United States District Court, D. Kansas
DAVID ALVEY, DVA MAYOR/CEO UNIFIED GOVERNMENT OF WYANDOTTE COUNTY, KANSAS CITY, KANSAS, Plaintiff,
MICHELLE AVERY BEY, Defendant.
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE.
Unified Government originally filed this tax foreclosure
action in the District Court of Wyandotte County, Kansas. On
February 4, 2019, Michelle Avery Bey attempted to remove the
case to this Court, purportedly based on federal question
jurisdiction under 28 U.S.C. §§ 1331, 1441 and
1446. See Notice Of Removal (Doc. #1). The Court has
an independent obligation to raise jurisdictional issues sua
sponte where necessary. See Kontrick v. Ryan, 540
U.S. 443, 455 (2004); Fed.R.Civ.P. 12(h)(3) (if court
determines at any time that it lacks subject-matter
jurisdiction, it must dismiss action). On July 22, 2019, the
Court ordered defendant to show good cause in writing why
this matter should not be remanded for lack of jurisdiction
to the District Court of Wyandotte County, Kansas. See
Order To Show Cause (Doc. #19). Both parties have filed
a response. See defendant's [Statement Of]
Jurisdiction (Doc. #20) filed July 29, 2019;
Plaintiff's Objection To Defendant's Response To
Order To Show Cause (Doc. #21) filed August 1, 2019. For
reasons stated below, the Court remands this action to state
defendant may remove a state court civil action if plaintiff
originally could have brought the action in federal court. 28
U.S.C. § 1441(a); see Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987). Because federal
courts are courts of limited jurisdiction, the law imposes a
presumption against federal jurisdiction. Marcus v.
Kansas Dep't of Revenue, 170 F.3d 1305, 1309 (10th
Cir. 1999). The Court is required to remand “[i]f at
any time before final judgment it appears that the district
court lacks subject matter jurisdiction.” 28 U.S.C.
§ 1447(c); see Ins. Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702
(1982) (jurisdiction must affirmatively appear in the
record). Defendant bears the burden to demonstrate that
jurisdiction is proper in federal court. Montoya v.
Chao, 296 F.3d 952, 955 (10th Cir. 2002).
asserts federal jurisdiction under 28 U.S.C. § 1331.
See Notice Of Removal (Doc. # 1) at 1. A civil
action filed in a state court may be removed to federal court
if the claim is one “arising under” the
Constitution, laws or treaties of the United States. 28
U.S.C. § 1331(b); see 28 U.S.C. § 1441(b);
Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6
(2003). The presence or absence of federal question
jurisdiction is governed by the “well-pleaded complaint
rule, ” which only provides federal jurisdiction when a
federal question is presented on the face of plaintiff's
properly pleaded complaint. Caterpillar, 482 U.S. at
392. Plaintiff is the “master of the claim” and
“may avoid federal jurisdiction by exclusive reliance
on state law.” Id. But even though state law
creates plaintiff's causes of action, the case might
still arise under the laws of the United States if a
well-pleaded complaint establishes that plaintiff's right
to relief under state law requires resolution of a
substantial question of federal law. City of Chicago v.
Int'l Coll. of Surgeons, 522 U.S. 156, 164 (1997)
(quoting Franchise Tax Bd. of State of Cal. v. Constr.
Laborers Vacation Trust for S. Cal., 463 U.S. 1, 13
(1983) (case arises under federal law when federal law
creates cause of action or plaintiff's right to relief
necessarily depends on resolution of substantial question of
federal law)). In considering whether an action arises under
federal law, a defense which implicates a federal question is
not considered part of plaintiff's properly pleaded
complaint. See Beneficial Nat'l Bank, 539 U.S.
at 6; Metro. Life Ins. Co. v. Taylor, 481 U.S. 58,
63 (1987). Accordingly, a case may not be removed to federal
court on the basis of a federal defense, even if the defense
is anticipated in plaintiff's complaint, and even if both
parties admit that the defense is the only question truly at
issue in the case. As a general rule, absent diversity
jurisdiction, a state case cannot be removed if the complaint
does not affirmatively allege a federal claim. Beneficial
Nat'l Bank, 539 U.S. at 6.
defendant attempts to assert federal question jurisdiction
based on federal constitutional defenses to a county tax
foreclosure sale. See Notice Of Removal (Doc. #1) at
1, 3-5 (case arises out of constitutional amendments, 18
U.S.C. §§ 241, 242, 514, 876, 1341, 1951, 1962 and
1964, 31 U.S.C. § 3124, 42 U.S.C. § 1983).
Defendant argues that her “Notice of Removal is based
on federal questions including, but not limited to fraud and
extortion.” Respondent's Objection To
Plaintiff's Requests For Additional Time To Respond To
Respondent's Notice Of Removal And To Set Aside Entry Of
Default And Default Judgment (Doc. #18) filed May 1,
2019 at 3. Because federal question jurisdiction is not
present on the face of the Unified Government's complaint
and defendant has not shown that the complaint requires
resolution of a substantial question of federal law,
defendant cannot meet her burden to show that jurisdiction is
proper in federal court. See Caterpillar, 482 U.S.
at 392.Accordingly, the Court remands this action
to the District Court of Wyandotte County, Kansas.
IS THEREFORE ORDERED that this action is REMANDED for lack of
jurisdiction to the District Court of Wyandotte County,
 In Dart Cherokee Basin Operating
Co. v. Owens, 574 U.S. 81 (2014), which arose in the
context of the Class Action Fairness Act, 28 U.S.C.
§§ 1332(d), 1453, the Supreme Court stated that
“no antiremoval presumption attends cases invoking
CAFA, which Congress enacted to facilitate adjudication of
certain class actions in federal court.” Id.
at 554. Dart Cherokee did not address whether a
presumption against removal jurisdiction is proper in other
cases asserting diversity or federal question jurisdiction.
Id. In any event, the presumption is not dispositive
in this case and the Court would reach the same result
without a presumption.
 In addition, defendant has not
asserted any exception to the Tax Injunction Act
(“TIA”), 28 U.S.C. § 1341, which provides
that “district courts shall not enjoin, suspend or
restrain the assessment, levy or collection of any tax under
State law where a plain, speedy and efficient remedy may be
had in the courts of such State.” The TIA imposes a
“broad limitation on federal court interference with
state collection of taxes.” Brooks v. Nance,
801 F.2d 1237, 1239 (10th Cir. 1986) (internal citations
omitted); see Rosewell v. LaSalle Nat'l Bank,
450 U.S. 503, 522 (1981) (TIA purpose is “to limit
drastically federal court jurisdiction to interfere with so
important a local concern as the collection of taxes”).
The TIA divests “federal courts of subject matter
jurisdiction over claims challenging state taxation
procedures where the state courts provide a ‘plain,
speedy and efficient remedy.'” Marcus, 170
F.3d at 1309. Here, the tax refund and protest procedures
under Kansas law, K.S.A. § 79-2005, constitute a plain,
speedy and efficient ...