The opinion of the court was delivered by: MCAVOY
This action was commenced by the plaintiff, F.W. MYERS & CO., INC., on June 13, 1995, in the Supreme Court of the state of New York, Clinton County. A supplemental summons and amended complaint were filed on June 20, 1995. Both were duly served on the defendant, WORLD PROJECTS INTERNATIONAL, INC. On July 19, 1995, the defendant filed removal papers with this court. On August 11, 1995, the plaintiff filed a motion to remand.
This dispute arises over an Agreement whereby a subsidiary relationship between the plaintiff and the defendant was ended by the sale of plaintiff's stock in the defendant corporation to certain individuals. Both corporations are in the business of "freight forwarding services," and are competitors. The Agreement provided that, after the closing date of December 27, 1993, the defendant would change its name to avoid confusion with the plaintiff, would be prohibited from using the plaintiff's logo and logo-imprinted materials, and would assign to the plaintiff certain receivables and other matters relating to a named transaction. The plaintiff now claims that the defendant has breached this agreement by, inter alia, infringing upon the plaintiff's trade name.
The defendant argues that the plaintiff has, in fact, set forth a federal claim by including in the amended complaint the language "in violation of the terms of the Agreement and applicable federal statutes and regulations." The defendant also argues that the plaintiff has set forth a claim pursuant to the Lanham Act, although such claim is not expressly referenced in the amended complaint. The court notes that the defendant concedes that the first cause of action is the only claim in the amended complaint that allegedly raises a federal question. Accordingly, the court will examine that cause of action.
The plaintiff alleges that there is no federal question alleged in the amended complaint upon which this court may find jurisdiction, and accordingly, it must remand.
More specifically, the plaintiff has brought this action seeking redress for alleged improper use of the plaintiff's trade name, tortious interference with the plaintiff's business, and breach of contract. Plaintiff claims that it is not seeking redress under the Lanham Act or any other federal law, but rather has confined the claims and remedies sought to those available under New York law.
Pursuant to 28 U.S.C. § 1441(b), "Any 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..." Thus, the pivotal question before the court is whether any of the claims set forth in the amended complaint arise under the laws of the United States.
It is long settled that a plaintiff is the master of his complaint, and may decide on which law he will rely. See Deats v. Joseph Swantak, Inc., 619 F. Supp. 973, 977 (N.D.N.Y. 1985) (citing, The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S. Ct. 410, 411, 57 L. Ed. 716 (1913)). "whether or not a plaintiff has elected to pursue a federal or state claim is to be determined from the face of the complaint." Deats, 619 F. Supp. at 978 (citation omitted). Furthermore, the claim alleged to be federal "need not be labelled as such to fall within federal jurisdiction." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 63, 107 S. Ct. 1542, 1546, 95 L. Ed. 2d 55 (1987). However, courts are resistent to finding a federal claim by implication. Deats, 619 F. Supp. at 979 (citation omitted).
The defendant argues that the plaintiff has set forth federal claims in its first cause of action in the amended complaint. Specifically, the defendant alleges that paragraphs 11 and 16 of the amended complaint set forth a claim for a violation of the federal Maritime Commission license statute
by mentioning the license, alleging that the defendant wrongly collected commissions pursuant to that license, and stating that such actions were "... a violation of the ... applicable federal statutes and regulations." The defendant also argues that the plaintiff has set forth a viable claim for a violation of the Lanham Act, the federal trademark infringement statute. The court will examine both arguments seriatim.
B. Claim Pursuant To 46 U.S.C. § 1701 et seq.
Although not argued by the plaintiff, the court finds that the defendant's argument that the amended complaint, at paragraphs 11 and 16, makes out a viable claim under the applicable statutes and regulations relating to federal maritime licenses in untenable.
As stated in the amended complaint, the license at issue is governed by 46 C.F.R. § 510.2. That regulation, however, does not confer on the plaintiff a private cause of action for violations of that regulation. Any action relating to an alleged violation of the regulation cited in the amended complaint is governed by 46 U.S.C. § 1710.
Under 46 U.S.C. § 1710, "any person may file with the [Federal Maritime] Commission a sworn complaint alleging a violation of this Act ..." 46 U.S.C. § 1710(a). It is the Commission that investigates alleged violations of the Act, 46 U.S.C. § 1710(c) & (d), makes written reports, 46 U.S.C. § 1710(f), directs "payment of reparations," 46 U.S.C. § 1710(g), and seeks injunctive relief in a federal district court. 46 U.S.C. § 1710(h)(1). The complainant, the plaintiff herein, may only seek injunctive relief in a federal district court after complying with 46 U.S.C. § 1710(a). See 46 U.S.C. § 1710(h)(2). Until complying with the relevant statute, the plaintiff cannot pursue a remedy in this court. Nowhere in the amended complaint is it alleged that the ...