United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON, JUDGE
Center for Wildlife Ethics, an Indiana-based environmental
public interest group, has sued Cameron Clark, the Director
of the Indiana Department of Natural Resources claiming that
an Indiana law allowing for rifle hunting of deer on public
property and its associated regulations violate Indiana law.
The Center filed this lawsuit in the LaPorte County Circuit
Court and after amending its complaint to reflect changes in
the law at issue, Clark removed this case to federal court
pursuant to 28 U.S.C. §§ 1441 and 1446, claiming
that federal question jurisdiction exists over this
controversy because of a few references to the federal
constitution in the amended complaint. [DE 1.] The Center
seeks remand to state court on the basis a lack of federal
subject matter jurisdiction, and it seeks attorneys fees to
boot. [DE 18.] Because the Center's claims involve
questions of Indiana state law and have no actual federal
interest or question at stake, there is no basis for federal
jurisdiction. Consequently I will remand this case.
gist of the complaint focuses on a section of Indiana's
Natural Resources Code, § 14-22-2-8, which permits deer
hunting with a rifle on private property under certain
circumstances and further allows the DNR to adopt rules to
allow for deer hunting with a rifle on public property. [DE
1-2, Am. Compl. At 3.] Specifically, the Center claims that
the phrase “public property” is impermissibly
broad and that Clark and the DNR's interpretation and
regulations implementing this statute, and the emergency rule
process utilized to promulgate the regulations, are contrary
to law. Id. at 4-5, 14. The Center seeks a
declaratory judgment and injunctive relief to halt operation
of the DNR's regulations allowing for rifle hunting of
deer on public property in Indiana. Id. at 15-16.
notice of removal, Clark states that federal jurisdiction
exists because “Plaintiff alleges violation of due
process of law under U.S. Const. amend. XIV, Sec. 1.”
[DE 1 at 2, ¶ 7.] He states that “[t]his case may
be removed because the claims against the Defendant falls
within the original jurisdiction of this Court founded on a
claim or right arising under the Constitution, treaties, or
laws of the United States.” Id. Clark directs
me to six specific references to the U.S. Constitution (and
the Indiana constitution) and six non-specific references to
the term “constitutional” in various permutations
within the complaint. See e.g., Complaint at 7.
Clark argues that these references are sufficient to create
federal questions an essential part of the Center's
lawsuit and thus grant me jurisdiction over the case.
start with the basic foundational principles which guide any
discussion as to whether removal is proper when a defendant
asserts that a plaintiff's complaint presents a federal
question. First, “the federal question must be an
essential element of the plaintiff's complaint to provide
grounds for removal.” People of State of Ill. v.
Kerr-McGee Chem. Corp., 677 F.2d 571, 575 (7th Cir.
1982) (citing Phillips Petroleum Co. v. Texaco Inc.,
415 U.S. 125, 127 (1974)). Second, “it is the
plaintiff's complaint that determines whether
federal-question jurisdiction exists, for ‘[i]t is
long-settled law that a cause of action arises under federal
law only when the plaintiff's well-pleaded complaint
raises issues of federal law.'” Perl v.
Laux/Arnold, Inc., 864 F.Supp.2d 731, 736 (N.D. Ind.
2012) (citing Metropolitan Life Ins. Co. v. Taylor,
481 U.S. 58, 63 (1987)). Third, it is the defendant's
burden, as the party seeking removal, to show that subject
matter jurisdiction exists. Oshana v. Coca-Cola Co.,
472 F.3d 506, 511 (7th Cir. 2006). Finally, given that
federal courts are courts of limited jurisdiction,
“[t]he removal statute should be construed narrowly and
any doubts about the propriety of removing a particular
action should be resolved against allowing removal.”
Wirtz Corp. v. United Distillers & Vintners N. Am.,
Inc., 224 F.3d 708, 715 (7th Cir. 2000) (citation
omitted). Consideration of each of these principles, as well
as analogous case law concerning complaints which focused
violations of state law but likewise made references to the
U.S. Constitution, weigh in favor of remanding this case.
parties do not dispute the gist of the case, namely whether
or not the Indiana statute authorizing the DNR to promulgate
rules concerning rifle hunting of deer on “public
property” is impermissibly vague, and whether the
DNR's actual regulations are an improper delegation of
regulatory authority and/or procedurally improper. But where
they diverge is under what metric they are to be judged.
Clark posits that the Center's complaint seeks to have
the statute and rule declared unconstitutional under the
Fourteenth Amendment's guarantee of due process, thus
raising a federal question over which this court could have
jurisdiction. The Center counters that instead, the case is
about whether or not Clark and the DNR have statutory
authority (under Indiana law) “to transfer or delegate
the agency's stewardship and management duties to private
hunting licensees/inters or private actors on any state park
and historic site property.” [DE 1-2 Am. Compl. at 15.]
The Center also challenges the “emergency rule
process” used by Clark to implement the regulations as
contrary to Indiana statute and further argues this process
likewise violates “due process as guaranteed by the
state and federal constitutions.” Id. at 16.
question is whether the somewhat haphazard references to the
U.S. Constitution in the Center's complaint, without
more, give rise a claim over which this court has original
jurisdiction and thus within my subject matter jurisdiction?
When faced with similar questions, district courts both
inside and outside this circuit have answered this question
in the negative, finding any potential federal question
non-essential and thus an insufficient basis to confer
federal jurisdiction. For example, in Greenberg v.
Omnicom Cablevision of Illinois, Inc., the court
remanded to state court where the complaint's
“reference to the Fourteenth Amendment to the United
States Constitution appears to be an afterthought.” No.
85 C 2276, 1985 WL 1351, at *1 (N.D. Ill. May 10, 1985). And
like in Greenberg, the reference to the U.S.
Constitution in the Center's complaint “appears
back-to-back with a reference to the due process
clause” of the relevant state constitution.
Id. Other courts have similarly ruled that where a
plaintiff seeks to invalidate a state regulatory decision,
mere references to due process are not sufficient to confer
federal jurisdiction. Fields v. D.C., 155 F.Supp.3d
9, 10 (D.D.C. 2016) (“Aside from a few stray references
to her “substantive and due process rights, ”
Plaintiff does not mention or allude to the Fifth or
Fourteenth Amendments anywhere in her Complaint, nor does she
mention or allude to the United States Constitution or to any
other law or regulation that would confer upon this court
federal question jurisdiction.”) (remanding where
plaintiff asserted she was only seeking relief pursuant to
the District of Columbia's Administrative Procedures
Act); see also Stein v. Am. Exp. Travel Related
Servs., 813 F.Supp.2d 69, 72-73 (D.D.C. 2011)
(“The central issue in Plaintiffs' Complaint is
whether the actions they allege are deceptive constitute a
violation of the [District of Columbia law]-not whether they
constitute a violation of the Fourth Amendment. Federal
question jurisdiction does not exist simply because
principles of federal law may be considered when determining
if and whether defendants violated [District of Columbia
law]”). The reasoning of these cases is persuasive to
the case before me.
Park Assocs. v. Lyne, No. 92 C 2152, 1992 WL 82387 (N.D.
Ill. Apr. 20, 1992) is another analogous and instructive
case. There, the plaintiff filed a complaint for declaratory
relief against the City of Chicago, claiming that a city
ordinance violated an Illinois state statute and seeking an
injunction to prevent enforcement. 1992 WL 82387, at *2. That
is similar to the Center's claims in its amended
complaint, which seek a declaration that Clark has acted
beyond his statutory authority in promulgating the rifle
hunting on public property regulation. Like in Peterson
Park Assocs., “the federal Due Process
claim” referenced in the complaint here “is
merely tangential to [plaintiff's] primary contention
that the [DNR's rule] does not comply with the State Act,
and that the Due Process issue was raised only as one example
of the many ways in which the [DNR's rule] fails to
comply with the State Act.” Id. There is thus,
like in Peterson Park Assocs., an insufficient basis
to invoke federal jurisdiction in this case.
in Peterson Park Assocs., after the defendant
removed, the plaintiff sought leave to withdraw the
references to the Fourteenth Amendment within its complaint,
which the court granted as part of its ruling in favor of
remand to state court. Id. at *3. While the Center
has not similarly moved to strike the seemingly superfluous
references to the U.S. Constitution in its amended complaint,
it has made clear that its claims “arise from Indiana
state law alone.” [DE 19 at 2.] Furthermore, the Center
disclaims any potential federal questions by representing
that “[t]he Amended Complaint does not allege any
violations of the federal constitution or federal law.”
Id. at 8. These are judicial admissions that will
bind the Center once the case is sent back to state court.
Should the Center attempt to do a bait and switch and start
making federal constitutional claims back in state court,
then Clark can re-remove the case at that time.
given the fact that the stray references to the U.S.
Constitution in the amended complaint are brief and are
obviously not the thrust of this case, and given the
Center's representations confirming that fact, it is
clear that this case is not one which would invoke the
original jurisdiction of this court. The case must therefore
be remanded. Fields, 155 F.Supp.3d at 11
(“[T]he plaintiff is ‘master of the claim'
and may rely exclusively on state law to avoid federal
question jurisdiction”) (citation omitted); see
also Vaden v. Discover Bank, 556 U.S. 49, 60 (2009)
(“Under the longstanding well-pleaded complaint rule
... a suit ‘arises under' federal law ‘only
when the plaintiff's statement of his own cause of action
shows that it is based upon [federal law].' ”
(quoting Louisville & Nashville R. Co. v.
Mottley, 211 U.S. 149, 152 (1908)).
final issue to address is the Center's request for fees
and costs associated with defendant Clark's removal. The
removal statute authorizes costs and fees associated with
removal that is subsequently remanded to state court. 28
U.S.C. § 1447(c) (“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.”). The Supreme Court has held, however, that
fees and costs may only be awarded where the removing party
lacked an “objectively reasonable basis” for
removing to federal court. Martin v. Franklin
Capital, 546 U.S. 132, 141 (2005). “If fee
shifting were automatic, defendants might choose to exercise
this right only in cases where the right to remove was
obvious.” Id. at 140. In order to determine
whether or not removal was objectively reasonable, the
Seventh Circuit has directed me to analogize the situation to
a qualified immunity determination and to determine whether
clearly established law shows that removal was improper.
Lott v. Pfizer, Inc., 492 F.3d 789, 793 (7th Cir.
2007) (“[I]f, at the time the defendant filed his
notice in federal court, clearly established law demonstrated
that he had no basis for removal, then a district court
should award a plaintiff his attorneys' fees. By
contrast, if clearly established law did not foreclose a
defendant's basis for removal, then a district court
should not award attorneys' fees.”).
support of its request for costs and fees, the Center directs
me primarily to several decisions by the Seventh Circuit, but
none of them address a similar issue to the one presented
here, namely whether or not a handful of references to the
federal constitution in a declaratory judgment and injunctive
relief case which does not specifically claim violations of
those provisions ...