the case falls within one of two categories: cases in which "it appears that some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims, or that one [of the claims] is 'really' one of federal law." Franchise Tax Board, 463 U.S. at 13.