United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
filed this action in the District Court of Miami County,
Kansas, on September 6, 2016. Doc. 1-1 at 6. Defendant BNSF
Railway Company (“BNSF”) removed it to our court
on October 19, 2016. Doc. 1. This matter comes before the
court today on three motions: plaintiffs' Motion to
Remand (Doc. 19); defendant SEMA Construction, Inc.'s
Motion to Dismiss (Doc. 13); and defendant BNSF's Motion
to Dismiss (Doc. 15).
Velma Christensen owns real property in Miami County, Kansas,
which she leases to plaintiff James Cummings. In 1867, the
then-owner of Ms. Christensen's property granted an
easement to a railroad company that would eventually become
defendant BNSF. The railroad easement cut Ms.
Christensen's property in half diagonally. When built,
the railroad ended up being 20 feet above Ms.
Christensen's land, and featured two large, rectangular
tunnels (called box culverts) under the railroad so that
livestock and farm equipment could pass from one side of Ms.
Christensen's property to the other. The tunnels were
used in this manner until recently.
2015, Ms. Christensen signed an agreement granting BNSF and
defendant SEMA Construction, Inc. (“SEMA”) a
temporary access easement so that SEMA could repair the BNSF
railroad. During those repairs, BNSF and SEMA replaced the
tunnels with six round pipes that are too small to
accommodate livestock and farm equipment. Because of this
change, plaintiffs no longer have access to both halves of
the property. So, on October 27, 2015, Ms. Christensen
informed BNSF that she was terminating the temporary access
easement. Nonetheless, BNSF and SEMA continued to cross Ms.
Christensen's property to repair the railroad. After an
attempt to resolve the dispute out of court, plaintiffs filed
assert several claims, including claims for trespass, fraud,
and breach of contract. Plaintiffs also ask the court to issue
an injunction requiring defendants to “reinstall an
access way under the railroad sufficient to permit the
movement of livestock and agricultural equipment back and
forth between the west and east tracts of [Ms.]
Christensen's property.” Doc. 36-1 at 7.
removing the case, defendants filed separate Motions to
Dismiss plaintiffs' Complaint. And plaintiffs timely
filed their Motion to Remand. BNSF's removal was
improper, so the court grants plaintiffs' Motion to
Remand. Because the court lacks subject matter jurisdiction,
it does not decide defendants' Motions to Dismiss. Should
defendants wish to still pursue their Motions to Dismiss,
they must take the steps required to do so under Kansas state
law once the case is remanded.
contend that the court must remand this case to the District
Court of Miami County, Kansas, for two reasons: (1)
BNSF's Notice of Removal is procedurally defective and
(2) the court lacks subject matter jurisdiction over
plaintiffs' claims. Because the court concludes that it
lacks jurisdiction to hear this case, it only addresses
plaintiffs' second argument.
defendant may remove any state-court, civil action to federal
court if the federal court has original jurisdiction over at
least one of the plaintiff's claims. 28 U.S.C. §
1441(a); 28 U.S.C. § 1367. But, the court must remand
the case to state court if it lacks subject matter
jurisdiction. 28 U.S.C. § 1447(c). “The removing
party has the burden to demonstrate the appropriateness of
removal from state to federal court.” Baby C v.
Price, 138 F. App'x 81, 83 (10th Cir. 2005)
plaintiffs' claims arise under state law and no diversity
jurisdiction exists in the case because Ms. Christensen,
BNSF, and SEMA are all Texas residents. Nonetheless, BNSF
removed the case to our court, asserting that plaintiffs'
claim for an injunction is preempted by the Interstate
Commerce Commission Termination Act (“ICCTA”), 49
U.S.C. § 10101 et seq. Defendants thus contend
that subject matter jurisdiction exists here under 28 U.S.C.
§ 1331- commonly called federal question jurisdiction.
See Devon Energy Prod. Co. v. Mosaic Potash Carlsbad,
Inc., 693 F.3d 1195, 1202 (10th Cir. 2012).
§ 1331, the court has “original jurisdiction of
all civil actions arising under the Constitution, laws, or
treaties of the United States.” To determine whether a
claim arises under federal law, courts employ the
well-pleaded complaint rule. Id. Under this rule,
“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.” Id.
(quoting Schmeling v. NORDAM, 97 F.3d 1336, 1339
(10th Cir. 1996); further citations omitted). So, a federal
defense-even one based on preemption- typically cannot
satisfy the well-pleaded complaint rule, and thus cannot
create federal question jurisdiction. Id.; see
also Beneficial Nat'l Bank v. Anderson, 539 U.S. 1,
6 (2003) (“[A] defense that relies on . . . the
pre-emptive effect of a federal statute will not provide a
basis for removal.” (citations omitted)).
there are limits on the well-pleaded complaint rule.
Devon Energy, 693 F.3d at 1203-04. One is the
complete preemption doctrine. Id. Under this
doctrine, “a complaint alleging only a state law cause
of action may be removed to federal court on the theory that
federal preemption makes the state law claim
‘necessarily federal in character.'”
Id. at 1204 (quoting Schmeling, 97 F.3d at
1339; further citations omitted). This is so because the
federal statute so completely preempts the state-law cause of
action that “a claim which comes within the scope of
that cause of action, even if pleaded in terms of state law,
is in ...