* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 Mr. Stein does not continue to argue on appeal thathis complaint belongs

in federal court under a theory of diversity jurisd iction. -2- Stuart L. Stein is a New Mexico attorney who mainta ins an estate planning practice in Albuquerque. Defendants are corporatio ns who placed an advertisement in a Santa Fe newspaper, offering liv ing trust seminars and estate planning services. Mr. Stein brought this action i n federal district court against the defendants, seeking to enjoin them from “ongoin g 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 c omplaint asserted two bases for jurisdiction in federal court: (1) the defendants’ alleged “violation of the First Amendment commercial speech provisions of the Unite d States Constitution”; and (2) their alleged violations of state laws “with cu mulative damages in excess of $75,000.” Id. The district court dismissed his complaint with p rejudice 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 co ncerning 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 jurisd iction 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, d id 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 affi rm. It is hornbook law that in order to establish juris diction 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 de termined by reference to the [plaintiff’s] well-pleaded complai nt. It is well settled that a defense that raises a federal questi on is inadequate to confer federal jurisdiction. Federal-question juri sdiction is not present even if the [federal] defense is anticipate d 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 m eet the well-pleaded complaint requirement in his complaint was to charge the defe ndants with “violating” the commercial speech provisions of the First Amendment . The facts of the complaint, however, establish no such “violation” b y the defendants. Instead, the First Amendment’s commercial speech doctrine is relevant only as a defense to Mr. Stein’s complaint concerning illegal advertisin g. As we have noted, however, the potential for such a constitutional defense, ev en 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 i t 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 agai n in a proper forum.” Aplt. Br. at 8. We need not remand for entry of a dismissal wit hout prejudice, as he requests. His ability to refile in another court rests on que stions 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 aresult, 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