The opinion of the court was delivered by: ANITA BRODY, District Judge
On March 11, 2004, Deputy Police Commissioner Robert Mitchell
("Mitchell") filed this suit against Mayor John Street and The City of
Philadelphia ("Street et. al.") in the Philadelphia Court of Common
Pleas. On March 15, 2004, Street et al. removed the case to the United
States District Court where it was assigned to me for disposition.
Presently before me is Mitchell's motion to remand, that is to send back,
this case to the Court of Common Pleas.
The federal court is a court of limited jurisdiction. As such, a
federal court is only permitted to hear those cases that the laws of the
United States permit it to hear. In general, this includes two types of
cases: diversity cases, loosely defined as cases in which the parties are
from different states and the controversy involves more than $75,000; and
federal question cases, defined as cases "founded on a claim or right
arising under the Constitution, treaties or laws of the United States."
If a case involving a federal question is filed in state court, such as
in the court of
common pleas, the defendant can remove the case to federal court.
The judge's first responsibility is then, as is always true for any case
filed in federal court, to determine whether there is federal
jurisdiction to hear the matter.
Federal question jurisdiction only exists when a federal question is
presented by the plaintiff in a proper, or "well-pleaded", complaint.
After all, it is the plaintiff who decides whether to bring a case in
state or federal court, and he or she makes this choice by how the
complaint is framed. In other words, a party who brings suit is master to
decide what law to rely upon and whether he or she will bring a suit
arising under the Constitution or laws of the United States. Therefore,
except under circumstances not applicable here,*fn1 to decide if federal
jurisdiction exists, a federal court must focus exclusively on the
Alleging that "this matter is subject to removal" because "it raises a
federal question," Street et al. removed this case from state court to
federal court. In support of their assertion that a basis for federal
question jurisdiction exists, Street et al. cites the section of
Mitchell's Motion for a Temporary Restraining Order (TRO) in which
Mitchell argues that the "TRO is appropriate, inter alia,
because the Mayor has violated Mitchell's Constitutional Right to
protection of his reputation (Section 1, Pa. Constitution). " In further
support of its claim that a federal question exists, Street et al.,
without citation to plaintiff's complaint, characterizes plaintiff's case
as asserting a liberty interest protected by the procedural due process
clause of the Fourteenth Amendment to the United States Constitution and
actionable under 42 U.S.C. § 1983.
In response, Mitchell contends in his Motion to Remand that his
complaint does not arise
under federal law, and that the case should be remanded to state
court. As a basis for his contention, Mitchell argues that it "is
self-evident" that the action does not involve a federal question and
that this can be gleaned "from the pleadings filed by plaintiff, but
indeed, from the face of defendant's Notice of Removal, itself."*fn2 In
their response to Mitchell's Motion to Remand, Street et al. argue that
because, in their belief, this action has no merit under the Pennsylvania
Constitution, Mitchell must be bringing this action under § 1983
where, presumably, it would fare better. The possible success on the
merits of an action under the Pennsylvania Constitution is irrelevant to
my determination as to whether there is federal jurisdiction. The only
issue for me, under the law, is whether the complaint itself states a
federal question. This is far less than "self-evident."
There are three references to a "constitution" or "constitutional
rights" in the complaint. The first appears in paragraph #22 and states
[Referring to Commissioner Johnson's alleged
statement about standing behind Mitchell] This
statement alone would have been more than
sufficient to allow an investigation to continue
without the taking of a man's reputation and
destroying his constitutional rights for the
improper purposes of the Mayor.
The second reference appears in paragraph # 25 and reads:
With reckless disregard for plaintiff's
constitutional rights to his reputation, the
Mayor, on March 9, 2004 instructed Commissioner
Johnson to have Ms. Fox assume Plaintiff's duties
and, by inference or innuendo, created the
impression that plaintiff had committed a crime
and in so doing disgraced the plaintiff as well as
the Philadelphia Police Department.
The third appears in paragraph # 27. It says:
Had this simple act been done, the Mayor would not
have recklessly disregarded plaintiff's
constitutional right to his reputation and
property (Section 1, Pa. Constitution) which right
overrides any discretion available to the Mayor in
the firing of the plaintiff.
The burden of proving that federal jurisdiction exists rests with the
party who is asserting the existence of that jurisdiction. Boyer v.
Snap-on Tools Corp., 913 F.2d 108
(3rd Cir. 1990). To justify
removal on the basis of federal question, Street et al. simply cited
Mitchell's motion for a TRO, an insufficient document to provide federal
jurisdiction, and speculated regarding the outcome of Mitchell's case
under the Pennsylvania Constitution, concluding that Mitchell must be
asserting a § 1983 action under the federal Constitution. In the
process, Street et al. even referred to the Pennsylvania Constitution as
the basis of Mitchell's claim. None of Street et al.'s arguments
establishes the existence of a federal question. Street et al. has
therefore failed to meet its burden.
Furthermore, addressing the complaint itself, it is no more than mere
speculation that the case has been brought under the United States
Constitution. The only "constitution" referred to in the three paragraphs
that made such a reference is the Pennsylvania Constitution. This is
insufficient to establish that the complaint states a federal question.
Therefore, because there is no federal question involved, there is no
federal jurisdiction over this case, and I will remand the case back to
In his motion, Mitchell also asks that I order defendants to pay his
court costs, expenses, and attorney's fees under 28 U.S.C. § 1447(c).
This section provides that:
An order remanding the case may require payment of
just costs and
any actual expenses, including attorney fees,
incurred as a result of the removal.
A district court has broad discretion in determining whether to require
the payment of fees under this section. Our court has stated that this
award is particularly appropriate "where the lack of jurisdiction is
plain in the law and would have been revealed to counsel for the
defendant with a minimum of research." Township of Whitehall v.
Allentown Auto Auction, 966 F. Supp. 385, 386 (E.D. Pa. 1997). The
remand in this case did not reach that degree of egregiousness. With the
repeated mention of the "constitution" in the complaint and defendants'
perception that no claim under the state Constitution was arguably
viable, I cannot say that there was no colorable argument supporting
removal. Therefore I will deny the motion for costs, expenses and