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GEFEN v. UPJOHN CO.

May 2, 1995

KEREN GEFEN, by SHARON GEFEN and EHUD GEFEN
v.
THE UPJOHN COMPANY



The opinion of the court was delivered by: J. CURTIS JOYNER

 JOYNER, J.

 MAY 2, 1995

 Plaintiff has moved this Court to remand this action to the Court of Common Pleas of Philadelphia County, Pennsylvania on the ground that there is neither federal question nor diversity jurisdiction. 28 U.S.C. § 1447(c) directs a district court to remand an action to state court if it appears that there is no subject matter jurisdiction. A district court may remand an action on jurisdictional grounds any time before final judgment. Courts construe the removal statutes strictly, and any doubts are resolved in favor of remand. Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987).

 Plaintiff is a minor who was allegedly blinded in one eye due to the negligence of Defendant in manufacturing a defective product. Plaintiff was born and lives in Israel with her parents, and is a dual citizen of the United States and Israel. She claims her United States citizenship through her mother, who was born in the United States, in New York, and who maintains her United States citizenship to this day.

 Plaintiff brought this suit in the Court of Common Pleas on May 9, 1994. In her Complaint she alleges three state causes of action, and no federal causes. Namely, she brings one count of negligence, one count of strict liability, and one count of punitive damages. Relevant to this Motion to Remand, Plaintiff's Complaint alleges as follows:

 1. Plaintiff, KEREN GEFEN, is a minor individual, residing with her parents and natural guardians, SHARON GEFEN and EHUD GEFEN, at 3 Kashani Street, Tel Aviv, Israel 69494.

 2. The minor plaintiff, above-named, is a citizen of the nation of Israel and is also a United States citizen by virtue of the fact that her mother, Sharon Gefen, was born in the United States and retains her United States citizenship.

 3. Defendant, THE UPJOHN COMPANY, is a Delaware corporation having its principal place of business at Kalamazoo, Michigan, while at all times material to this action, doing business within the Commonwealth of Pennsylvania and the City and County of Philadelphia.

 4. Defendant, THE UPJOHN COMPANY, maintains a registered office for doing business in the Commonwealth of Pennsylvania, located at C.T. Corporation Services, 1635 Market Street, Philadelphia, Pennsylvania.

 In November, 1994, while this action was still in State court, Defendant filed a motion to dismiss on the ground of forum non conveniens (State Motion). Defendant argued that the appropriate forum was Israel, partially on the basis of its assertion that Plaintiff had no contact with Pennsylvania. Plaintiff filed her opposition to the State Motion in December, 1994. In that response, Plaintiff asserted that "because of her minority, minor plaintiff has not been capable of establishing residence in any State of the United States. . . . For purposes of this Forum Non Conveniens Petition, where dismissal will preclude minor plaintiff from access to any court in the United States in favor of a foreign forum, Keren Gefen is considered a citizen of the Commonwealth of Pennsylvania." Pl.'s Answer to State Motion, pp. 3-4 at P 2. Plaintiff, as a United States citizen, also asserted a Constitutional right of access to United States courts. Upon receipt of this Answer, Defendant allegedly first became aware of the possibility of diversity and federal question jurisdiction, and accordingly, removed the action to this Court.

 A. FEDERAL QUESTION JURISDICTION

 Defendant argues that Plaintiff asserted a federal question when she claimed in her Answer to the State Motion that she, as a United States citizen, has a right of access to the courts of the United States. 28 U.S.C. § 1331 gives district courts federal question jurisdiction over "civil actions arising under the Constitution, laws or treaties of the United States."

 Defendant argues that although Plaintiff's Complaint does not expressly plead a federal question, under the well-pleaded complaint rule, this Court is not limited to the allegations in the Complaint to find a federal question. See e.g. Stream Pollution Control Bd. v. United States Steel Corp., 512 F.2d 1036 (7th Cir. 1975). Defendant asserts that Plaintiff's cause of action may "arise under" the laws of the United States if her right to relief requires resolution of a substantial question of federal law. For example, Defendant cites Wilkinson v. United States, 724 F. Supp. 1200 (W.D.N.C. 1989). That case held that plaintiff's action to quiet title to property encumbered by a federal tax lien raised a federal question because the suit called the validity of the federal tax lien into question. Id. at 1204; see also Burda v. M. Ecker Co., 954 F.2d 434 (7th Cir. 1992) (insurance company tendered settlement amount, less 20% for federal withholding tax. Court found federal question because validity ...


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