Liberty Legal Foundation et al v. National Democratic Party of the USA, Inc. et al

Filing 18

ORDER denying Plaintiffs' Motion to Remand to State Court. Signed by Judge S. Thomas Anderson on 4/13/12. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
LIBERTY LEGAL FOUNDATION,
JOHN DUMMETT,
LEONARD VOLODARSKY, and
CREG MARONEY,

)
)
)
)
)
Plaintiffs,
)
)
v.
)
No. 12-2143-STA
)
NATIONAL DEMOCRATIC PARTY
)
of the USA, Inc., DEMOCRATIC
)
NATIONAL COMMITTEE,
)
TENNESSEE DEMOCRATIC PARTY, )
DEBBIE WASSERMAN SCHULTZ,
)
CHIP FORRESTER,
)
)
Defendants.
)
______________________________________________________________________________
ORDER DENYING PLAINTIFFS’ MOTION TO REMAND
______________________________________________________________________________
Before the Court is Plaintiffs Liberty Legal Foundation, John Dummett, Leonard Volodarsky,
and Creg Maroney’s Motion to Remand (D.E. # 12,13) filed on March 14, 2012. Defendants
Democratic National Committee, Tennessee Democratic Party, Debbie Wasserman Schultz, and
Chip Forrester have filed a response in opposition.1 For the reasons set forth below, the Motion is
DENIED.

1

Defendants have argued in other filings with the Court that Defendant National
Democratic Party of the USA, Inc. is not a proper party to this action and is perhaps a “sham”
organization contrived to obtain venue in Shelby County, Tennessee. See Defs.’ Mem. in
Support Mot. Dismiss 1 n.1 (D.E. # 5). To date this Defendant has not answered or otherwise
appeared to defend in this matter.
1

BACKGROUND
Plaintiffs filed their Complaint in the Chancery Court for Shelby County, Tennessee, on
October 26, 2011.2 Plaintiffs allege that Defendants “intend[] to send documents to the Tennessee
Secretary of State announcing that [President Barack] Obama is [their] Presidential nominee for the
2012 general election and representing that he is qualified to hold the office of President.” (First
Am. Compl. ¶ 8.) Plaintiffs further allege that these representations are false because President
Obama is not a “natural-born citizen” as Article II of the United States Constitution requires for any
one who would hold the office of President of the United States. (Id. ¶¶ 9–19.) Based on these
alleged misrepresentations to the Tennessee Secretary of State, Plaintiffs contend that Defendants
are liable for negligent misrepresentation and fraud/intentional misrepresentation and that the Court
should enjoin them from filing papers which will place President Obama’s name on the ballot in
Tennessee for election of President of the United States.
On February 23, 2012, Defendants removed Plaintiffs’ suit to this Court on the basis of
federal question jurisdiction. According to the Notice of Removal, “[t]he critical question that must
be decided in this case is whether President Obama can constitutionally hold the Office of the
President of the United States,” an issue which Defendants contend arises under federal law. (Notice
of Removal ¶ 6.) Therefore, Defendants argue that federal question jurisdiction exists in this case
and removal to federal court is proper.

2

Plaintiffs filed a First Amended Complaint while this matter was pending before the
Shelby County Chancery Court. For purposes of analyzing the Motion to Remand, the First
Amended Complaint is the operative pleading. GenTek Bldg. Prods., Inc. v. Sherwin-Williams,
Inc., 491 F.3d 320, 330 (6th Cir. 2007) (“When ruling on a motion to remand, a court generally
looks to the plaintiff’s complaint, as it is stated at the time of removal, and the defendant’s notice
of removal.”).
2

In their Motion to Remand, Plaintiffs argue that they have alleged alternate theories based
on state law, and not federal law. Plaintiffs’ claims for negligent misrepresentation and fraud are
not pre-empted by federal law and do not depend on the resolution of a substantial question of
federal law. Plaintiffs concede that one of the alleged misrepresentations, that President Obama is
a “natural born citizen,” will require this Court to consider United States Supreme Court precedent.
Nevertheless, Plaintiffs contend that their alternate theories about President Obama’s qualifications
for office, namely, that he surrendered his American citizenship and that he does not possess a valid
social security number, do not implicate substantial questions of federal law. For these reasons,
Plaintiffs request that the Court remand the case to state court.
In their response in opposition, Defendants dispute that Plaintiffs’ fraud and
misrepresentation claims do not turn on a question of federal law. According to Defendants, this
Court must determine whether President Obama meets the qualifications of office set forth in Article
II of the Constitution in order to determine whether Defendants have perpetrated a fraud or
misrepresented Mr. Obama’s qualifications to the Tennessee Secretary of State. Defendants argue
that the well-pleaded complaint rule applies in this case. Despite the fact that the First Amended
Complaint alleges state-law claims (fraud and negligent misrepresentation), Plaintiffs have omitted
from their pleadings a necessary federal question, which is the constitutional qualification that any
person to hold the office of President must be a natural-born citizen. Defendants further assert that
the matter of President Obama’s qualifications for office arises under federal law. In any event, the
Court should hold that Plaintiffs’ claims turn on significant federal questions. Defendants offer one
other basis for denying remand, that federal constitutional interpretation should preempt any state
law claim involving presidential qualifications.
3

STANDARD OF REVIEW
“Only state-court actions that originally could have been filed in federal court may be
removed to federal court by the defendant.”3 The removal statute, found at 28 U.S.C. § 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
without regard to the citizenship or residence of the parties.”4 A case may “arise under” federal law
where (1) the plaintiff’s cause of action is created by federal law; (2) the well-pleaded state-law
claim has as a necessary element a substantial, disputed question of federal law; or (3) the claim
pleaded is in fact one of federal law.5 “The presence or absence of federal-question jurisdiction is
governed by the well-pleaded complaint rule, which provides that federal jurisdiction exists only
when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.”6
ANALYSIS
The Court holds that the allegations in this case arise under federal law because Plaintiffs
well-pleaded state law claims for fraud and negligent misrepresentation have as a necessary element
a substantial, disputed question of federal law. As such, Defendants’ removal of this case to federal
court was proper, and Plaintiffs’ Motion to Remand must be denied.
The Supreme Court has explained that one variety of cases with “arising under” jurisdiction

3

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).

4

28 U.S.C. § 1441(b).

5

City of Warren v. City of Detroit, 495 F.3d 282, 286 (6th Cir. 2007) (citations and
quotations omitted).
6

Williams, 482 U.S. at 392 (quotation marks omitted); Franchise Tax Bd. v. Constr.
Laborers Vacation Tr., 463 U.S. 1, 9–10 (1983).
4

are those cases in which state-law claims “implicate significant federal issues.”7 In other words, the
case arises under federal law because the state-law claims actually “turn on substantial questions of
federal law, and thus justify resort to the experience, solicitude, and hope of uniformity that a federal
forum offers on federal issues.”8 In Grable and Sons Metal Products, Inc. v. Darue Engineering and
Manufacturing, the Supreme Court held that a substantial federal question is implicated, for
example, where “the interpretation of a federal statute [] actually is in dispute in the litigation and
is so important that it sensibly belongs in federal court.”9 The relevant inquiry in cases of this type
is whether “a state-law claim necessarily raise[s] a stated federal issue, actually disputed and
substantial, which a federal forum may entertain without disturbing any congressionally approved
balance of federal and state judicial responsibilities.”10
In this case Plaintiffs have alleged that Defendants are liable for fraud and negligent
misrepresentation under Tennessee common law. The basis for these claims is Plaintiffs’ allegation
that Defendants have falsely represented to the Tennessee Secretary of State that President Obama
meets the qualifications to be President of the United States. More specifically, Defendants have
taken steps to have President Obama’s name appear as the Democratic Party’s nominee for President

7

Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005)
(citation omitted).
8

Id. at 315 (citation omitted).

9

Eastman v. Marine Mech. Corp., 438 F.3d 544, 552 (6th Cir. 2006) (quoting Grable &
Sons, 545 U.S. at 315).
10

Grable & Sons, 545 U.S. at 314. See also Mikulski v. Centerior Energy Corp., 501
F.3d 555, 568 (6th Cir. 2007) (summarizing the three parts of the substantial-federal-question
doctrine as (1) the state-law claim must necessarily raise a disputed federal issue; (2) the federal
interest in the issue must be substantial; and (3) the exercise of jurisdiction must not disturb any
congressionally approved balance of federal and state judicial responsibilities).
5

on the Tennessee ballot in November 2012. According to the First Amended Complaint, President
Obama’s disqualifying characteristic is that he is a not a natural born citizen of the United States.
The pleadings then cite Article II, section 1 of the United States Constitution, which provides, “No
person except a natural born citizen, or a citizen of the United States at the time of the adoption of
this Constitution shall be eligible to the office of President.”11 The First Amended Complaint also
alleges that in Minor v. Happersett, 88 U.S. 162 (1875), the United States Supreme Court defined
“natural born citizen” to mean as “all children born in a country of parents who were its citizens.”12
Plaintiffs plead that because President Obama’s father was not an American citizen, President
Obama actually is a “dual citizen” and cannot meet the Supreme Court’s definition of a “natural born
citizen.”13 The First Amended Complaint also asserts that as a young man, President Obama
surrendered his American citizenship and that he does not hold a valid social security number.
Therefore, according to Plaintiffs, Mr. Obama is not qualified to serve as President of the United
States or as a candidate for President on Tennessee’s upcoming ballot.
Based on the allegations of the First Amended Complaint, the Court holds that Plaintiffs’
state law claims are exactly of the kind which “turn on substantial questions of federal law.” As one
of the elements of their claims for fraud and negligent misrepresentation, Plaintiffs must show that
Defendants somehow misrepresented a material fact.14 It is undisputed that the material fact at issue

11

First Am. Class Action Compl. ¶ 10.

12

Id. ¶ 11.

13

Id. ¶¶ 12–14.

14

See Shah v. Racetrac Petroleum, Co., 338 F.3d 557, 566–67 (6th Cir. 2003) (defining
elements of fraud under Tennessee law); Davis v. McGuigan, 325 S.W.3d 149 (Tenn. 2010)
(defining elements of intentional misrepresentation); Ritter v. Custom Chemicides, Inc., 912
6

in this case is whether under the circumstances of President Obama’s birth, the President is a “natural
born citizen,” a term set out in the United States Constitution and construed under federal law. It
is true that viewed from one perspective, Plaintiffs’ suit is about state elections and the manner in
which a state political party selects its nominee for federal office and then takes steps to have the
nominee’s name appear on the state-wide ballot for a general election. When cast in this light, it
could be argued that Plaintiffs’ claims are peculiarly a matter of state law. Nevertheless, the primary
basis for Plaintiffs’ state-law claims is the allegation that President Obama is not a natural born
citizen of the United States of America, as the Supreme Court has defined the term, and therefore
not qualified to serve as President of the United States. Plaintiffs concede as much and actually
allege in their First Amended Complaint that President Obama cannot be considered a natural born
citizen based on a definition of “natural born citizen” the United States Supreme Court announced
over one hundred and thirty-five years ago in Minor v. Happersett. Plaintiffs’ ultimate success in
proving Defendants liable for fraud or negligent misrepresentation turns then on Plaintiffs’ ability
to prove that President Obama is not a natural born citizen, as federal law defines that concept.15
Therefore, the Court concludes that Plaintiffs’ claims “necessarily raise a stated federal issue.”
Furthermore, it is clear that the stated federal issue of President Obama’s qualifications for
the office are “actually disputed and substantial.” There is a sharp dispute in this case over
Plaintiff’s main contention that President Obama is not a natural born citizen and is otherwise
disqualified from the office under the United States Constitution. It is also clear that there will be

S.W.2d 128 (Tenn. 1995) (defining the elements of negligent misrepresentation).
15

Mikulski, 501 F.3d at 569–70 (concluding that the plaintiffs’ claim stated a federal issue
where the plaintiffs “staked their claim” on the interpretation of a federal statute).
7

a legal dispute over the Constitution’s definition of “natural born citizen” and the Supreme Court’s
decision in Minor. The federal issue presented is obviously contested in this case.
Likewise, the Court holds that the federal issue is substantial. With respect to the
substantiality of the federal interest, the Supreme Court has considered four factors: “(1) whether the
case includes a federal agency, and particularly, whether that agency’s compliance with the federal
statute is in dispute; (2) whether the federal question is important (i.e., not trivial); (3) whether a
decision on the federal question will resolve the case (i.e., the federal question is not merely
incidental to the outcome); and (4) whether a decision as to the federal question will control
numerous other cases (i.e., the issue is not anomalous or isolated).”16 The Sixth Circuit has stated
that no one factor is dispositive on the issue of substantiality and that some factors may be more
relevant than others in a given set of circumstances.17 Here, there is no federal agency involved in
the dispute.18 Because the federal issue raised in Plaintiffs’ First Amended Complaint is a question
of constitutional law, the Court finds that this factor is not entirely relevant to the case at bar.
However, the other factors suggest that the issue of whether President Obama is
constitutionally qualified to run for the Presidency is certainly substantial. First, the Court finds that
the federal question presented, the meaning of the phrase “natural born citizen” as a qualification for

16

Id. (citing Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 700–701

(2006)).
17

Id.

18

Indeed, neither party has shown how any federal agency would ever be involved in a
federal dispute of this nature. Plaintiffs have made allegations about President Obama’s passport
and social security number. These assertions in no way suggest that the Department of State or
the Social Security Administration are somehow involved in the federal dispute presented in this
case.
8

the Presidency set out in Article II of the Constitution, is important and not trivial. The Court finds
it self-evident that an individual’s ability to meet the constitutional qualifications to serve as
President of the United States, particularly where the individual already holds the office, ranks as
a “significant federal issue.” Second, the Court finds that resolution of this federal issue will resolve
the case. As previously discussed, Plaintiffs have “staked their claim” on the issue of whether
President Obama can satisfy the constitutional requirements for the office. Finally, the outcome of
the federal question in this case will certainly have an effect on other cases presenting the same issue
about whether President Obama meets the constitutional qualifications for the Presidency. This
specific question has been raised in numerous lawsuits filed since President Obama took office.19
Under the circumstances, there is a risk of inconsistent adjudications on the federal issue presented.
Taken together, these factors establish that the federal issue in this case is substantial.
Finally, the Court holds that this is a dispute a “federal forum may entertain without
disturbing any congressionally approved balance of federal and state judicial responsibilities.”
Plaintiffs have not drawn the Court’s attention to “any disruptive portent in exercising federal
jurisdiction” in this case,20 which would make jurisdiction improvident, even though Plaintiffs’
claims arise under federal law. The nature of Plaintiffs’ claims, that a sitting President of the United
States is not constitutionally-qualified for office based on citizenship, is sufficiently unique that the

19

Defendants have cited many of these decisions in their memorandum in support of their
motion to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6). See Defs.’ Mem. in Support
Mot. Dismiss 7–8 (D.E. # 5).
20

See Grable, 545 U.S. at 313–14 (“But even when the state action discloses a contested
and substantial federal question, the exercise of federal jurisdiction is subject to a possible veto.
For the federal issue will ultimately qualify for a federal forum only if federal jurisdiction is
consistent with congressional judgment about the sound division of labor between state and
federal courts governing the application of § 1331.”).
9

Court sees little impact on “the federal-state division of labor.”21 In other words, the Court finds
little risk that “the federal courts will be unduly burdened by a rush of state law cases” challenging
the constitutional qualifications of the incumbent President of the United States to hold the office
and stand for re-election.22 Therefore, Plaintiffs’ Motion to Remand is DENIED.
Plaintiffs argue that their claims do not necessarily arise under federal law or turn on
substantial questions of federal law because they have pleaded additional facts about President
Obama’s qualifications for office. According to the First Amended Complaint, President Obama
renounced his American citizenship as young man and does not possess a valid social security
number. Plaintiffs describe these fact pleadings as “alternative theories” in support of their fraud
and negligent misrepresentation claims. Plaintiffs specifically rely on Christianson v. Colt Industries
Operating Corp., 486 U.S. 800 (1988) for the proposition that “a claim supported by alternative
theories in the complaint may not form the basis for federal jurisdiction unless federal law is
essential to each of those theories.”23 The Court would point out that the specific holding of
Christianson was “[i]f there are several alternative theories on which a claim may succeed, patent
law jurisdiction is only invoked when all alternative theories necessarily state a complaint under the
patent law.”24 Although Christianson addressed the removability of a case on the basis of patent

21

Id. at 315.

22

Mikulski, 501 F.3d at 565.

23

Pl.’s Mot. Remand 2.

24

E.I. DuPont de Nemours & Co. v. Okuley, 344 F.3d 578, 583 (6th Cir. 2003) (citing
Christianson, 486 U.S. at 810).
10

jurisdiction under 28 U.S.C. § 1338(a),25 the Sixth Circuit has applied Christianson’s reasoning to
federal jurisdiction generally.26
The Court finds Plaintiffs’ argument on this point to be without merit. Plaintiffs’ assertion
that “neither of [their alternative] theories require an interpretation of federal law or the U.S.
Constitution” misses the point.27 Plaintiffs’ “alternative theories” still go to the substantial federal
issue presented in the First Amended Complaint, which is whether President Obama is eligible to
hold the office under Article II of the Constitution. In other words, “federal law is essential” to all
of Plaintiffs’ “alternative theories” about defects in President Obama’s citizenship. It is undisputed
that Plaintiffs’ claims are based on the allegation that President Obama is not qualified for his office
on the basis of citizenship. In characterizing their suit, Plaintiffs have alleged that “this complaint
simply asserts that sufficient evidence exists to make any reasonable person doubt, in light of the
evidence, that Barack Obama is a ‘natural born citizen.’”28 Article II of the Constitution, which is
the exclusive source for the qualifications for the Presidency, sets forth the natural born citizenship
requirement. Moreover, rather than being alternative theories, the Court construes these allegations
about President Obama’s dual citizenship and social security number as corroboration of Plaintiffs’
main allegation that President Obama is not a natural born citizen or otherwise qualified to be

25

According to 28 U.S.C. § 1338(a), “[t]he district courts shall have original jurisdiction
of any civil action arising under any Act of Congress relating to patents, plant variety protection,
copyrights and trademarks.” 28 U.S.C. § 1338(a).
26

Long v. Bando Mfg. of Am., Inc., 201 F.3d 754, 759–60 (6th Cir. 2000). See also Rains
v. Criterion Sys., Inc., 80 F.3d 339, 346 (9th Cir. 1996); Mulcahey v. Columbia Organic Chems.
Co., Inc., 29 F.3d 148, 153 (4th Cir. 1994).
27

Pls.’ Mot. Remand 4.

28

First Am. Compl. ¶ 2.
11

President. The Court finds that these additional fact pleadings go to the single claim that Defendants
have misrepresented President Obama’s qualifications for office, which are defined under federal
law. Therefore, Plaintiffs’ argument does not alter the Court’s conclusion that this case arises under
federal law.
Based on the Court’s holding that Plaintiffs’ claims present substantial, disputed questions
of federal law, the Court need not consider Defendants’ arguments that the artful-pleading rule
should apply in this case or that Plaintiffs’ claims are preempted.29 Therefore, Plaintiffs’ Motion to
Remand is DENIED.
Defendants have filed a number of Rule 12(b) motions in this case, and Plaintiffs have filed
a Motion for Extension of Time (D.E. # 14, 15) in which to respond. Plaintiffs request that they not
be required to respond until such time as the Court has ruled on the Motion to Remand. Because the
Motion to Remand is denied, Plaintiffs shall have twenty-one (21) days from the entry of this Order
in which to respond to Defendants’ Rule 12(b) motions.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: April 13, 2012.

29

The Sixth Circuit has held that the artful-pleading rule applies only in narrow
circumstances because “an expansive application of this doctrine would effectively abrogate the
well-pleaded complaint rule.” City of Warren, 495 F.3d at 287 (citing Her Majesty The Queen In
Right of the Province of Ontario v. City of Detroit, 874 F.2d 332, 340 (6th Cir. 1989)).
12