Free Memorandum in Opposition - District Court of California - California

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JOSEPH P. RUSSONIELLO (SBN 44332) United States Attorney JOANN M. S WANSON (SBN 88 143) Chief, Civil Division CHARLES M. O'CONNOR (SBN 56320) Assistan1 United States Attorney 450 Golden Gate Avenue, 9th Floor San Francisco, California 94102-3495 Telephone: (41 5) 436-7 180 Facsimile: (41 5) 436-6748 Email: [email protected] Attorneys for Intervenor United States of America UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION MONTARA WATER AND SANITARY DISTRICT, Plaintiff, UNITED STATES OF AMERICA'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO REMAND THE ACTION TO SUPERIOR COURT OF CALIFORNIA. SANTA CLARA COUNTY
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NO. C 08-28 14 JF (RS)

COUNT'Y OF SAN MATEO, a political subdivision of the State of California; and DOES 1 to 20, inclusive. Defendants.

Date: September 19, 2008 Time: 9:00 a.m. UNITECl STATES OF AMERICA, Ctrm: Hon. Jeremy Fogel Intervenor.

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TABLE OF CONTENTS
TABLE O F AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1ISSUES 'TO BE DECIDED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1STATEMENT OF FACTS AND PROCEDURAL BACKGROUND . . . . . . . . . . . . . . . . . . . -1ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3A. The United States Did Not Waive Its Right to Removal . . . . . . . . . . . . . . . . . . -3The Complaint Seeks to Take Land Owned by the United States Which Gives Rise to Federal Question Jurisdiction under 28 U.S.C. $ 133 1 . . . . . . . . -7Plaintiff Disputes the United States' Title to the Subject Property, Giving Rise to Additional Jurisdictional Grounds under the Federal Quiet Title Act. . . . . . . -14-

B.
C.

CONCLIJSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -15-

United States' Opwsition to Plaintiffs Motion to Remand Action to Superior Court C 08-2814 JF (RS) I

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TABLE OF AUTHORITIES FEDERAL CASES Acosta v. Direct Merchants Bank, 207 F. Supp. 2d 1129 (S.D. Cal. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 , 4 Alaska v. Babbitt, 38F.3d 1068(9thCir.1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 . Armstrone v. United States, 3ti4U.S.40(1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Baker v. National Boulevard Bank of Chicago, 399F.Supp. 1021 (D.C.111. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Barraclough v. ADP Automotive Claims Services, 8118 F. Supp. 1310 (N.D. Cal. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Beaslev v. Union Pac. R.R. Co., 407F.Supp.213 (D.Ne. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Beaver v . U , 350 F.2d 4 (9th Cir. 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 , 9 Block v. Worth Dakota ex rel. Board of University and School Lands, 461U.S.273(1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 . Calf Islanld Communitv Trust, Inc.. v. Young Men's Christian Association of Greenwich, 263F.Supp.2d400(D.Conn.2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 . Cogdell v. Wveth. 366F.3d1245(1lthCir.2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 . Crump v. Wal-Mart Group Health Plan, 9;!5 F. Supp. 12 14 (W.D. Ky. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 , 5 Foley v. Allied Interstate. Inc., 3 12 F. Supp. 2d 1279 (C.D. Cal. 2004) Franchise Tax Board v. Construction Laborers Vacation Trust, 4ti3U.S.1(1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S .
)

I

'1
7

I 1

Ft. Leavenworth R. Co. v. Lowe, 114U.S. 525 (1885). . . . Leisnoi. Inc. v. United States, 170 F.36 1188 (9th Cir. 1999) Leisnoi. Inc. v. United States, 267 F.3d 1019 (9th Cir.2001) Schroede,r v. Trans World Airlines. Inc., 702 F.2d 189 (9th Cir. 1983) . . United States' Ovposition to Plaintiffs Motion to Remand Action to Superior Court .. I1 C 08-28 1.4 JF (RS)

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State of Oregon v. Wright, 102U.S.177(1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4. Utah Power & Light Co. v. U.S.. 243U.S.389(1917) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Yunis v. United States, 1 18 F. Supp. 2d 1024 (C.D. Cal. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

STATE CASES
Bowles v. Superior Court, 44 Cal. 2d 574 (Cal. 1955) Metrovolitan Water District v. Adams, l(jCal.2d676(YEAR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 People v. Simon Newman Co., 37 Cal. App. 3d 398 (YEAR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 :

FEDERAL STATUTES
28U.S.C.g 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 28 U.S.C.

5 1346(Q . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11, 12. 13

28U.S.C.s2409(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim ..

FEDERAL RULES
Fed. R. Civ. P. 71.l(h)(l)(B) . . . . . . . . . . . . . . . . . . . . . . . .

MISCELLANEOUS
U.S. Con,st. Art. IV,

5 3, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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United States' Opposition to Plaintiffs Motion to Remand Action to Superior Court C 08-2814 JF (RS) iii

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INTRODUCTION This action was removed from the California Superior Court for the County of Santa Xara to the above entitled Court on June 5,2008. Thereafter, on June 24,2008, the Plaintiff Montara Water and Sanitary District ("Plaintiff') filed its Notice of Motion and Motion to Xemand Removed Action to Superior Court of California, County of Santa Clara (hereafter, 'Plaintiff's Motion" or "Remand Motion"), now set for hearing on September 19, 2008. The United States of America ("United States") opposes Plaintiffs Motion and submits :he following points and authorities in support of its opposition to the Remand Motion. ISSUES TO BE DECIDED

I . Whether the United States waived its right of removal.
2. Whether the United States District Court has jurisdiction of the matter.

3. Whether this action should be remanded to the Superior Court.
STATEMENT OF FACTS AND PROCEDURAL BACKGROUNDI
On May 17, 2007, Plaintiff Montara Water and Sanitary District ("Plaintiff') filed an :minent domain action against Defendant County of San Mateo ("County") in Superior Court for the State of California, County of Santa Clara (hereafter, "Superior Court") , seeking to condemn zertain portions of the sub.ject real property known as the Half Moon Bay Municipal Airport :HAP). HAF had been transferred to the County by the United States through the War Assets

4dministration ("WAA") by a quitclaim deed dated September 26, 1947. This quitclaim deed zave the 'WAA a conditional right to reverter. The Federal Aviation Administration ("FAA"), as the successor in interest to the WAA, held the right of reverter to HAF. The right of reverter gave the FAA the option to acquire title to HAF if there was a breach of any of several reservations ~ n restrictions outlined in the quitclaim deed. One such restriction is that the property could not d be successively transferred by the County to any third party without the prior approval of the

Except where otherwise indicated. the events and dates set forth are matters of public record within the pleadings and papers presented in previous proceedings concerning this case before this Court and/or the Superior Court of California, Santa Clara County, and they are not known to be in dispute. United States' Oooosition to Plaintiffs Motion to Remand Action to Suoerior Court C 08-28 1.4 JF (RS) -1-

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FAA. On June 18, 2007, the County removed the eminent domain action to this Court for the reason that the action implicated the United States' reversionary interest in HAF. Shortly thereafter. the County filed a motion for joinder of a necessary party (United States of America) as defendant for the reason that the United States was necessary to the action pursuant to Rule 19 of the Federal Rules of Civil Procedure. On July 10, 2007, Plaintiff filed a motion to remand the action to the Superior Court, arguing that the removal was improper because the action did not involve any substantive rights created b:y federal law, involved predominately state law issues, and would be tried independent of federal law. On October 9,2007. this Court tiled an order granting Plaintiffs motion to remand and denying without prejudice the County's motion for joinder. The Court found that the removal was improper because a removal under 28 U.S.C.

5 2409(a) requires that (I) the United States

claim an interest in the property, and (2) that there be a dispute over title to the property. The Court found that these requirements were not met since the United States had not sought to intervene for the purpose of claiming an interest in the property or the outcome of the case and since there was not a present dispute regarding title to the property.2 Finally, the Court found that without removal jurisdiction it could not consider the County's joinder motion. On December 13, 2007, Plaintiff obtained an order of immediate possession (hereafter "OIP") covering the subject parcels within HAF from the Santa Clara Superior Court. On December 21, 2007. the United States served a Notice of Intent to Revert Property on the County. On March 21, 2008, the United States issued a Notice of Reverter exercising its reversionary fee simple interest in the subject parcels and submitted it to the Recorder's Office,

'These aspects of this Court's previous rationale for remand of the case are no longer applicable. As set forth herein, the FAA has caused the title to the subject parcels to he reverted to the United States, and the United States now claims an interest in the property-indeed, it claims the fee title to the subject parcels and disputes the Plaintiffs claim of title to them. United States' Ovvosition to Plaintiffs Motion to Remand Action to Superior Court C 08-2814 JF (RS) -2-

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County o F San Mateo. On April 16,2008, the United States moved to intervene in the Superior Court action on behalf of the Federal Aviation Administration on the grounds that it is the current fee owner of the subject parcels and therefore has paramount interest in the property which Plaintiff is seeking to take. On June 4,2008, the Superior Court granted the United States' motion to intervene. On June 5,2008, the intervenor United States filed a notice of removal, removing to the action to this Court. On June 24, 2008, Plaintiff moved this Court for an order remanding the removed action to the Superior Court of California, County of Santa Clara.

ARGUMENT
The Plaintiffs Motion argues that remand is appropriate for three reasons. First, Plaintiff argues that because the United States filed a motion to intervene in Superior Court, with supporting papers which included an unsigned proposed complaint in intervention, it waived its right to remove the action. Second, Plaintiff contends that its eminent domain action does not seek the property interests of the United States, and it cannot be compelled to do so, and therefore, there is no basis for removal of its lawsuit to U.S. District Court. Lastly, the Plaintiff argues that the Quiet Title Act, 28 U.S.C. $ 2409(a) does not apply, and it provides no basis for federal jurisdiction and removal in this action. As demonstrated below, Plaintiffs arguments have no nnerit, and this action was properly removed and should remain in this Court for final resolution.

A.

The United States Did Not Waive Its Right to Removal.

Plaintiff argues that the United States clearly waived its right to remove by attaching to its motion to, intervene a proposed complaint in intervention which asks for an order "rescinding the award of an early possessory interest to Plaintiff." Plaintiffs argument is without merit.
"A waiver of the removal right must be clear and unequivocal. In general, the right of

removal is not lost by action in state court short of proceeding to an adjudication of the merits." Acosta v. Direct Merchants Bank, 207 F. Supp.2d 1 129, 1131 (S.D. Cal. 2002) (internal citations United States' O~vosition Plaintiffs Motion to Remand Action to Suverior Court to -3C 08-2814 JF (RS)

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omitted). A defendant "may waive the right to remove to federal court where, after it is apparent that the case is removable, the defendant takes actions in state court that manifest his or her intent to have the matter adjudicated there."

Id.at 113 1-32. The purpose of this waiver is to prevent

parties from experimenting on their cases in state court and then seeking removal to federal court if the experiment was unsuccessful. State o f Oregon v. Wright, 102 U.S. 177, 179 (1992). Tlhe United States' supposed waiver in this case was anything but "clear and unequivocal." The motion to intervene was granted on July 4,2008. This gave the United States, for the first time, standing to file for removal. Immediately thereafter, on July 5, 2008, the United States filed its notice of removal in U.S. District Court. The United States filed no papers and took no action of any kind in the Superior Court between the time that intervention was granted on June 4, when the case first became removable, and the time that it filed its notice of removal on June 5. Therefore, the United States' actions in the Superior Court after intervention was granted, or rather its inaction, in no way manifested any intent to have the matter adjudicated in Superior Court. Plaintiff cites Acosta v. Direct Merchanls Bank, 207 F. Supp.2d 1132-33, in support of its argument that the United States waived its right to remove. Acosta, in the words of Plaintiff, "cites a number of decisions in which Courts traditionally have held that a fiIing in which affirmative relief is demanded constitutes a waiver of the removal right." Notably, however,

Acosta does not cite to any decision in which a court has held that either a motion to intervene or
a proposed complaint in intervention, in which affirmative relief is requested in the prayer. constitutes a waiver of the removal right. In fact, Plaintiff has failed to cite, and the United States cannot find, a single case in which the: filing a motion to intervene with an attached proposed complaint in intervention was held to constitute a waiver of the right to remove. Courts have heId, however, that the act of intervention does not constitute a waiver of removal rights. See, e.g, Baker v. National Boulevard

Bank ofC'hicago, 399 F.Supp. 1021, 1022 (D.C. 111. 1975); Crump v. Wal-Mart Group Health Plan, 925 F.Supp. 1214, 1217 (W.D. Ky. 1996) (characterizing plaintiffs argument that the
removing party's intervention constituted a waiver as "an odd form of waiver of removal United States' Opposition to Plaintiffs Motion to Remand Action to Superior Court C 08-2814 JF (RS) -4-

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rights"). Since Plaintiff cannot cite any case in which the attachment of a proposed complaint in intenrention was held to constitute a waiver of the right to remove, Plaintiff is reduced to analogizing the attachment of a proposed complaint in intervention to other actions, such as the filing of a1 cross-complaint. To make this analogy. Plaintiff emphasizes the "volitional" and offensive nature of the United States' proposed complaint in intervention. Plaintiff is mistaken in its assertion that the attachment of a proposed complaint in intervention is volitional. Under California law, attaching a proposed complaint is a procedural requirement for filing a motion to intervene. CCP $ 387; Bowles v. Superior Court, 44 Cal.2d 574, 589 (Cal. 1955) (denying a party leave to intervene on the grounds that its proposed complaint in intervention failed to satisfy the requirements of CCP

5 387.)

Obviously, the

United States could not have procedurally maintained its motion to intervene in Superior Court without also submitting a copy of the proposed complaint in intervention, in compliance with the requirements of CCP

5 387. 5 387, makes it clear that the

Nor is the alleged non-defensive aspect of the United States' proposed complaint in intervention relevant to the determination. The statute, CCP

intervenor may intervene by joining the plaintiff in claiming what is sought, by joining the defendant in resisting the plaintiffs claim, or by demanding anything adverse to both parties. It would indeed be an "odd form of waiver of removal rights" (Crzmip v. Wal-Mart Group Health

Plan, 925 F.Supp. 1217) if only those intervenors who joined the defendant in resisting the
plaintiff a claims in a strictly defensive posture were held not to have waived their removal rights, whereas other intervenors with more affirmative or offensive grounds for intervention were barred from removing cases, solely by virtue of their attachment of the required proposed complain~t intervention. Unlike a defendant who volitionally files a cross-complaint which in demands affirmative relief, an intervenor (here, the United States) is procedurally required to attach a proposed complaint which sets forth the intervenor's claim, defense, or demand. CCP 3 387.
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Additionally, even if attaching a proposed complaint in intervention which demands affirmative relief were volitional, this in no way could be construed as manifesting a "clear and unequivocal" intent to waive the right to remove. Actions which are "preliminary and not conclusive in character and which do not actually submit the merits of a claim for a binding decision do not constitute a waiver of defendant's right to remove." Beasley v. Union Pac. R.R. Co., 497 F.Supp. 213,216 (D. Ne. 1980); see also Cogdell v. Wveth, 366 F.3d 1245, 1249 (1 lLh Cir. 2004) (holding that, even though the defendant had filed a motion to dismiss in state court ten days prior to filing for removal, he had not waived his right to remove since (1) the defendant did not take "any additional steps to have the state court rule on its motion prior to removal," and (2) the "state court [did not] act on the motion."); Foley v. Allied Inrerstate, Inc., 3 12 F.Supp.2d 1279, 1284-85 (C.D. Cal. 2004) (ruling that the defendant had not waived his right to remove because, :in part, the defendant's "actions in state court were not experimentation and did not result in rulings on the merits."). Merely attaching a proposed complaint in intervention is entirely preliminary in character. The Superior Court of Santa Clara County did not act on the proposed complaint-indeed, the Superior Court could not have acted on such a proposed

complaint which had not even been signed.
As explained above. the purpose of the waiver rule is to prevent parties from

experime:nting with their case in state court and removing it if the experiment is unsuccessful. The United States did not experiment in Superior Court but rather moved to remove the case immediately upon being granted intervenor status. It would be patently erroneous to find that the United States manifested a "clear and unequivocal" intent to waive the right to remove, merely because it. complied with California state rules of civil procedure, i.e., by attaching a copy of a proposed complaint in intervention to its motion to intervene. Such a ruling would lack any support under the facts and applicable law, and therefore, the Court should reject Plaintiff's assertion that the United States waived its right to remove this action to U.S. District Court.
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B.

The Complaint Seeks to Take Land Owned by the United States Which Gives Rise to Federal Question Jurisdiction under 28 U.S.C. &j 1331

Tlhe Plaintiff contends that its eminent domain action seeks to take the real property dentified. in its Complaint subject to the rights of the United States. Therefore, it argues that its ~ction :strictly a matter of California law, "no construction or application of federal law" is is nvolved, and there is no basis for federal court jurisdiction. See Plaintiffs Motion, at 2:23-24. 'laintiff is mistaken. It's action attempts to take federally-owned land and raises important ssues clearly within this Court's federal question jurisdiction, pursuant to 28 U.S.C. S 1331. Plaintiffs argues that allowing the removal action to stand would improperly allow the Jnited States to "control Plaintiffs eminent domain acquisition." Id., at 11:lo-13. This is a gross mis-characterization of the effect of removal as well as a distortion of the factual and legal losture o:f the action now before this Court. When Plaintiffs action was initially filed in Superior Court, it sought to take the subject and from. the County, all the time ignoring the terms of the WAA's (i.e., FAA's) original pitclaim deed to the County which clearly requires the consent of the United States before any
ransfir osf any interest of any kind can occur. Notwithstanding the United States' voluntary

:fforts to accommodate the interests of all the affected parties, the Plaintiff could not be iissuaded. from the condemnation litigation it had initiated. See paragraphs 8 through 1 1 of Zxhibit E10 Plaintiffs Motion (copy of the Declaration of Lorraine Herson-Jones in Support of Motion to Intervene), hereafter referred to as "Plaintiffs Exhibit E"). The problem with Plaintiffs portrayal of the facts (and, as a result, the fatal defect in all ts arguments in the Remand Motion) is that it fails to acknowledge or address the inconvenient act that the United States exercised its reversion'ary interest in the subject parcels in March, 2008. See Plaintiffs Exhibit E, at 77 8-9. As a consequence of the reversion, the United States s the current fee simple owner of the subject real property, i.e., the same parcels which Plaintiff ieeks to take by eminent domain. See copy of a Title Report for the property showing title iested in the United States and the County, attached as Exhibit 1 to the Declaration of Lorraine 3erson-Jones in Support of Intervenor's Opposition to Remand (hereafter, "Herson-Jones Jnited States' Opposition to Plaintiffs Motion to Remand Action to Superior Court 1 08-28 14 JF (RS) -7-

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Decl."), filed herewith. This current fee ownership ofthe United States not only renders inoperable the Plaintiffs key argument, i.e., that its action seeks to take the land "subject to the rights of the IJnited States," it makes federal jurisdiction inescapable. By choosing to ignore the essential fact of federal ownership of the subject parcels, Plaintiff seeks to present the Complaint as an ordinary eminent domain action which should proceed according to California eminent domain law without any reference to federal law. That presentat~on the issues, however, is patently incomplete and entirely misleading. Based upon of this inherently flawed presentation of the matter, as more fully explained and clarified in the United Slates' petition for removal, Plaintiff has been and wants to continue seeking to take property belonging to the United States by pursuing condemnation proceedings in Superior Court to conclusion. However, Plaintiff has not cited any California or federal eminent domain law which authorizes state or local governments or governmental agencies to pursue eminent domain actions ta~ take land owned by the United States. The Plaintiffs failure to cite any such authority is a telltale acknowledgment that the United States' fee ownership renders California eminent domain law and Superior Court jurisdiction inapplicable to this case. That is, Plaintiff has no authority to support Superior Court jurisdiction over an effort to take the subject federally owned lands, so the Plaintiffs argument simply ignores the United States fee interest in those lands. Plaintift's attempt to take land belonging to the United States is, instead, governed by federal law such as the Property and Supremacy Clauses of the Constitution. See, e.p.. Yunis v.

Un~ted St-,

118 F. Supp. 2d 1024, 1026, 103 1 (C.D. Cal. 2000) ("Under the Property and

Supremacy Clauses of the United States Constitution, federal law governs the determination of whether title to land owned by the United States has passed to another party."). Therefore, the District Court has original jurisdiction of this action, pursuant to 28 U.S.C.

3 1331.

It is settled federal law that neither a state nor state entity can take by eminent domain land owned by the United States and devoted to governmental purposes. Id. at 1031; FL

Leavenworth R. Co. v. Lowe, 114 U.S. 525 (1885); Utah Power & Light Co. v. U.S., 243 U.S.
389,404 ((1917)("[Tlhe power of Congress is exclusive a n d .

. . only though its exercise in

some forrn can rights in lands belonging to the United States be acquired."); Beaver v. US., 350 United States' Opposition to Plaintiffs Motion to Remand Action to Superior Court -8C 08-2814 JF (RS)

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F.2d 4, 8 (9'hCir. 1965); Armstrong v. UnitedState.~, U.S. 40, 43 (1960)( stating that 364 property owned by the United States "cannot be seized by authority of another sovereignty against the consent of the Government."); 26 Am.Jur.2d Eminent Domain

5 89; U.S. Const. Art.

IV,

5 3, cl. 2 ("Congress

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

Regulatio~ns respecting the Territory or other Property belonging to the United States . . . ."); U.S. Const. Art. VI, cl. 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof. . . shall be the supreme Law of the Land."). There can be no genuine dispute th~at issues raised by Plaintiffs Complaint are "federal questions" covered by 28 the U.S.C.

5

1331, and jurisdiction lies in this Court.

For purposes of federal question jurisdiction, district courts have "jurisdiction to hear, originally or by removal from a state court, . . . those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Board
v. Consrruction Laborers Vacation Trust, 463 U S 1.27-28 (1983). Thus, the Plaintiff cannot

avoid fedseral jurisdiction here simply because its Complaint does not identify the federal interest in the land or name a federal individual or agency as a defendant. Furthermore, if a plaintiff is asserting a claim cognizable under federal law, removal is proper even if this claim is entirely meritless: "A plaintiff should not be permitted to effectuate remand b:y pointing out the flaws in her own complaint, in effect arguing for dismissal of that claim." B~urraclough ADP Autotnolive Claims Services, 8 18 F.Supp. 13 10, I 3 11 (N.D. Cal. v. 1993) (inlernal citation omitted). Therefore, even if Plaintiff lacks authority to condemn the subject federally-owned parcels, removal of this action is still appropriate and should be sustained,, Finally, a plaintiff cannot defeat removal of a federal claim by disguising or "artfully pleading" it as a state claim. Schroeder v. Trans World Airlines, Inc. 702 F.2d 189. 191 (91hCir. 1983). As applied to this case, this principle means that, notwithstanding the Complaint's reliance of California condemnation and procedural statutes, the Plaintiffs attempt to take federally-owned land can be resolved only by reference to federal law. Thus, if the only claim United States' Ovvosition to Plaintiffs Motion to Remand Action to Superior Court -9C 08-2814 JF (RS)

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involved is one arising under federal law, the federal court must "re-characterize" it accordingly, in order to uphold removal. Id."It is proper to use the petition for removal to clarify the action plaintiff presents and to determine if it encompasses an action within federal jurisdiction."

Id.

T:hrough use of the petition for removal to clarify Plaintiffs claim, the United States has demonstrated that the only action which Plaintiff presents in its complaint is an action within federal jurisdiction. Plaintiffs attempt to take property of the United States by eminent domain necessarily depends on the resolution of a substantial question of federal law: i.e., whether this action is ;allowable under the Property and Supremacy clauses of the U.S. Constitution. Accordingly, original jurisdiction of this matter lies in this Court under 28 U.S.C.

5

1331,

and removal is proper under 28 U.S.C. § 1441. and it should be sustained by this Court's denial of the Remand Motion. C. Plaintiff Disputes the United States' Title to the Subject Property, Giving Rise to Additional Jurisdictional Grounds under the Federal Quiet Title Act.

Plaintiff heavily emphasizes the generally valid legal principle that, as condemnor, it cannot be required to take more severable rights in property than what it needs. Remand Motion, at pp. 10-1 1. Based upon that premise, Plaintiff argues that its Complaint does not seek to take any rights belonging to the United States, and therefore, grounds for removal are lacking. However:, the United States exercised its reversionary rights to the very property interest which Plaintiff r:eeks to take, and it now holds fee simple title to that property. See Exhibit 1 to HersonJones Decl. and discussion in Part B, above. Certainly, under these circumstances, Plaintiffs Complaint is plainly seeking to take rights in property belonging to the United States.
A:snoted above, throughout all of its arguments in the Remand Motion, Plaintiff fails to

acknowledge or address the fact that the United States has, in fact, exercised its reversionary interest and now holds fee title to the subject parcels. In fact, the Plaintiff expressly claims "ownership" of the condemned property as a result of the OIP issued by the Superior Court on December 19,2007.3 Remand Motion 10: 10-11 and 5, fn. 1. Without any doubt, the foregoing

The United States disputes Plaintiffs claim of ownership as a result of the OIP, and although lthe merits of that claim of ownership are immaterial to the issues pertinent to United States' Ovvosition to Plaintiffs Motion to Remand Action to Suverior Court C 08-2814 JF (RS) -10-

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espectivt: positions of the parties has created a dispute over title to the subject property and ~rovides (additional grounds for original federal court jurisdiction under the federal Quiet Title

5 2409a, and 28 U.S.C. 5 lnder 28 U.S.C. 5 1441.
k t , 28 U.S.C. Pursuant to 28 U.S.C.

1346(0. Accordingly, removal to this Court is proper

5 2409a. Plaintift's

dispute of the United States' title can be

:onsidered only if in the form of a federal quiet title action. That is the exclusive remedy for 'laintiff
: claim ;

of title or ownership in the context of its eminent domain action. Alaska v.

lahhitt, 38 F.3d 1068, 1073 (9th Cir.1994) (holding that "when the United States has an interest

n the disputed property the waiver of sovereign immunity must be found, if at all, within the 2TA"); see also Block v. North Dukota ex rel. Bd of Universily and School Lands, 461 U.S. !73, 286 (1983) (holding that the Quiet Title Act is "the exclusive means by which adverse :]aimants [can] challenge the United States' title in real property"). Plaintiffs argument in opposition to the Notice of Removal's assertion of federal

letermination of the Remand Motion, it is nonetheless noted that Plaintiff 's ownership claim is ~ogus.As support for its assertion, that it acquired title to the subject parcels on December 12, 1007, as a result of the OIP , Plaintiff cites People v. Sirnon Newman Co., 37 Cal.App.3d 398, 104-05. The relevant text from Simon Newman Co. reads as follows: It should be clear from the foregoing that a distinction is drawn between the legal effect of passage oititle and the "taking" of the property involved. There is nopassage oftitle in condemnationproceedings until an award has been made and the final judgment in condemnation filed in the office of the county recorder. (Code Civ. Proc., 5 1253 [replaced by C(IP § 1268,0301; Metropolitai~Water Dist. v. Adams, 16 Cal.2d 676) However, as an exception to the strict application of the law, it is recognized that a "taking" of sufficient consequences is deemed to have the same effect of finality of transfer for specific purposes as does the passage of title. (Emphasis added.) 'laintiff a: argument ignores the rule (that title does not pass in condemnation proceedings until i award has been made and the final judgment is filed with the county recorder), and instead n :ites the ".exception to the strict application" of this rule as if it were the rule itself. Plaintiff is mong. The "sufficient consequences" in Simon Newman Co. consisted of dispossession of the Iwners and acts of appropriation, destruction and damage, such as the removal of buildings and he construction of an overpass thereon. Plaintiff has not alleged such sufficient consequences to ustify an exception to the rule in this case, nor have such consequences occurred, as the subject lroperty has not been physically altered since the condemnation proceedings began. Jnited St,ates' Ouuosition to Plaintiffs Motion to Remand Action to Suuerior Court 2 08-2814 JF (RS) -11-

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jurisdiction under the Quiet Title Act takes the position that the eminent domain action it filed in Superior 1::ourt is an action in rem against the property, whereas Plaintiff contends that a quiet title action is, "generally speaking, an inpersonam proceeding." Remand Motion, 12:28 to 13:l. Plaintiff cites no cases holding that the alleged in rem versus inpersonam distinction between the two kinds of cases was held to be grounds to refuse federal jurisdiction under the Quiet Title Act or grounds supporting remand of such an action to state courts. In fact, the distinction drawn by Plaintiff is totally immaterial to the jurisdictional issue before this Court."owever, if the

inference or implication of this argument is that, since Plaintiff did not name the United States as a defendant in the eminent domain Complaint, the Quiet Title Act (i.e., the alleged inpersonam proceeding) does not operate to provide federal court jurisdiction, Plaintiff is once again mistaken.
As explained above, there can be no question that the pending matter involves a dispute

over title to land in which the United States has an interest, and the Quiet Title Act provides for exclusive federal court jurisdiction over such a dispute. 28 U.S.C.

5

1346(f) and 2409a. That

provision for exclusive federal jurisdiction cannot be avoided by the Plaintiffs rehsal to name the IJnitetl States as a party to the action. This point is well illustrated by the case entitled Calf Island Community Trust, Inc., v. Young Men 's Christian Association of Greenwich 263 . F.Supp.2d 400, 402-403 (D.Conn. 2003), wherein the defendant had entered into an agreement to sell the property at issue to a third party, which party in turn had an agreement to thereafter convey the property to the United States, pursuant to an option. The original action challenging sale of the parcel to the party that gave the option to the United States (but not naming the United States) was removed and consolidated with the United States' condemnation action in district Plaintiff also cites the lack of any right to jury trial under 28 U.S.C. 2409a(f) and identifies it as being inconsistent with Plaintiffs right to jury trial on the issue ofjust cornpensaltion in its eminent domain proceeding. Remand Motion, p. 13. Plaintifi7s argument fails for two reasons. First, Plaintiff is mistaken in its premise because, should its eminent domain action ever go to trial, the rules preserve the right to jury for a determination ofjust compensation. Fed. R. Civ. P. 71,l(h)(l)(B). Second, as with its argument re in rem vs. in personarn distinction, above, Plaintiff cites no cases holding the lack of a right to jury trial of an issue in federal court is grounds for remand of an action to Superior Court. United States' Opposition to Plaintiff's Motion to Remand Action to Superior Court C 08-2814 JF (RS) -12-

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court. In that case, the court held that: There are only two prerequisites to federal jurisdiction under this statute (28 U.S.C. § 1346(f)): ( I ) the United States must claim an interest in the property, and (2) there must be a dispute over title to that property. See Leisnoi, Inc. v. United Stntes, 170 F.3d 1 188, 1 191 (91h Cir.1999); See also Leisnoi, Inc. v. United States, 26'7 F.3d 1019, 1023 (9IhCir.2001).
~

The Court also specifically held that "it is of no moment that the United States is neither a named party nor mentioned by name in the state court complaint. See Leisnoi, Inc. v. United States, 170 F.3d 1188, 1192. Accordingly, since it has been established that I) the United States claims title to the subject parcels, and 2) the Plaintiff plainly claims title to the same parcel^,^ it is undeniable that a dispute over title to the subject parcels exists, and removal under § 1346(f) is appropriate. Moreover, the failure of the Plaintiff to name the United States as a defendant in the Complaint is immaterial to the removal determination. It should also be noted at this point that removal is consistent with this Court's prior order granting Plaintiffs motion for remand on October 9, 2007. At that time, the United States was not a party to the action, and the Court found that the removal was improper because a removal under 28 U.S.C. § 2409(a) requires that the United States claim an interest in the property and that there be a dispute over title to the property. Now however, the facts have changed, and there can be no doubt that the United States claims an interest in the property (i.e., fee title), that Plaintiff tlisputes that title, and all elements necessary to support removal under 28 U.S.C. § 2409a and § 1346(f) have been satisfied. Therefore, the Remand Motion should be denied and removal riustained.

*As part of the basis for its decision. that Court also cited and discussed the "artful pleading doctrine, . . . a corollary to well-pleaded complaint rule" under which "a plaintiff may not defeat federal jurisdiction by artfully pleading an ostensibly wholly state law claim with a 'lurking in the verbiage." (Citiations omitted.) Id. at 402-403. Also, see Part B, federal qi~estion above for a discussion and examples of applications of the artful pleading doctrine.

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CONCLUSION
Plaintiff's motion to remand should be denied because none of the cited grounds for .emand have any validity. First, neither the United States' motion to intervene in the Superior :ourt proceeding nor the attachment of an unsigned proposed complaint in intervention to the notion p;lpers constituted a waiver of its right to remove the action. Second, Plaintiffs :omplaint contains claims which give rise to exclusive federal question jurisdiction in this 2ourt. pursuant to 28 U.S.C. § 1331. Finally, Plaintiffclaims title to the subject real property ~hich directly conflicts with the United State's claim to title, giving rise to an additional basis or exclu!;ive jurisdiction of the District Court under the federal Quiet Title Act, 28 U.S.C. 1409a and

5

5

1346(f). Because the District Court has jurisdiction over the claims alleged in the

Jomplair~t, removal of the Superior Court action was appropriate under 28 U.S.C.

5 1441

rherefore, the removal should be sustained, and the Remand Motion should be denied Respectfully submitted, JOSEPH P. RUSSONIELLO United States Attorney

X e d : August 29,2008

CHARLES M. O'CONNOR Assistant United States Attorney

4ttorney 'ederal Aviation Administration

=

United States' Opposition to Plaintiffs Motion to Remand Action to Superior Court 08-2814 JF (RS) -14-