Opinion
02 Civ. 4599 (DAB)
August 6, 2002
MEMORANDUM ORDER
On October 19, 1999, Aquilina C. Lim MD PC, ("Plaintiff"), brought this breach of contract action against Stuart Saftchick MD ("Defendant") in Civil Court of the City of New York, County of Bronx. Defendant filed a Notice of Removal ("Notice"), in the Southern District of New York on June 17, 2002. The Notice is based upon the presence of an affirmative defense allegedly grounded in federal law. For the reasons set forth below, this case is hereby remanded to the state court from which it was removed.
I. Background
Plaintiff operates a medical facility in Bronx County. (Notice of Removal, Ex. A, Complaint ¶ 1.) From approximately June 30, 1998, to September 30, 1998, Plaintiff, at the Defendant's request and insistence, provided work, labor and services in the amount of $3,700.00 to the Defendant. (Id. at ¶ 5.) Despite providing Defendant with complete and true monthly statements of his account, the Defendant has ignored Plaintiff's demand that he pay the money Plaintiff alleges it is owed. (Id. at ¶ 7.)
Defendant, initially proceeding pro se, moved to dismiss Plaintiff's Complaint. The Motion was denied on October 20, 2000. (Notice of Removal ¶ 4.) On February 27th, 2002, Defendant, no longer proceeding pro se, moved to amend his Answer to add an affirmative defense. Namely, Defendant sought to amend his Answer to include a defense purportedly available to him pursuant to 42 U.S.C. § 1395nn. (Notice of Removal ¶ 8.) The state court denied Defendant's Motion in all respects. (Notice of Removal, Ex. H, Decision/Order Index No. 023407/99, Civ. Ct. of the City of New York, County of Bronx.)
II. Discussion
A. Summary Remand
28 U.S.C. § 1446 (c)(4) requires the district court in which a notice of removal is filed to examine the notice promptly. "If it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shall make an order for summary remand." 28 U.S.C. § 1446(c)(4).
"[A]ny 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 and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). "Absent diversity of citizenship, federal-question jurisdiction is required." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).
Pursuant to 28 U.S.C. § 1331, federal question jurisdiction exists for "all civil actions arising under the Constitution, laws, or treaties of the United States." The presence of federal question jurisdiction is governed by the well-pleaded complaint rule. "[W]hether a case is one arising under the Constitution or a law or treaty of the United States . . . must be determined from what necessarily appears in the plaintiff's statement of his own claim . . . unaided by anything alleged in anticipation or avoidance of defenses which it is thought the defendant may interpose." Taylor v. Anderson, 234 U.S. 74, 75-76, (1914). See also Caterpillar Inc., 482 U.S. at 392 (1987) (citing Gully v. First National Bank, 299 U.S. 109, 112-113 (1936)) ("The presence or absence of federal-question jurisdiction is governed by the well-pleaded complaint rule, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.") (internal quotation marks omitted). Furthermore, and of particular importance in this case, it must be noted that "if a complaint alleges only state law based causes of action, it cannot be removed from state court to federal court even if there is a federal defense."Hernandez v. Conriv Realty Associates, 116 F.3d 35, 38 (2d Cir. 1997) (citing Caterpillar Inc., 482 U.S. at 392-93); see Franchise Tax Bd. of State of Cal. v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 14 (1983) ("[S]ince 1887 it has been settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case.). In sum, and subject to two exceptions not applicable here, the well-pleaded complaint rule "makes the plaintiff the master of the claim; [and as such] he or she may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar, 482 U.S. at 392.
Two exceptions exist to the well-pleaded complaint rule, the complete preemption doctrine, Fleet Bank, National Assoc. v. Burke, 160 F.3d 883, 886 (2d Cir. 1998); Marcus v. ATT Corp., 138 F.3d 46, 53 (2d Cir. 1998), and the artful pleading doctrine, Marcus, 138 F.3d 46, 55; In re "Agent Orange" Prod. Liability Litig., 996 F.2d 1425, 1430 (2d Cir. 1993). Where neither exception applies, "the well-pleaded complaint rule requires remand . . ." See Levcor Int'l, Inc. v. MCI WorldCom Comm., Inc., No. 01 Civ. 1093, 2001 WL 716918, at *2 (S.D.N.Y. June 26, 2001). The first exception, the complete preemption doctrine, exists where "the pre-emptive force of a statute is so extraordinary that it converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule." Marcus, 138 F.3d at 53 (quoting Caterpillar, 482 U.S. at 393) (internal quotations omitted). See generally Fleet Bank, 160 F.3d at 886 (stating that the doctrine has "been recognized only in three contexts," none of which apply here). The second exception, the artful pleading doctrine, permits a defendant to remove a complaint "which appears to be grounded solely in state law" where the true nature of the complaint "has been disguised by the plaintiff's artful pleading." In re Agent Orange Prod. Litig., 996 F.2d at 1430. The Court does not find the Plaintiff has disguised the true nature of its Complaint.
Because of significant federal concerns, "[r]emoval jurisdiction must be strictly construed," In re NASDAQ Market Makers Antitrust Litig., 929 F. Supp. 174, 178 (S.D.N.Y. 1996), and "all doubts should be resolved in favor of remand." Leslie v. BancTec Serv. Corp., 928 F. Supp. 341, 347 (S.D.N.Y. 1996) (internal quotation marks omitted). Therefore, "[i]f federal jurisdiction is dubious, remand is proper . . ." In re 17,325 Liters of Liquor, 918 F. Supp. 51, 54 (N.D.N.Y. 1996)
The removal of this case appears to be premised upon the Defendant's arguement that the money he allegedly owes Plaintiff results from client referrals and not for work, labor and services as originally alleged in Plaintiff's Complaint. (Notice of Removal, Ex. G, Def. Aff. in Supp. Mot. to Strike from Trial Calendar.) According to Defendant, any such payment to Plaintiff for client referrals "constitutes [a] self-referral by [a] Physician, [a practice] that was and is prohibited by . . . 42 U[.]S[.]C[.] [§] 1395nn. (Id.)
In this case, Plaintiff's Complaint does not, on its face, present any federal issues at all, nor is the presence of an anticipated federal defense sufficient to confer federal question jurisdiction upon this Court. This is a simple contract dispute. The Complaint plainly states that the Defendant promised to pay Plaintiff $3,700.00 for work, labor, and services rendered and that Defendant failed to make the proper payment. (Notice of Removal, Ex. A, Compl. ¶ 5-6.) Likewise, and as noted supra, the two exceptions to the well-pleaded complaint rule do not support the removal of this case to federal court.
III. Conclusion
In accordance with the foregoing, the Court hereby remands this action to the Civil Court of the State of New York, County of Bronx.