The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0447p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellant, -
SHARON PALKOW,
-
-
-
No. 04-4060
v.
,
>
CSX TRANSPORTATION, INC., HARRY CRAWFORD -
-
Defendants-Appellees. -
and DIANE TAVARES,
-
N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 04-00844—Lesley Brooks Wells, District Judge.
Submitted: July 29, 2005
Decided and Filed: November 18, 2005
Before: ROGERS and SUTTON, Circuit Judges; ROSEN, District Judge.*
_________________
COUNSEL
ON BRIEF: Merrie M. Frost, Mentor, Ohio, for Appellant. John Lewis, Todd H. Lebowitz, Kelly
M. King, BAKER & HOSTETLER, Cleveland, Ohio, for Appellees.
_________________
OPINION
_________________
ROSEN, District Judge. Plaintiff Sharon Palkow appeals an Opinion and Order of the
District Court of the Northern District of Ohio denying her motion to remand and granting the
Defendants’ Fed. R. Civ. P. 12(b)(6) motion to dismiss her complaint for failure to state a claim
upon which relief can be granted. For the reasons that follow, we conclude that this action was
improperly removed from the state court as federal subject matter jurisdiction is lacking.
Accordingly, we REVERSE the District Court’s denial of Plaintiff’s motion to remand and direct
that the Order and Judgment of dismissal be vacated and the case remanded to state court.
*
The Honorable Gerald E. Rosen, United States District Judge for the Eastern District of Michigan, sitting by
designation.
1
No. 04-4060 Palkow v. CSX Transp., et al. Page 2
I. INTRODUCTION
The instant action arises out of an earlier federal lawsuit filed by Plaintiff Sharon Palkow1
against her former employer, CSX Transportation, Inc. (“CSXT”) in which Ms. Palkow claimed that
she was terminated from her probationary employment as a railroad conductor trainee at CSXT
because of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et
seq. That case (“Palkow I”) was tried before a federal jury in December 2003. The jury found in
favor of Defendant CSXT and the District Court entered a judgment accordingly. Palkow did not
appeal or otherwise seek to set aside the jury verdict.
Instead, on March 30, 2004, Palkow filed a second complaint, this time in the Court of
Common Pleas for Cuyahoga County, Ohio, claiming that her former co-worker, Diane Tavares,
committed perjury when she testified on behalf of CSXT in Palkow I, and that Harry Crawford,
CSXT’s District Superintendent, directed Tavares to lie on behalf of CSXT. See Complaint, Court
of Common Pleas No. CV0452653 (“Palkow II”). Palkow claimed that Tavares’s perjured
testimony affected the outcome of the jury verdict in Palkow I and directly injured her. Id. ¶¶ 4, 19.
As relief, Palkow requested compensatory damages in excess of $25,000. Id.
CSXT removed the case to the federal district court that had held the jury trial in Palkow I
alleging federal question jurisdiction as the basis for removal. Specifically, the Defendants claimed
in their Notice of Removal that
“Plaintiff Palkow’s state court action in reality constitutes an attack on the federal
jury verdict and resulting judgment as well as the taxation of costs, pursuant to Rule
60 of the Federal Rules of Civil Procedure, and thus Palkow’s claims involve a
general federal question subject to removal to this Court.”
Notice of Removal ¶ 5.
Palkow moved to remand the action to state court and, in response to the motion to remand,
the Defendants moved to dismiss Palkow’s complaint. The District Court denied Palkow’s motion
to remand and granted the Defendants’ motion to dismiss on the merits. This appeal arises out of
the district court’s rulings on these two motions.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Palkow I
On April 19, 1999, Sharon Palkow began a three-week training program at the Academy of
Industrial Training designing to provide hands-on training for individuals seeking employment as
train conductors. After successfully completing the training program, Palkow was hired by
Consolidated Rail Corporation (“Conrail”) to work at its Collingwood rail yard in Cleveland, Ohio,
as a probationary employee during a 60-day period. On June 1, 1999, while Palkow was still
working as a probationary employee, Conrail was acquired by CSXT. On June 25, 1999, Harry
Crawford, District Superintendent of CSXT, terminated Palkow as a CSXT employee.2 Palkow
1
The correct spelling of Plaintiff’s name is unclear. Although in Plaintiff’s complaint and all of the other
district court pleadings Plaintiff’s name is spelled “P-A-L-K-O-W,” in the District Court’s Opinion and Order and in
Plaintiff’s appeal brief, her name is spelled “P-O-L-K-O-W.” Because this case was docketed both in the district court
and in this Court with the PALKOW spelling, this is the spelling we will use in this Opinion.
2
Crawford determined that Palkow was not capable of performing the conductor’s job, noting specifically that
she had demonstrated an “inability to hold onto [a] car, release [a] hand brake, comprehend simple instructions and
remember [the] physical layout of yards.”
No. 04-4060 Palkow v. CSX Transp., et al. Page 3
disputed her termination asserting that she was capable of performing the tasks required by her job
because of her successful performance during the training program.
After her discharge, Palkow filed charges of age and sex discrimination with the Equal
Employment Opportunity Commission. She was subsequently granted a right to sue on December
14, 2001, and on January 11, 2002, Palkow filed a complaint in the District Court for the Northern
District of Ohio against CSXT alleging age and sex discrimination in violation of the ADEA and
Title VII, respectively, as well as claims of retaliation and intentional infliction of emotional
distress.
On October 1, 2003, the District Court granted, in part, and denied, in part, CSXT’s motion
for summary judgment, and dismissed Palkow’s claims of age discrimination, retaliation and
intentional infliction of emotional distress.
Palkow’s remaining claim of sex discrimination was tried to a jury in December 2003. On
December 8, 2003, the jury returned a verdict in favor of Defendant CSXT and against Plaintiff
Palkow and the District Court entered Judgment accordingly.
Following trial, on January 5, 2004, CSXT filed a motion to tax costs against Palkow.
Palkow filed an opposition brief asking the District Court to deny CSXT’s motion, or in the
alternative, to stay the motion while she decided whether to file a “motion to vacate the judgment
or a separate action for violation of due process.” (See Appellees’ Brief, Addendum 5.) On
February 9, 2004, the District Court granted CSXT’s motion to tax costs and denied Palkow’s
motion to stay.
Palkow did not move for a new trial or for judgment as a matter of law. Nor did she appeal
or otherwise move to vacate the Judgment or file a separate action for violation of due process as
she had indicated she was contemplating.
B. Palkow II
Instead, on March 30, 2004, Palkow filed an action in the Court of Common Pleas for
Cuyahoga County, Ohio against Defendants CSXT, CSXT District Superintendent Harry Crawford,
and Dianne Tavares, a CSXT employee who had been called by CSXT as a witness on the
company’s behalf to testify in Palkow’s sex discrimination trial. In her state court complaint,
Palkow alleged that, contrary to her testimony in federal court in Palkow I, Tavares, who had been
a fellow probationary employee of the Plaintiff, did have to dismount moving equipment during the
Philadelphia training course and that Tavares’s testimony in Palkow I that no such training occurred
was, therefore, perjurious.3
3
Plaintiff alleged in her state court complaint in Palkow II that:
6. [I]n support of her case [in Palkow I], she [Palkow] did testify that at the training school for
her job at the railroad, that she had to dismount from a moving railcar and that the school gave her
hands on instruction which proved that she was qualified for the position and that defendant’s
assertion that she was unable to “hold onto a railcar” was simply a pretext for discrimination.
7. Defendant Tavares did attend the exact same school as plaintiff, about three months prior
to plaintiff, in or about January, 1999.
8. Defendant Tavares did testify that while she attended the school, she was never requested
to dismount from a moving railcar and that the school was mainly classroom instruction.
9. Defendant Tavares’s testimony was false, in that Tavares did have to jump from a moving
railcar while at the school and she did attend numerous hands on instruction while at the school.
No. 04-4060 Palkow v. CSX Transp., et al. Page 4
On May 6, 2004, CSXT and Tavares removed the case to federal court4 alleging that
Palkow’s state court perjury action involved a federal question because the alleged perjury upon
which Palkow’s civil complaint for damages was based occurred in a prior federal court proceeding.
On May 7, 2004, Palkow filed a motion to remand the action to state court arguing that no
federal question was presented in her complaint and, therefore, the district court lacked subject
matter jurisdiction. Defendants did not directly respond to the motion to remand. Instead, they filed
a Fed. R. Civ. P. 12(b)(6) motion to dismiss Palkow’s complaint arguing that there was no
substantive legal merit to Palkow’s civil perjury action. Specifically, Defendants argued that (1)
Ohio law does not recognize a civil claim for perjury or conspiracy to commit perjury and (2) to the
extent that Plaintiff’s complaint could be read as a collateral attack on the prior federal judgment,
it should be construed as a motion for relief from judgment under Fed. R. Civ. P. 60 and Plaintiff
had not satisfied the requirements of such a motion.
On July 28, 2004, the District Court entered an Order denying Palkow’s Motion to Remand
and granting the Defendants’ Motion to Dismiss. With respect to Plaintiff’s Motion to Remand,
although the District Court noted that Ms. Palkow’s complaint, on its face, did not allege a federal
cause of action, it held that a substantial federal question -- i.e., the validity of the judgment in
Palkow I -- had been raised, and construing the complaint as an independent action for relief from
the judgment pursuant to Fed. R. Civ. P. 60(b), concluded that the case was properly removed to
federal court. In reaching that conclusion, the District Court relied upon the decisions in Black v.
Niagara Mohawk Power Corp., 641 F. Supp. 799 (N.D.N.Y. 1986), and Villareal v. Brown Express,
Inc., 529 F.2d 1219 (5th Cir. 1976), in which the courts found removal proper under Fed. R. Civ.
P. 60(b). The District Court reasoned:
. . . The courts, in both Black and Villareal identified Rule 60(b) of the Federal
Rules of Civil Procedure as providing the basis for the plaintiff’s collateral attack on
the federal judgment. While Rule 60(b) provides that parties may file a motion for
relief from judgment because of, among other reasons, fraud, misrepresentation, or
other misconduct by an adverse party, this rule “does not limit the power of a court
to entertain an independent action to relieve a party from a judgment.”
Like the plaintiffs in Black and Villareal, Ms. Polkow has nominally pled a
state cause of action which, in substance and effect, attacks the validity of this
Court’s judgment in Polkow I. Notwithstanding her protestations to the contrary and
her unsuccessful attempts to craft her complaint as solely a state law claim, Ms.
Polkow’s complaint is really an independent action seeking relief from this Court’s
judgment in Polkow I. Given the nature of her claim, this Court needs no
independent basis for the exercise of jurisdiction over her complaint because its
jurisdiction is firmly grounded in the underlying lawsuit. U.S. v. Beggerly, 524 U.S.
38, 45-6 (1998). Therefore, Ms. Polkow’s complaint was properly removed to this
Court and her motion to remand is denied.
7/28/04 Memorandum of Opinion and Order, p. 6.
Having determined that it had jurisdiction over the matter, the District Court then dismissed
Palkow’s complaint finding:
Complaint ¶¶ 6-9.
4
Harry Crawford had not been served with process at the time of CSXT and Tavares’s removal but nonetheless
concurred and joined in the removal.
No. 04-4060 Palkow v. CSX Transp., et al. Page 5
While this Court has jurisdiction to consider Ms. Polkow’s claim, her
independent action to obtain relief from the judgment in Polkow I lacks merit. An
independent action to obtain relief from judgment is only available to prevent “a
grave miscarriage of justice.” Beggerly, 524 U.S. at 47. Allegations of perjury, like
those advanced by Ms. Polkow, are insufficient to support an independent action for
relief from judgment. 2300 Elm Hill Pike, Inc. v. Orlando Residence, Ltd., 168 F.3d
490 [1998 WL 808217] at * 2 (6th Cir. 1998); see also H.K Porter Co, Inc. v.
Goodyear Tire and Rubber Co., 536 F.2d 1115, 1118 (noting that the alleged perjury
of a witness is not a ground for an action for fraud upon the court); Geo. P. Reintjes,
Inc. v. Riley Stoker Corp., 71 F.3d 44, 49 (1st Cir. 1995); Travelers Indem. Co. v.
Gore, 761 F.2d 1549, 1552 (9th Cir. 1985). . . . Ms. Polkow could have addressed
Ms. Tavares’ alleged perjury during Polkow I or could have filed a motion for relief
from judgment pursuant to Rule 60(b)(3). . . . She may not, however, maintain an
independent action to obtain relief from a federal court judgment based on
allegations of perjury. Accordingly, Ms. Polkow’s complaint is dismissed.
Id. at 6-7. The District Court did not address Defendants’ alternative argument that Ohio law did
not support a civil cause of action for perjury or conspiracy to commit perjury.
III. DISCUSSION
A. STANDARD OF REVIEW
This Court reviews de novo the existence of subject matter jurisdiction as a question of law
and also reviews de novo the denial of a motion to remand. See Rogers v. Wal-Mart Stores, Inc.,
230 F.3d 868, 871 (6th Cir. 2000), cert. denied, 532 U.S. 953 (2001); Harper v. AutoAlliance Int’l.,
Inc., 392 F.3d 195, 200-201 (6th Cir. 2004). Likewise, a district court’s order granting a motion to
dismiss for failure to state a claim upon which relief may be granted is reviewed de novo. Inge v.
Rock Financial Corp., 281 F.3d 613, 619 (6th Cir. 2002).
B. THE DISTRICT COURT ERRED IN DENYING PLAINTIFF’S MOTION TO
REMAND
As indicated above, there is nothing on the face of Plaintiff’s Complaint which established
federal subject matter 5jurisdiction – no federal statute, constitutional provision or other federal right
is alleged or asserted. The District Court, however, reasoned that, by claiming that Ms. Tavares
committed perjury in Palkow I, Plaintiff was “attacking the validity of a prior federal judgment,” and
this thereby “raises a substantial federal question.”
Given the imprecise nature of the contours of federal question jurisdiction in cases such as
this, a discussion of the development of the law in this area is instructive to our analysis. As noted,
in reaching its conclusion, the District Court relied upon Black v. Niagara Mohawk Power Corp, 641
F. Supp. 799 (N.D.N.Y. 1986), and Villareal v. Brown Express, Inc., 529 F.2d 1219 (5th Cir. 1976).
Upon close scrutiny, however, it is clear that these cases no longer are good law.
In Black v. Niagara Mohawk, the case principally relied upon by the district court, the
plaintiff received and accepted a promotion which was conditioned upon his changing his residence
to Old Forge, New York. When he failed to move to Old Forge, he was demoted to his former
position. Black filed a grievance against Niagara Mohawk through his union. The union
unsuccessfully pursued the grievance through two steps of the collectively-bargained grievance
5
There is no dispute that diversity jurisdiction does not exist. It is undisputed that Ms. Tavares and Mr.
Crawford are non-diverse defendants and only an amount “in excess of $25,000” is alleged as the amount in controversy.
No. 04-4060 Palkow v. CSX Transp., et al. Page 6
procedure and after the second denial, declined to take the grievance to arbitration. Black did not
appeal that decision which was his right under the collective bargaining agreement. Instead, he filed
a complaint against Niagara Mohawk in New York state court. (“Black I”).
Niagara Mohawk removed the action to federal court on the grounds that the action arose
under Section 301 of the LMRA. Soon thereafter, Black was granted leave to amend his complaint
to add claims of breach of the collective bargaining agreement against his employer and breach of
duty of fair representation against his union. After the close of discovery, the district court granted
the defendants’ motions for summary judgment finding that there was no evidence whatsoever that
the union had acted maliciously or arbitrarily with regard to the handling of Black’s grievance and
further held that Black had failed to exhaust his contractual remedies. See 641 F. Supp. at 800. The
Second Circuit affirmed on the basis of the district court’s determination concerning the union’s
conduct but expressed no opinion as to the effect of Black’s failure to exhaust his contractual
remedies. Id. at 801.
Five years later, Black commenced another action, this time in the federal district court for
the Northern District of New York, against Niagara Mohawk, its representatives, and Black’s union
(“Black II”) asserting causes of action based upon breach of an alleged agreement to except Black
from Niagara Mohawk’s residency requirements in connection with his 1976 promotion, breach of
the duty of fair representation, and fraud in obtaining the judgment in Black I. After receiving some
correspondence from defendants’ counsel, Black voluntarily dismissed Black II. Id.
Ten days later, however, Black commenced yet a third action (“Black III”) in New York state
court against the same defendants alleging a single cause of action sounding in fraud. In his
complaint, Black alleged that the defendants had obtained summary judgment in Black I by means
of false statements in the affidavit of one of the individual defendants, Charles Carl. Specifically,
Black claimed that the statements in Carl’s affidavit that Black accepted the 1976 promotion with
full knowledge of and without objection to Niagara Mohawk’s residence requirements were false
and were made with intent to deceive the court. Id. The defendants subsequently removed the
action to the District Court for the Northern District of New York, whereupon Black moved to
remand. Black claimed that federal subject matter jurisdiction was lacking because his fraud claim
was a state law claim. Id. The defendants opposed the remand motion and cross-moved for
summary judgment and/or to dismiss Black’s claims. Id.
The district court denied the motion to remand and granted the defendants’ cross-motions
to dismiss Black’s complaint, explaining:
In the opinion of the Court, Black is necessarily relying upon federal law for
the relief sought in his complaint despite his attempt to couch the complaint solely
in terms of state law. His claim that the judgment in Black I was obtained by fraud
clearly constitutes an attack on the validity of that judgment pursuant to Rule 60(b)
of the Federal Rules of Civil Procedure. As such, the viability of the claim must be
determined by reference to standards enunciated in cases decided under the rule.
Accordingly his claim involves a general federal question and was properly removed
to this Court.
641 F. Supp. at 801-802 (footnotes and citation omitted).
The court continued:
In this case, federal law provides the exclusive remedy for attacking the
validity of a federal judgment. In the words of a recent law review article on this
subject, federal law has “occupied the entire field” of the law at issue. See
Comment, Federal Preemption, Removal Jurisdiction, and the Well-Pleaded
No. 04-4060 Palkow v. CSX Transp., et al. Page 7
Complaint Rule. 51 U. Chi. L. Rev. 634, 663-66 (1984). . . . Black’s claim falls
within the field of law preempted by Rule 60(b). Black has a remedy available to
him in federal court if he establishes his right to relief. In this situation, it has
consistently been held that removal jurisdiction exists once the plaintiff’s claim is
deemed federal. See, e.g., Federated Department Stores, Inc. v. Moitie, 452 U.S.
394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981).
Id. at 802 n. 3.
As the quoted excerpt from Black demonstrates, the Northern District of New York relied
on Federated Department Stores, Inc. v. Moitie, 452 U.S. 394 (1981), a decision which is no longer
good law. Moitie involved an action brought by the Government against Federated Department
Stores and others alleging violations of the Sherman Act, 15 U.S.C. § 1. Seven parallel actions were
subsequently filed by private plaintiffs against Federated and others, including an action by Marilyn
Moitie in California State Court (Moitie I) and an action by another individual, Floyd Brown, in the
United States District Court for the Northern District of California (Brown I). Each of these seven
complaints tracked almost verbatim the allegations of the Government’s Sherman Act complaint.
Moitie I, however, only referred to state law, but was removed to federal court on the basis of both
diversity and federal question jurisdiction. All seven private actions were consolidated and assigned
to a single federal judge and then dismissed on the grounds that the plaintiffs had not alleged injuries
to their business, as required under the Sherman Act. Five of the plaintiffs appealed their dismissals
to the Court of Appeals for the Ninth Circuit. Ms. Moitie and Mr. Brown chose instead to re-file
their cases in state court, creating Moitie II and Brown II. Both Moitie II and Brown II raised only
state law claims, although they made allegations similar to those in Moitie I and Brown I.
Federated Stores removed Moitie II and Brown II to federal court and then moved to have
both cases dismissed on the grounds of res judicata. The District Court first denied Moitie and
Brown’s motion to remand, reasoning that because Moitie II and Brown II were in many respects
identical to Moitie I and Brown I, even though Moitie II and Brown II only raised state law claims,
they were properly removed because the court found they were essentially “federal in nature.”
Moitie, at 397, n.2. The District Court then dismissed Moitie II and Brown II on the grounds of res
judicata because Moitie II and Brown II involved the same parties, alleged the same offenses, and
arose in the same time period as Moitie I and Brown I. This time, Moitie and Brown appealed.
The Ninth Circuit affirmed the denial of the motion to remand but reversed the district
court’s res judicata dismissal of the complaints because the dismissal rested on a circuit decision that
had been overruled during the pendency of Moitie’s and Brown’s appeal.
The Supreme Court reversed the Ninth Circuit, stating: “Res judicata consequences of a final,
unappealed judgment on the merits are not altered by the fact that the judgment may have been
wrong or rested on a legal principle subsequently overruled in another case.” Id. at 398. In a
footnote in the Moitie opinion, however, the Supreme Court commented on the removal of the state
law claims of Moitie II and Brown II to federal district court:
The Court of Appeals also affirmed the District Court’s conclusion that Brown II was
properly removed to federal court, reasoning that the claims presented were “federal
in nature.” We agree that at least some of the claims had a sufficient federal character
to support removal. As one treatise puts it, courts “will not permit plaintiff to use
artful pleading to close off defendant’s right to a federal forum ... [and] occasionally
the removal court will seek to determine whether the real nature of the claim is
federal, regardless of plaintiff's characterization.”. The District Court applied that
settled principle to the facts of this case. After “an extensive review and analysis of
the origins and substance of” the two Brown complaints, it found, and the Court of
No. 04-4060 Palkow v. CSX Transp., et al. Page 8
Appeals expressly agreed, that respondents had attempted to avoid removal
jurisdiction by “artful [ly]” casting their “essentially federal law claims” as state-law
claims. We will not question here that factual finding.
452 U.S. at 397 n.2 (citations omitted).
It is this “essentially federal law claims” footnote that the Black court relied upon in
determining that removal of Black III was proper. However, in 1998, the Supreme Court decided
Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 118 S.Ct. 921 (1998), a case in which the
Supreme Court took the opportunity to revisit and clarify Moitie’s footnote 2.
Noting that “Moitie’s ‘enigmatic footnote’. . . has caused considerable confusion in the
circuit courts,” 522 U.S. at 478, 118 S.Ct at 926 (citations omitted), Justice Ginsberg, writing for
a unanimous Court, unequivocally stated: “We . . . clarify today that Moitie did not create a
preclusion exception to the rule fundamental under currently governing legislation that a defendant
cannot remove on the basis of a federal defense.” Id. As Wright & Miller recognized, Justice
Ginsberg effectively delivered the “coup de grace” to the applicability of Moitie to support removal
when she explicitly noted that the interpretations of Moitie in the Second Circuit’s decision in
Travelers Indemnity Co. v. Sarkisian, 794 F.2d 754 (2nd Cir. 1986), cert. denied, 479 U.S. 885
(1986) -- i.e., the case which was at the time of Black controlling precedent in the Second Circuit --
and the Ninth Circuit’s decision in Ultramar America, Ltd. v. Dwelle, 900 F.2d 1412 (9th Cir. 1990),
which represented the two leading interpretations of the Moitie footnote, were incorrect. See 522
U.S. at 474 n.2, 118 S.Ct. at 924 n.2; see also 14 Charles Alan Wright, Arthur R. Miller & Edward
H. Cooper, Federal Practice and Procedure § 3722, at 443 (3d ed. 1998).
Although Defendants here are not asserting that a federal defense to Palkow II makes
removal proper, Rivet illustrates that reliance upon Moitie’s second footnote and its progeny as
justification for removal of non-federal claims is no longer appropriate, and that the Black and
Moitie line of cases do not support removal of Ms. Palkow’s civil perjury complaint.
The 1976 Villareal decision, which was also cited by the District Court here, similarly does
not stand up under current law. There, the plaintiff had entered into a settlement agreement in
federal court settling a traffic injury lawsuit he had filed against Brown Express, the trucking
company which operated the truck that collided with him. After the case was settled, the district
court entered an order dismissing the case with prejudice. Seven days later, Villareal filed another
lawsuit in Texas state court in which he alleged that Brown Express had converted a tire that was
on the vehicle in which Villareal was riding when the accident, which was the subject matter of the
federal court action, occurred. According to the state court complaint, the tire was such an important
piece of evidence that he was forced to settle his case for personal injuries for substantially less than
he could have otherwise obtained. As a result, he claimed that he was entitled to $1 million for the
conversion of the tire.
Brown Express removed this second suit to federal court claiming that the plaintiff filed the
state court lawsuit in an attempt to increase his recovery for the personal injuries that were the
subject of the prior federal action. The district court denied the plaintiff’s motion to remand and
granted the defendant’s motion for summary judgment, and the Fifth Circuit found no error in the
district court’s retention of jurisdiction over the second action because it found that
[I]n practice, the federal courts usually do not limit their inquiry to the face of
plaintiff’s complaint but rather consider the facts disclosed on the record as a whole
in determining the propriety of removal.
Although appellant’s complaint purports to seek damages for conversion of
a tire, it is our opinion that the claim in this case is essentially one to recover
No. 04-4060 Palkow v. CSX Transp., et al. Page 9
additional damages for personal injuries, and can be viewed as an action which
attacks the order of dismissal entered by the district court in the prior suit between
these parties. The damages alleged by appellant are not based on the actual value of
the tire, but on the alleged fraudulent concealment of the tire. . . . Since appellant’s
claim in the instant action is essentially one claiming fraud as the grounds for relief,
the district court properly considered it as being within the purview of Fed. R. Civ.
P. 60(b)(3) and granted appellee’s petition for removal.
529 F.2d at 1221 (quotation and citations omitted).
As is evident from just the first paragraph quoted above, the Villareal court wholly ignored
the well-pleaded complaint rule when it stated that it was entitled to look beyond the face of the
plaintiff’s complaint and consider all facts disclosed on the record in deciding the question of federal
subject matter jurisdiction. This holding is untenable under current Supreme Court precedent.
The controlling authority on removal jurisdiction begins with Franchise Tax Board of The
State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1
(1983). In Franchise Tax Board the Court emphasized:
Under our interpretations, Congress has given the lower federal courts jurisdiction
to hear, originally or by removal from a state court, only those cases in which a well-
pleaded complaint established either that federal law creates the cause of action or
that the plaintiff’s right to relief necessarily depends on resolution of a substantial
question of federal law.
Id. at 27 (emphasis added).
The Supreme Court has made clear that, to determine whether a claim arises under federal
law, a court, under the “well-pleaded complaint” rule, generally looks only to the plaintiff’s
complaint. Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96 (1936); Louisville & N.R. Co.
v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). If the complaint relies only on state law,
the district court generally lacks subject matter jurisdiction and the action is not removable.
However, as Franchise Tax Board acknowledged, the Supreme Court has developed a
limited exception to the well-pleaded complaint rule: the “complete preemption” doctrine. If
Congress intends that a federal statute should “completely preempt” an area of state law, any
complaint alleging claims under that area of state law is presumed to allege a claim arising under
federal law. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542,
1546-1547 (1987). The complaint may thus be removed to federal court and will be treated as
alleging a federal cause of action, notwithstanding that on its face, the plaintiff’s complaint alleges
only a state-law cause of action.
It is not enough, however, to determine the removability of an action to federal court under
the “complete preemption” doctrine that federal law “preempts” state law. (“ERISA pre-emption,
without more, does not convert a state claim into an action arising under federal law.” Id. at 64, 107
S.Ct. at 1547.) Rather, it is only when the federal statutory language demonstrates that Congress
has manifested a clear intent that claims not only be preempted under the federal law, but also that
they be removable, that they are deemed to be “completely preempted.” See id. at 66-67, 107 S.Ct.
at 1547-1548. “The rationale is that in such situations the federal statutory laws ‘supersede both the
substantive and remedial provision of state’ law creating a strong form of federal
preemption--presumably because of the additional need for a strong form of national uniformity
implied by Congress when it made federal court jurisdiction exclusive after broadly preempting state
law.” Ritchie v. Williams, 395 F.3d 283, 286 (6th Cir. 2005). In other words, the complete
preemption doctrine is not simply one of preemption of the law, it is a sort of “super” preemption
No. 04-4060 Palkow v. CSX Transp., et al. Page 10
which preempts not only state law, but also creates federal removal jurisdiction -- to use the jargon
of the day, it is “preemption on steroids.”
What must be made clear, however, is that “complete preemption”-- no matter how powerful
when properly present in a case -- is of very limited application: it is a very limited exception to the
well-pleaded complaint rule. In fact, the Supreme Court has demonstrated a reluctance to extend
application of the “complete preemption” doctrine, largely limiting its finding of complete
preemption to a handful of federal statutes, the most widely recognized of these being the Labor
Management Relations Act, 29 U.S.C. § 185(a) (“LMRA”) and the Employee Retirement Income
Security Act, 29 U.S.C. § 1144(a) (“ERISA”). See Metropolitan Life Ins. Co. v. Taylor, supra;
Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425(1987); Avco Corp. v. Aero Lodge No.
735, 390 U.S. 557, 88 S.Ct. 1235 (1968).6
Given the limited number of “extraordinary” statutes which the Supreme Court has found
to “completely preempt” state law claims so as to permit recharacterization of a plaintiff’s claim as
a federal claim so that removal is proper, it is apparent that the contours of federal courts’ “arising
under” jurisdiction do not extend to the case before us. Even the broadest reading of this Court’s
decision in Long v. Bando Mfg. of America, Inc., 201 F.3d 754 (6th Cir. 2000), cannot justify such
an extension. In Long, a case that was removed by the defendant on federal question grounds, we
affirmed the district court’s decision to remand the case based on its determination that it did not
have original federal question jurisdiction over the plaintiff’s complaint which was phrased as a
state-law wrongful discharge claim. In discussing whether federal question jurisdiction nonetheless
might exist when the complaint states only a state law cause of action, we first noted that the
defendant in that case was not arguing that Long’s state law claim was completely preempted by
federal law. We then went on to find that even if the plaintiff’s state law claim were not completely
preempted, federal question jurisdiction might nonetheless exist to support removal:
The exact contours of the federal courts’ jurisdiction under 28 U.S.C. § 1331
are somewhat imprecise. The most important Supreme Court case to deal with this
issue in recent years is Merrell Dow [Pharmaceuticals, Inc. v. Thompson, 478 U.S.
804, 106 S. Ct. 3229 (1986)]. In Merrell Dow, the plaintiffs had sued a drug
manufacturer on a state-law negligence claim, alleging that its drug Bendectin was
misbranded in violation of the Federal Food, Drug and Cosmetic Act (FDCA). See
Merrell Dow, 478 U.S. at 805-06, 106 S.Ct. 3220. The Supreme Court held that the
plaintiffs had not involved the federal courts’ “arising under” jurisdiction by raising
state-law claims for negligence that incorporated federal drug labeling standards.
See id. at 817, 106 S.Ct. 3229. Although the scope of the Court’s holding in Merrell
Dow is somewhat unclear, it clearly left open the possibility of federal jurisdiction
even in the absence of an express or implied federal cause of action, if a substantial
federal question of great federal interest is raised by a complaint framed in terms of
state law, and if resolution of that federal question is necessary to the resolution of
the state-law claim.
6
Other areas in which the Supreme Court has recognized complete preemption include the following: In
Beneficial National Bank v. Anderson, 539 U.S. 1, 123 S.Ct. 2058 (2003) the Court enunciated a limited extension of
the doctrine and held that a state law usury claim against a national bank is “completely preempted” and removable under
the National Bank Act, 12 U.S.C. §§ 85, 86. In El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 119 S.Ct. 1430
(1999), the Court found that the Price-Anderson Act also contains an unusual preemption provision, 42 U.S.C. §
2014(hh), that not only gives federal courts jurisdiction over tort actions arising out of nuclear accidents but also
expressly provides for removal of such actions brought in state court even when they assert only state-law claims. A
number of circuit courts, including the Sixth Circuit, have also determined that certain state law copyright claims are
completely preempted under Section 301(a) of the Copyright Act, 17 U.S.C. § 301(a). See, e.g., Ritchie v. Williams,
supra.
No. 04-4060 Palkow v. CSX Transp., et al. Page 11
201 F.3d at 759.
Notwithstanding Long’s expansive interpretation of Merrell Dow as possibly carving out a
new, non-complete preemption form of federal question jurisdiction for purposes of removal of state
law claims, one thing is clear: even under Long’s interpretation of Merrell Dow, in this case, there
is no “substantial federal question of great federal interest” raised by Plaintiff’s Complaint. The
only “federal” aspect of Plaintiff’s civil perjury claim is the fact that the alleged perjury occurred
in a federal court action. There is no “federal question” that needs to be resolved in order to resolve
Plaintiff’s state-law claim.7
As the foregoing discussion demonstrates, removal of state actions purporting to collaterally
attack federal judgments presents difficult issues for the courts. To be sure, a federal court will want
to protect the integrity of its judgments. But the point of critical importance is that “[i]t is a
fundamental precept that federal courts are courts of limited jurisdiction. The limits upon federal
jurisdiction, whether imposed by the Constitution or by Congress, must be neither disregarded nor
evaded.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 2403 (1978).
Any notion that the jurisdictional net should be broadly cast by the courts is at odds with the
constitutional establishment of a federal government of limited powers. The Supreme Court has
appealed to this constitutional vision in directing that the removal statutes are to be narrowly
construed:
[T]he policy of the successive acts of Congress regulating the jurisdiction of federal
courts is one calling for the strict construction of such legislation. 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 precise limits which the
statute has defined.” Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703 [(1934)].
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872 (1941); see also
Gross v. Hougland, 712 F.2d 1034, 1036 (6th Cir. 1983), cert. denied, 465 U.S. 1025 (1984)
(cautioning that, because of the constitutional allocation of powers between the state and federal
governments, “[a] federal court is not a general repository of judicial power.”)
The Supreme Court’s command that federal courts must exercise jurisdictional restraint is
perhaps even more compelling in the context of removal than in the context of original jurisdiction.
The decision whether to remove a suit to federal court directly implicates the constitutional
allocation of authority between the federal and state courts. The federal judiciary must respect the
important objectives the framers sought to achieve when they carefully crafted our federal system
and its concomitant national government of limited powers. Absent specific Congressional
command, the expansion of removal jurisdiction by the courts would seem to undermine these
important constitutional considerations.
While a party may seek relief from judgment under Fed. R. Civ. P. 60(b) by way of a motion
or an independent action, here an independent statutory basis is required to support removal under
7
Although civil perjury actions are not recognized in Ohio, see Costell v. Toledo Hosp., 38 Ohio St. 3d 221,
223-24, 527 N.E.2d 858, 860 (Ohio 1988), in those jurisdictions which do recognize such a cause of action, resolution
of such claims generally require demonstrating only that: (1) a judgment has been obtained against a party, (2) by perjury
of witness, (3) which was introduced at trial by the adverse party. See e.g., Kraul v. Maine Bonding & Cas. Co., 672
A.2d 1107, 1109 (Me. 1996).
No. 04-4060 Palkow v. CSX Transp., et al. Page 12
the guise of federal question jurisdiction. Merely invoking the Federal Rules of Civil Procedure
is not sufficient grounds to establish federal question jurisdiction. See Fed. R. Civ. P. 82
(“These rules shall not be construed to extend or limit the jurisdiction of the United States
district courts. . . .”); Creswell v. Sullivan & Cromwell, 922 F.2d 60, 70 (2nd Cir. 1990)
(“The Rules do not provide an independent ground for subject matter jurisdiction over an
action for which there is no other basis for jurisdiction.”)
In the context of Rule 60 relief, we made this point in Charter Township of Muskegon v. City
of Muskegon, 303 F.3d 755 (6th Cir. 2002). There, we held that it is only when the Rule 60 claim
either (1) seeks no relief other than relief from a prior judgment or (2) is originally filed in the same
court that rendered the judgment that the district court has “continuing jurisdiction” such that no
independent basis for subject matter jurisdiction is required. Id. at 763. Here, Plaintiff’s claim was
not filed in the same court that rendered the Title VII judgment; it was originally filed in state court.
Moreover, Palkow did not ask in her state court complaint that the federal judgment entered against
her be vacated or otherwise seek relief from the judgment. She simply asserted, as a way to
substantiate her claim for monetary damages from the defendants, that Defendant Tavares’s alleged
perjury “had a substantial effect” on the outcome of her sex discrimination trial.
Under these circumstances, we find no basis for the District Court’s exercise of subject
matter jurisdiction over Palkow II.
CONCLUSION
In sum, for all of the foregoing reasons, we find that federal subject matter jurisdiction was,
and is, lacking over this action. Being without jurisdiction, the District Court could not, and we
cannot, address the merits of Plaintiff’s complaint.8 Accordingly, we REVERSE the District Court’s
decision and REMAND the case with instructions that the Judgment be VACATED and the case
remanded to state court. Defendants’ motion for costs and fees is denied.
8
See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331 (1986); Rogers v.
Stratton Industries, Inc., 798 F.2d 913, 917 (6th Cir. 1986).