* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

June 29, 2005

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

STATE OF NEW MEXICO, ex rel.

Stuart L. Stein, Esq.,

 Plaintiff-Appellant,

 v.

WESTERN ESTATE SERVICES,

INC.; AMERICAN FAMILY LEGAL

CENTERS,

 Defendants-Appellees.

No. 04-2234

(D.C. No. CIV-04-920 JH/DJS)

(D. N.M.)

ORDER AND JUDGMENT *

Before BRISCOE , ANDERSON , and BRORBY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.
1 Mr. Stein does not continue to argue on appeal that his complaint belongs

in federal court under a theory of diversity jurisdiction. 

-2-

Stuart L. Stein is a New Mexico attorney who maintains an estate planning

practice in Albuquerque. Defendants are corporations who placed an

advertisement in a Santa Fe newspaper, offering living trust seminars and estate

planning services. Mr. Stein brought this action in federal district court against

the defendants, seeking to enjoin them from “ongoing acts of illegal advertising”

and from future violations of New Mexico’s statutes prohibiting the unauthorized

practice of law. Aplt. App. at 7-8. Mr. Stein’s complaint asserted two bases for

jurisdiction in federal court: (1) the defendants’ alleged “violation of the First

Amendment commercial speech provisions of the United States Constitution”; and

(2) their alleged violations of state laws “with cumulative damages in excess of

$75,000.” Id. The district court dismissed his complaint with prejudice for lack

of federal jurisdiction.

On appeal, Mr. Stein argues that since his complaint “raises the issue of the

application of the First Amendment to the issues concerning the subject

advertisement,” Aplt. Br. at 6, the district court had subject matter jurisdiction

over the “federal question” raised in his complaint. See 28 U.S.C. § 1331 (stating

federal district courts “shall have original jurisdiction of all civil actions arising

under the Constitution, laws, or treaties of the United States.”). 1

 The district
-3-

court concluded that Mr. Stein’s argument, that the defendants had no First

Amendment right to engage in illegal advertising, did not establish federal

jurisdiction. See Aplt. App. at 66. Our review is de novo, see Qwest Corp. v.

City of Santa Fe , 380 F.3d 1258, 1263 (10th Cir. 2004), and we affirm. 

It is hornbook law that in order to establish jurisdiction under § 1331, a

plaintiff must show that a question of federal law appears on the face of his wellpleaded complaint. 

Whether a claim arises under federal law must be determined by

reference to the [plaintiff’s] well-pleaded complaint. It is well

settled that a defense that raises a federal question is inadequate to

confer federal jurisdiction. Federal-question jurisdiction is not

present even if the [federal] defense is anticipated in the plaintiff’s

complaint, and even if both parties admit that the defense is the only

question truly at issue in the case.

Nicodemus v. Union Pacific Corp ., 318 F.3d 1231, 1236 (10th Cir. 2003) (internal

quotations omitted). Mr. Stein’s only attempt to meet the well-pleaded complaint

requirement in his complaint was to charge the defendants with “violating” the

commercial speech provisions of the First Amendment. The facts of the

complaint, however, establish no such “violation” by the defendants. Instead, the

First Amendment’s commercial speech doctrine is relevant only as a defense to

Mr. Stein’s complaint concerning illegal advertising. As we have noted, however,

the potential for such a constitutional defense, even if central to the issues at

stake in the action, does not itself create federal question jurisdiction. See id. 
-4-

Therefore, the district court properly found that it lacked federal question

jurisdiction over Mr. Stein’s complaint. 

Mr. Stein further argues that the case should have been dismissed “without

prejudice for the plaintiff to file the matter again in a proper forum.” Aplt. Br. at

8. We need not remand for entry of a dismissal without prejudice, as he requests. 

His ability to refile in another court rests on questions of claim-preclusion

law–not in the way the dismissal is styled. Styskal v. Weld County Bd. of County

Comm’rs , 365 F.3d 855, 859 (10th Cir. 2004). “Whether [Mr. Stein] is barred

from filing [his] claim in [New Mexico] state court . . . is not determined solely

by how the federal court dismissal is styled. As a result, the relief sought by

Plaintiff–restyling the federal court dismissal as ‘without prejudice’– is beside the

point.” Id. 

For the foregoing reasons, the judgment of the district court is AFFIRMED.

Entered for the Court

Wade Brorby

Circuit Judge