Tur v. Nettleton

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MICHAEL F. TUR, ALINE M.

BYRNES, ANN MARIE TUR and

HENRY P. TUR, JR.,

Plaintiffs,

v. Case No. 3:21-cv-483-MMH-LLL

JOHN R. NETTLETON and LARA

M. SABANOSH,

Defendants.

ORDER

THIS CAUSE is before the Court on Plaintiffs Michael F. Tur, Henry P.

Tur, Jr., Ann Marie Tur, and Aline M. Byrnes’ Motion for Remand to State

Court, (Doc. 23; Motion for Remand) filed June 25, 2021. Defendant John R.

Nettleton filed a Response in Opposition to the Motion for Remand on June 28,

2021. (Doc. 24; Response to Remand). Defendant Sabanosh has failed to file a

timely response; accordingly, this matter is ripe for review. For the reasons

explained below, the Court lacks subject matter jurisdiction over this action,

and as such, the Motion for Remand will be granted.

I. BACKGROUND1

In 2015, Christopher Tur was a civilian employee of the Navy who

worked at a general store located within Naval Station Guantanamo Bay

(“NSGB” or “the Base”) on the island of the Republic of Cuba. (Doc. 3;

Complaint) ¶¶ 2-3, 17. At the time, Tur was married to Lara Sabanosh. Id. ¶

17.2 At some point, Sabanosh began an extramarital affair with Defendant

John Nettleton, NSGB’s Commanding Officer. Id. ¶¶ 3, 24. When Tur caught

wind of the affair, he confronted Nettleton outside Nettleton’s home on the

Base. Id. ¶¶ 25–27. A physical altercation ensued in which Nettleton severely

injured Tur. Id. ¶¶ 27, 37–45. According to Plaintiffs, Nettleton ultimately

“took the injured Tur to the water, and caused him to be drowned” in

Guantanamo Bay “knowing that his body would wash out to sea and likely

never be found.” Id. ¶¶ 44–46.

Following Tur’s death, Nettleton destroyed physical evidence and

misdirected the search for Tur’s body. Id. ¶¶ 47–50, 73–96, 98–102. Sabanosh

also hindered the investigation by failing to disclose the altercation between

1 In considering Plaintiffs’ Motion for Remand, the Court must accept all factual

allegations in the Complaint as true and construe all ambiguities in favor of Plaintiffs. Vetter

v. GEICO Gen. Ins., No. 8:18-cv-2381-WFJ-AAS, 2018 WL 5801409, at *1 (M.D. Fla. Nov. 6,

2018) (citing Gulf-to-Bay Anesthesiology Assocs., LLC v. UnitedHealthcare of Fla., Inc., No.

8:18-cv-233-EAK-AAS, 2018 WL 3640405, at *1 n.1 (M.D. Fla. July 20, 2018)). As such, the

facts recited here are drawn from the Complaint and may well differ from those that

ultimately can be proved.

2 Defendant Sabanosh is referred to throughout the Complaint by her former married

Tur and Nettleton. Id. ¶¶ 56, 62–63, 68. Additionally, she attempted to lead

the public to believe that Tur was suicidal and that his death was the result of

an overdose. Id. ¶¶ 297–305.

In January 2019, a federal grand jury sitting in the Middle District of

Florida returned an Indictment charging Nettleton with various criminal

offenses as a result of his actions following Tur’s death. Id. ¶ 148. After a trial,

a jury convicted Nettleton of concealing material facts, obstructing justice,

falsifying records, and making false statements. Id. ¶ 149. During the trial,

Tur’s siblings and mother, Plaintiffs in this case, learned for the first time

about the altercation between Tur and Nettleton and the details of the events

surrounding Tur’s death. Id. ¶ 148.

Plaintiffs now bring this civil action against Nettleton and Sabanosh.3

See generally Complaint. Although Plaintiffs’ eleven-count Complaint is

grounded entirely on state tort law, the actions giving rise to the claims against

Nettleton predominately occurred on NSGB. Id. ¶¶ 186, 199–204, 212–16, 227–

3 Plaintiffs assert claims against Nettleton for wrongful death based on assault and

battery, negligence, and negligent failure to render aid. See Complaint ¶¶ 185–224. Plaintiffs

also bring claims for intentional infliction of emotional distress, tortious interference with a

dead body, spoliation, and civil conspiracy. See Complaint ¶¶ 225–330. As to Sabanosh,

Plaintiffs allege intentional infliction of emotional distress, spoliation, and civil conspiracy.

Id. ¶¶ 258–269, 282–330. Plaintiffs also sued Kelly Wirfel, NSGB’s public affairs officer. Id.

¶ 172. However, Plaintiffs dismissed the claims against Wirfel on January 3, 2022. (Doc. 60).

In light of Wirfel’s dismissal, the Court has omitted recitation of facts related to Wirfel’s

alleged involvement.

31, 237–40, 247–51, 259–61, 271–75. Relying on that, Nettleton removed the

case to federal court asserting the existence of federal question jurisdiction.

(Doc. 1; Notice of Removal). Plaintiffs subsequently moved to remand the case

to state court, see Motion for Remand, and Nettleton filed his Response to

Remand arguing that remand is inappropriate because the Court has subject

matter jurisdiction over Plaintiffs’ claims. See Response to Remand.

After removal, Nettleton also filed a motion seeking to dismiss Plaintiffs’

Complaint. Nettleton argued that all of Plaintiffs’ claims are preempted by

federal law, and because federal law provides no remedy, the claims must be

dismissed with prejudice. See Captain Nettleton’s Motion to Dismiss and

Incorporated Memorandum of Law (Doc. 21; Motion to Dismiss) at 2-12.

Plaintiffs filed a response challenging these assertions, see Plaintiffs’ Response

in Opposition to Motion to Dismiss (Doc. 25; Response to Motion to Dismiss),

and Nettleton filed a reply, see Defendant Nettleton’s Reply Brief in Further

Support of His Motion to Dismiss and Incorporated Memorandum of Law (Doc.

39; Reply). Because the parties, in briefing the Motion to Dismiss, elaborate on

their arguments regarding the existence of subject matter jurisdiction, the

Court, in an abundance of caution, also considers those arguments in ruling on

the Motion for Remand. On this record, before considering any other matters,

the Court now determines whether Nettleton has properly invoked the

jurisdiction of the federal courts.

II. LEGAL STANDARD

A defendant may remove a case from a state court to federal court if the

federal district court has original jurisdiction over the action. 28 U.S.C. §

1441(a). Original jurisdiction exists where a federal district court has “at least

one of three types of subject matter jurisdiction: (1) jurisdiction under a specific

statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C. § 1331;

or (3) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).” PTA-FLA, Inc. v.

ZTE USA, Inc., 844 F.3d 1299, 1305 (11th Cir. 2016) (quoting Baltin v. Alaron

Trading Corp., 128 F.3d 1466, 1469 (11th Cir. 1997)). Here, Nettleton seeks to

invoke only the Court’s federal question jurisdiction under § 1331, which

provides: “The district courts shall have original jurisdiction over all civil

actions arising under the Constitution, laws or treaties of the United States.”

See Notice of Removal at 3; 28 U.S.C § 1331.

In determining whether a claim arises under federal law, the Court is

guided by the “well-pleaded complaint rule.” Aetna Health Inc. v. Davila, 542

U.S. 200, 207 (2004). That rule demands that a federal question appear on the

face of the plaintiff’s well-pleaded complaint. Gully v. First Nat’l Bank, 299

U.S. 109, 112–113 (1936); see also Kemp v. Int’l Bus. Mach. Corp., 109 F.3d

708, 712 (11th Cir. 1997) (“A case does not arise under federal law unless a

federal question is presented on the face of plaintiff’s complaint.”). Generally,

a federal question appears on the face of the complaint when federal law

creates the cause of action. Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1373

(11th Cir. 1998). To meet the burden of establishing the existence of proper

federal jurisdiction, the removing “defendant [ ] must show that the plaintiff[‘s]

complaint, as it existed at the time of removal, provides an adequate basis for

the exercise of federal jurisdiction.” Adventure Outdoors Inc. v. Bloomberg, 552

F.3d 1290, 1294-95 (11th Cir. 2008); see also Ehlen Floor Covering, Inc. v.

Lamb, 660 F.3d 1283, 1287 (11th Cir. 2011). Because a federal question must

appear on the face of the complaint, a federal defense alone will not support

removal. Kemp, 109 F.3d at 712.

Nevertheless, “even when a plaintiff has pled only state-law causes of

action, he may not avoid federal jurisdiction if either (1) his state-law claims

raise substantial questions of federal law or (2) federal law completely

preempts his state-law claims.” Dunlap v. G&L Holding Grp., Inc., 381 F.3d

1285, 1290 (11th Cir. 2004) (citing Franchise Tax Bd. v. Constr. Laborers

Vacation Trust, 463 U.S. 1, 13 (1983)). A state-law claim raises substantial

questions of federal law where federal law is “‘an essential element’” of the

claim, such that the federal right or immunity that forms the basis of the claim

“‘will be supported if the federal law is given one construction or effect and

defeated if it is given another.’” Id. (quoting Mobil Oil Corp. v. Coastal

Petroleum Co., 671 F.2d 419, 422 (11th Cir. 1982)). However, “‘[t]he mere

presence of a federal issue in a state cause of action does not automatically

confer federal-question jurisdiction.’” Id. (quoting Merrell Dow Pharms., Inc. v.

Thompson, 478 U.S. 804, 813 (1986)). Rather, to confer federal jurisdiction,

“the state-law claim must ‘really and substantially involve[ ] a dispute or

controversy respecting the validity, construction or effect of [federal] law.’” Id.

(quoting Mobile Oil Corp., 671 F.2d at 422); Grable & Sons Metal Products,

Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005).

As a separate matter, the Supreme Court has long recognized the

“complete preemption doctrine” as an “independent corollary to the well-

pleaded complaint rule.” Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987)

(citing Franchise Tax Bd., 463 U.S. at 22). In describing complete preemption,

the Supreme Court has explained that “on occasion … the preemptive force of

a statute is so ‘extraordinary’ that it ‘converts an ordinary state common-law

complaint into one stating a federal claim for purposes of the well-pleaded

complaint rule.’” Id.; see also Franchise Tax Bd., 463 U.S. at 24 (explaining

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”).

The Supreme Court has recognized complete preemption hesitatingly,

see Blab T.V. of Mobile, Inc. v. Comcast Cable Commc’ns, Inc., 182 F.3d 851,

856 (11th Cir. 1999), and only in rare circumstances, see Ammedie v. Sallie

Mae Inc., 485 F. App’x 399, 401 (11th Cir. 2012) (citing Community State Bank

v. Strong, 651 F.3d 1241, 1261, n. 16 (11th Cir. 2011)).4 In doing so, the Court

has emphasized that the “touchstone” of the determination of whether

complete preemption supplies federal subject matter jurisdiction by converting

a state law claim to one arising under federal law “is congressional intent.”

Blab T.V., 182 F.3d 851, 857 (quoting Metropolitan Life Ins. Co. v. Taylor, 481

U.S. 58, 66 (1987)). To conclude that a state law claim is completely preempted,

the court must find that Congress intended to not only provide a federal

preemption defense, but also “intended to grant a defendant the ability to

remove the adjudication of the cause of action to a federal court by

transforming the state cause of action into a federal [one].” Id. (alteration in

original) (citing Arthur R. Miller, Artful Pleading: A Doctrine in Search of

Definition, 76 TEX. L. REV. 1781, 1794 (1998)).

III. DISCUSSION

Nettleton argues that this Court has subject matter jurisdiction over

Plaintiffs’ claims because, in his view, they arise under federal law. First, he

contends that jurisdiction exists because Congress has “exclusive legislative

jurisdiction”5 over NSGB, and federal law is exclusive on the Base. See Notice

4 The Court notes that “[a]lthough an unpublished opinion is not binding . . . , it is

persuasive authority.” United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000) (per

curiam); see generally FED. R. APP. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not

considered binding precedent, but they may be cited as persuasive authority.”).

5 The term “legislative jurisdiction” refers to the government’s power and authority

to enact, execute, and enforce legislation. Defs. of Wildlife v. Everson, 984 F.3d 918, 924 (10th

of Removal at 3–9; Response to Remand at 1–8. Next, Nettleton contends that

his entitlement to statutory immunity presents a substantial, disputed federal

issue that is necessary to Plaintiffs’ state law claims. See Notice of Removal at

8–10; Response to Remand at 8–10.

A. The Exclusivity of Federal Law

According to Nettleton, Congress has the exclusive power to regulate

NSGB pursuant to the Property Clause of the United States Constitution, Art.

IV, § 3, cl. 2. See Response to Remand at 5–6.6 He contends that Congress

invoked its power under the Property Clause when it granted the President

authority to enter into the Lease Agreement with Cuba for the property which

NSGB occupies. Id.7 The Lease Agreement grants the United States “complete

6 Found in Article IV of the United States Constitution, the Property Clause provides:

The Congress shall have Power to dispose of and make all needful Rules and

Regulations respecting the Territory or other Property belonging to the

United States; and nothing in this Constitution shall be so construed as to

Prejudice any Claims of the United States, or of any particular State.

U.S. Const. Art. IV, § 3, cl. 2.

7 Congress authorized President Theodore Roosevelt to enter into the Lease

Agreement with Cuba in an amendment within the Army Appropriations Act of 1902. 31 Stat

jurisdiction and control” over the Base.8 Nettleton argues that this language

gives Congress “exclusive legislative jurisdiction” over NSGB and renders

federal law exclusive. See Notice of Removal at 6–7; Response to Remand at 4–

5.

Nettleton further contends that Congress’s exclusive legislative

jurisdiction creates a federal question. See Notice of Removal at 4–7. He largely

bases his argument on case law arising under the “Enclave Clause” of the

Constitution. See Notice of Removal at 3–9.9 Those cases stand for the

proposition that federal question jurisdiction exists over state law claims that

arise on federal enclaves if Congress exercises exclusive legislative jurisdiction

8 Article III of the agreement with Cuba sets forth the sovereign power of each

country. It provides:

While on the one hand the United States recognizes the continuance of the

ultimate sovereignty of the Republic of Cuba over the above described areas of

land and water, on the other hand the Republic of Cuba consents that during

the period of the occupation by the United States of said areas under the terms

of this agreement the United States shall exercise complete jurisdiction and

control over and within said areas. . . .

See Agreement Between the United States and Cuba for the Lease of Lands for Coaling and

Naval Stations, Feb. 16–23, 1903, U.S.-Cuba, T.S. 418 (the “Lease Agreement”). Pursuant to

a 1934 Treaty the United States and Cuba agreed the lease would “remain in effect ‘[s]o long

as the United States of America shall not abandon the . . . naval station of Guantanamo.’”

Rasul v. Bush, 542 U.S. 466, 471 (2004) (alterations in original) (citing Treaty Defining

Relations With Cuba, May 29, 1934, U.S. – Cuba, Art. III, 48 Stat. 1683, T.S. No. 866).

9 The Enclave Clause provides:

[The Congress shall have the Power] To exercise exclusive Legislation in all

Cases whatsoever, over such District (not exceeding ten Miles square) as may,

by Cession of particular States, and the Acceptance of Congress, become the

Seat of the Government of the United States, and to exercise like Authority

over all Places purchased by the Consent of the Legislature of the State in

which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-

Yards and other needful Buildings; . . .

pursuant to the terms of the Enclave Clause. See, e.g., Mater v. Holley, 200

F.2d 123, 124 (5th Cir. 1952).10 Notably, Nettleton readily acknowledges that

NSGB is not a federal enclave. See Response to Remand at 4. Nevertheless, he

maintains that Congress possesses the same exclusive legislative jurisdiction

over NSGB pursuant to the Property Clause as it possesses over federal

enclaves pursuant to the Enclave Clause. See Notice of Removal at 7. On that

basis, he argues, like state law claims that arise on federal enclaves, Plaintiffs’

state law claims in this action raise a federal question. See Response to

Remand at 4–5.

What Nettleton’s argument fails to appreciate is that the Enclave Clause

is fundamentally different from the Property Clause. The Enclave Clause

empowers Congress to regulate federal property within the United States that

it obtains from a consenting state. U.S. Const. Art. I, § 8, cl. 17. Congress’s

legislative jurisdiction over federal enclaves can range from exclusive, to

concurrent, to partial. Kleppe v. New Mexico, 426 U.S. 529, 542 (1976)

(citations omitted). Pursuant to the terms of the Enclave Clause, Congress

obtains “exclusive” legislative jurisdiction over state land when the state cedes

all legislative authority over a territory to the federal government. See Mater,

200 F.2d at 123; see also, Stephen E. Castlen & Gregory O. Block, Exclusive

10 Fifth Circuit decisions handed down prior to October 1, 1981, are binding precedent

Federal Legislative Jurisdiction: Get Rid of it, 154 MIL. L. REV. 113, 116 (1997).

Once Congress accepts that exclusive legislative jurisdiction from a state, state

sovereignty ceases to exist, all state laws are converted into federal laws, and

the applicable law is that of the federal government. Mater, 200 F.2d at 123;

Paul v. United States, 371 U.S. 245, 263-264 (1963). For that reason, state law

causes of action that existed at the time of consent or cession arise under

federal law and create federal question jurisdiction. See, e.g., Mater, 200 F.2d

at 123–25; Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1250 (9th Cir.

2006) (citing Mater, 200 F.2d at 125); Stiefel v. Bechtel Corp., 497 F. Supp. 2d

1153, 1156 (S.D. Cal. 2007) (citing Durham, 445 F.3d at 1250); Stokes v. Adair,

265 F.2d 662, 665–66 (4th Cir. 1959). Thus, without any additional action by

Congress, the Enclave Clause itself operates to convert state law to federal law

and create federal question jurisdiction. Paul, 371 U.S. at 263 (“The cases make

clear that the grant of ‘exclusive’ legislative power to Congress over enclaves

that meet the requirements of Art. I, s 8, cl.17, by its own weight, bars state

regulation without specific congressional action.”).

The Property Clause, in contrast, only gives Congress the power to

regulate federal land. Kleppe, 426 U.S. at 540 (citation omitted). Unlike the

Enclave Clause, the Property Clause, on its own, does not convert state law to

federal law nor does it displace state law. Cal. Coastal Comm’n v. Granite Rock

Co., 480 U.S. 572, 580 (1987) (“The Property Clause itself does not

automatically conflict with all state regulation of federal land.”). As one court

explained, the Property Clause “does not place the exclusive control of the

federal public domain in the United States Government.” Texas Oil & Gas

Corp. v. Phillips Petroleum Co., 277 F. Supp. 366, 368–69 (W.D. Okla. 1967)

(citations omitted). Instead, Congress must activate its broad Property Clause

powers by taking affirmative action. Id. When Congress so acts, state law

continues to apply unless it conflicts with federal law, in which case the

Supremacy Clause causes federal law to preempt the state law. Kleppe, 426

U.S. at 543 (citing U.S. Const. Art. VI, cl. 2); Cal. Coastal Comm’n, 480 U.S. at

580-81 (“[W]hen Congress so acts, the federal legislation necessarily overrides

conflicting state laws under the Supremacy Clause.”) (emphasis in original)

(citation omitted).11 Absent a conflict, however, there is no preemption, and

state law continues to apply.

With respect to subject matter jurisdiction, the fundamental difference

between the Enclave Clause and the Property Clause is significant. While the

Enclave Clause itself converts state law into federal law, thereby creating a

federal question and, as a consequence, subject matter jurisdiction, the

11 The Supremacy Clause states:

This Constitution, and the Laws of the United States which shall be made

in Pursuance thereof; and all Treaties made, or which shall be made, under

the Authority of the United States, shall be the supreme Law of the Land;

and the Judges in every State shall be bound thereby, any Thing in the

Constitution or Laws of any State to the Contrary notwithstanding.

Property Clause simply empowers Congress to enact legislation or authorize

regulation governing federal land. It is the Supremacy Clause that causes any

law or regulation arising from Congress’s authority under the Property Clause

to displace conflicting state law; and it does so through a theory of preemption.

However, neither the Property Clause nor the Supremacy Clause convert state

law into federal law. Cal. Coastal Comm’n, 480 U.S. at 580 (“‘[T]he State is free

to enforce its criminal and civil laws’ on federal land so long as those laws do

not conflict with federal law.”) (quoting Kleppe, 426 U.S. at 543). Nor do they

create “exclusive legislative jurisdiction.” Kleppe, 426 U.S. at 542–43 (stating

that Congress’s exclusive legislative jurisdiction pursuant to the Enclave

Clause “has nothing to do with Congress’ powers under the Property Clause”).

Instead, the Property Clause and Supremacy Clause only allow Congress to

displace conflicting state law through preemption.

With this understanding of Congress’s power under the Property Clause,

the Court turns to Nettleton’s argument in support of subject matter

jurisdiction over this action. Nettleton contends that Congress—pursuant to

the Property Clause—made federal law exclusive on NSGB when it authorized

the Lease Agreement. But even if Congress did act pursuant to its authority

under the Property Clause to make federal law exclusive on NSGB, that would

not convert Plaintiffs’ state law claims into federal claims creating a federal

question for purposes of subject matter jurisdiction. Instead, this argument, if

correct, presents a federal preemption defense. In other words, to resolve the

merits of Plaintiffs’ claims, a court authorized to hear the case will have to

determine whether the terms of the Lease Agreement show Congress’s intent

to preempt all state laws on the Base leaving Plaintiffs’ only with whatever

remedies are available under federal law.12 But before this Court can reach

that question, it must determine whether this federal preemption defense that

Nettleton raises creates subject matter jurisdiction. The answer to this

threshold question is no.13

12 The Court does not suggest that this is the only issue. Nettleton must also show

that the Property Clause extends to NSGB, Congress affirmatively acted under the Property

Clause when it authorized the Lease Agreement, and that Congress has activated its power

under the Property Clause to displace state law on NSGB through preemption.

13 Nettleton devotes the majority of his briefing to the merits of his preemption

defense; that is, whether the Lease Agreement makes federal law exclusive on NSGB. And

while the Court does not reach the merits, the Court will touch upon two of his arguments.

First, Nettleton repeatedly cites language from the Lease Agreement as providing the United

States “exclusive jurisdiction.” See generally Notice of Removal; Response to Remand.

However, the true language of the Lease Agreement provides the United States “complete

jurisdiction and control.” The distinction is not without a difference. Indeed, the dictionary

defines the word “exclusive,” when used in the context of jurisdiction, to mean “single, sole.”

Webster’s Ninth New Collegiate Dictionary, 433 (def. 4(a)) (9th ed. 1983). By contrast, the

dictionary defines “complete” as “having all necessary parts, elements, or steps” and “total,

absolute.” Id. at 269. Unlike the word “exclusive,” the word “complete” is not inherently

preclusive. For that reason, it is well established that Congress’s “complete power” over

federal land pursuant to the Property Clause “does not place the exclusive control of the

federal public domain in the United States Government.” Texas Oil, 277 F. Supp. at 368;

It is well settled that an ordinary federal preemption defense does not

create federal question jurisdiction. Beneficial Nat’l. Bank v. Anderson, 539

U.S. 1, 6 (2003) (citing Franchise Tax Bd., 463 U.S. at 13–14) (stating that the

court must ignore the defense of federal preemption under the well-pleaded

complaint rule). This is true even when the validity of the defense is the only

contested issue. Franchise Tax Bd., 463 U.S. at 14. It is equally evident that

an ordinary preemption defense based on the Property Clause does not raise a

“necessary” federal issue in the well-pleaded complaint. See Las Vegas Dev.

Grp., LLC v. Heuke, No. 2:15-CV-00922-RCJ, 2015 WL 4523510, at *1 (D. Nev.

July 27, 2015) (holding that anticipated defenses under the Property Clause

and Supremacy Clause were not necessary elements of the state law claim);

City of N. Las Vegas v. Clark Cty., No. 2:11-CV-00944-PMP-PAL, 2011 U.S.

Second Nettleton argues that the Supreme Court in Rasul v. Bush, 542 U.S. 466, 467

(2004) found that the “United States exercises exclusive jurisdiction and control, over” NSGB.

Notice of Removal at 4 (citing Rasul, 542 U.S. at 476). Not so. The Court in Rasul said nothing

about legislative jurisdiction. It considered only whether federal courts have jurisdiction to

hear federal habeas corpus petitions brought by persons detained on NSGB. Rasul, 542 U.S.

at 470. In holding that the federal habeas statute applies to NSGB detainees, the Court

refused to apply the general principle that congressional legislation is presumed not to have

extraterritorial application. Id. at 480. The Court reasoned that the NSGB detainees were

within the “‘territorial jurisdiction’ of the United States” because, by the terms of the Lease

Agreement, the United States “exercises complete jurisdiction and control over” NSGB.

Rasul, 542 U.S. at 480. In short, Rasul established that NSGB is within the territorial

jurisdiction of the United States for the purpose of habeas petitions because of the United

States’ “complete jurisdiction.” The Court said nothing about “legislative jurisdiction,”

exclusive or otherwise, and it certainly did not consider whether civil actions that arise on

the Base are governed by state or federal law. Nor did it suggest that the federal government’s

jurisdiction over NSGB pursuant to the Lease Agreement was co-extensive with the

Dist. LEXIS 88590, at *1 (D. Nev. Aug. 9, 2011) (holding that a preemption

defense based on the Property Clause could not support federal question

jurisdiction). Despite this authority, in his Response to Remand, Nettleton

argues that “[F]ederal substantive law applies exclusively to the conduct that

forms the basis for Plaintiffs’ Complaint. That is to say that federal substantive

law applies exclusively to all of Plaintiffs’ claims.” See Response to Remand at

6. He further suggests that Congress has completely preempted all state law

causes of action on NSGB by making federal law exclusive and thereby

creating federal question jurisdiction over this action. Id. at 8 (stating that

Congress left Plaintiffs solely with federal substantive remedies). In making

this argument, Nettleton appears to conflate ordinary preemption with

complete preemption.

Complete preemption is distinct from ordinary preemption. While

ordinary preemption occurs when federal law displaces state law pursuant to

the Supremacy Clause, Geddes v. Am. Airlines, Inc., 321 F.3d 1349, 1352 n.3

(11th Cir. 2003), complete preemption occurs when Congress so completely

preempts a particular area that the state law claims are necessarily federal in

character and necessarily arise under federal law. Metropolitan Life, 481 U.S.

at 63–64. For complete preemption, the preemptive force of the federal law

must be so extraordinary that it entirely displaces the state cause of action,

converting it into a federal one that gives the defendant a right to remove the

case to federal court. Geddes, 321 F.3d at 1353 (citations omitted). When state

law is completely preempted, federal question jurisdiction exists. Geddes, 321

F.3d at 1352 (citing Caterpillar v. Williams, 482 U.S. 386, 393 (1987)).

Complete preemption, however, is a rare, extraordinary occurrence. So

rare, in fact, that the Supreme Court has found the doctrine applicable to just

three statutes.14 Dunlap, 381 F.3d at 1291; Turner v. Bristol at Tampa Rehab.

& Nursing Ctr., LLC, No. 8:21-cv-0719-KKM-CPT, 2021 WL 4261430, at *2

(M.D. Fla. Sept. 20, 2021).15 Indeed, the Eleventh Circuit has noted that the

Supreme Court recognizes complete preemption “hesitatingly, and it [has]

display[ed] no enthusiasm to extend the doctrine to” new areas. Blab T.V., 182

F.3d at 856. Therefore, complete preemption is strictly limited to those

“statutes with ‘extraordinary’ preemptive force.” Geddes, 321 F.3d at 1353

(quoting Caterpillar, 482 U.S. at 393; Metropolitan Life, 481 U.S. at 65).

The critical consideration of the complete preemption analysis is

congressional intent. Blab T.V., 182 F.3d at 857. The question is whether

Congress not only intended to preempt the state claim by providing a federal

14 The Court found complete preemption in the Labor Management Relations Act,

(“LMRA”), 29 U.SC. § 185, the Employment Retirement Income Security Act (“ERISA”), 29

U.S.C. § 1132(a), and the National Bank Act, 12 U.S.C. §§ 85, 86. Dunlap, 381 F.3d at 1291.

15 The Court notes that although decisions of other district courts are not binding,

they may be cited as persuasive authority. See Stone v. First Union Corp., 371 F.3d 1305,

1310 (11th Cir. 2004) (noting that, “[a]lthough a district court would not be bound to follow

any other district court’s determination, the decision would have significant persuasive

defense, but also to make the action removable by converting the state claim

into a federal cause of action.16 Id. The inquiry into congressional intent begins

with the text, and the court may also look to legislative history. Geddes, 321

F.3d at 1353. Based on the text and history, the court must determine whether

complete preemption is manifest in the clearly expressed intent of Congress.

Id. (citing Metropolitan Life, 481 U.S. at 66). Here, the Court finds that the

Lease Agreement does not evince a Congressional intent to completely preempt

Plaintiffs’ state law claims.

As an initial matter, the Court observes that Congress’s failure to create

a federal cause of action that covers the preempted state claim is likely a

dispositive indication that Congress did not intend to completely preempt the

state law claims. See Franchise Tax Bd., 463 U.S. at 26; Metropolitan Life, 481

U.S. at 66. Indeed, in Franchise Tax Bd., the Supreme Court held that an

ERISA provision did not completely preempt a state law claim because the

provision contained no alternative cause of action in favor of the plaintiff

taxing authority. 463 U.S. at 26. The Court explained that complete

preemption cannot occur unless the state claim falls within the scope of the

16 The Supreme Court has also found such intent when Congress expressly preempts

state law and provides for removal. See El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 484

(1999) (finding that, through the “unusual preemption provision” of the Price-Anderson Act,

Congress “expressed unmistakable preference” to permit removal). Because the NSGB Lease

Agreement lacks such an express provision, and because El Paso Nat. Gas Co. turned on the

special historical relationship between Indian tribes and the Federal Government, the Court

federal cause of action. Id. at 24. Thus, while the ERISA provision may have

preempted state law, the state claim itself was not converted into a federal

cause of action for purposes of removal. Id. at 26. Rather the ERISA provision

raised a potential ordinary preemption defense which did not provide a basis

for the federal court to exercise subject matter jurisdiction over the action. Id.

at 26-28 (finding no federal question jurisdiction despite an ERISA defense,

vacating the judgment, and remanding the case to the California court in which

it was filed).

Five years after Franchise Tax Bd., in Metropolitan Life, the Supreme

Court examined whether a different ERISA provision completely preempted a

state law disability benefits claim. See Metropolitan Life, 481 U.S. at 60. The

relevant question, according to the Court, was whether a state common law

claim asserting the improper processing of a claim for benefits under an ERISA

plan “are not only pre-empted by ERISA, but also displaced by ERISA’s civil

enforcement provision, § 502(a)(1)(B).” Id. The displacement finding was

necessary because the Court in Franchise Tax Bd. instructed that preemption,

without more, does not convert a state claim into an action arising under

federal law. Id. at 63–66. Unlike the provision in Franchise Tax Bd., § 502’s

civil enforcement provision provided a federal cause of action. Id. As a result,

the Court held that ERISA completely preempted the state law disability

benefits claim presented in the complaint. Id. at 64-67. For that reason, the

state law claim was “necessarily federal in character” such that removal to

federal court based on the presence of a federal question was proper. Id. at 67.

The main distinction between Franchise Tax Bd. and Metropolitan Life

is that the plaintiff in Metropolitan Life alleged a state law claim that was both

preempted by ERISA’s preemption provision and replaced by ERISA’s civil

enforcement provision. As noted by the First Circuit Court of Appeals in

Fayard v. Ne. Vehicle Servs., LLC, 533 F.3d 42 (1st Cir. 2008), these two

elements—an exclusive federal regulation coupled with a federal cause of

action—are common denominators of Supreme Court cases finding complete

preemption by federal statute. Id. at 46 (citations omitted).17 Indeed, a

majority of circuit courts have concluded that complete preemption requires a

replacement federal cause of action. Fayard, 533 F.3d at 46; Briarpatch Ltd.,

L.P v. Phoenix Pictures, Inc., 373 F.3d 296, 305 (2d Cir. 2004); Goepel v. Nat’l

Postal Mail Handlers Union, 36 F.3d 306, 313 (3d Cir. 1994); Strong v.

Telectronics Pacing Sys., Inc., 78 F.3d 256, 260–61 (6th Cir. 1996) (citing

Warner v. Ford Motor Co., 46 F.3d 531, 534 (6th Cir.1995)); Utley v. Varian

17 “For complete preemption to operate, the federal claim need not be co-extensive

with the ousted state claim. On the contrary, the superseding federal scheme may be more

limited or different in its scope and still completely preempt.” Id. (citing Caterpillar, Inc. v.

Williams, 482 U.S. 386, 391 n. 4, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). It may be that the

remedy supplied by the state cause of action is not available under the federal law. That does

not mean there is no preemption, it simply means the state law claim “disappears.” Id. (citing

Assocs., Inc., 811 F.2d 1279, 1284–85 (9th Cir. 1987); Schmeling v. NORDAM,

97 F.3d 1336, 1343 (10th Cir. 1996).18

Here, the Lease Agreement provides no federal cause of action of any

kind. And, Nettleton has not argued that any federal statute replaces or

otherwise covers the state law claims raised by Plaintiffs converting them into

federal claims.19 Although Nettleton argues that the Lease Agreement renders

federal law exclusive on the Base, as noted previously, this argument is, at

best, one of ordinary preemption pursuant to the Supremacy Clause, not

complete preemption, and provides no basis for removal to federal court.

Geddes, 321 F.3d at 1352 (citing Caterpillar, 482 U.S. at 393); Donkor v. Brit.

Airways Corp., 62 F. Supp. 2d 963, 971 (E.D.N.Y. 1999) (stating that

preemption, by itself, cannot provide grounds for removal to federal court).

18 A minority of circuit courts deem a replacement federal cause of action probative of

Congress’s intent, but not necessary. See, e.g., Rosciszewski v. Arete Assocs. Inc., 1 F.3d 225,

231–33 (4th Cir. 1993). The Eleventh Circuit has not addressed the issue directly. However,

good reason exists to believe that the Eleventh Circuit would find a replacement federal cause

of action necessary. The minority of circuit courts who do not require a replacement cause of

action do so in reliance on broad language in Caterpillar—a case decided after Franchise Tax

Bd. and Metropolitan Life. See Tristin K. Green, Complete Preemption—Removing the

Mystery from Removal, 86 CALIF. L. REV. 363, 382–83 (1998). Those courts suggest that

Caterpillar changed the scope of the complete preemption doctrine as announced in Franchise

Tax Bd. and Metropolitan Life. Id. The Eleventh Circuit, however, has stated that Caterpillar

“left undisturbed the scope of the complete preemption doctrine.” Blab T.V., 182 F.3d at 856.

Thus, the Eleventh Circuit has suggested that the scope of complete preemption is

determined by Franchise Tax Bd. and Metropolitan Life, and those cases appear to require

the existence of a federal cause of action. But, as in Blab T.V., the Court need not resolve that

conflict to decide the jurisdictional question presented in this case.

19 Indeed, quite to the contrary, Nettleton contends that under federal law Plaintiffs

In addition to the absence of a federal cause of action, the Lease

Agreement also lacks any other clear manifestation of Congressional intent to

convert all state claims into federal causes of action. Nothing in the text of the

Lease Agreement purports to deal with any specific area of federal law, nor

does it contain any reference to state law. Instead, it deals solely with the

shared powers of Cuba and the United States.20 Notably, the Lease Agreement

contains no language empowering the federal courts to hear disputes governed

by or arising under the Lease Agreement or on NSGB. See Blab T.V., 182 F.3d

at 855. The Metropolitan Life court relied heavily on the presence of such

language in finding that Congress intended ERISA’s § 502 civil enforcement

provision to have the extraordinary preemptive power to convert a state law

complaint to one raising a federal claim. Metropolitan Life, 481 U.S. at 65; see

also Blab T.V., 182 F.3d at 855 (noting that in finding complete preemption by

ERISA § 502, the Metropolitan Life court noted that the language in § 502 that

grants jurisdiction to federal courts was virtually identical to the language in

§ 301 of the LMRA).

Looking to the Lease Agreement’s legislative history, the Court has not

uncovered—nor been presented with—a single reference to state law, state

20 See Lease Agreement, Art. I (detailing the geographic limits of the leased

territories); Art. II (allocating to the United States the right to use and occupy water adjacent

to the territories); Art. III (allocating sovereign powers of the United States and Cuba over

Guantanamo Bay).

causes of action, potential federal causes of action or the ability to bring suit in

federal court. See Blab T.V., 182 F.3d at 857 (finding no intent for complete

preemption—despite jurisdictional language suggesting complete

preemption—because the legislative history lacked any statement that

complete preemption was intended).

Because the Lease Agreement lacks an express cause of action, and

because the text and history provide no other evidence of Congress’s intent to

completely preempt state law, the Court cannot find the doctrine of complete

preemption to apply here. See Beneficial Nat’l. Bank v. Anderson, 539 U.S. 1,

7 (2003) (stating that the Supreme Court upheld complete preemption for two

reasons—the express federal cause of action in the statute and the

unambiguous indication of intent in the legislative history) (citing

Metropolitan Life, 481 U.S. at 65). As such, the state law claims presented by

Plaintiffs remain state law claims which provide no basis for an exercise of

jurisdiction under 28 U.S.C. § 1331’s grant of subject matter jurisdiction over

claims arising under federal law.

The Court cautions that this Order does not pass on whether the Lease

Agreement precludes the application of state tort law on NSGB. See Geddes,

321 F.3d at 1353 (explaining that a federal law may substantively displace

state law under ordinary preemption but lack the extraordinary force to create

federal removal jurisdiction under the doctrine of complete preemption). That

question goes to the merits of Nettleton’s ordinary preemption defense, which

the Court lacks power to consider. See Caterpillar, 482 U.S. at 398 n.13

(leaving the merits of ordinary preemption arguments to be addressed by the

state court). The Court simply holds that Nettleton has failed to carry his

burden of proving that by virtue of the NSGB Lease Agreement federal law

completely preempts state law converting claims arising on NSGB into federal

claims over which the Court would have federal question subject matter

jurisdiction.

B. Anticipated Immunity Defense

The Federal Torts Claims Act (“FTCA”) confers absolute immunity to

federal employees who commit a tort while acting within the scope of their

employment.21 See 28 U.S.C. § 2679(b)(1). In his Response to Remand,

Nettleton states that much of his conduct “appears to have been committed

within the course and scope of [his] employment.” See Response to Remand at

8. Nettleton contends that this anticipated immunity defense is a substantial,

21 The scope determination phase proceeds along one of two paths: government

certification or court petition. First, the Attorney General may certify that the employee was

acting within the scope of his office. See 28 U.S.C. § 2679(d); see also 28 C.F.R. § 15.4. Absent

certification, the defendant may petition the court anytime before trial to certify that he was

acting within the scope of employment. 28 U.S.C. § 2679(d)(3). Once the petition is made, the

United States may remove the case to federal court, and once certification is filed, the federal

court has exclusive jurisdiction, § 2679(d)(2). Here, the Attorney General has not certified

that Nettleton was acting within the scope of his employment, and Nettleton has not

petitioned the Court for certification. Therefore, the exclusive jurisdiction conferred by the

FTCA is not relevant at this juncture. See Sanchez v. Beacon Info. Tech. & Staffing & Serv.,

disputed federal issue that is a necessary element of Plaintiffs’ state law claim.

Id. at 8–9; Grable & Sons Metal Products, Inc. v. Darue Eng’g & Mfg., 545 U.S.

308, 314 (2005). The Court disagrees.

As previously discussed, an anticipated federal defense does not create a

federal question. Kemp v. Int’l Bus. Mach. Corp., 109 F.3d 708, 712 (11th Cir.

1997) (stating that federal defenses do not fall within the well-pleaded

complaint). Therefore, similar to Nettleton’s ordinary preemption defense, it is

well-settled that a federal immunity defense does not raise a federal question

or support an exercise of federal question jurisdiction by this Court. Okla. Tax

Comm’n v. Graham, 489 U.S. 838, 841–42 (1989). Here, Nettleton’s claim of

immunity under the FTCA is an affirmative defense; it is not a necessary

element of Plaintiffs’ claims, nor does it appear on the face of the well-pleaded

Complaint. As a result, it does not create a federal question. Mitchell v. Bailey,

982 F.3d 937, 940-41 (11th Cir. 2020) (noting that the prospect of certification

that an employee was acting within the scope of his employment does not

supply federal subject matter jurisdiction); Sanchez v. Beacon Info. Tech. &

Staffing & Serv., LLC, No. EP-08-CV-332-KC, 2009 WL 4877705, at *3 (W.D.

Tex. Dec. 10, 2009) (holding that the anticipated defense of federal immunity

under the FTCA does not create federal question jurisdiction).22

22 In his Motion to Dismiss, Nettleton attempts to invoke field preemption based upon

IV. CONCLUSION

For the foregoing reasons, the Court concludes that Plaintiffs have

alleged only state law claims that present no basis for the exercise of subject

matter jurisdiction over this action. As such, the Motion for Remand is due to

be granted, and this case will be remanded to the Circuit Court, Fourth

Judicial Circuit, in and for Duval County, Florida.

Accordingly, it is

ORDERED:

1. Plaintiffs’ Motion for Remand to State Court (Doc. 23) is

GRANTED.

2. The case is hereby REMANDED to the Circuit Court of the Fourth

Judicial Circuit in and for Duval County, Florida.

See Captain Nettleton’s Motion to Dismiss and Incorporated Memorandum of Law (Doc. 21).

His attempt to rely on any regulation arising from the FTCA and the Defense Base Act is

unavailing as neither applies here based on the pleading. Plaintiffs have sued Nettleton, not

the United States, and the requisite certification of Nettleton acting within the scope of his

employment is lacking. His invocation of conflict preemption also fails. Like his assertions of

ordinary preemption and immunity, conflict preemption raises a potential defense but does

not create a federal question supporting removal. See Conn. State Dental Association v.

Anthem Health Plans, Inc., 591 F.3d 1337, 1344 (11th Cir. 2009) (noting that conflict

3. The Clerk is DIRECTED to mail a certified copy of this Order to

the Circuit Court of the Fourth Judicial Circuit in and for Duval

County, Florida, terminate any pending motions, and CLOSE the

case.

DONE and ORDERED in Jacksonville, Florida this 26th day of April,

2022.

MARCIA MORALES HOWARD

United States District Judge

Copies to:

Counsel of Record

Clerk, Fourth Judicial Circuit