United States District Court, D. Kansas
CARRINGTON SQUARE, LLC, d/b/a VILLAS AT CARRINGTON SQUARE, Plaintiff,
JAMES STEELEY and SUSAN STEELEY, Defendants.
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE
matter is before the court on plaintiff's Motion to
Remand (Doc. 4), defendants' Motion for Leave of Court to
Amend Notice of Removal (Doc. 20), and defendants' Motion
for Leave of Court to File Addendum to Proposed Amended
Notice of Removal (Doc. 24). Defendants previously moved for
an extension of time to file their reply brief (Doc. 21),
which the court granted. (Doc. 22.)
instant dispute is jurisdictional. Defendants removed this
action from the District Court of Johnson County Kansas,
Limited Actions Division. (Doc. 1, at 1.) Defendants'
Notice of Removal alleges jurisdiction on the basis of
diversity. (Id. at 2.) Despite defendants alleging
an amount in controversy exceeding $75, 000, the underlying
petition seeks significantly less in damages. And, at the
time plaintiff filed and served the state court action,
defendants resided in Kansas.
ask the court to permit amendment of their Notice of Removal,
in order to allege federal jurisdiction under 28 U.S.C.
§ 1331 and the Fair Debt Collection Practices Act
(FDCPA). (See Doc. 24.) Defendants argue that the
artful pleading doctrine permits removal because plaintiff or
its counsel is subject to the FDCPA and could have brought
the underlying petition for possession and rent under federal
law. Defendants are mistaken as to the application of both
the artful pleading doctrine and the FDCPA.
a federal defense nor a federal counterclaim provides a basis
for removal jurisdiction. See Holmes Grp., Inc. v.
Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831-33
(2002). Under the artful pleading doctrine, a defendant may
invoke federal jurisdiction to remove a state law action
“when the plaintiff's statement of his own cause of
action shows that it is based on federal law.”
Turgeau v. Admin. Rev. Bd., 446 F.3d 1052, 1060
(10th Cir. 2006) (citation and internal quotation marks
omitted). A plaintiff may not avoid removal by failing to
plead federal questions that are essential elements of the
plaintiff's claim. See Franchise Tax Bd. v. Const.
Laborers Vacation Tr., 463 U.S. 1, 22 (1983).
a claim is not based on federal law merely because
it is regulated by federal law. To allege federal
jurisdiction under the artful pleading doctrine and FDCPA,
defendants must show that plaintiff's claims are based on
or require the resolution of important and disputed questions
of federal law. See Grable & Sons Metal Prods., Inc.
v. Darue Eng'g & Mfg., 545 U.S. 308, 314-15
(2005). While defendants argue that plaintiff's state
court filings are regulated in part by the FDCPA, this
relates to potential future causes of action by defendants.
See Miljkovic v. Shafritz & Dinkin, P.A., 791
F.3d 1291, 1294-95 (11th Cir. 2015) (appealing alleged
violation of FDCPA based on conduct during previous state
court litigation). This regulation is not a component of
plaintiff's state law claims against defendants.
Accordingly, defendants have not shown that the court has
jurisdiction over this action under the artful pleading
leaves the court with defendants' allegation of diversity
jurisdiction. Defendants' reply states that they have
established citizenship in Missouri (Doc. 23, at 3), but
diversity jurisdiction is ordinarily determined at filing,
not afterward. See, e.g., Grupo Dataflux v.
Atlas Global Grp., L.P., 541 U.S. 567, 574-75 (2004)
(“To our knowledge, the Court has never approved a
deviation from the [time-of-filing] rule . . . .”).
Defendants' post-removal change in citizenship and
residency does not cure their removal of a Kansas state court
action filed and served against them as then-citizens of
Kansas residing in Kansas. (See Doc. 1, at 2
(alleging Kansas citizenship, residence, and pre-removal
service.) Defendants' removal was precluded by the
home-state removal bar, and remand is appropriate.
See 28 U.S.C. § 1441(b)(2).
defendants' removal was precluded by 28 U.S.C. §
1441(b)(2), and defendants have not sufficiently a basis for
jurisdiction under 28 U.S.C. § 1331, the court grants
plaintiff's motion (Doc. 4) and denies defendants'
motions (Docs. 20; 24).
IS THEREFORE ORDERED that plaintiff's Motion to
Remand (Doc. 4) is granted, and defendants' Motion for
Leave of Court to Amend Notice of Removal (Doc. 20) and
Motion for Leave of Court to File ...