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26 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

VISION BUILDERS, INC., 

Plaintiff,

v.

BOARD OF TRUSTEES OF THE

MASONRY SECURITY PLAN OF

WASHINGTON, et al.,

Defendants.

 NO. C06-268JLR

 ORDER

 

I. INTRODUCTION

This matter comes before the court on the motion of Plaintiff Vision Builders, Inc.

(“Vision Builders”) to remand this action (Dkt. # 4). Having considered the motion, the

parties’ briefing, and their supporting documentation, the court GRANTS Vision Builders’

motion to remand.

II. BACKGROUND

Vision Builders filed this action in King County Superior Court seeking declaratory

relief. Vision Builders anticipated that Defendants, a collection of trade union trusts, would

sue it to recover for the default of a subcontractor on a construction project for which Vision

Builders was the general contractor. Vision Builders sought a declaratory judgment that the

federal Employee Retirement Income Security Act of 1974 (“ERISA”) preempted any effort

to recover against it under Washington statutes governing liens for public works projects.

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26 ORDER - 2

Defendants removed the action to this court. Vision Builders timely filed the instant

motion to remand.

III. ANALYSIS

A. Vision Builders’ Motion to Remand

With exceptions not applicable here, a defendant may remove any state court civil

action that could have been brought in federal court. See 28 U.S.C. § 1441. If the federal

court lacks subject matter jurisdiction over the action, remand is mandatory. A court must

“strictly construe the removal statute against removal jurisdiction,” and must reject

jurisdiction “if there is any doubt as to the right of removal in the first instance.” Gaus v.

Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The defendant “always has the burden of

establishing that removal is proper.” Id.

The only potential basis for this court’s jurisdiction is that the action presents a federal

question. Defendants reason that because Vision Builders’ complaint asserts ERISA’s

preemptive effect as a basis for declaratory judgment in its favor, the complaint necessarily

presents a federal question arising under ERISA. 

Determining whether a declaratory judgment action raises a federal question requires a

court to engage in a bit of preliminary gymnastics. Ordinarily, the court considers the

complaint itself in determining its removability. E.g., Dahl v. Rosenfeld, 316 F.3d 1074,

1076 (9th Cir. 2003) (“Generally, removal to federal court requires that a federal claim appear

on the face of the plaintiff's well-pleaded complaint.”) (internal quotations omitted). For a

declaratory judgment action, however, the court does not consider the complaint, but rather

how the complaint would have looked as a complaint for affirmative relief. See Arizona v.

Atchison, T. & S. F. R. Co., 656 F.2d 398, 401-02 (9th Cir. 1981). In this case, Defendants

would have brought an action for recovery against Vision Builders’ performance bonds. This

action unquestionably would have arisen solely under Washington law. 

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26 ORDER - 3

The only federal issue in this case is Vision Builders’ defense that ERISA preempts the

state law action. A federal court does not acquire jurisdiction merely because a defendant

asserts a defense under federal law. Franchise Tax Bd. v. Constr. Laborers Vacation Trust,

463 U.S. 1, 16 (1983) (“[I]f, but for the availability of the declaratory judgment procedure,

the federal claim would arise only as a defense to a state created action, jurisdiction is

lacking.”) (citation omitted). 

Under some circumstances, the preemptive effect of ERISA can make an action

removable from state court to federal court. When a state law claim “relates to” the

preemptive provision of ERISA (29 U.S.C. § 1144(a)) and “falls within the scope of” the civil

remedy provisions of 29 U.S.C. § 1132(a), the preemptive effect of ERISA is sufficient to

confer removal jurisdiction. Toumajian v. Frailey, 135 F.3d 648, 654 (9th Cir. 1998). 

There is no dispute that the underlying state court action “relates to” the preemption

provision stated in 29 U.S.C. § 1144(a). Vision Builders brought the action because it wished

to take shelter under the provision’s protective umbrella.

There is no indication, however, that the underlying state court action “falls within the

scope of” the civil remedy provisions of 29 U.S.C. § 1132(a). Defendants, as the parties

seeking removal, bear the burden of showing that their well-pleaded state court action would

state a claim that falls within this provision. They have not even attempted to do so. Because

Defendants have not demonstrated that the court has jurisdiction, remand is mandatory.

B. Vision Builders’ Request for Attorneys’ Fees

Under 28 U.S.C. § 1447(c), a court remanding an action to state court “may require

payment of just costs and any actual expenses, including attorney fees, incurred as a result of

the removal.” As the word “may” suggests, the court’s decision to make such an award is

discretionary. Martin v. Franklin Capital Corp., 126 S. Ct. 704, 711 (2005). Generally, a

court “may award attorney’s fees under § 1447(c) only where the removing party lacked an

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26 ORDER - 4

objectively reasonable basis for seeking removal.” Id. Here, the court finds that Defendants

had no reasonable basis for seeking removal. Had they conducted reasonable legal research,

they would have discovered that the removability of this action depended not on the “federal

question” stated in Vision Builders’ declaratory judgment action, but on a federal question

raised in their implied affirmative request for relief. Once Vision Builders pointed out their

error in the instant motion, Defendants could have mitigated it by conceding that removal was

improper. Instead, they continued to insist that this court had jurisdiction, ignoring the

squarely contrary authority that Vision Builders presented. Rather than rely on an objectively

reasonable basis for removal, Defendants asserted that they wished to “obtain the[ir] desired

result on the merits” by bringing the action to this court, which they believed would apply

more favorable Ninth Circuit law. A desire to win divorced entirely from consideration of the

relevant law is not an objectively reasonable basis for removal. In addition, Defendants filed

a surreply that was improper under this court’s local rules. Local Rules W.D. Wash. CR 7(g).

On these facts, an award of reasonable attorneys’ fees is appropriate. The court has

reviewed Vision Builders’ request for fees and finds that an award of $4,000 is appropriate.

IV. CONCLUSION

For the foregoing reasons, the court GRANTS Vision Builders’ motion (Dkt. # 4) and

awards attorneys’ fees of $4,000. The clerk shall remand this action to King County Superior

Court.

Dated this 3rd day of May, 2006.

A 

JAMES L. ROBART

United States District Judge

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