City of McComb, Mississippi v. David Wmyers

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not
precedent except under the limited circumstances set forth
in 5TH CIR. R. 47.5.4.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 03-60927
_____________________
CITY OF MCCOMB, MISSISSIPPI
Plaintiff - Appellant
v.
DAVID W MYERS
Defendant - Appellee
___________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi, Jackson
No. 3:02-CV-1397
___________________________________________________________
Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS,
Circuit Judges.
PER CURIAM:*
This appeal arises from a dispute between Plaintiff-
Appellant City of McComb City, Mississippi (McComb) and
Defendant-Appellee David W. Myers (Myers). Myers is a
member of McComb’s Board of Selectmen (Board). He also
United States Court of Appeals
Fifth Circuit
F I L E D
December 6, 2004
Charles R. Fulbruge III
Clerk

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represents a portion of the city in the Mississippi House of
Representatives (House). As a result of a dispute with
other members of the Board, McComb sought to end Myers’s
dual service on the Board and in the House by passing an
amendment to McComb’s city charter which prohibited a public
official in McComb from serving as an elected official of
any governmental entity which either appropriates funds to
McComb or has the power to grant or deny a request by McComb
for any action relating to the operation of the municipal
government of McComb.
On August 14, 2002, McComb filed a lawsuit in the
Circuit Court of Pike County, Mississippi seeking a
declaratory judgment holding that, subject to final formal
approval as required by law, the charter amendment is a
valid exercise of municipal authority by McComb which
“violates no state law, federal law, or the constitutions of
the United States or the State of Mississippi;” that
independent of the charter amendment, simultaneous service
in the Mississippi Legislature and the Board violates the
separation of powers doctrine of the Mississippi
constitution; and that such dual service vacates one of the
two conflicting offices.

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Myers promptly removed the case to the United States
District Court for the Southern District of Mississippi. On
summary judgment, the district court held, in a lengthy
opinion discussing Mississippi law, that neither the
Mississippi Constitution nor the common law rule against
holding incompatible offices forbids Myers’s simultaneous
service in the House and on the Board. McComb then appealed
the judgment to this court.
Upon review, it is evident that McComb’s state court
lawsuit was improperly removed. Removal of a civil action
from state court is allowed only if the district courts of
the United States would have original jurisdiction over the
action. 28 U.S.C. § 1441(a) (2000); Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987). Absent diversity of
citizenship, which does not exist here, federal question
jurisdiction is required. Whether a federal court would
have federal question jurisdiction over the action is
governed by the well-pleaded complaint rule. Caterpillar,
482 U.S. at 392. This rule states that “[a] case arises
under federal law if it is apparent from the face of the
plaintiff’s complaint . . . that the plaintiff’s cause of
action was created by federal law . . . .” ERWIN CHEMERINSKY,
FEDERAL JURISDICTION § 5.2.3, at 276 (4th ed. 2003); accord

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Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152
(1908).
From what we have set out above about McComb’s
complaint, it is clear that McComb’s cause of action deals
exclusively with state law. This is how the district court
viewed the dispute, rendering a judgment based solely on
state law issues. The only mention of federal law in
McComb’s complaint consisted of its one-line request for a
declaration that the amendment did not violate federal law.
This request is akin to the anticipation of a federal
defense. It is well established that federal question
jurisdiction is not created through a plaintiff’s
anticipation of a federal defense. See, e.g., Rivet v.
Regions Bank of La., 522 U.S. 470, 475 (1998) (“A defense is
not part of a plaintiff's properly pleaded statement of his
or her claim.”); Mottley, 211 U.S. at 152 (“It is not
enough that the plaintiff alleges some anticipated defense
to his cause of action, and asserts that the defense is
invalidated by some provision of the Constitution of the
United States.”). Accordingly, we hold that federal
question jurisdiction was unavailable here and this case was
improperly removed from state court.

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For the foregoing reasons, we VACATE the judgment of
the district court and REMAND with instructions to remand
the case to the Circuit Court of Pike County, Mississippi.
Costs shall be borne by Myers.

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