The opinion of the court was delivered by: Simandle, District Judge
This matter is before the Court on Plaintiff's motion to remand this case back to state court. Plaintiff Gloucester County Improvement Authority ("GCIA") brought this action in the Superior Court of New Jersey to enforce a court order it had received authorizing its agents to enter Defendant's property pursuant to New Jersey's prospective condemnation statute. Defendant Gallenthin Realty ("Gallenthin") removed the lawsuit to this Court, asserting federal question jurisdiction, and GCIA subsequently filed the instant motion [Docket Item 5] to remand and to award GCIA costs on account of Gallenthin's improper removal. For the following reasons, the Court will remand this matter to state court and grant GCIA's motion for costs.
According to the state court complaint, pursuant to a 2005 agreement between GCIA, the New Jersey Department of Transportation, and the New Jersey Economic Development Authority, GCIA agreed to construct a bridge and roadway connecting Interstate 295 with the Paulsboro Marine Terminal. (Def.'s Notice of Removal Ex. A ¶ 4.) GCIA determined that the best location for the bridge and roadway included a portion of Defendant's property (the "Property"). (Id. at ¶ 6.) In a letter to Gallenthin dated February 3, 2006, GCIA informed Gallenthin that it sought to enter the Property pursuant to New Jersey's prospective condemnation statute, N.J.S.A. 20:3-16, "to conduct initial field investigations" specifically described in the letter. (Id. at ¶¶ 8-9.) Counsel for Defendant responded to GCIA's letter in a letter dated February 16, 2006, in which Gallenthin warned GCIA that its agents' entry onto the Property would "risk a police confrontation"; Gallenthin's letter claimed that GCIA was not a potential condemnor and argued that the pendency of a separate lawsuit by a separate public entity, the Borough of Paulsboro, warranted its refusal to permit GCIA's agents' entry. (Id. at ¶¶ 10-11.) A series of letters and other communications between the parties ensued, in which, according to the state court complaint, Gallenthin first acknowledged GCIA's statutory right of access but subsequently refused to permit GCIA's agents to enter the Property. (Id. at ¶¶ 12-20.)
On April 5, 2006, Plaintiff filed a complaint in state court in order to secure access to the Property, and in an order dated April 28, 2006, the court found that Plaintiff was entitled to such access under N.J.S.A. 20:3-16. (Id. at ¶¶ 21-25.) On September 20, 2007, Plaintiff once again sent Defendant a letter notifying Defendant of its intent to enter the Property on October 4, 2007, pursuant to N.J.S.A. 20:3-16 and the April 28, 2006 court order. (Id. at ¶¶ 28-30.) Defendant responded in a letter dated October 3, 2007, stating that the New Jersey Supreme Court's recent decision in Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, 191 N.J. 344 (2007), justified its continued refusal to permit GCIA's agents to enter the Property.*fn1
(Id. at ¶¶ 31-33.) GCIA filed this action in the Superior Court of New Jersey on October 10, 2007 seeking enforcement of the court's previous order granting it access to the Property under N.J.S.A. 20:3-16.
Defendant filed a notice of removal of the action to this Court on November 6, 2007, asserting that the Court has federal question jurisdiction over the lawsuit under 28 U.S.C. §§ 1331 and 1441(b) because "[t]he proposed bridge will necessarily cross the Mantua Creek, a federal, navigable waterway," (Def.'s Notice of Removal ¶ 8), and, under 33 C.F.R. § 115.50(b), "a bridge cannot lawfully be constructed across any navigable waterway of the United States until the location and plans have been approved by the Coast Guard." Plaintiff subsequently moved to remand the matter back to state court [Docket Item 5]. The Court conducted a hearing on February 4, 2008 to address Plaintiff's motion, at which it heard oral argument from both parties.
Paulsboro, 191 N.J. at 373. The Court held that the government's redevelopment power was restricted to "blighted areas," and found that Gallenthin's property was not such an area. Id.
As it repeatedly and accurately emphasizes in its submissions to the Court, GCIA was not a party to the Paulsboro action, and "[n]either the GCIA's right to condemn the property, nor the GCIA's right to access, pursuant to N.J.S.A. 20:3-16[,] were at issue before the Supreme Court." (Def.'s Notice of Removal Ex. A ¶ 34.)
The permissibility of removing state actions to federal court is governed by 28 U.S.C. § 1441, which authorizes state-court defendants to remove "[o]nly state-court actions that originally could have been filed in federal court." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (citing 28 U.S.C. § 1441(a)). In cases such as this one, "[w]here the parties are not diverse, removal is appropriate only if the case falls within the district court's original 'federal question' jurisdiction." U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 389 (3d Cir. 2002). Whether or not the Court has federal question jurisdiction over a matter that the defendant has removed from state court is governed by the "well--pleaded complaint rule," under which the federal question "must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal." Id. (citation omitted). The Court of Appeals has repeatedly emphasized that the party "who urges jurisdiction on a federal court bears the burden of proving that jurisdiction exists," and that "all doubts should be resolved in favor of remand." Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990) (internal quotations and citations omitted).
Recognizing that there is no evident federal question on the face of GCIA's state court complaint, Gallenthin appears to make two arguments in support of its assertion of federal question jurisdiction. First, in its notice of removal, Gallenthin appears to argue that a question of federal law constitutes a necessary element of Plaintiff's state law claim. Second, Gallenthin references a legion of documents appearing to consist of maps and appropriations bills, as well as the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332 et seq., and argues that these materials "so control Gallenthin's water front property, the majority of which is subject to tidal water, to such an extent that the Federal interest preempts State condemnation claims such as [that which is] ...