United States District Court, D. Colorado
AHMED A. HAKEEM, Plaintiff,
DENVER PUBLIC SCHOOLS, Defendant.
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.
Court takes up this matter sua sponte on
defendant's Notice of Removal [Docket No. 1]. Because
removal was improper, the case is remanded to the state court
for all further proceedings.
12, 2019, plaintiff Ahmed A. Hakeem filed a complaint against
defendant Denver Public Schools in the District Court for the
City and County of Denver. Docket No. 2. Defendant was served
with the complaint on June 18, 2019. Docket No. 1-5 at 1.
Plaintiff then filed an amended complaint on July 8, 2019.
Docket No. 4. Defendant was served with the amended complaint
that same day. Docket No. 1-9 at 1. On July 30, 2019,
defendant filed a notice of removal, asserting that the Court
has jurisdiction over this case under 28 U.S.C. § 1331.
Docket No. 1 at 2, ¶ 1.
a defendant may remove “any civil action brought in a
State court of which the district courts of the United States
have original jurisdiction.” 28 U.S.C. § 1441(a).
There are two basic statutory grounds for original
jurisdiction in federal district courts: federal-question
jurisdiction under 28 U.S.C. § 1331 and diversity
jurisdiction under 28 U.S.C. § 1332. Nicodemus v.
Union Pac. Corp., 318 F.3d 1231, 1235 (10th Cir. 2003).
As noted above, defendant alleges that the Court has
federal-question jurisdiction over this case.
courts must strictly construe their removal
jurisdiction.” Envtl. Remediation Holding Corp. v.
Talisman Capital Opportunity Fund, L.P., 106 F.Supp.2d
1088, 1092 (D. Colo. 2000). It is well settled that
“[t]he 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). There is a presumption
against removal jurisdiction. MPVF Lexington Partners,
LLC v. W/P/V/C, LLC, No. 15-cv-0467-WJM-KMT,
2016 WL 8234667, at *6 (D. Colo. Sept. 13, 2016) (citing
Basso v. Utah Power & Light Co., 495 F.2d 906,
909 (10th Cir. 1974)). “[A]ll doubts are to be resolved
against removal.” Fajen v. Foundation Reserve Ins.
Co., Inc., 683 F.2d 331, 333 (10th Cir. 1982). Thus, the
Court presumes that no jurisdiction exists absent an adequate
showing by the party invoking federal jurisdiction.
Lorentzen v. Lorentzen, No. 09-cv-00506-PAB, 2009 WL
641299, at *1 (D. Colo. Mar. 11, 2009).
any time, “a federal court determines that it is
without subject matter jurisdiction, the court is powerless
to continue.” Cunningham v. BHP Petroleum Great
Britain PLC, 427 F.3d 1238, 1245 (10th Cir. 2005). Where
a case has been removed from state court and a court
determines any time prior to final judgment that jurisdiction
is lacking, 28 U.S.C. § 1447(c) mandates that the case
be remanded to state court. See McPhail v. Deere &
Co., 529 F.3d 947, 951 (10th Cir. 2008).
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. “Under
the longstanding well-pleaded complaint rule, however, 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.” Vaden v.
Discover Bank, 556 U.S. 49, 60 (2009) (quoting
Louisville & Nashville R.R. Co. v. Mottley, 211
U.S. 149, 152 (1908)) (internal quotation marks and
alteration marks omitted). In other words, “[a]s a
general rule, absent diversity jurisdiction, a case will not
be removable if the complaint does not affirmatively allege a
federal claim.” Beneficial Nat'l Bank v.
Anderson, 539 U.S. 1, 6 (2003). To find removal
jurisdiction, “the required federal right or immunity
must be an essential element of the plaintiff's cause of
action, and . . . the federal controversy must be disclosed
upon the face of the complaint, unaided by the answer or by
the petition for removal.” Fajen, 683 F.2d at
333 (internal quotation marks omitted).
present case, plaintiff's state court complaint raises
claims of breach of contract, “discrimination, ”
and wrongful termination. Docket No. 4 at 2, ¶¶
2-3. Plaintiff alleges that, “[a]fter an investigation
by the Colorado Department of Labor and Employment, the City
Attorney's office[, ] . . . the Denver Police Department
and the EEOC[, ] all of which have ruled in the
Plaintiff's favor . . . [defendant] has done nothing to
overturn [plaintiff's] discharge.” Docket No. 2 at
1, ¶ 6. In its notice of removal, defendant states that
“it is apparent that Plaintiff's
‘discrimination' claim arises under federal
anti-discrimination statutes” because (1)
plaintiff's original complaint references the EEOC; (2)
plaintiff's amended complaint sets forth a
“discrimination” cause of action; and (3)
plaintiff filed a charge with the EEOC and received a right
to sue letter. Docket No. 1 at 3.
Court disagrees. Plaintiff's complaint does not, on its
face, demonstrate that his claims are grounded in federal
law. First, the fact that the EEOC is mentioned in
plaintiff's complaint has no bearing on whether the Court
has subject matter jurisdiction over plaintiff's lawsuit.
Plaintiff alleges that the EEOC conducted some investigation
and subsequently “ruled in [his] favor.” Docket
No. 2 at 1, ¶ 6. Such an allegation is too ambiguous for
the Court to construe as a basis for a federal claim. See
Lees v. RMCI Inc., 2011 WL 13284660, at *2 (D.N.M. July
13, 2011) (finding that “reference to an appeal of the
EEOC's determination is insufficient to establish federal
question jurisdiction” where there is “no
reference or citation to Title VII or other federal
laws”); cf. Olivas v. Las Cruces Medical Center,
LLC, 2011 WL 13277504, at *3 (D.N.M. Dec. 8, 2011)
(finding removal after amended complaint timely because
“[a] mere reference to a plaintiff's filing of an
EEOC Charge of Discrimination and/or attachment of an EEOC
Right to Sue letter to an initial pleading does not signal
that a plaintiff is asserting a federal cause of
action.”). Further, while plaintiff mentions an EEOC
investigation in his complaint, he also references
investigations by three state entities - the Colorado
Department of Labor and Employment, the City Attorney's
Office, and the Denver Police Department. Docket No. 2 at 1,
¶ 6. Thus, the mere mention of the EEOC, along with
these other entities, does not demonstrate that plaintiff has
based his claim in federal law.
although plaintiff has added a “discrimination”
claim to his complaint, it does not necessarily follow that
this claim arises under federal law. Plaintiff's
complaint does not affirmatively allege a federal claim and
makes no reference to federal law. Thus, it is not clear from
plaintiff's complaint that removal is available. See
Lees, 2011 WL 13284660, at *2; see also Warner Bros.
Records, Inc. v. R. A. Ridges Distrib. Co., Inc., 475
F.2d 262, 264 (10th Cir. 1973) (no right to removal on face
of plaintiff's complaint, which “[did] not invoke
any federal laws, ” “[made] no mention of a
federal law, ” and did not “allege that the cause
[arose] under any such law”).
a case to arise under federal law within the meaning of
§ 1331, the plaintiff's ‘well-pleaded
complaint' must establish one of two things:
‘either that federal law creates the cause of action or
that the plaintiff's right to relief necessarily depends
on resolution of a substantial question of federal
law.'” Firstenberg v. City of Santa Fe,
N.M., 696 F.3d 1018, 1023 (10th Cir. 2012) (quoting
Nicodemus v. Union Pac. Corp., 440 F.3d 1227, 1232
(10th Cir. 2006)). Plaintiff's claim of discrimination
could properly be brought under the Colorado
Anti-Discrimination Act. See Colo. Rev. Stat. §
24-34-402 (prohibiting employment discrimination). Because
plaintiff's cause of action was not created by federal
law, and ...