The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
Plaintiff Diane Ruchka filed a complaint in a civil action suit in the Court of Common Pleas of Allegheny County, Pennsylvania, which appears to allege only state law claims against Borough of West Mifflin Police Officer Robert Husfelt. At Count I, plaintiff alleges a claim for "False Imprisonment" "under the Pennsylvania Constitution," Complaint, ¶ ¶ 19-24; Count II sates a claim for "Assault, Battery & Excessive Use of Force," Complaint, ¶¶; Count III states a claim for "Malicious Prosecution," Complaint, ¶¶ 33-37; and Count IV asserts a claim for "Negligence - Use of Force," Complaint, ¶¶ 38-41. Counts II through IV each incorporate the previous paragraphs, including the "under the Pennsylvania Constitution" paragraph, Complaint, ¶ 22.
Defendant Husfelt removed the case to this Court on June 5, 2008, claiming federal question jurisdiction exists under 28 U.S.C. § 1331 "by virtue of plaintiff's allegations that her U.S. constitutional and civil rights were violated by all Defendants [sic]." Notice of Removal (doc. no. 1), at ¶ 5. (There is only one defendant named in plaintiff's complaint.) Defendant asserts that plaintiff's "Complaint sets forth a claim for federal constitutional and civil rights violations and seeks relief for actions taken by the defendant 'under color of state law.'
(Complaint paragraph 3). It also seeks damages for use of 'excessive force' by the defendant. (Complaint Count I and Count IV)." Notice of Removal (doc. no. 1), at ¶ 3.
On June 9, 2008, this Court issued a Rule to Show Cause why the case should not be remanded to the Court of Common Pleas for lack of federal question jurisdiction, stating as follows:
Because federal district courts have limited jurisdiction, the removal statutes are strictly construed against removal. E.g., American Fire & Cas. Co. v. Finn, 341 U.S. 6 (1951); Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1974). All doubts as to substantive and procedural jurisdiction prerequisites must be resolved in favor of remand. E.g., Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985); Sterling Homes, Inc. v. Swope, 816 F. Supp. 319, 323 (M.D. Pa. 1993). The removing defendant bears the heavy burden of persuading the Court to which the state action was removed that it has jurisdiction under the removal statutes. Batoff, 977 F.2d at 851; Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied, 498 U.S. 1085 (1991). See Wilson v. Republic Iron & Steel Co., 257 U.S. 92 (1921) (burden of establishing federal jurisdiction is placed upon the parties seeking removal).
As to the purported federal question, i.e., plaintiff's "federal constitutional and civil rights," Notice of Removal (doc. no. 1), at ¶ 5, plaintiff's complaint does not purport to rely on the federal constitution or any federal civil rights statute. Moreover, plaintiff's complaint does not assert at paragraph 3, as defendant misquotes it, that defendant acted "under color of state law," the necessary element of any federal cause of action under 42 U.S.C. § 1983. Instead, paragraph 3 states that defendant acted "under color of law and pursuant to his authority and position as a West Mifflin Police Officer," Complaint, ¶ 3, not "under color of state law." Thus an inference from paragraph 3 that plaintiff is pleading the federal constitution or federal civil rights laws is not warranted by the language of that paragraph.
Although plaintiff's complaint is not overly specific, she does identify one source as the basis for her several claims, the Pennsylvania Constitution. While the averments of plaintiff's complaint are no doubt capable of encompassing federal civil rights claims (e.g., "excessive force"), it is not apparent on the face of her complaint that plaintiff is, in fact, making such claims.
The United States Supreme Court has made it clear that "the plaintiff is the master of the complaint . . . and that the plaintiff may, by eschewing federal law, choose to have [her] cause heard in state court." Caterpillar, Inc. v. Williams, 482 U.S. 386, 398-99 (1987). To form the basis of removal, "a federal question must appear on the face of the complaint." Id. at 399. The existence or absence of federal question is determined in the context of the well-pleaded complaint rule and federal question jurisdiction exists only when a federal question is presented within the four corners of plaintiff's properly pleaded complaint. Id. at 392.
For a federal court to assert jurisdiction over a case based on federal question, the Constitution, laws or treaties of the United States must supply an essential element of the plaintiff's cause of action. Gully v. First Nat. Bank in Meridian, 299 U.S. 109, 112 (1936); see also 28 U.S.C. § 1331. Additionally, a case is not removable on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiff's complaint and "both parties concede that the federal defense is the only question at issue." See Caterpillar, Inc., 482 U.S. at 393; see also Lazorko v. Pennsylvania Hosp., 237 F.3d 242, 248 (3rd Cir. 2000).
Thus, "[w]hether the claim arises under 'federal law' for removal purposes is determined by applying the 'well-pleaded complaint rule' which determines original federal jurisdiction." Wuerl v. International Life Science Church,758 F.Supp. 1084, 1086 (W.D.Pa. 1991). "Federal courts have jurisdiction to hear, originally or by removal, only those cases in which the 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." Id., 758 F.Supp at 1086 (citation omitted).
"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." Id. (citing Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986)); see also Berg v. Leason, 32 F.3d 422, 425-26 (9th Cir. 1994).
There are, however, two exceptions to the well-pleaded complaint rule, namely, the "artful pleading doctrine" and the doctrine of "complete preemption" (as opposed to ordinary preemption). A "court will not allow a plaintiff to deny a defendant a federal forum when the plaintiff's complaint contains a federal claim 'artfully pled' as a state law claim." Goepel v. Nat'l Postal Mail Handlers Union, 36 F.3d 306, 311 n. 5 (3d Cir.1994) (citation omitted). Removal is permitted under the artful pleading doctrine if "(1) federal law has completely preempted the state law that serves as the basis for the plaintiff's complaint, or (2) a federal question, not pleaded in the plaintiff's complaint, is nonetheless both intrinsic and central to the plaintiff's cause of action." Guckin v. Nagle, 259 F.Supp.2d 406, 410 (E.D.Pa. 2003) (citing 14B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3722 (3d ed.1999)).
Neither of the exceptions to the well-pleaded complaint rule would appear to be operative herein, but the Court will hear from the ...