United States District Court, D. Colorado
ORDER
PHILIP
A. BRIMMER UNITED STATES DISTRICT JUDGE
The
Court takes up this matter sua sponte on
defendant's Notice of Removal [Docket No. 1]. Defendant
states that the Court has subject matter jurisdiction over
this lawsuit pursuant to 28 U.S.C. § 1331. Docket No. 1
at 2, ¶ 4.
In
every case and at every stage of the proceeding, a federal
court must satisfy itself as to its own jurisdiction, even if
doing so requires sua sponte action. See
Citizens Concerned for Separation of Church & State v.
City & County of Denver, 628 F.2d 1289, 1297 (10th
Cir. 1980). Absent an assurance that jurisdiction exists, a
court may not proceed in a case. See Cunningham v. BHP
Petroleum Great Britain PLC, 427 F.3d 1238, 1245 (10th
Cir. 2005). Courts are well-advised to raise the issue of
jurisdiction on their own, regardless of parties'
apparent acquiescence. First, it is the Court's duty to
do so. Tuck v. United Servs. Auto. Ass'n, 859
F.2d 842, 844 (10th Cir. 1988). Second, regarding subject
matter jurisdiction, “the consent of the parties is
irrelevant, principles of estoppel do not apply, and a party
does not waive the requirement by failing to challenge
jurisdiction.” Ins. Corp. of Ireland v. Compagnie
des Bauxites de Guinee, 456 U.S. 694, 702 (1982)
(internal citations omitted). Finally, delay in addressing
the issue only compounds the problem if, despite much time
and expense having been dedicated to the case, a lack of
jurisdiction causes it to be dismissed. See U.S. Fire
Ins. Co. v. Pinkard Constr. Co., No.
09-cv-00491-PAB-MJW, 2009 WL 2338116, at *3 (D. Colo. July
28, 2009); see, e.g., GBForefront, L.P. v.
Forefront Mgmt. Grp., LLC, 888 F.3d 29, 33 (3d Cir.
2018) (finding, after “years of litigation” and
entry of judgment, that the record was insufficient to
establish federal jurisdiction).
“The
party invoking federal jurisdiction bears the burden of
establishing such jurisdiction as a threshold matter.”
Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1224
(10th Cir. 2004). Defendant asserts that this Court has
jurisdiction under 28 U.S.C. § 1331. Pursuant to that
section, “district courts shall have original
jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331. “For a case to arise under
federal law, the federal question must be apparent on the
face of a well-pleaded complaint . . . .” Rice v.
Office of Servicemembers' Grp. Life Ins.,
260 F.3d 1240, 1245 (10th Cir. 2001). A plaintiff “is
the master of the claim and may prevent removal to federal
court by choosing not to plead a federal claim even if one is
available.” Turgeau v. Admin. Review Bd., 446
F.3d 1052, 1060 (10th Cir. 2006) (internal quotation marks
and brackets omitted). “[A] defendant cannot, merely by
injecting a federal question into an action that asserts what
is plainly a state-law claim, transform the action into one
arising under federal law, thereby selecting the forum in
which the claim shall be litigated.” Caterpillar
Inc. v. Williams, 482 U.S. 386, 399 (1987) (emphasis
omitted).
According
to defendant, plaintiff's complaint asserts two claims
arising under federal law: a claim for age discrimination
under the Age Discrimination and Employment Act
(“ADEA”), and “possible U.S. Constitutional
equal protection type claims.” Docket No. 1 at 1-2,
¶¶ 2, 5. In support of the existence of an ADEA
claim, defendant points to plaintiff's allegation that
defendant “discussed with the Plaintiff, apparently due
to the Plaintiff's advanced age of seventy-one (71), the
option of retirement, rehire as an adjunct employee, and
later employment with RTD in a part-time position based upon
a proposed, new part-time policy designed to be attractive to
older employees.” Docket No. 2 at 1, second ¶ 1;
see also Docket No. 1 at 2, ¶ 6. Regarding
plaintiff's “possible” constitutional claim,
defendant notes plaintiff's allegation that he was
deprived “of equitable treatment under existing
personnel rules and denied . . . his constitutional right to
equal treatment.” Docket No. 2 at 1, ¶ 1; Docket
No. 1 at 2, ¶ 7.
The
Court finds that these allegations do not establish federal
jurisdiction. At no point does plaintiff refer to the ADEA or
the U.S. Constitution, or give any other indication that his
claims arise under federal law. See Cevallos v.
Silva, 541 Fed.Appx. 390, 393 (5th Cir. 2013)
(unpublished) (finding that allegations asserting
“violation of [plaintiff's] civil and
constitutional rights” were “too ambiguous to
establish federal question jurisdiction”); Smith v.
City of Wichita, Kan., 2017 WL 3437664, at *2 (D. Kan.
Aug. 10, 2017) (finding removal proper where
“Plaintiff's petition refer[red] to violations of
the United States Constitution - as opposed to
‘constitution' or ‘Kansas
constitution'”); Sanchez v. City of Belen,
2017 WL 3588650, at *1-3 (D.N.M. Mar. 8, 2017) (finding that
plaintiff had not asserted federal cause of action where
certain allegations referenced U.S. Constitution, but claims
were “framed in the context of state tort law”);
Shockley v. City of Waurika, 2010 WL 3081528, at *3
(W.D. Okla. Aug. 6, 2010) (remanding case to state court
where plaintiffs alleged that officer's conduct violated
“the constitution and state law” but did not
“expressly cite a federal constitutional
provision”). Moreover, the allegations identified in
defendant's notice of removal are the only allegations
that could even remotely be construed as stating a federal
cause of action. Plaintiff's remaining allegations
suggest only that defendant violated various personnel
policies and breached its duties of care and good faith,
which do not invoke federal causes of action. See,
e.g., Docket No. 2 at 1, 4, second ¶ 1 (stating
that defendant's communications “were not
‘made in good faith'” as required by employee
handbook), ¶ 6 (asserting that defendant's
“unequal treatment of similarly situated employees was
a breach of an employer's duty of care, of ‘good
faith' communications and of ‘merit' based
employment decisions”).
Because
there is no federal question on the face of plaintiff's
complaint, see Rice, 260 F.3d at 1245, defendant has
failed to establish a basis for removal.
Accordingly,
it is
ORDERED
that this matter is remanded to the District Court for the
City and County of Denver, Colorado, where the case was filed
as case number 2018CV281. It is further
ORDERED
that ...