The opinion of the court was delivered by: John Gleeson, United States District Judge
Vincent Calabro, a safety inspector for the United States Department of Agriculture, brought this action in New York state court against Aniqa Halal Live Poultry Corp. for allegedly using his photograph and name in its advertisements without his permission in violation of New York state law. After answering and asserting claims against Calabro and the USDA, Aniqa removed the action to this court on the basis of federal question jurisdiction. 28 U.S.C. § 1441(b). Calabro, disputing subject matter jurisdiction, moves to remand the action to state court. For the reasons set forth below, the motion is granted.*fn1
From January through July of 2009, Calabro claims he was the sole USDA safety inspector assigned to monitor Aniqa's poultry slaughtering operations at its plant in Queens. Calabro alleges that in August or September of 2009, Aniqa ran advertisements in at least two community newspapers for its live halal poultry market that included photographs of Calabro inspecting chickens at Aniqa's plant and of a USDA certificate showing Calabro's signature.
On October 12, 2009, Calabro filed this suit in New York Supreme Court, Queens County, in his individual capacity, complaining that Aniqa was using his likeness and signature for commercial purposes without his written consent, in violation of N.Y. Civ. Rights Law § 50 and § 51. He seeks damages and an order enjoining Aniqa from any further unauthorized use of his likeness or signature.
On November 4, 2009, Aniqa answered the complaint and asserted third party claims against Calabro in his official capacity as a USDA inspector and against the USDA.*fn2 The claims arise under the False Claims Act, 31 U.S.C. § 3729 et seq., and the Poultry Products Inspection Act, 21 U.S.C. § 451 et seq. Aniqa alleges that the USDA billed it for inspection services that were never performed and that, in retaliation for its complaints about the false billing, Calabro arranged to bring an ABC news crew into its plant and brought this lawsuit. It seeks, among other relief, a declaration that it has not violated the Poultry Products Inspection Act.
On November 6, 2009, Aniqa removed the action to this court on the basis of federal question jurisdiction.
A defendant may remove an action filed in state court to a federal district court only if the plaintiff could have filed the action in federal court. 28 U.S.C. § 1441(a). On a motion to remand, the defendant bears the burden of proving that the federal court has subject-matter jurisdiction over the action. See Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009).If the defendant defends the propriety of removal on the basis of federal question jurisdiction, whether that jurisdiction in fact exists is governed by the "well-pleaded complaint rule." See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987).Under that rule, federal question jurisdiction is present only if a question of federal law appears on the face of the plaintiff's properly pleaded complaint. Id. The rule, it is often said, makes the plaintiff the master of his claim; he may evade federal jurisdiction by relying only on state law. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).Thus, if the complaint does not raise a federal question, a defendant may not defeat a plaintiff's choice of a state forum by introducing a federal question into the answer or even into a compulsory counterclaim. See Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002).
A straightforward application of the "well-pleaded complaint rule" necessitates a remand. Aniqa asserts only one basis for removal -- federal question jurisdiction -- but Calabro's simple complaint states only a single state law claim under N.Y. Civ. Rights Law § 50 and § 51.*fn3
Calabro's entitlement to relief turns entirely on whether he can prove that (1) Aniqa used his name and likeness without his written consent, and (2) that it did so within New York for advertising or trade purposes. Although the complaint refers to a federal statute, the Poultry Products Inspection Act, 21 U.S.C. § 451 et seq., it does so only to explain Calabro's presence in Aniqa's plant as a USDA safety inspector. (The Act requires that all poultry intended for human consumption be inspected by the USDA. Id. at § 455.) Whether Calabro may prevail on his state law claim does not in any way depend on the application of the Poultry Products Inspection Act or any other federal law.
Aniqa does not seriously suggest that Calabro's complaint presents a federal question that would give this court jurisdiction over the action. Instead, Aniqa argues that the federal claims it asserts against Calabro in his official capacity and against the USDA give this court jurisdiction to hear Calabro's state law suit because all of the claims share "a common nucleus of operative fact." Aniqa appears to rest this argument on principles underlying 28 U.S.C. § 1367, although it does not explicitly refer to that provision in its papers. That statute states that "in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of ...