The opinion of the court was delivered by: Hon. Stanley S. Brotman United States District Judge
The factual background to this case is more fully set forth in a companion opinion issued this date, United States of America, ex rel. Haskins, et al v. Omega Institute, et al., 95-cv-265 (SSB), a qui tam case originally based on the False Claims Act, 31 U.S.C. §§ 3729-3733, federal and state racketeering claims, and various other state law causes of action. On May 4, 1998, counsel for the plaintiffs herein filed an action captioned Raggio, et al. v. Omega Institute, et al., GLO-L-849-98 in New Jersey Superior Court, Gloucester County, seeking class certification as to counts which are similar in nature to those which plaintiffs in Haskins voluntarily dismissed in this Court on May 6, 1998, accompanied by several new causes of action.
On June 9, 1998, defendants herein and in Haskins *fn1 filed a Notice of Removal pursuant to 28 U.S.C. § 1441, or alternatively for the Court to assume jurisdiction pursuant to the All Writs Act, 28 U.S.C. § 1651. Then, on June 19, 1998, defendants filed a motion pursuant to FED. R. CIV. P. 42 to consolidate the state action with the federal action currently before this Court. In response, plaintiffs herein filed a motion on June 23, 1998 by counsel for plaintiffs to remand GLO- L-849-98 to state court for lack of subject matter jurisdiction and for costs and fees associated therewith. These motions are now pending before the Court and are ripe for decision.
I. Defendants' Notice of Removal
Defendants' primary basis for removal can be summarized as follows:
Removal is based upon the federal question jurisdiction of this Court pursuant to 28 U.S.C. § 1331 as Plaintiffs' Complaint seeks, among other things, a determination that Defendants breached contracts they entered into with federal governmental agencies in accord with various federal laws and regulations, of which the Plaintiffs allegedly were third- party beneficiaries and reimbursement of federal funds which were distributed pursuant to the Job Training Partnership Act, 28 U.S.C. § 1501 et seq., and the Federal Student Loan and Grant Programs, 20 U.S.C. § 1070 et seq. Plaintiffs also allege that Defendants violated United States Department of Education requirements and regulations and that the Defendants filed false reports and claims with federal agencies. Defs.' Removal Petition, at 2.
"All of the State court Plaintiffs' causes of action," defendants contend, "proceed from the same underlying factual contentions asserted in the Federal court action . . . ." Defs.' Br. in Support of Consolidation, at 3. Accusing plaintiffs of engaging in "little more than a `cut and paste' restatement of the allegations and causes of action in the Federal court action," defendants urge removal because the two actions "involve common questions of law or fact." Id. at 4. It is upon these contentions that defendants then base their arguments in support of the "removed" Raggio action's consolidation with the within matter pursuant to Fed. R. Civ. P. 42. Id. at 1-2. In the face of plaintiffs' opposition motion for remand to state court filed June 23, 1998, the Court must undertake an examination of whether defendants' removal was proper in the first instance.
The Court finds defendants' argument on removal initially appealing. Indeed, plaintiffs closely re-plead the New Jersey Consumer Fraud Act in state Complaint Count I (dismissed qui tam Count VI); re- plead breach of contract in state Complaint Count II (dismissed qui tam Count IX); re-plead breach of duty to third-party beneficiaries in state Complaint Count III (dismissed qui tam Count VIII); newly plead "Information Negligently Supplied" in state Complaint Count IV; and newly plead negligence in state Complaint Counts V and VI Yet whatever strategic and coincidental anomalies defendants appear to ascribe to the plaintiffs for these apparent similarities, defendants cannot prevail on their prayer to remove the Raggio action.
The jurisdictional principles governing removal are well established. "The threshold requirement is that the complaint must fall within the `original jurisdiction' of the federal district court." Lancaster v. Kaiser Found. Health Plan of Mid-Atlantic States, Inc., 958 F. Supp. 1137, 1142 (E.D.Va. 1997) (citing 28 U.S.C. § 1441(a)). Where, as here, there is no diversity of citizenship between the parties, *fn2 removal is proper only if federal question jurisdiction exists. Id. Whether federal question jurisdiction exists is determined by application of the "well-pleaded complaint rule." Id. Under this rule, federal question jurisdiction exists when a federal question is presented on the face of a plaintiff's properly pleaded complaint. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-12 (1983).
There is, however, an exception to the "well-pleaded complaint rule" - the "complete preemption" exception. Under this exception, "Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character." Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 354 (3d Cir. 1995) (quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987)). Defendants do not venture to address the issue of preemption of plaintiffs' state law causes of action.
Defendants' conclusory and unspecific reference to 28 U.S.C. § 1441 ignores the most basic removal requirement set forth in § 1441(a):
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, ...