United States District Court, S.D. Illinois
ANNE SCHLAFLY CORI, as a Director and the Executive Director of Eagle Forum, et al., Plaintiffs,
EDWARD R. MARTIN, JR., And JOHN F. SCHLAFLY Defendants, And EAGLE FORUM, an Illinois Not for Profit Corporation, Nominal Defendant.
MEMORANDUM AND ORDER
HERNDON, DISTRICT JUDGE.
before the Court are Cori and Eagle Forum's motions to
remand (Docs. 19 & 22). Cori moves this Court to remand
the case because this Court lacks subject matter jurisdiction
as there is no diversity jurisdiction and no federal question
jurisdiction. Eagle Forum moves to remand due to a defect in
procedure when Defendant Eagle Forum did not consent to
removal, as is required. Northern Illinois Gas Co. v.
Airco Indus. Gases, A Division of Airco, Inc., 676 F.2d
270, 272 (7th Cir. 1982).
Jr. opposes the motions, arguing that the Court has federal
question jurisdiction over Cori's complaint (Doc. 23) and
that Eagle Forum is a nominal defendant and therefore its
consent was not required. Since this court finds there is no
subject matter jurisdiction, the motions based on procedural
defect are moot and not discussed here. Based on the record
and the applicable case law, the Court
GRANTS Plaintiffs motion to remand,
DENIES Plaintiffs motion for attorney's
fees and DENIES as moot Eagle Forum's
Standard of Review
well-pleaded complaint doctrine states that federal question
jurisdiction is present where the face of the complaint
alleges a violation of federal law. Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987). This rule is
designed to make the plaintiff the "master of the claim,
" that is, he or she can avoid federal jurisdiction by
solely relying upon state law. Id. The removal
statute, 28 U.S.C. § 1441, is construed narrowly, and
doubts concerning removal are resolved in favor of remand.
Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th
bear the burden to present evidence of federal jurisdiction
once the existence of that jurisdiction is fairly cast into
doubt. See In re Brand Name Prescription Drugs Antitrust
Litig., 123 F.3d 599, 607 (7th Cir. 1997). "A
defendant meets this burden by supporting [its] allegations
of jurisdiction with 'competent proof, ' which in
[the Seventh Circuit] requires the defendant to offer
evidence which proves to a reasonable probability that
jurisdiction exists." Chase v. Shop 'N Save
Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir.
federal district courts have original jurisdiction of
"all civil actions arising under the Constitution, laws
or treaties of the United States." 28 U.S.C. §
1331. In assessing the propriety of removal based on federal
question jurisdiction, the district court applies a rule
which provides that such jurisdiction exists "only when
the federal question is presented on the face of the
plaintiffs properly pleaded complaint." Jass v.
Prudential Health Care Plan, Inc., 88 F.3d 1482, 1486
(7th Cir. 1996).
case at hand, Plaintiffs have filed suit under a series of
common law breach of fiduciary and contract claims against
Defendant and seek injunctive relief along with a declaration
that the property in dispute belongs in fact to the Eagle
Forum organization. Defendants characterize the sought
declaration and injunction as invoking issues of federal law
since the property sought by Plaintiffs is copyrightable
material and a registered trademark. Defendant claims these
claims of ownership assert legal rights equivalent to those
provided by the Copyright act because a finding in favor of
the Plaintiffs would render Defendant's actions
stated above, the Plaintiff is the "master of the
claim" in that they may avoid federal jurisdiction by
exclusively relying on state law. Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987). Nowhere in the
Plaintiffs original or amended complaint is there any mention
of a federal statute or the Lanham Act, nor is there reliance
on any federal cause of action. Thus, it would appear on the
face of the complaint that no federal question has been
Defendants argue because ownership of intellectual property
is in dispute, then there is an implied federal issue since
any action taken by the losing side would immediately be
infringing. While there is a degree of logic to this
argument, precedent holds that ownership disputes concerning
intellectual property do not independently suffice federal
question jurisdiction as required by 28 U.S.C. § 1331.
Int'l Armor & Limousine Co. v. Moloney
Coachbuilders, Inc., 272 F.3d 912, 915 (7th Cir. 2001)
citing T.B. Harms Co. v. Elisco, 339 F.2d 823 (2d
Cir. 1964) ("a dispute about the ownership of a
copyright does not arise under federal law, even though the
dispute could not exist but for the property right created by
copyright"). This reasoning was later extended to
trademarks. See Country Mutual Insurance Co. v. American
Farm Bureau Federation, 876 F.2d 599, 601
(7th Cir. 1989).
without an issue of federal law present on the face of the
complaint and unable to point to a federal question as the
"real nature of the claim asserted, " Defendants
rely on claiming they will file later counterclaims that will
suffice federal question jurisdiction. Jones v. Gen. Tire
& Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976).
However, the Supreme Court has held that only the complaint
may be considered when determining jurisdiction, including
counterclaims in the determination would potentially defeat
the plaintiffs choice of forum and "radically expand the
class of removable cases." Holmes Group, Inc. v.
VornadoAir Circulation Systems, Inc., 535 U.S. 826, 830
all claims for federal question jurisdiction defeated and
diversity jurisdiction unavailable, this court does not have
subject matter jurisdiction over the ...