1

United States Court of Appeals,

Fifth Circuit.

No. 93-1771.

Rose M. CARPENTER, Plaintiff-Appellant,

v.

WICHITA FALLS INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.

Feb. 15, 1995.

Appeal from the United States District Court for the Northern

District of Texas.

Before GARWOOD, JOLLY and STEWART, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Rose M. Carpenter (Carpenter) sued the

Wichita Falls Independent School District (the School District)

simultaneously in state and federal courts, complaining in the

federal forum of a First Amendment violation, in the state forum of

a breach of contract and a violation of her right to free speech

under the Texas constitution. Asserting the existence of federal

jurisdiction over the state-law claim, the School District timely

removed the state case to federal court. The case is now before us

on interlocutory appeal under 28 U.S.C. § 1292(b) from the district

court's denial of Carpenter's motion to remand the state case. We

reverse and remand.

Facts and Proceedings Below

Carpenter, a twenty-year employee of the School District,

worked as an administrator from 1984 to 1990. In that capacity,

she coordinated the budget and course content for the district's

science curriculum. In early 1990, the School District proposed an
 

1According to Carpenter, the School District said a cut in

pay would follow a year of work in her new position. To date,

the School District has not reduced her salary. 

2

administrative restructuring plan, to which Carpenter vocally

objected. Subsequently, the School District reassigned Carpenter,

demoting her from district-wide administrator to vice principal of

a high school for "at-risk" students. Carpenter alleged that she

was reassigned because of her objections to the restructuring plan

and that the consequences of this reassignment were a reduction in

responsibility, a promised reduction in pay,1 and a violent

physical assault by a student.

After challenging her reassignment through internal grievance

procedures, Carpenter, on May 22, 1992, filed two separate suits

against the School District, one in the United States District

Court for the Northern District of Texas, Wichita Falls Division,

and one in the 89th Judicial District Court of Wichita County,

Texas. Both suits alleged that the transfer violated her

free-speech rights. Carpenter based her state suit claims entirely

and exclusively on state law, that is, on Texas contract and

constitutional law. The only claim asserted in her federal suit,

on the other hand, was under the First Amendment to the United

States Constitution (pursuant to 42 U.S.C. § 1983).

Asserting federal-question jurisdiction over the state suit

free-speech claim, the School District removed the state case to

federal court on the basis of 28 U.S.C. § 1441(b). The state suit

was then consolidated with the pending federal suit. The district

court denied Carpenter's motion to remand the state suit, but
3

certified the question for interlocutory appeal. 28 U.S.C. §

1292(b). We granted leave to appeal and, finding no federal

jurisdiction over Carpenter's state suit, now reverse.

Discussion

We begin with general principles. The denial of a motion to

remand an action removed from state to federal court is a question

of federal subject-matter jurisdiction and statutory construction

subject to de novo review. Garrett v. Commonwealth Mortgage Corp.

of Am., 938 F.2d 591, 593 (5th Cir.1991). To support removal, the

defendant bears the burden of establishing federal jurisdiction

over the state-court suit. See Wilson v. Republic Iron & Steel

Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921). Moreover,

because the effect of removal is to deprive the state court of an

action properly before it, removal raises significant federalism

concerns, see Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478

U.S. 804, 809, 106 S.Ct. 3229, 3233, 92 L.Ed.2d 650 (1986), which

mandate strict construction of the removal statute. Shamrock Oil

& Gas Corp. v. Sheets, 313 U.S. 100, 107, 61 S.Ct. 868, 872, 85

L.Ed. 1214 (1941); Willy v. Coastal Corp., 855 F.2d 1160, 1164

(5th Cir.1988).

The defendant's right to remove is statutory. Section 1441 of

the Judicial Code keys the propriety of removal to the original

jurisdiction of the federal district courts. Removal under section

1441(b), the basis of removal here, is appropriate only for those

claims within the federal question jurisdiction of the district

courts, that is, for those actions "arising under the Constitution,
4

laws, or treaties of the United States." 28 U.S.C. § 1331.

A determination that a cause of action presents a federal

question depends upon the allegations of the plaintiff's

well-pleaded complaint. Louisville & Nashville R. Co. v. Mottley,

211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). Generally, under

section 1331, a suit arises under federal law if there appears on

the face of the complaint some substantial, disputed question of

federal law. See Franchise Tax Board v. Construction Laborers

Vacation Trust, 463 U.S. 1, 12, 103 S.Ct. 2841, 2848, 77 L.Ed.2d

420 (1983). Accordingly, to support removal, the defendant must

locate the basis of federal jurisdiction in those allegations

necessary to support the plaintiff's claim, ignoring his own

pleadings and petition for removal. A defendant may not remove on

the basis of an anticipated or even inevitable federal defense, but

instead must show that a federal right is "an element, and an

essential one, of the plaintiff's cause of action." Gully v. First

Nat'l Bank, 299 U.S. 109, 111, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936).

The plaintiff is thus the master of her complaint. Healy v.

Sea Gull Specialty Co., 237 U.S. 479, 480, 35 S.Ct. 658, 659, 59

L.Ed. 1056 (1915) ("the plaintiff is absolute master of what

jurisdiction he will appeal to"); The Fair v. Kohler Die &

Specialty Co., 228 U.S. 22, 23, 33 S.Ct. 410, 411, 57 L.Ed. 716

(1913) ("the party who brings a suit is master to decide what law

he will rely upon"); Willy v. Coastal Corp., 855 F.2d 1160, 1167

(5th Cir.1988). A plaintiff with a choice between federal- and

state-law claims may elect to proceed in state court on the
5

exclusive basis of state law, thus defeating the defendant's

opportunity to remove, but taking the risk that his federal claims

will one day be precluded. Merrell Dow Pharmaceuticals, Inc. v.

Thompson, 478 U.S. 804, 809, 106 S.Ct. 3229, 3233 n. 6, 92 L.Ed.2d

650 (1986) ("Jurisdiction may not be sustained on a theory that the

plaintiff has not advanced."); Travelers Indemnity Company v.

Sarkisian, 794 F.2d 754, 758 (2d Cir.), cert. denied, 479 U.S. 885,

107 S.Ct. 277, 93 L.Ed.2d 253 (1986); 1A James W. Moore & Brett A.

Ringle, Moore's Federal Practice ¶ 0.160 (2d ed. 1979) (noting the

freedom of the plaintiff to "ignore the federal ground and rely on

the state ground").

 However, in certain situations where the plaintiff

necessarily has available no legitimate or viable state cause of

action, but only a federal claim, he may not avoid removal by

artfully casting his federal suit as one arising exclusively under

state law. Although a defense, preemption may so forcibly and

completely displace state law that the plaintiff's cause of action

is either wholly federal or nothing at all. Avco Corp. v. Aero

Lodge No. 735, Int'l Assn. of Machinists, 390 U.S. 557, 559, 88

S.Ct. 1235, 1237, 20 L.Ed.2d 126 (1968). As one leading treatise

has explained,

"[I]n many contexts plaintiff's claim may be one that is

exclusively governed by federal law, so that the plaintiff

necessarily is stating a federal cause of action, whether he

chooses to articulate it that way or not. If the only remedy

available to plaintiff is federal, because of preemption or

otherwise, and the state court necessarily must look to

federal law in passing on the claim, the case is removable

regardless of what is in the pleading. If, however, there is

a choice between federal and state remedies, the federal

courts will not ignore the plaintiff's choice of state law as
 

2The Supreme Court has required that the preemption be

complete. Franchise Tax Board, 463 U.S. 23, 103 S.Ct. at 2854. 

Moreover, it is the cause of action, and not a remedy, that must

be preempted. See Merrell Dow, 478 U.S. 804, 106 S.Ct. 3229, 92

L.Ed.2d 650 (1986).

So far as we are aware, the Supreme Court has clearly

sanctioned the rule only in the area of federal labor

relations law and the Employee Retirement Income Security

Act of 1974 (ERISA), the latter on the basis of its

legislative history references to the former. See

Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 62-66,

107 S.Ct. 1542, 1546-48, 95 L.Ed.2d 55 (1987) (ERISA). 

6

the basis for the action." 14A Charles A. Wright, Arthur R.

Miller & Edward H. Cooper, Federal Practice and Procedure §

3722 (2d ed. 1985).

This doctrine represents a narrow exception2 to the rule requiring

the basis of federal question jurisdiction to be found on the face

of the plaintiff's well-pleaded complaint and not in any

anticipated defense.

The artful pleading doctrine recognizes that the

characterization of a federal claim as a state claim will not in

all cases prohibit removal when the plaintiff has no state claim at

all. The doctrine does not convert legitimate state claims into

federal ones, but rather reveals the suit's necessary federal

character. See Franchise Tax Board, 463 U.S. at 23, 103 S.Ct. at

2854 (announcing that this exception to the well-pleaded complaint

rule "stands for the proposition that if a federal cause of action

completely preempts a state cause of action any complaint that

comes within the scope of the federal cause of action necessarily

"arises under' federal law"). Absent such extraordinary
 

3As the Ninth Circuit has observed, the artful pleading

doctrine should apply "only in exceptional circumstances as it

raises difficult issues of state and federal relationships and

often yields unsatisfactory results." Salveson v. Western States

Bankcard Association, 731 F.2d 1423, 1427 (9th Cir.1984). 

7

circumstances,3 the well-pleaded complaint rule governs, id. at 8,

103 S.Ct. at 2846, as does its corollary. See Powers, 719 F.2d at

766. That is, if a plaintiff indeed has a viable state law claim,

he may depend on it alone and thereby defeat attempts at removal.

Caterpillar, Inc. v. Williams, 482 U.S. 386, 391 & n. 7, 107 S.Ct.

2425, 2429 & n. 7, 96 L.Ed.2d 318 (1987) (noting that, because the

plaintiff is the "master of the claim," "he or she may avoid

federal jurisdiction by exclusive reliance on state law") (footnote

omitted).

With these principles in mind, we turn to the face of

Carpenter's state pleadings. The state court complaint

("petition") alleges violations of state law only, in particular "a

violation of Plaintiff's right to free speech under the Texas

Constitution, Article I, § 8." Although never asserting federal

preemption of the Texas right to free speech, the School District

has on several occasions suggested that this constitutional

provision is "essentially" a federal claim in disguise. This

argument, standing alone, disregards principles of federalism; it

ignores the superiority of state-court forums for state-law claims

and denigrates the state's authority to fashion independent

constitutional law. With regard to the latter proposition, the

Supreme Court has recognized that every state has a "sovereign

right to adopt in its own Constitution individual liberties more
 

4"Congress shall make no law ... abridging the freedom of

speech, or of the press...." U.S. Const. amend. I. 

8

expansive than those conferred by the Federal Constitution."

Pruneyard Shopping Center v. Robins, 447 U.S. 74, 79, 100 S.Ct.

2035, 2040, 64 L.Ed.2d 741 (1980). For this reason, "[i]t is

fundamental that state courts be left free and unfettered by ...

[the federal courts] in interpreting their state constitutions."

Minnesota v. National Tea Company, 309 U.S. 551, 555, 60 S.Ct. 676,

679, 84 L.Ed. 920 (1940).

The right to free speech under the Texas Constitution is

broader in some respects than its federal counterpart both in

wording and in substance. The state provision reads, "Every person

shall be at liberty to speak, write or publish his opinion on any

subject, being responsible for the abuse of that privilege; and no

law shall ever be passed curtailing the liberty of speech or of the

press." Tex. Const. art. I, § 8. Unlike the First Amendment, this

language is affirmative and not prohibitory,4 a distinction that

led drafters of the 1876 Texas Constitution to reject a proposal to

replace this language with that of the federal version. See

Davenport v. Garcia, 834 S.W.2d 4, 5 & n. 13 (Tex.1992); see also

O'Quinn v. State Bar of Texas, 763 S.W.2d 397, 402 (Tex.1988) ("it

is quite obvious that the Texas Constitution's grant of free speech

is more broadly worded than the first amendment's").

The broader language permits a broader right. According to

the Texas Supreme Court, "[I]n some aspects our free speech

provision is broader than the First Amendment." Davenport, 834
 

5By negative inference, section 1257 of the Judicial Code

prohibits Supreme Court review of state law determinations

rendered by that state's supreme court. 28 U.S.C. § 1257. The

Court therefore cannot review a case that rests on an independent

and adequate state ground because treatment of any federal issue

would be nugatory. Because federal courts may only hear cases or

controversies under Article III, it is unconstitutional for the

Court to issue mere advisory opinions. See Michigan v. Long, 463

U.S. 1032, 1036-43, 103 S.Ct. 3469, 3474-78, 77 L.Ed.2d 1201

9

S.W.2d at 8. See also Casso v. Brand, 776 S.W.2d 551, 556

(Tex.1989); O'Quinn, 763 S.W.2d at 402; Channel 4, KGBT v.

Briggs, 759 S.W.2d 939, 944 (Tex.1988) (Gonzalez, J., concurring).

To equate these distinct constitutional provisions would be, in

effect, to deny the reality and the possibility of a more expansive

state liberty. We therefore cannot construe a claim brought under

Article I, Section 8 of the Texas Bill of Rights to be essentially

or necessarily federal in character.

The School District nevertheless argues that the "right to

freedom of speech is so strongly a federal claim that even the

state courts of Texas use analysis of the First Amendment freedom

of speech for the analysis of the state corollary. The state

claim, thus, contains essentially a federal claim." The Texas

courts' possible reliance on the rules and reasoning of federal

constitutional case law and scholarship in no way diminishes the

independence of the state right. If, for instance, the Texas

Supreme Court plainly based one of its holdings on the state, and

not the federal, constitution, then that independent and adequate

state ground would deny the possibility of review by the United

States Supreme Court—regardless of the Texas court's reliance on

federal case law.5 Michigan v. Long, 463 U.S. 1032, 1039, 103
(1983). 

10

S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983). As the Supreme Court has

recognized, a state court may choose "merely to rely on federal

precedents as it would on the precedents of all other

jurisdictions," thereby employing federal cases "for the purpose of

guidance." Id.; see, e.g., State v. Ball, 124 N.H. 226, 471 A.2d

347, 352 (1983). In short, regardless of its formative reliance on

federal law, the Texas constitutional right to free speech is not

essentially federal, and to present a Texas constitutional claim is

not necessarily to present a federal claim.

The unsurprising conclusion that there is nothing essentially

federal about a claim based on the Texas Constitution is confirmed

by the School District's concession at oral argument that, had

Carpenter filed the state complaint originally in the federal

district court, it would not present a federal question. The

School District thereby admitted that there was no basis for

removal jurisdiction independent of the concurrent federal suit.

This concession should resolve the statutory question because,

under the express terms of section 1441, only those cases that

could be filed originally in federal court may be removed there.

28 U.S.C. § 1441; see also Franchise Tax Board, 463 U.S. at 18 n.

18, 103 S.Ct. at 2851 n. 18.

 The School District, however, does not base its argument on

the terms of section 1441, but rather on a footnote to a 1981

Supreme Court case, Federated Department Stores, Inc. v. Moitie,

452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981). In Moitie,
 

6We acknowledge that the Second Circuit has endorsed this

interpretation of footnote two. In Travelers Indemnity Company

v. Sarkisian, 794 F.2d 754 (2d Cir.1986), the court ruled that,

once a plaintiff files a federal suit, he is "not free to abuse

the dual court system by filing in state court a second lawsuit

and resubmitting his claim as one based solely on state law." 

Id. at 761. The court then acknowledged that "[t]his

11

the plaintiffs had filed and lost an antitrust suit in federal

court. Instead of appealing, two of the plaintiffs thereafter

filed a near-identical suit in state court, this time purportedly

based exclusively on state law. Defendants then removed that suit

to the federal district court, which denied the plaintiffs' motion

to remand and ruled the action barred by res judicata. The Ninth

Circuit affirmed the removal but reversed on the merits. The

Supreme Court granted certiorari to consider the preclusion issue.

See Moitie, 452 U.S. at 394, 101 S.Ct. at 2426 ("The only question

presented in this case is whether the Court of Appeals for the

Ninth Circuit validly created an exception to the doctrine of res

judicata."). In footnote two of an opinion dedicated to the issue

of res judicata, the Supreme Court affirmed the removal, observing

that "at least some of the claims had a sufficient federal

character to support removal" under the artful pleading doctrine,

Moitie, 452 U.S. at 396 n. 2, 101 S.Ct. at 2427 n. 2, without

citing controlling precedent and without identifying what

specifically about the state-law claims was federal in character.

Relying exclusively on this enigmatic footnote, the School

District argues that, by electing to simultaneously pursue a

parallel federal suit, Carpenter has somehow endowed her state suit

with a "sufficient federal character" to support removal.6
interpretation ... limits but does not abolish the

master-of-the-complaint rule." Id. For the reasons stated in

our opinion, we join the Ninth Circuit in preferring a narrower

interpretation. See Sullivan v. First Affiliated Securities,

Inc., 813 F.2d 1368 (9th Cir.1987); see also footnote 11, infra.

 

7In Franchise Tax Board, which followed Moitie, the Court

unanimously reaffirmed every major principle of removal under

section 1441(b) without mentioning, citing, or in any way

clarifying that earlier footnote. This fact alone led one lower

court to conclude that Franchise Tax Board "supersedes" Moitie. 

Magic Chef, Inc. v. International Molders Union, 581 F.Supp. 772,

776 n. 4 (E.D.Tenn.1983). Likewise, in Caterpillar Inc. v.

Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987),

another unanimous decision, the Court suggested that the artful

pleading doctrine should be limited to cases involving complete

preemption of the state cause of action. Id. at 392, 396 & n.

11, 107 S.Ct. at 2430, 2432 & n. 11. 

12

Whatever Moitie does mean, we are confident it does not mean so

much. The context of the decision counsels against such a broad

interpretation. Moitie is a res judicata case, not a removal case.

The decision centered on the Ninth Circuit's creation of a novel

exception to the rule of res judicata, an issue the Court was

evidently eager to reach. Furthermore, the marginal treatment of

the removal issue makes us hesitate to expand Moitie beyond its

facts, for a broad interpretation would counter principles

established long before, and reaffirmed after, footnote two was

written.7

We do not believe the Court could have intended, in a case for

which the removal issue was neither presented nor briefed, to bring

about a significant revision of removal jurisprudence, especially

one so at odds with precedent and with the language and policy of
 

8Certainly the Court did not purport to alter the law of

removal; indeed, the tone of the footnote is "striking in its

cautiousness." Rona L. Pietrzak, Comment, Federated Department

Stores v. Moitie: A Radical Departure From Traditional Removal

Jurisdiction or an Aberration?, 43 Univ.Pitt.L.Rev. 1165, 1178

(1982). 

 

9We also cannot regard the Court's treatment of the removal

issue as a simple mistake or misstep. Because Justice Brennan's

dissent targeted footnote two, "[t]he only conclusion is that the

Court said what it meant and meant what it said." Robert A.

Ragazzo, Reconsidering the Artful Pleading Doctrine, 44 Hastings

L.J. 273, 307 (1993). Compare Stanley Blumenfield, Jr., Comment,

Artful Pleading and Removal Jurisdiction: Ferreting Out the True

Nature of a Claim, 35 UCLA L.Rev. 315, 365 (1987) (arguing that

Moitie's ruling on the removal issue should be disregarded). See

also Gold v. Blinder, Robinson & Co., Inc., 580 F.Supp. 50, 53 n.

1 (S.D.N.Y.1984) ("Although it is perhaps impossible

intellectually to reconcile Moitie with established law, it seems

proper, absent more direct and fuller consideration of the issue

by the Court, to view the result as an aberration...."). 

 

10The federal anti-injunction statute provides that a

federal court "may not grant an injunction to stay proceedings in

a State court except as expressly authorized by Act of Congress,

or where necessary in aid of its jurisdiction, or to protect or

effectuate its judgments." 28 U.S.C. § 2283; see also Mitchum

v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). 

With regard to duplicative actions in state and federal courts,

the Court has remarked,

"Each court is free to proceed in its own way and in

its own time, without reference to the proceedings in

the other court. Whenever a judgment is rendered in

one of the courts and pleaded in the other, the effect

13

section 1441.8 We cannot interpret this footnote to mean that

simply because a plaintiff could have joined his state-law claim

with his parallel claim in federal court, his state action thereby

acquires a federal character sufficient to support removal.9 In

short, we cannot say that the failure to make a state claim pendent

makes it federal. Just as a federal court may not enjoin a state

action for the same cause simply because it is proceeding

concurrently, see 28 U.S.C. § 2283,10 likewise a federal court may
of that judgment is to be determined by the application

of the principles of res adjudicata.... The rule,

therefore, has become generally established that ...

another action for the same cause in another

jurisdiction is not precluded." Kline v. Burke Const.

Co., 260 U.S. 226, 228, 43 S.Ct. 79, 81, 67 L.Ed. 226

(1922).

See generally Bator et al., Hart and Wechsler's The Federal

Courts and the Federal System 1321 (1988). 

 

11We recognize that preclusion is a defense and therefore in

tension with the well-pleaded complaint rule. We also recognize

the institutional competence of the state courts over federal

law. These concerns, many of which are also implicated in the

context of preemption, justify construing Moitie narrowly, but

not abandoning it. We are simply without authority to empty

footnote two of all substantive content. 

14

not take it on removal.

If there was any federal character at all to the plaintiffs'

state-law claims in Moitie, it must be the federal law of

preclusion. In Moitie, the plaintiffs filed their state claim only

after their federal statutory claim had gone to federal court

judgment against them. Under traditional federal rules of res

judicata, the state-law claim was barred. The plaintiffs chose not

to appeal, but to outflank the effect of the federal district

court's judgment. See Ultramar America Ltd. v. Dwelle, 900 F.2d

1412, 1417 (9th Cir.1990). Although we recognize that the state

courts are able and required to apply federal rules of res

judicata, the federal law preclusive effect of the federal judgment

could arguably be said to confer a federal character much the way

complete preemption does. In both cases, federal law has in some

sense extinguished the possibility of a state-court cause of

action.11 See Sullivan, 813 F.2d at 1376.
 

12By limiting Moitie to those cases in which the plaintiff's

state-court action is barred by federal judgment preclusion, we

agree with the decision of the Ninth Circuit in Sullivan v. First

Affiliated Securities, Inc., 813 F.2d 1368 (9th Cir.), cert.

denied, 484 U.S. 850, 108 S.Ct. 150, 98 L.Ed.2d 106 (1987). The

facts of Sullivan are almost identical to those here. In

Sullivan, the plaintiffs simultaneously filed securities law

actions for the same underlying conduct in both federal and state

courts. The defendants removed the state action even though the

state-court complaint alleged only violations of state securities

law. As here, the case came before the appellate court on

15

We also point out that the existence of a prior federal

judgment lifts the statutory bar against enjoining an ongoing state

proceeding. There is little practical distinction between, on the

one hand, removing and dismissing a precluded state suit and, on

the other hand, enjoining one. Under the relitigation exception to

the Anti-Injunction Act, the federal courts may enjoin state-court

proceedings to protect prior federal judgments. 28 U.S.C. § 2283.

Instead of removing, the defendants in Moitie might therefore have

requested an injunction from the federal court. Parsons Steel,

Inc. v. First Alabama Bank, 474 U.S. 518, 106 S.Ct. 768, 88 L.Ed.2d

877 (1986). If issued, an injunction would have had the same

effect as removal: the end of state-court proceedings. Because

the relitigation exception to the Anti-Injunction Act has already

realigned federal-state relations in favor of the federal courts in

such an instance, any potential impact on federalism from removal

was not significant.

For all these reasons, we hold that Moitie should apply only

where a plaintiff files a state cause of action completely

precluded by a prior federal judgment on a question of federal

law.12
interlocutory appeal from the district court's denial of the

plaintiff's motion to remand the removed state action to state

court. There was no prior federal judgment. In a well-reasoned

opinion, the Ninth Circuit construed Moitie "as limited to the

removal of state claims precluded by a federal judgment." Id. at

1376. The Ninth Circuit, of course, was the very court of

appeals that had affirmed the district court's removal in Moitie.

Our holding is not inconsistent with our earlier

decision in Powers v. South Central United Food & Commercial

Workers Unions and Employers Health & Welfare Trust, 719

F.2d 760 (5th Cir.1983). In Powers, this Court ruled

unremovable a state-court suit not completely preempted by

ERISA, relying on the "powerful doctrine" of the

well-pleaded complaint. Id. at 764 (quoting Franchise Tax

Board, 463 U.S. at 8, 103 S.Ct. at 2846). Although some

language in the opinion may implicitly suggest a broader

interpretation of Moitie than we accept here, see id. at

766, that language was clearly dicta and is therefore not

controlling. Our actual holding in that case, that

plaintiff's state-law claim, since not completely preempted

by federal law, did not arise under it, is wholly consistent

with our decision here. 

16

 Here, there is no prior federal judgment and, consequently,

no perceptible federal character to the state claim. Carpenter

filed both actions simultaneously. As a result, there is no

judgment to protect and no federal preclusion law to apply. Unlike

the plaintiffs in Moitie, Carpenter is taking preclusion risks in

order to have her state law claim heard in its preferred forum;

she is not attempting to avoid the effect of a prior judgment. To

allow removal in a case such as this would effectively require

amending section 1441 at the expense of state autonomy. According

to the Supreme Court,

"The power reserved to the states under the Constitution to

provide for the determination of controversies in their

courts, may be restricted only by the action of Congress in

conformity to the Judiciary Articles of the Constitution.

"Due regard for the rightful independence of state

governments, which should actuate federal courts, requires

that they scrupulously confine their own jurisdiction to the
17

precise limits which the statute has defined.' " Shamrock Oil

& Gas Corp. v. Sheets, 313 U.S. 100, 107, 61 S.Ct. 868, 872,

85 L.Ed. 1214 (1941) (quoting Healy v. Ratta, 292 U.S. 263,

268, 54 S.Ct. 700, 703, 78 L.Ed. 1248 (1934)).

These concerns rebut the School District's argument that the

existence of a parallel federal suit should render removable an

otherwise unremovable state claim. We simply cannot square the

School District's interpretation of section 1441 with the statutory

language, which keys the propriety of removal to the existence of

original jurisdiction in the district court, not to the presence of

a parallel suit there.

Nor can we square this interpretation with the policy of

section 1441. The removal statute, like the artful pleading

doctrine, is designed to afford defendants a federal forum for

their federal claims, not to prevent state judges from hearing a

state cause of action. The School District's interpretation turns

removal on its head, for by splitting the federal claim from the

state claim and pressing the former in federal district court,

Carpenter has afforded the School District the very protection

intended by a right to removal. See Friedenthal, Kane, & Miller,

Civil Procedure § 2.11 at 57 ("In a case involving a claim raising

an issue of federal law, removal equalizes the ability of both

parties to have a federal question litigated in its "natural'

forum.").

Notwithstanding the language of section 1441, the School

District has repeatedly argued that the costs resulting from

intercourt claim splitting should justify removal here. This

argument again misplaces the inquiry. Nowhere in the removal
18

statute can we locate an efficiency exception. The statute simply

does not address issues of judicial economy and litigation

management—matters beyond the scope of the statute's language and

policy. Furthermore, to complain of the costs arising out of

concurrent litigation in separate jurisdictions is to complain

generally of federalism, which suffers inefficiencies and

multiplicity for its own sake. See Moses H. Cone Memorial Hospital

v. Mercury Const., 460 U.S. 1, 13, 103 S.Ct. 927, 936, 74 L.Ed.2d

765 (1983).

We observe in passing that the efficiency concerns are not

quite so extensive as the School District would have us believe.

For instance, the federal and state courts are equipped to mitigate

inefficiencies by coordinating discovery, as was actually done

here. Furthermore, although we recognize that concurrent state and

federal proceedings are generally tolerated, the federal court may,

in the exceptional case, dismiss its proceedings because of a

pending state action. See Colorado River Water Conservation Dist.

v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483

(1976); Moses H. Cone Memorial Hospital v. Mercury Const. Corp.,

460 U.S. 1, 13-15, 103 S.Ct. 927, 936-37, 74 L.Ed.2d 765 (1983).

Likewise, the Texas court, in its discretion, may abate its own

proceedings in deference to a parallel suit in another

jurisdiction. See Project Engineering USA v. Gator Hawk, 833

S.W.2d 716, 724 (Tex.App.—Houston [1st Dist.] 1992, no writ).

Finally, once either suit comes to judgment, the other may be

barred by res judicata. Kline v. Burke Const. Co., 260 U.S. 226,
 

13In Hogue, we recognized the risks taken by a plaintiff who

simultaneously files suits for the same cause in both state and

federal courts: "Hogue took a calculated risk in filing separate

suits in what well may have been an attempt to hedge his bets on

which forum would be more favorable. Hogue lost that gamble, and

cannot now be heard to complain that he has not had his day in

court." Hogue, 939 F.2d at 1255-56. 

19

228, 43 S.Ct. 79, 81, 67 L.Ed. 226 (1922); see, e.g., Hogue v.

Royse City, Texas, 939 F.2d 1249, 1256 (5th Cir.1991) (holding

under Texas law that, where state and federal suits were filed

separately and simultaneously in state and federal courts, a prior

state court judgment precluded the federal claim).13 If the federal

action concludes first, the defendant could raise the defense of

claim preclusion in state court or, as mentioned earlier, ask the

district court to enjoin prosecution of the state-court proceedings

under the relitigation exception to the Anti-Injunction Act. 28

U.S.C. § 2283 (allowing a federal court to enjoin an ongoing

state-court proceeding "where necessary ... to protect or

effectuate its judgments"); see Parsons Steel, Inc. v. First

Alabama Bank, 474 U.S. 518, 106 S.Ct. 768, 88 L.Ed.2d 877 (1986)

(allowing the injunction where the state court has itself not yet

ruled on the res judicata issue). In sum, as the Ninth Circuit

recognized in Sullivan, there are means available to "federal and

state courts ... [to] coordinate parallel state and federal

litigation without manipulating the removal statute to promote

policies beyond its scope." Sullivan, 813 F.2d at 1377.

Conclusion

Because there is no federal character to Carpenter's state

suit, the district court lacked subject matter jurisdiction over
 

14Carpenter has made a request for costs and attorneys' fees

pursuant to section 1447(c). The decision whether to allow the

recovery of costs is committed to the discretion of the district

court upon its order to remand the case to state court. Id.

Because the district court has evidently not yet addressed this

issue, we prefer to leave it for consideration by the district

court in the first instance on remand. See Miranti v. Lee, 3

F.3d 925, 928-29 (5th Cir.1993) (addressing the standards to be

applied in determining whether to award costs and attorneys' fees

under section 1447(c)). 

20

it. Accordingly, we reverse the district court's denial of

Carpenter's motion to remand, and we remand the case for further

action consistent with this opinion.14

REVERSED and REMANDED.