
    Jerry HUMMEL, Plaintiff, v. CITY OF MONTGOMERY, MISSOURI, Defendant.
    No. 2:04CV52-DJS.
    United States District Court, E.D. Missouri, Northern Division.
    May 9, 2005.
    Daniel W. Deiter, Montgomery City, MO, for Plaintiff.
    Eric T. Tolen, Clayton, MO, for Defendant.
   ORDER

STOHR, District Judge.

Plaintiff Jerry Hummel brings suit against defendant City of Montgomery, Missouri (“the City”) alleging that defendant has threatened to discontinue plaintiffs utility service should plaintiffs adult son move into plaintiffs residence. According to documents attached to the complaint, plaintiffs son owes the City $909.62 in unpaid utility bills from his previous residence. Under Montgomery ordinances, utilities are subject to termination based on an occupant’s failure to pay utility bills at his previous residence. Plaintiff filed this action in the Circuit Court of Montgomery County, Missouri and defendant subsequently removed this action pursuant to 28 U.S.C. § 1441.

Plaintiff has filed an objection to further proceedings, which the Court has construed as a motion to remand. Plaintiff argues that this cause does not contain any issues, or allegations which give rise to federal jurisdiction. Section 1441(b) provides that “[a]ny civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable.” Here, plaintiffs petition does not cite any specific law or statute, however the petition does invoke plaintiffs right to freedom of association. Defendant argues that plaintiffs claim is therefore founded on rights protected by the United States Constitution and that federal jurisdiction exists.

[Generally,] the governing removal jurisdiction principle is this: the right or immunity created by the Constitution, a treaty, or some meaningful aspect of federal law that is claimed to provide the basis for bringing the state court ease into the federal system by way of removal must be an essential element of the plaintiffs properly pleaded claim for relief.

14B Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 3d § 3722, p. 388 (1998). For federal law to be an essential element “plaintiffs complaint must be supported under one construction of federal law and defeated under another.” Id. at § 3722, p. 400. Moreover, “the federal question must be presented on the face of the plaintiffs complaint.” Id. at § 3722, p. 402.

Here, it is not clear from the face of the petition which Constitution, state or federal, the plaintiff has invoked. While freedom of association is guaranteed by the United States Constitution, the Missouri Constitution likewise protects freedom of association. See Meyer v. St. Louis County, 602 S.W.2d 728, 739 (Mo.Ct.App.1980). Thus, as plaintiffs petition may be founded only upon a construction of the Missouri Constitution, it cannot be said federal law is an essential element of plaintiffs petition. Therefore, the Court will grant plaintiffs motion and remand this action to the Circuit Court of Montgomery County, Missouri. In future, plaintiffs explicit reliance on federal law will permit a timely removal of the action pursuant to the second paragraph of § 1446(b).

Accordingly,

IT IS HEREBY ORDERED that plaintiffs objection to further proceedings [Doc. # 10], construed as a motion to remand, is granted.

IT IS FURTHER ORDERED that this action is remanded to the Circuit Court for the City of St. Louis.

IT IS FURTHER ORDERED that all other pending motions in this case are denied without prejudice for lack of jurisdiction.  