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Daryl M. Williams (004631)

darylwilliams@bwglaw.net

Attorneys for plaintiff

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

City of Kingman,

Plaintiff,

vs.

Kingman Airport Authority,

Defendant.

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No. 3:17-CV-08272-PHX-DLR

Motion to Remand

(Assigned to the Honorable Douglas L.

Rayes)

The complaint forming the basis of the removal in this case does not raise any federal question

or issue. The complaint, attached as exhibit 3D to the notice of removal1is based wholly and

exclusively on state law. Paragraph one of the complaint says “This court has jurisdiction pursuant

to Arizona Constitution, Art. II, § 17, Art. XIV, § 9, and A.R.S. § 12-1111, et seq.” The complaint

goes on to say in paragraph seven that the City of Kingdom has the right to condemn this property

because ofthe foregoing constitutional statutoryprovisions and pursuant to A.R.S. § 28-8411, which

allows a city to “acquire, establish, construct, own, lease, equip, improve, maintain, operate and

regulate airports. . . .” The complaint at paragraph nine says that there was a written offer and notice

of condemnation delivered pursuant to A.R.S. § 12-1116, and that the property was duly posted

pursuant to A.R.S. § 12-1116(B). Finally, the complaint, at paragraph two, alleges that venue is

appropriate in Mohave County pursuant to A.R.S. § 12-1116. 

The defendant may not remove a case to federal court unless the plaintiff’s complaint

establishes that the case arises under federal law.

BAIRD, WILLIAMS & GREER, L.L.P.

6225 NORTH 24

TH STREET, SUITE 125

PHOENIX, ARIZONA 85016

TELEPHONE (602) 256-9400

1Docket 001, Notice of Removal.

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For better or worse, under the present statutory scheme as it has existed

since 1887, a defendant may not remove a case to federal court unless the

plaintiff’s complaint establishes that the case “arises under” federal law.2

A lot of stuff was filed with the notice of removal in aid of the defendant’s argument that the

complaint “implicates Art. I, § 10, C.L. 1, and the Fifth and Fourteenth Amendments of the U.S.

Constitution.”3 This implication argument was dealt a death blow in 1936. A United States District

Court and the Fifth Circuit had sustained removal jurisdiction because the issue involved in the case

“by necessary implication would involve the construction of a federal tax statute.”4 The quietus was

simple and direct:

A genuine and present controversy, not merely a possible or conjectural

one, must exist with reference thereto [citations omitted] and the

controversy must be disclosed upon the face of the complaint, unaided by

the answer or by the petition for removal. [Citations omitted.] Indeed, the

complaint itself will not avail as a basis of jurisdiction in so far as it goes

beyond a statement of the plaintiff’s cause of action and anticipates or

replies to a probable defense.5

Underscoring its ruling, the United States Supreme Court said that suit brought upon a state

statute or, by inference, a state constitution, does not arise under an act of congress or the

Constitution.

By unimpeachable authority, a suit brought upon a state statute does not

arise under an act of Congress or the Constitution of the United States

because prohibited thereby.

6

The Supreme Court reemphasized the narrow nature of removal jurisdiction in 1983 in the

following language:

One powerful doctrine has emerged, however—the “well-pleaded

complaint” rule—which as a practical matter severely limits the number

of cases in which state law “creates the cause of action” that may be

2Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 10 (1983).

3Docket 001, Notice of Removal, at 1.

4Franchise Tax Board, 463 U.S. 1 at 112.

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Id. at 113.

6

Id. at 116.

2

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initiated in or removed to federal district court, thereby avoiding more-orless automatically a number of potentially serious federal-state conflicts.

“[Whether] a case is on arising under the Constitution or a law or

treaty of the United States, in the sense of the jurisdictional statute,

. . . must be determined from what necessarily appears in the

plaintiff’s statement of his own claim in the bill or declaration,

unaided by anything alleged in anticipation of avoidance of

defenses which it is thought the defendant may interpose.”7

The United States Supreme Court addressed this issue again in 1987, which resulted in the

now-famous language that makes the plaintiff the master of the complaint.

The presence or absence of federal question jurisdiction is governed by

the “well-pleaded complaint rule,” which provides that federal

jurisdiction exists only when a federal question is presented on the face

of the plaintiff’s properly pleaded complaint. See Gully v. First National

Bank, 299 U.S. 109, 112–113 (1936). The rule makes the plaintiff the

master of the claim; he or she may avoid federal jurisdiction by exclusive

reliance on state law.8

Not even the naive lawyer is justified in removing a case like this because Rule 11 applies.

The lawyer is obliged to understand what is and is not removable under the removal statute. After

all, the narrow limit of removal jurisdiction has been on the books since 1887, and that rule means

the sorts of claims and defenses the defendant apparentlywants to raise in the state court proceeding

do not authorize a removal.

Ordinarily federal pre-emption is raised as a defense to the allegations in

a plaintiff’s complaint. Before 1887, a federal defense such as preemption could provide a basis for removal, but, in that year, Congress

amended the removal statute. We interpret that amendment to authorize

removal only where original federal jurisdiction exists. See Act of Mar.

3, 1887, ch. 373, 24 Stat. 552, as amended by Act of Aug. 13, 1888, ch.

866, 25 Stat. 433. Thus, it is now settled law that a case may not be

removed to federal court on the basis of a federal defense, including the

defense of preemption, even if the defense is anticipated in the plaintiff’s

complaint, and even if both parties concede that the federal defense is the

only question truly at issue.9

7

Id. at 463 U.S. 1, 9–10, citing Taylor v. Anderson, 234 U.S. 74, 75–76 (1914).

8Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).

9

Id. at 392–393.

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The plaintiff certainly does not concede that there will ever be any federal issues or questions

involved in this rather routine condemnation case based upon Arizona’s Constitution and Arizona’s

statutes. Certainly, no such issues are raised on the face of the plaintiff’s complaint in state court,

so this removal is wholly improper. 

It is noteworthy that this removal was filed on the eve of an immediate possession hearing.

The defendant surely did not want that hearing to go forward, so this removal was the only

alternative. Filing a matter for delay or to needlessly increase the expense of litigation is a violation

of Rule 11.10

The defendant was not bothered by the memorandum of law filed in the state court showing

there are no Constitutional orfederal issues in this case,11 nor was the defendant bothered by the fact

that a motion to dismiss its earlier-filed action in this court before Judge Tuchi showed, likewise,

the absence of federal issues.12 The defendant simply will not accept the reality that a condemnation

case does not implicate the Constitution in any respect.

CONCLUSION

The notice of removal filed in this case is completely specious. A filing is frivolous for

purposes of Rule 11 when the filing is legally baseless from an objective perspective and the

attorney has not conducted a reasonable and competent inquiry before signing and filing.

As shorthand for this test, we use the word “frivolous” “to denote a filing

that is both baseless and made without a reasonable and competent

inquiry.”13

/ / /

/ / /

/ / /

10Fed. R. Civ. P. 11(b)(1).

11Docket, 001, Notice of Removal, exhibit 3(c).

12Docket 010, 3:17-cv-08260-PHX-JJT. (Judge Tuchi).

13Holgate v. Baldwin, 425 F.3d 671, 676 (2005) (emphasis in original), citing Moore v.

Keegan Mgmt. Co. (In re Keegan Mgmt. Co., SEC. Litig.) 78 F.3d 431, 434 (9th Cir. 1996).

4

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The court may and should enter a show-cause order re Rule 11 sanctions in this case sua

sponte.

14 Moreover, Rule 11 requires such sanctions to be against the lawyer, not the client.

Respectfully submitted this 15th day of December, 2017.

 /s/ Daryl M. Williams 

Daryl M. Williams (#004631)

Baird, Williams & Greer, LLP

6225 North 24th Street, Suite 125

Phoenix, Arizona 85016

darylwilliams@bwglaw.net 

(602) 256-9400

Attorneys for plaintiff

14Fed. R. Civ. P. 11(c)(5)(A). The plaintiff files this motion the day after removal, so the

twenty-day notice required before filing a motion for sanctions has not elapsed.

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CERTIFICATE OF SERVICE

I hereby certify that on December 15, 2017, I filed the Motion to Remand via the clerk’s

CM/ECF filing system, and copies were electronicallytransmitted via the Clerk’sECFFiling system

to the following:

Andrew M. Federhar

Jessica A. Gale

Spencer Fane LLP

2425 E. Camelback Rd., Suite 850

Phoenix, AZ 85016-4251

afederhar@spencerfane.com

jgale@spencerfane.com

Copy mailed and emailed this same day pursuant to LRCiv 5.4 to:

Douglas L. Rayes

Judge, U.S. District Court of Arizona

Sandra Day O’Connor US Courthouse, Suite 526

401 W. Washington, SPC 79

Phoenix, AZ 85003-2162

rayes_chambers@azd.uscourts.gov

 /s/ Daryl M. Williams 

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