United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER ORDER REMANDING CASE TO
THIRD JUDICIAL DISTRICT OF UTAH, SALT LAKE COUNTY
N. Parrish United States District Court Judge
the court is a Motion to Remand filed by plaintiffs Allan and
Susanne Flandro on October 3, 2018 (ECF No. 16). Removing
defendant Chevron Pipe Line Company (“Chevron”)
filed an opposition on October 17, 2018 (ECF No. 34), to
which plaintiffs replied on October 29, 2018 (ECF No. 39). On
the basis of the parties' memoranda, a review of relevant
law, and for the reasons below, plaintiffs' Motion to
Remand is granted.
initiated an action in state court on July 23, 2018. On
August 3, 2018, counsel for defendant Corporation of the
Presiding Bishop of The Church of Jesus Christ of Latter-day
Saints (“CPB”)-a citizen of Utah-executed and
transmitted to plaintiffs' counsel an Acceptance of
Service document as contemplated by Utah Rule of Civil
Procedure 4(d)(3)(C). On August 22, 2018, Chevron removed
that action to federal court. The following day, plaintiffs
voluntarily dismissed the case.
August 24, 2018, plaintiffs filed a new complaint in state
court. Five days later, on August 29, 2018, plaintiffs'
counsel sent the complaint to CPB's counsel, requesting
that he accept service on behalf of his client as he had done
in the first lawsuit. CPB's counsel assented the
following day, on August 30, 2018, writing to plaintiffs'
counsel that “CPB accepts service as of today's
date.” (ECF No. 39-2 at 6). Contrary to the first
lawsuit, however, CPB's counsel did not execute and
return an acceptance of service document to plaintiffs'
days later, on September 4, 2018, Chevron removed the action
to federal court, asserting both diversity jurisdiction and
federal question jurisdiction.
28 U.S.C. § 1441, “any civil action brought in a
State court of which the district courts of the United States
have original jurisdiction, may be removed by the defendant
or the defendants, to the district court of the United States
for the district and division embracing the place where such
action is pending.” Thus, to determine whether this
action was properly removed, the court must analyze whether
the operative complaint would have established subject matter
jurisdiction if filed in this court in the first instance.
the jurisdiction of federal courts is limited, there is a
presumption against our jurisdiction, and the party invoking
federal jurisdiction bears the burden of proof.”
Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th
Cir. 2005). “Federal removal jurisdiction is statutory
in nature and is to be strictly construed.”
Archuleta v. Lacuesta, 131 F.3d 1359, 1370 (10th
Cir. 1997). “Doubtful cases must be resolved in favor
of remand.” Id.
the party invoking federal jurisdiction via removal, asserts
both federal question jurisdiction and diversity
jurisdiction. As explained below, Chevron has not met its
burden to establish federal question jurisdiction, and
whether or not it has met its burden to establish diversity
jurisdiction, the presence of a forum defendant to which the
plaintiffs have timely objected requires that this case be
The Scope of Federal-Question Jurisdiction under 28 U.S.C.
28 U.S.C. § 1331, “district courts shall have
original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”
“[W]hether a claim ‘arises under' federal law
must be determined by reference to the ‘well-pleaded
complaint.'” Merrell Dow Pharms., Inc. v.
Thompson, 478 U.S. 804, 808 (1986). Thus, a plaintiff is
master of his complaint, and “[j]urisdiction may not be
sustained on a theory that the plaintiff has not
advanced.” Id. at 809 n.6. “Nor can
federal question jurisdiction depend solely on ‘a
federal defense, . . . even if the defense is anticipated in
the plaintiff's complaint, and even if both parties
concede that the federal defense is the only question truly
at issue.'” Becker v. Ute Indian Tribe of the
Uintah & Ouray Reservation, 770 F.3d 944, 947 (10th
Cir. 2014) (quoting Caterpillar Inc. v. Williams,
482 U.S. 386, 393 (1987)).
general, for purposes of § 1331,  a suit
“aris[es] under” the law that creates the cause
of action. Merrell Dow Pharms., Inc., 478 U.S. at
808. Indeed, “the vast majority of cases brought under
the general federal-question jurisdiction of the federal
courts are those in which federal law creates the cause of
action.” Id. “As a rule of inclusion,
this ‘creation' test admits of only extremely rare
exceptions . . . .” Gunn v. Minton, 568 U.S.
251, 257 (2013).
parties agree that plaintiffs' complaint asserts only
state law claims, and thus, federal law does not
“create” plaintiffs' causes of action.
Chevron contends, however, that plaintiffs' state law
claims implicate “substantial questions” of
federal law sufficient to establish federal-question
‘substantial question' branch of federal question
jurisdiction is exceedingly narrow-a ‘special and small
category' of cases.” Gilmore v.
Weatherford, 694 F.3d 1160, 1171 (10th Cir. 2012)
(quoting Empire Healthchoice Assurance, Inc. v.
McVeigh, 547 U.S. 677, 699 (2006)). This slim path to
federal court is available only when a state law claim
contains “a federal issue [that] is: (1) necessarily
raised, (2) actually disputed, (3) substantial, and (4)
capable of resolution in federal court without disrupting the
federal-state balance approved by Congress.”
Gunn, 568 U.S. at 258.
narrow boundaries of the substantial question category are
marked by a few important principles.” Becker,
770 F.3d at 947. One principle is that the Supreme
Court's recognition of this special and rare category of
cases “does not ‘disturb the long-settled
understanding that the mere presence of a federal issue in a
state cause of action does not automatically confer
federal-question jurisdiction.” Id. (quoting
Merrell Dow Pharms., Inc., 478 U.S. at 813). And,
“[t]o determine whether an issue is
‘necessarily' raised, the Supreme Court has focused
on whether the issue is an ‘essential element' of a
plaintiff's claim.” Gilmore, 694 F.3d at
1173. “Finally, if a claim does not present ‘a
nearly pure issue of law, one that could be settled once and
for all and thereafter would govern numerous . . .
cases,' but rather is ‘fact- bound and
situation-specific,' then federal question jurisdiction
will generally be inappropriate.” Becker, 770
F.3d at 947-48 (quoting Empire Healthchoice Assurance,
Inc., 547 U.S. at 700-01).
complaint contains three varieties of state tort claims: (1)
negligence, (2) strict liability for abnormally dangerous
and/or ultra-hazardous activities, and (3) negligent
misrepresentation. Chevron does not identify any essential
elements of federal law in any of these claims. Instead,
Chevron identifies the presence of two potential ...