Opinion
Civ. No. 99-3654, SECTION "L"(5).
March 30, 2000.
ORDER AND REASONS
Before the Court is a Motion to Remand filed by Plaintiff John C. Wingrave, II ("Wingrave"). For the following reasons, Plaintiff's motion is GRANTED.
I. BACKGROUND
On October 25, 1999, Plaintiff filed a Petition for Damages in the Civil District Court for the Parish of Orleans, State of Louisiana. The Plaintiff brought suit against three individual Defendants (Kevin M. Hebert, Donna Boehmer, and Duane Abadie) for alleged violation of the Louisiana Electronic Surveillance Act, La. R. S. 15:1301 et seq. The Plaintiff sought recovery for a variety of state tort law claims including loss of income, loss of earning capacity, and loss of reputation.
On December 3, 1999, Defendants Donna Boehmer and Duane Abadie filed in this Court a Notice of Removal alleging federal subject matter jurisdiction. On January 4, 2000, Plaintiff filed a Motion to Remand based on Defendants' alleged failure to establish federal question jurisdiction under 28 U.S.C. § 1331. Defendants contend that the Motion to Remand was untimely filed and thus all objections to the removal of the cause of action have been waived.
Although the original Petition for Damages asserted claims against Kevin M. Hebert he had not been served at the time Donna Boehmer and Duane Abadie gave notice of therefore not a party before the Court at this time.
II. ANALYSIS
A. Timing of Motion to Remand
Section 1447(c) provides in relevant part, "a motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)." 28 U.S.C. § 1447(c) (emphasis added). Since the Notice of Removal was filed on December 3, 1999, the 30 day period in which to file a Motion to Remand expired on January 3, 2000. The fact that Plaintiff's Motion to Remand was filed after the 30 day period expired is not fatal because Plaintiff bases his Motion on this Court's lack of subject matter jurisdiction. A lack of subject matter jurisdiction may be raised at anytime. See Giles v. NYL Care Health Plans 172 F.3d 332, 336 (5th Cir. 1999).
B. Subject Matter Jurisdiction
It is well established that Federal District Courts are courts of limited jurisdiction. Defendants assert that this Court has federal question jurisdiction because the Plaintiff's claims "arise under and are governed exclusively by the National Bank Act, 12 U.S.C. § 21, et seq." Defs.' Notice of Removal at 2 para. 5. Federal question jurisdiction arises when plaintiffs set forth allegations "founded on a claim or right arising under the Constitution, treaties or laws of the United States." 28 U.S.C. § 1441(b), § 1331. Generally, questions concerning federal question jurisdiction are resolved by application of the "well-pleaded complaint" rule. See Louisville Nashville R.R. v. Mottley, 211 U.S. 149, 152-53, 29 S.Ct. 42, 53 L.Ed. 126 (1908). The "well-pleaded complaint" rule provides that the plaintiff's "properly pleaded complaint governs the jurisdictional inquiry." Hart v. Bayer Corp., 199 F.3d 239, 244 (5th Cir. 2000). Thus under the rule federal jurisdiction exists only if a federal question is presented on the face of the plaintiff's complaint.
Since, on its face, Plaintiff's Complaint sets forth only state law claims the Defendants argue that the "complete preemption" exception to the well-pleaded complaint rule applies and creates federal question jurisdiction. See Defs.' Mem. in Opp'n at 9. As the Supreme Court recognized in Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 2430, 96 L.Ed.2d 318, (1987), occasionally "the pre-emptive force of a statute is so 'extraordinary' that it 'converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.'" However, the fact that a federal law potentially provides a defense to a state law cause of action or may in some other way be applicable to the plaintiff's complaint is insufficient to establish subject matter jurisdiction. See Hart, 199 F.3d at 244. As the Fifth Circuit recently held in Hart, "to give rise to federal question jurisdiction, a court must find complete preemption." Id.; See also Franchise Tax Bd. v. Laborers Vacation Trust, 463 U.S. 1, 23-24, 103 S.Ct. 2841, 2853, 77 L.Ed.2d 420 (1983).
The U.S. Supreme Court has found complete preemption in only three areas: (1) ERISA claims, (2) claims concerning Indian tribal land, and (3) claims brought under the Labor Management Relations Act. See Watson v. First Union National Bank of South Carolina, 837 F. Supp. 146 (D.S.C. 1993) The National Bank Act has never been viewed as a complete preemption statute. See Booth v. Old National Bank, 900 F. Supp. 836, 841 (N.D. W. Va. 1995). Although not a complete preemption statute, several courts have been willing to find that the National Bank Act does preempt certain limited claims such as usury or breach of contract. See Watson v. First Union National Bank of South Carolina, 837 F. Supp. 146, 149 (D.S.C. 1993); see also Wells Fargo Bank v. San Francisco, 53 Cal.3d 1082, 282 Cal.Rptr. 841, 811 P.2d 1025 (1991) (holding that "it has been established for almost a century that § 24 preempts all state law causes of action by a bank officer for breach of an employment agreement").
Plaintiff filed this suit in the Civil District Court for the Parish of Orleans alleging violation of the Louisiana Electronic Surveillance Act. The Act "regulate[s] and define[s] the lawful use of electronic surveillance devices and monitoring between private persons." Benoit v. Roche, 657 So.2d 574, 576 (La.App. 3 Cir. 1995). In order to protect individuals from unlawful invasions of privacy the Act authorizes a civil damages cause of action. See id. If a plaintiff establishes that his wire or oral communications have been unlawfully intercepted, disclosed, or used in violation of the Act, he can recover actual damages, punitive damages, attorney's fees, and costs. See id. (citing La.R.S. 15:1312). Since this is neither a case of usury nor breach of contract the National Bank Act does not preempt the Plaintiff's claims and thus this Court lacks the requisite subject matter jurisdiction.
III. CONCLUSION
For the foregoing reasons, IT IS ORDERED that Plaintiff John C. Wingrave, II's Motion to Remand this case to the Civil District Court for the Parish of Orleans is GRANTED.
Done this 30 day of March, 2000. New Orleans, Louisiana.