United States District Court, D. Arizona
Dominic W. Lanza, United States District Judge.
April 30, 2019, City of Phoenix and Alistar Morrison
(“Defendants”) filed a Notice of Removal (Doc.
1), in which they assert that they were served in
August/September 2018 with a state court complaint for a case
that was not removable at that time, but they learned from
Plaintiff's initial disclosure statement-served on April
25, 2019-that the case had become removable. (Doc. 1 ¶
2.) Defendants quote a section of Plaintiff's initial
disclosure statement in which Plaintiff discusses liability
under 42 U.S.C. § 1983 and asserts that section 1983 is
“implicated by the Defendant.” (Id.
state-court actions that originally could have been filed in
federal court may be removed to federal court by the
defendant.” Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987). “Absent diversity of citizenship,
federal-question jurisdiction is required, ” which
“exists only when a federal question is presented on
the face of the plaintiff's properly pleaded complaint,
” such that the plaintiff is “the master of the
claim; he or she may avoid federal jurisdiction by exclusive
reliance on state law.” Id. A narrow exception
to this rule exists when the state law cause of action is
“completely preempted” by federal law.
Id. at 393; see also Id. at 391 n.4.
no federal question exists on the face of Plaintiff's
complaint. (Doc. 1-3.) Although Plaintiff's initial
disclosure statement suggests a possible intention to amend
the complaint to include new federal claims, this Court lacks
subject-matter jurisdiction unless and until Plaintiff amends
his complaint. Although the removal statute, 28 U.S.C.
§ 1446(b)(3), identifies several different categories of
documents (including “other paper”) that may
trigger a right of removal, the statute also provides that
this right comes into existence only if the particular
document demonstrates “that the case is one which
is or has become removable.” 28 U.S.C. §
1446(b)(3) (emphasis added). Here, Plaintiff's initial
disclosure statement didn't show that the case “is
or has become” removable. Instead, it merely reflected
that the case might become removable in the future,
depending on whether Plaintiff chooses to seek leave to amend
his complaint, and whether the state court judge permits such
an amendment, if sought. See, e.g., Sullivan v.
Conway, 157 F.3d 1092, 1094 (7th Cir. 1998)
(“[Section 1446(b)(3)] speaks of a motion or other
paper that discloses that the case is or has become
removable, not that it may sometime in the future become
removable if something happens . . . .”). Sometimes the
content of “other paper” (such as the initial
disclosure statement at issue here) can trigger a right of
removal under § 1446(b)(3) as soon as the document is
served on the defendant-for example, where a document
demonstrates that the amount in controversy is satisfied for
diversity jurisdiction, e.g., Lillard v. Joint
Med. Prod., 1995 WL 20609 (N.D. Cal. 1995), or where a
document reveals that a state law claim is completely
preempted, e.g., Falahee v. Heide & Cook Ltd.,
2010 WL 3001918 (D. Haw. 2010), report and recommendation
adopted, 2010 WL 3398755 (D. Haw. 2010),
aff'd, 454 Fed.Appx. 584 (9th Cir. 2011). But in
this case, the initial disclosure statement asserting
Plaintiffs belief that Defendants could be liable under
federal law doesn't suffice because Plaintiff has not yet
sought and obtained leave to amend his complaint to add
federal claims. Cf. Zamora v. Wells Fargo Home
Mortgage, 831 F.Supp.2d 1284, 1298-99 (D.N.M. 2011)
(motion to amend insufficient until granted).
such, removal is premature. Therefore, pursuant to 28 U.S.C.
§ 1447(c), the case must be remanded to state court.
See also Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th
Cir. 1992) (“We strictly construe the removal statute
against removal jurisdiction. Federal jurisdiction must be
rejected if there is any doubt as to the right of removal in
the first instance.”) (citations omitted).
IT IS ORDERED that the Clerk of Court shall
remand this case to the Maricopa County
Superior Court and then terminate this
 Indeed, even when a plaintiff files a
motion to amend a complaint to add federal claims, removal is
arguably inappropriate before the motion is granted and the
amended complaint is filed. See, e.g., Glass v.
City of Chattahoochee, 2016 WL 3128370, *4-6 (N.D. Fla.
2016) (“[I]f a case as initially filed is not removable
because it asserts only state law claims, the majority of
courts have required a motion to amend the pleading [to add
federal claims] be granted prior to removal.”);
Torres v. Chevron U.S.A., Inc., 2004 WL 2348274, *2
(N.D. Cal. 2004) (“The Ninth Circuit has not ruled on
the issue of whether a case can be removed from the state
court on the basis of a pending motion to amend a complaint
to include federal causes of action. However, ‘the
courts that have considered the issue have found that removal
on the basis of federal claims asserted in a motion to amend
the complaint, prior to the court's ruling on the motion,
is premature.'”) (citation omitted). Here,
Plaintiff has not even taken the step of filing a motion to
Accord McDonough v. UGL
UNICCO, 766 F.Supp.2d 544, 546 (E.D. Pa. 2011)
(“Simply put, in federal court, there is simply no such
thing as ‘contingent' subject ...