The opinion of the court was delivered by: McCUSKEY, District Judge.
In October of 1999, Plaintiff Board of Education of Decatur School
District No. 61 (the "District") expelled six students and allowed
another to withdraw after the students participated in a fight at a
schoolsponsored event. This decision generated some controversy in the
community, prompting Defendants to demonstrate in protest on District
property. In response to these demonstrations, the District brought a
civil complaint against Defendants in the Circuit Court of Macon County,
Illinois on November 17, 1999. In its complaint, the District alleged
that the demonstrations were disrupting its schools, and sought a
Temporary Restraining Order and Permanent Injunction to impose limits on
the demonstrators in an effort to minimize this disruption.
On November 22, 1999, Defendants filed a timely Notice of Removal (# 1)
to bring the matter before this court under 28 U.S.C. § 1441 & 1446
(West 1999). For the following reasons, the court finds that this removal
was improper and remands this action to state court.
Federal courts are courts of limited jurisdiction. All federal courts,
except for the Supreme Court, derive their jurisdiction from Congress'
power under the Constitution to "ordain and establish" inferior courts.
U.S. Const. art. III, § 1; Lockerty V. Phillips, 319 U.S. 182, 187,
63 S.Ct. 1019, 87 L.Ed. 1339 (1943); In the Matter of the Application of
County Collector of the County of Winnebago, Illinois, 96 F.3d 890, 895
(7th Cir. 1996). Because a federal court's jurisdiction is limited, it
has a "nondelegable duty to police the limits of federal
jurisdiction with meticulous care." Market Street Assocs. Ltd v. Frey,
941 F.2d 588, 590 (7th Cir. 1991); see also Krueger v. Cartwright,
996 F.2d 928, 930 (7th Cir. 1993); Fed.R.Civ.P. 12(h)(3) (West 1999). In
keeping with this duty, the court has reviewed the jurisdictional issues
presented by Defendants' Notice of Removal sua sponte, and finds that it
lacks jurisdiction over this case. See Wisconsin Knife Works v. National
Metal Crafters, 781 F.2c1 1280, 1282 (7th Cir. 1986) (instructing that
"[t]he first thing a federal judge should do when a complaint is filed is
check to see that federal jurisdiction is properly alleged").
A federal court may hear a removed case only if the court has subject
matter jurisdiction over that case. Doe v. Allied-Signal, Inc.,
985 F.2d 908, 911 (7th Cir. 1993). A court should presume that a
plaintiff's choice of forum is proper and resolve doubts about
jurisdiction in favor of the states. Allied-Signal, 985 F.2d at 911
(citing Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir.
1976)). Furthermore, the burden of establishing jurisdiction falls on the
party seeking removal. Allied-Signal, 985 F.2d at 911 (citing Wilson v.
Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144
Section 1447(c) directs a district court to remand a case to state
court if it lacks subject matter jurisdiction. 28 U.S.C. § 1447 (c).
In determining whether it has jurisdiction, the court applies the
well-pleaded complaint rule. Under that rule, a federal court has subject
matter jurisdiction only if "the suit — as the plaintiff framed or
easily could have framed it in the complaint — would have been
within the district court's original jurisdiction at the time of the
removal." Federal Deposit Ins. Corp. v. Elefant, 790 F.2d 661, 667 (7th
Cir. 1986) (citing Franchise Tax Bd. v. Construction Laborers Vacation
Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). The court
shall not assert jurisdiction, however, "when the only federal question
posed is raised by a defense argument, even if the plaintiff anticipated
the defense argument and even if both parties concede the federal
question is the only real issue in the case." Allied-Signal, 985 F.2d at
911; cf. Elefant, 790 F.2d at 667 (explaining that even subsequent filing
of a federal counterclaim does not confer federal jurisdiction). Thus, a
defendant cannot create a federal question by asserting an issue of
federal law in a pleading or removal petition. Caterpillar Inc. v.
Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). In
other words, "[j]urisdiction may not be sustained on a theory that the
plaintiff has not advanced." Merrell Dow Pharm., Inc. v. Thompson,
478 U.S. 804, 810 n. 6, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986).
In this case, Defendants point to no specific federal cause of action
in the District's complaint. Instead, they contend that the case "raises
substantial questions of federal law and/or at least one of the claims is
effectively one of federal law." Specifically, Defendants point out that
the District seeks to restrict their demonstrations, which ultimately
implicates their constitutionally-protected rights to freedom of speech
and assembly. Thus, Defendants argue, this case will inevitably require
the presiding court to apply federal constitutional law. That application
of federal law, they conclude, provides this court with jurisdiction.
In support of this argument, Defendants cite several United States
Supreme Court cases that appear to govern the constitutional issues
implicated by the District's request for an injunction. In Schenck v.
Pro-Choice Network of Western New York, 519 U.S. 357, 117 S.Ct. 855, 137
L.Ed.2d 1 (1997), the Supreme Court addressed the constitutionality of a
federal district court's injunction limiting where and how protesters
could demonstrate outside of an abortion clinic. In Schenk however, the
plaintiffs brought a federal claim against the protesters under
42 U.S.C. § 1985 (3), which prohibits harassment of women seeking
abortions and other family
planning services. Schenck, 519 U.S. at 362, 117 S.Ct. 855. Thus, that
case originated in federal court not because federal constitutional
issues were at stake, but because the plaintiff's complaint included a
federal cause of action. Likewise, in Frisby v. Schultz, 487 U.S. 474,
108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), the plaintiffs sought to enjoin
the enforcement of a town ordinance limiting where they could demonstrate
in protest of abortion. The plaintiffs in Frisby brought their complaint
under 42 U.S.C. § 1983, a federal civil rights statute, which
conferred federal jurisdiction. Frisby, 487 U.S. at 477, 108 S.Ct. 2495.
Finally, Defendants cite Madsen v. Women's Health Center, Inc.,
512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994), in which the Court
discussed the constitutionality of restrictions on abortion protesters
under the First Amendment. In Madsen, however, a Florida state court
issued the injunction in dispute; the case did not originate in federal
court. The Supreme Court agreed to review the case after it had proceeded
through the Florida appellate system. Madsen, 512 U.S. at 757, 114 S.Ct.
Thus, in each of the three cases relied upon by Defendants, the
complaint either alleged federal causes of action, or the case was
litigated originally in state court. Defendants have not pointed to any
case in which a federal district court derived jurisdiction solely from
the existence of federal constitutional issues in a case. Nor could
they, as the Seventh Circuit has made clear that the "mere presence of a
federal issue in a state cause of action does not automatically confer
federal question jurisdiction." Seinfeld v. Austen, 39 F.3d 761, 764 (7th
Cir. 1994) (quoting Merrell Dow, 478 U.S. at 813, 106 S.Ct. 3229).
In light of these well-established principles, this court simply lacks
jurisdiction over this case, even if federal constitutional law
ultimately dictates its outcome. The court therefore has no choice but to
remand the matter to the Circuit Court of the Sixth Judicial Circuit,
Macon County, Illinois.
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