Opinion
CIVIL ACTION No. 01-2230-CM
March 28, 2002
MEMORANDUM AND ORDER
This case arises out of defendants MCI Worldcom Network Services, Inc., MCI Worldcom Communications, Inc., and MCI Worldcom Inc.'s installation, maintenance, and operation of fiber optic cables on the property of plaintiff Victor Browning. Plaintiff Browning, owner of land adjacent to a railroad in the State of Kansas, purports to be a representative for a putative class of
Defendants assert the only proper defendant in this case is MCI Worldcom Network Services, Inc. because it is the only defendant who owns and operates the fiber optic cables at issue in this case.
[a]ll present and former owners of land adjacent to railroads in the s[t]ates of Kansas, Arkansas, Indiana, Kentucky, Missouri, Nebraska and Nevada, except the United States Government, on which land MCI has installed and operates fiber optic cable without the permission of the landowners for the installation, maintenance or operation of such cable.
(Pl.'s Compl. at ¶ 12). Plaintiff Browning filed this action on April 11, 2001, in the District Court of Leavenworth County, Kansas. In the class action complaint, plaintiff asserts claims for trespass and "quasi contract — unjust enrichment — disgorgement" on his own behalf, and on behalf of the purported class. On May 11, 2001, defendants removed this action to this federal district court.
Pending before the court is plaintiff Browning's Motion to Remand Case to District Court of Leavenworth County, Kansas (Doc. 3). As set forth below, plaintiff Browning's motion is denied.
The court notes that it previously has granted plaintiff Browning's Motion for Extension of Time to File Memorandum in Support of his Motion for Remand, submitted in conjunction with the pending Motion to Remand.
Discussion
In his Motion to Remand, plaintiff Browning asserts that defendants' removal is improper because this court may not exercise subject matter jurisdiction over his claims or those of the putative class. Defendants disagree, asserting that plaintiff's allegations provide the basis for the court to exercise both federal question and diversity jurisdiction over the action. As set forth below, the court agrees that it may properly exercise federal question jurisdiction over plaintiff's claims and those of the putative class members.
Standard
A civil action is removable only if plaintiffs could have originally brought the action in federal court. 28 U.S.C. § 1441(a). The court is required to remand "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction." Id. § 1447(c). Because federal courts are courts of limited jurisdiction, the law imposes a presumption against federal jurisdiction. Frederick Warinner v. Lundgren, 962 F. Supp. 1580, 1582 (D.Kan. 1997) (citing Basso v. Utah Power Light Co., 495 F.2d 906, 909 (10th Cir. 1974)). Therefore, a court must deny its jurisdiction in all cases where such jurisdiction does not affirmatively appear in the record. Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982). The court must strictly construe the federal removal statute. Fajen v. Found. Reserve Ins. Co., Inc., 683 F.2d 331, 333 (10th Cir. 1982). In addition, the court must resolve any doubts concerning removability in favor of remanding the case to state court. Henderson v. Holmes, 920 F. Supp. 1184, 1186 (D.Kan. 1996).
The burden is on the party requesting removal to set forth, in the notice of removal itself, the underlying facts supporting their assertion of jurisdiction. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995). Here, defendants, as the removing parties, bear the burden to establish the court's jurisdiction by a preponderance of the evidence. U.S. v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir. 1999). Mere conclusory allegations of jurisdiction are not enough. Penteco Corp. Ltd. P'ship v. Union Gas Sys. Inc., 929 F.2d 1519, 1521 (10th Cir. 1991).
B. Federal Question Jurisdiction
A federal court has jurisdiction to hear cases "arising under" the laws of the United States. 28 U.S.C. § 1331. A case arises under federal law when "federal law creates the cause of action or . . . the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 13 (1982); see also Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994).
As noted recently by the Tenth Circuit:
In deciding whether plaintiff's purported class action suit arises under federal law, we are guided generally by the "well-pleaded complaint" rule, under which a suit arises under federal law "only when the plaintiff's statement of his own cause of action shows that it is based" on federal law. Louisville Nashville R.R. v. Mottley, 211 U.S. 149, 152 (1908). The plaintiff's anticipation of a defense based on federal law is not enough to make the case "arise under" federal law. Id. Nor is a defendant's assertion of a defense based on federal law . . . a proper basis for removal, Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). . . . The plaintiff is the "master of the claim" and may prevent removal by choosing not to plead a federal claim even if one is available. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).Schmeling v. NORDAM, 97 F.3d 1336, 1339 (10th Cir. 1996). However, the Tenth Circuit also has recognized that "[u]nder the `artful pleading' doctrine . . . a plaintiff may not defeat removal by failing to plead federal questions that are essential elements of the plaintiff's claim." Id. (citing Franchise Tax Bd., 463 U.S. at 22). Therefore, "removal is permitted when the plaintiff's right to relief requires resolution of a substantial question of federal law." Id. Thus, even though state law may create a party's cause of action, the case may still arise under the laws of the United States if it "clearly and substantially involves a dispute or controversy respecting the validity, construction or effect of [a federal law] which is determinative of the resulting judgment." Mountain Fuel Supply Co. v. Johnson, 586 F.2d 1375, 1381 (10th Cir. 1978). To determine whether a case truly arises under the laws of the United States, the court must decide whether the validity, construction, or effect of a federal law is at issue.
Disputes Involving Federal Law
Defendants assert that because plaintiff's land "is adjacent to a railroad right-of-way that was established by a federal land grant to the railroad during the 19th Century, the question of whether the railroad had the right to permit the installation of fiber optic cable without plaintiff's consent is governed by the federal land grant statutes that created the relevant railroad rights-of-way." (Defs.' Notice of Removal at 4).
On its face, plaintiff's complaint alleges only state law claims. Specifically, plaintiff first alleges that defendants wrongfully trespassed upon his land by "install[ing] a fiber optic cable network for thousands of miles on property owned by the Class, including the property of plaintiff." (Pl.'s Compl. at ¶ 15). In this claim, plaintiff alleges that "[t]he fiber optic cable was installed without permission of plaintiff or members of the Class." ( Id.) Moreover, plaintiff alleges that "[n]either MCI nor its predecessors have secured any easements or sought condemnation or secured by any other means a lawful right to enter plaintiff's and the Class' property to install, maintain and operate fiber optic cable." ( Id. ¶ 16). Plaintiff next alleges that defendants have been unjustly enriched by their unlawful activities and that "[p]laintiff and members of the Class have been damaged and are entitled to all be compensated in full for the benefit conferred by MCI's unauthorized use of their property, including compelling MCI to disgorge and render and accounting for its profits." ( Id. ¶ 23).
The only specific reference made in the complaint to any federal law is plaintiff's disavowal that any federal issue is raised by his claims or by those of the purported class. Plaintiff alleges that "[p]laintiff's land is not impaired by any dominant estate in law created pursuant to or resulting from an Act of Congress, regulation or any other United States law or regulation, and no substantial questions of federal law exist with respect to plaintiff's claim." ( Id. ¶ 3).
Upon consideration of the parties' arguments and exhibits, the court finds that although plaintiff's complaint does not directly raise an issue of federal law, resolution of plaintiff's state law claims will involve "a dispute or controversy respecting the validity, construction or effect of [a federal law] which is determinative of the resulting judgment." Mountain Fuel Supply Co., 586 F.2d at 1381.
Plaintiff's State Law Claims for Trespass and Unjust Enrichment Involve an Issue of Federal Law
Under Kansas law, a cause of action for trespass requires a plaintiff to prove defendants are trespassers. Therefore, to establish a claim for trespass, a plaintiff must prove that defendants are persons "who enter or remain upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise." Riddle Quarries v. Thompson, 177 Kan. 307, 311, 279 P.2d 266, 269 (1955). Therefore, in order to succeed on his claim for trespass, plaintiff Browning must demonstrate that he possesses or has rights to the land at issue and that defendants had no privilege to enter into his land for the purpose of installing the fiber optic cables.
It is clear from the parties' arguments on the pending Motion to Remand that there will be a significant issue of federal law involved in resolving plaintiff's trespass claim. Specifically, the court finds there is an issue of federal law involved with respect to the status of plaintiff's title to the parcel of land at issue, including whether plaintiff's parcel is encumbered by a railroad right-of-way easement created per a Congressional act.
Defendants contend that the portion of plaintiff's land adjacent to the rail is encumbered by a railroad right-of-way granted by Congress to a predecessor of Union Pacific Railroad — the current owner of the rail running adjacent to plaintiff's property. Defendants assert that Congress enacted statutes in approximately 1862 conveying rights-of-way to rail companies in Kansas, Arkansas, Missouri, Nebraska, and Nevada. Defendants argue that the portion of plaintiff's property adjacent to the rail is subject to this Congressional Act, and therefore, Union Pacific Railroad has rights to an easement on plaintiff's property. Accordingly, defendants contend plaintiff may not state a claim for trespass, as plaintiff does not have a legal right to prohibit the presence of their fiber optic cable on this railroad right of way. In contrast, plaintiff asserts that he received his land as a successor to a fee interest first obtained by the Delaware Indians in 1829 and therefore, following the chain of title, no railroad right of way involving his property was conveyed by Congress to Union Pacific Railroad's predecessor.
Resolution of the status of plaintiff's title to the parcel of land at issue and the status of Union Pacific Railroad's interest, if any, in plaintiff's parcel of land, will require the court to examine federal land grants. Whether the defendants had a "privilege" to enter into plaintiff's land via an easement granted to a railroad adjacent to plaintiff's land requires the court to interpret Congressional acts that granted lands to the railroads and created right-of-way easements on lands through which the rails were built. Accordingly, the court finds significant federal issues are involved in the elements of plaintiff's state law trespass claim.
Similarly, under Kansas law, a claim based on a theory of unjust enrichment requires the plaintiff to allege and prove "(1) a benefit conferred upon the defendant by the plaintiff; (2) an appreciation or knowledge of the benefit by the defendant; and (3) the acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without payment of its value." Haz-Mat Response, Inc. v. Certified Waste Servs. Ltd., 259 Kan. 166, 167 Syl. ¶ 6, 910 P.2d 839, 841 (1996) (emphasis added). Whether it would be inequitable for defendant to retain the benefit of its installation of fiber optic cables on plaintiff's land will turn on whether defendants had the right to enter onto plaintiff's land via an easement granted by federal law to the railroad that runs adjacent to plaintiff's land. As noted above, determination of this issue requires an examination of federal land grants and their effect on plaintiff's property.
The court does not agree with plaintiff's assertion that the federal questions raised in this case are restricted to the defendants' asserted defenses. As noted above, the court has found federal issues are involved in the elements of plaintiff's state law claims. Moreover, although the court acknowledges that a property dispute does not raise a federal question wherever the United States lies somewhere in the chain of title, where parties have competing claims to a parcel of land that allegedly stem from federal laws, it is clear that federal law is at issue.
Accordingly, the court finds that resolution of plaintiff's state law claims will involve "a dispute or controversy respecting the validity, construction or effect of [a federal law] which is determinative of the resulting judgment," sufficient to confer federal question jurisdiction. Mountain Fuel Supply Co., 586 F.2d at 1381. The court finds it may properly exercise federal question jurisdiction over the named plaintiff's claims.
Putative Class Members' State Law Claims
Similarly, the court finds it may properly exercise federal question jurisdiction over the putative class members' claims. Plaintiff alleges that the putative class members are "[a]ll present and former owners of land adjacent to railroads in the s[t]ates of Kansas, Arkansas, Indiana, Kentucky, Missouri, Nebraska, and Nevada." (Pl.'s Compl. at ¶ 12). As set forth by defendants, Congressional acts granted railroad rights of way, not only in the state of Kansas where plaintiff Browning's property is located, but also in the states of Arkansas, Missouri, Nebraska, and Nevada, where some of the purported class members own property at issue in this case. Accordingly, the same reasoning as set forth above regarding plaintiff Browning's trespass and quasi-contract/unjust enrichment claims applies to these claims raised by the purported class members.
The court notes that no class has been certified, as required in Fed.R.Civ.P. 23.
Moreover, given the similarities between plaintiff Browning's and the purported class members' claims, the court finds it may be appropriate to exercise supplemental jurisdiction over those claims raised by the purported class members that are shown through discovery not to involve substantial issues of federal law. See 28 U.S.C. § 1367 (noting supplemental jurisdiction may be exercised over "other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution"). The court finds defendants have met their burden to establish by a preponderance of the evidence that plaintiff's claims raise a federal question within the meaning of 28 U.S.C. § 1331. Therefore, the court finds it unnecessary to examine whether the court also could properly exercise diversity jurisdiction in this case pursuant to 28 U.S.C. § 1332.
II. Order
IT IS THEREFORE ORDERED that plaintiff Browning's Motion to Remand Case to District Court of Leavenworth County, Kansas (Doc. 3) is denied.
IT IS SO ORDERED. Dated this day of April 2002, at Kansas City, Kansas.