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Great Lakes Gas Transmission Ltd. Partnership v. Essar Steel Minnesota, LLC

United States District Court, D. Minnesota

May 4, 2015

Great Lakes Gas Transmission Limited Partnership, Plaintiff,
v.
Essar Steel Minnesota, LLC; Essar Steel Limited f/k/a Essar Steel Holdings, Ltd.; Essar Steel India Limited f/k/a Essar Steel Limited; and Essar Global Fund Ltd. f/k/a Essar Global Limited, Defendants

For Plaintiff: Brian A. Farlow, Hayley Ellison, Worthy W. Walker, Barbara L. Wohlrabe, and David W. Elrod, Elrod PLLC, Dallas, TX; David T. Schultz and Julian C. Zebot, Maslon LLP, Minneapolis, MN.

For Defendants: Douglas H. Flaum, Kevin P. Broughel, and Shahzeb Lari, Paul Hasting LLP, New York, NY; Eric A. Hirsch, Fried Frank Harris Shriver & Jacobson LLP, One New York Plaza, New York, NY; Lousene M. Hoppe and Nicole M. Moen, Fredrikson & Byron, PA, Minneapolis, MN.

MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, United States District Judge.

I. INTRODUCTION

This matter is before the Court on the following motions: (1) Defendant Essar Steel Minnesota LLC's Motion to Dismiss for Lack of Subject Matter Jurisdiction [Doc. No. 856]; (2) Plaintiff's Motion for Leave to File Second Amended Complaint [Doc. No. 812]; (3) Plaintiff's Motion in Limine [Doc. No. 835]; and (4) Defendant's Motion in Limine [Doc. No. 842]. For the reasons set forth below, the Court denies Defendant's Motion to Dismiss and Plaintiff's Motion for Leave to File Second Amended Complaint; and the Court denies, without prejudice, Plaintiff's and Defendant's Motions in Limine.

II. BACKGROUND

A. The Parties

Although the facts of this matter are thoroughly detailed in prior orders of this Court, the Court discusses the relevant facts of the case below. Plaintiff Great Lakes Gas Transmission Limited Partnership (" Plaintiff" or " Great Lakes" ) is a partnership entity composed of: " (1) TransCanada GL, Inc., a corporation organized under the laws of the state of Delaware, (2) T.C. GL Intermediate Limited Partnership, a Delaware limited partnership, and (3) Great Lakes Gas Transmission Company, a corporation organized under the laws of the state of Delaware." (See First Am. Compl. ¶ 2 [Doc. No. 35].) One of these partners, T.C. GL Intermediate Limited Partnership is, in turn, composed of: (1) T.C. PipeLines GP, Inc., a Delaware corporation, and (2) T.C. PipeLines, LP, which is a publicly-traded Delaware master limited partnership. (See id. ¶ 3.) T.C. PipeLines, LP is composed of public unitholders and two partners, T.C. PipeLines, GP, Inc. and TransCan Northern Ltd. (See id. ¶ ¶ 2-4; see also Pl.'s Mem. at 37-38 [Doc. No. 862].)

Essar Steel Minnesota, LLC (" ESML" or " Defendant" ) is a Minnesota limited liability corporation with its principal place of business in Minnesota. (See First Am. Compl. ¶ 5 [Doc. No. 35].) Essar Steel Holdings Ltd. is a foreign company that is incorporated under the laws of Mauritius and has its principal place of business in Mauritius. (See id. ¶ 6.) Essar Steel Limited is a foreign company that is incorporated under the laws of India, has a principal place of business in India, and is registered to conduct business in the State of New York. (See id. ¶ 7.) Essar Global Limited is a foreign company incorporated under the laws of the Cayman Islands with offices in Asia, Africa, Europe, and the Americas, and although it has its principal place of business in Dubai, it has an office in the State of New York. (See id. ¶ 8.)

In Plaintiff's First Amended Complaint, the controlling version of the Complaint in this case, Great Lakes alleges that the Court has diversity jurisdiction over this case as the matter in controversy exceed $75,000 and is between citizens of different States. (See id. ¶ 9.)

B. The Contract and the Parties' Dispute

The underlying controversy between the parties stems from Defendants' breach of contract. The contract (" Contract" ) was initially executed in 2006 between Plaintiff and Minnesota Steel Industries (" MSI" ). (Ellison Aff., Ex. 2 " Contract" [Doc. No. 681-2].) However, in 2007, Defendant ESML purchased MSI, and " expressly and/or impliedly assumed all of [MSI's] liabilities," including MSI's contractual obligations. (See First Am. Compl. ¶ 16 [Doc. No. 35]; see also First Am. Answer ¶ 19 [Doc. No. 314].) ESML is affiliated with several foreign entities, which are also Defendants in this action -- Essar Steel Limited, formerly known as Essar Steel Holdings, Ltd.; Essar Steel India Limited, formerly known as Essar Steel Limited; and Essar Global Fund Ltd., formerly known as Essar Global Limited (" Foreign Essar Defendants" ).

The Contract required Great Lakes, a regulated interstate natural gas pipeline, to transport up to 55,000 dekatherms of natural gas firm capacity per day on MSI's behalf. (See First Am. Compl. ¶ 17 [Doc. No. 35.) The Contract, otherwise known as the Transportation Services Agreement (" TSA" ), was effective July 1, 2009 through March 31, 2024. (Id.) In exchange for Plaintiff's transportation of natural gas, the Contract required MSI to pay Great Lakes the maximum reservation rates and charges on a monthly basis, pursuant to the applicable rate schedule reflected in Plaintiff's gas tariff (the " Tariff" ) on file with the Federal Energy Regulatory Commission (" FERC" ). (Id.) The TSA specifically provides:

This Agreement shall incorporate and in all respects be subject to the " General Terms and Conditions" and the applicable Rate Schedule (as stated above) set forth in Transporter's [Plaintiff's] FERC Gas Tariff, Second Revised Volume No. 1, as may be revised from time to time. Transporter may file and seek Commission approval under Section 4 of the Natural Gas Act (NGA) at any time and from time to time to change any rates, charges or provisions set forth in the applicable Rate Schedule (as stated above) and the " General Terms and Conditions" in Transporter's FERC Gas Tariff, Second Revised Volume No. 1, and Transporter shall have the right to place such changes in effect in accordance with the NGA, and this Agreement shall be deemed to include such changes and any such changes which become effective by operation of law and Commission Order, without prejudice to Shipper's [ESML's] right to protest the same.

(See Moen Decl., Ex. 5 " TSA," ¶ 12 [Doc. No. 859-1].) Thus, the TSA expressly incorporated the terms of the Tariff.

In addition, pursuant to the Contract, MSI was obligated to pay all applicable surcharges. (First Am. Compl. ¶ 17 [Doc. No. 35].) The parties agree that the Tariff " provide[d] terms and conditions that govern[ed] the parties' rights and obligations." (See 10/4/12 Hr'g Tr. at 33, 35, 41 (statements by ESML's counsel) [Doc. No. 470].)

In October 2009, Great Lakes filed this action against the above named Defendants, alleging that ESML failed to make the first payment of $190,190 due on August 17, 2009, and has failed to make all subsequent payments. (See generally Compl. [Doc. No. 1]; First Am. Compl. ¶ 20 [Doc. No. 35].) Plaintiff alleges four counts against Defendants. In Count One, Great Lakes alleges that ESML is liable for breach of contract and anticipatory repudiation. (See id. ¶ ¶ 48-54.) Plaintiff contends that because " both the Tariff and the TSA form the contract between Great Lakes and Essar, the claim for breach of contract by necessity is based on both." (See Pl.'s Mem. at 2 [Doc. No. 862].) In Count One, Great Lakes additionally argues that ESML is liable for damages for breaching the Contract. (See First Am. Compl. ¶ 53 [Doc. No. 35].)

In Count Two, Plaintiff claims that " [u]nder the equitable theories or remedies of piercing the corporate veil, alter ego and/or mere instrumentality, the corporate structures of each of the Essar entities should be disregarded, and each of the foreign Essar entities should be held liable for the damages recoverable by Great Lakes as a result of [ESML's] breach of and anticipatory repudiation of the Contract." (See id. ¶ 58.) In Count Three, Plaintiff claims that " [a]s a result of the Essar entities' joint enterprise or joint venture, each of the foreign Essar entities should be held liable for the damages recoverable by Great Lakes as a result of the breach and anticipatory repudiation of the Contract." (See id. ¶ 61.) Finally, in Count Four, Great Lakes alleges that because ESML was acting as the agent for the foreign Essar entities, all of the foreign Essar entities should be held liable for the damages suffered by Great Lakes. (See id. ¶ 63.)

C. Procedural Posture

As this case was filed several years ago, the Court has already had the opportunity to rule on the merits of Plaintiff's breach of contract claim and has determined that Defendants breached the Contract and are therefore liable for paying Plaintiff damages. The amount of damages due remains an unsettled issue, however.

In the Fall of 2014, the parties were preparing for trial on the appropriate discount rate to apply to the damages due to Plaintiff. Plaintiff filed a Motion in Limine [Doc. No. 835], as did Defendants [Doc. No. 842]. When this case was on the eve of trial, Defendants alerted the Court via letter [Doc. No. 811] that they believed that the Court lacked subject matter jurisdiction to decide this case. Defense counsel explained that they " first became aware" of the issue when they were preparing their trial brief. (See Flaum Letter at 1 [Doc. No. 811].) Specifically, Defendants uncovered that Plaintiff's initial disclosure about the parties' citizenship was incomplete as Great Lakes failed to disclose the citizenship of T.C. PipeLines, LP's hundreds or thousands of public unitholders. (See id.) Defense counsel argued that if any of the public unitholders was a Minnesota citizen, then diversity jurisdiction is incomplete in this case. (See id. at 2.)

The Court permitted Plaintiff to file a Motion for Leave to File a Second Amended Complaint to assert federal question jurisdiction. (See Hr'g Tr. 4:7-12, Oct. 15, 2014 [Doc. No. 855].) Plaintiff duly filed this motion [Doc. No. 812], and submitted a memorandum in support [Doc. No. 814]. In Plaintiff's proposed Second Amended Complaint, Great Lakes sought to add a section alleging subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and the Natural Gas Act, 15 U.S.C. § 717u, because according to Plaintiff its claims " depend on resolution of substantial predicate questions of federal law." (See Proposed Second Am. Compl. [Doc. No. 815-2].) Defendants filed briefing in response to Plaintiff's motion and continued to raise concerns about the Court's subject matter jurisdiction in this case. (See Defs.' Mem. in Opp'n at 1-4 [Doc. No. 823].) The Court heard oral argument on Plaintiff's motion on October 16, 2014. During the October 16, 2014 hearing, the Court instructed Defendants to file a formal Motion to Dismiss. (See Hr'g Tr. 4:18-22 [Doc. No. 855].) Defendant ESML filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction on October 31, 2014 [Doc. No. 856]. Defendant also filed a memorandum in support [Doc. No. 858], a declaration and several attachments [Doc. No. 859]. In response, on November 21, 2014, Plaintiff filed an opposition memorandum [Doc. No. 863], with an affidavit and an exhibit [Doc. No. 863]. On December 5, 2014, ESML filed a reply brief [Doc. No. 864]. The Court heard oral argument on Defendant's motion on December 12, 2014.

III. MOTION TO DISMISS

A. Standard of Review

Defendant argues that the Court lacks subject matter jurisdiction to hear this case and seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1). (See Def.'s Mot. to Dismiss [Doc. No. 856].) " Federal courts are courts of limited jurisdiction. The requirement that jurisdiction be established as a threshold matter springs from the nature and limits of the judicial power of the United States and is inflexible and without exception." Godfrey v. Pulitzer Pub. Co., 161 F.3d 1137, 1141 (8th Cir. 1998) (internal quotations and citations omitted). Accordingly, this Court is obligated to dismiss any action over which it lacks federal subject matter jurisdiction. E.g., Steel Co. v. Citizens For A Better Environment, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

On a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, the court must first " distinguish between a 'facial attack' and a 'factual attack.'" Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). If the movant presents only a facial attack, the court must confine itself to the pleadings and the nonmoving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6). Id. Thus the court " must accept all factual allegations in the pleadings as true and view them in the light most favorable to the nonmoving party." Hastings v. Wilson, 516 F.3d 1055, 1058 (8th Cir. 2008).

Where, in contrast, the movant presents a factual attack, the court may consider matters outside the pleadings and the non-moving party does not have the benefit of the safeguards of Rule 12(b)(6). Osborn, 918 F.2d at 729 n.6. But the motion is not thereby converted into one for summary judgment. Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993) (stating that court could not " have transformed the motion to dismiss into one for summary judgment" because " the question of jurisdiction is inappropriate for summary judgment" ). Here, Defendant presents a factual attack because ESML's argument is based on jurisdictional facts that were not included in the pleadings, such as the citizenship of one entity that was not adequately disclosed on the face of Plaintiff's First Amended Complaint.

A court may have subject matter jurisdiction either because it has diversity jurisdiction, pursuant to 28 U.S.C. § 1332, or federal question jurisdiction, pursuant to 28 U.S.C. § 1331. Defendant argues that this Court lacks both diversity jurisdiction and federal question jurisdiction. (See Def.'s Mem. at 3, 6 [Doc. No. 858].) Below, the Court addresses its subject matter jurisdiction under § 1332 and § 1331.

B. Diversity Jurisdiction

The First Amended Complaint alleges that this Court has diversity jurisdiction over this case, pursuant to 28 U.S.C. § 1332(a)(1) and (a)(2). (See First. Am. Comp. ¶ 9 [Doc. No. 35].) Diversity jurisdiction " requires an amount in controversy greater than $75,000 and complete diversity of citizenship of the litigants." OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007) (citing 28 U.S.C. § 1332(a)); see E3 Biofuels, LLC v. Biothane, LLC, 781 F.3d 972, 2015 WL 1314936, *2 (8th Cir. 2015). " Complete diversity of citizenship exists where no defendant holds citizenship in the same state where any plaintiff holds citizenship." OnePoint Solutions, LLC, 486 F.3d at 346. " When one of the parties to the action is a limited partnership, the citizenship of each general and limited partner must be considered in determining whether complete diversity of citizenship exists." Barclay Square Properties v. Midwest Fed. Sav. & Loan Ass'n of Minneapolis, 893 F.2d 968, 969 (8th Cir. 1990) (citing Stouffer Corp. v. Breckenridge, 859 F.2d 75, 76 (8th Cir. 1988)); see Buckley v. Control Data Corp., 923 F.2d 96, 97 (8th Cir. 1991) (explaining that " for diversity purposes, the citizenship of a limited partnership is the citizenship of each of its partners, both general and limited" ).

Here, Plaintiff has failed to establish the citizenship of one of its limited partners, T.C. PipeLines, LP. T.C. PipeLines, LP is a publicly-traded Delaware master limited partnership (MLP) with public unitholders and two partners. (See First Am. Compl. ¶ ¶ 2-5 [Doc. No. 35].) " A master limited partnership is a limited partnership whose interests (known as 'common units') are publicly traded." Wood v. Walton, No. WDQ--09-3398, 2010 WL 458574 at *1 n. 3 (D. Md. Feb.2, 2010) (citing Ann E. Conaway Stilson, The Agile Virtual Corporation, 22 Del. L. Corp. L. 497, 524-25 (1997)). Although Plaintiff alleged the citizenship of two of T.C. PipeLines, LP's partners in its First Amended Complaint, it did not allege the citizenship of T.C. PipeLines, LP's public unitholders. (See First Am. Compl. ¶ 3 [Doc. No. 35].) However, during oral argument, Plaintiff's counsel stated that, likely, at least one unitholder's citizenship is Minnesota, and therefore, T.C. PipeLines, LP is not completely diverse from Defendants. (See Hr'g Tr. 16:11-14.)

Plaintiff contends that the unitholders' citizenship should not be considered when determining the citizenship of T.C. PipeLines, LP. (See Pl.'s Mem. at 38 [Doc. No. 862].) Great Lakes argues that " [a]t the time this lawsuit was filed in federal court, no authority squarely addressed the citizenship of MLPs." (See id. at 39.) Specifically, Plaintiff asserts that " no controlling authority from the Supreme Court or the Eighth Circuit requires consideration of an MLP's public unitholders for purposes of determining its citizenship." (See id. at 38.) The Court disagrees.

The Supreme Court's holding in Carden v. Arkoma Associates, 494 U.S. 185, 110 S.Ct. 1015, 108 L.Ed.2d 157 (1990), controls. In Carden, the Court held that a limited partnership's citizenship is determined by the citizenship of all of its general and limited partners. Id. at 195 (finding that " [i]n sum, we reject the contention that to determine, for diversity purposes, the citizenship of an artificial entity, the court may consult the citizenship of less than all of the entity's members" ). The Court acknowledged that its case law pertaining to citizenship and diversity jurisdiction is " technical, precedent-bound, and unresponsive to policy considerations raised by the changing realities of business organization." Id. at 196. After acknowledging the inconsistency between its own precedent and the realities of the business world, the Court noted that it was Congress's role and responsibility to make " further adjustments." Id. at 196-97 (finding that " the course we take today does not so much disregard the policy of accommodating our diversity jurisdiction to the changing realities of commercial organization, as it honors the more important policy of leaving that to the people's elected representatives," and explaining that Congress made such a policy decision in 1958 when it passed a law " providing that a corporation shall be deemed a citizen not only of its State of incorporation but also 'of the State where it has its principal place of business'" ).

Although the Supreme Court was analyzing the citizenship of limited partnerships in Carden, as opposed to master limited partnerships, the principles articulated in Carden apply with equal force to this case. Therefore, T.C. PipeLines, LP' citizenship must be determined by looking at the citizenship of all of its limited partners. See Carden, 494 U.S. at 195; GMAC Commercial Credit LLC v. Dillard Dep't Stores, Inc., 357 F.3d 827, 829 (8th Cir. 2004) (explaining that " the Supreme Court has repeatedly resisted extending the corporation exception [about determining citizenship] to other entities," and finding that a district court's diversity jurisdiction in a suit by or against an unincorporated entity depends on the citizenship of all the members).

The Court agrees with Plaintiff that these unitholders have " limited influence" on matters affecting the operations of T.C. PipeLines, LP. (See Pl.'s Mem. at 40 [Doc. No. 862].) In fact, the unitholders may be more accurately labeled " stockholders" to reflect the " economic reality of how an MLP's units are held." (See id.) However, the economic reality of the unitholders' roles and positions is immaterial to the Court's holding. See Carden, 494 U.S. at 196-97. Moreover, simply because the Internal Revenue Code provides that a publicly traded partnership " shall be treated as a corporation" for purposes of determining taxes, see 26 U.S.C. § 7704(a), does not alter the fact that partnerships are not treated as corporations for purposes of determining citizenship. (See Def.'s Reply at 5 [Doc. No. 864]; cf. Pl.'s Mem. 40 [Doc. No. 862].)

Although the Eighth Circuit has not explicitly addressed how courts are to determine the citizenship of MLPs, at least six district courts outside this Circuit have addressed this issue. All have held that MLPs should be treated like limited partnerships, and not corporations, for purposes of determining citizenship. See, e.g., Trafigura AG v. Enter. Products Operating LLC, 995 F.Supp.2d 641, 646 (S.D. Tex. 2014) (adhering to the " bright-line rule announced" in Carden and holding that complete diversity was lacking in this case because at least a dozen of the unitholders were aliens, and thus there were aliens on both sides of the litigation, which destroyed complete diversity); Grynberg v. Kinder Morgan Energy Partners, L.P., No. 14-CV-1832-WJM-KMT, 2014 WL 3586216, *2 (D. Colo. July 21, 2014), appeal docketed, No. 14-1465 (10th Cir. Nov. 6, 2014) (relying on Carden's " firmly established" rule and holding that petitioner failed to demonstrate citizenship of unitholders and thus the court could not properly determine if subject matter jurisdiction existed; petitioner claimed that it would be too difficult to discern the citizenship of those unitholders and therefore failed to satisfy the court's order to show cause); Gonyer v. Enbridge Energy, Ltd. P'ship, No. 1:13-CV-796, 2014 WL 1255915, *1-*2 (W.D. Mich. Mar. 26, 2014) (holding that diversity jurisdiction is destroyed because the citizenship of at least some of the unitholders was the same as the defendant's citizenship); Ada Cnty. Highway Dist. v. Nw. Pipeline GP, No. 1:12-CV-00184-BLW, 2012 WL 4737869, *1 (D. Idaho Oct. 3, 2012) (finding that removal to federal court was not objectively reasonable because complete diversity was not established for one of the relevant entities, which was a master limited partnership; and noting that the MLP had over 73,000 units, and thus " it would prove very difficult . . . to demonstrate complete diversity as the citizenship of a limited partnership" ); Vosburg v. Williams Field Servs. Co., No. 3:11-CV-1624, 2011 WL 3881277, *2-*3 (M.D. Pa. Sept. 2, 2011) (holding that the plaintiff failed to allege enough facts to sustain diversity jurisdiction; and allowing the plaintiff the chance to amend its complaint to allege citizenship of all the component unitholders); Williams Field Servs. Co., LLC v. Kalmanowicz, 3:11-CV-1634, 2011 WL 3881471, *2 (M.D. Pa. Sept. 2, 2011) (holding that the amended complaint failed to show the existence of subject matter jurisdiction because the plaintiff failed to allege the citizenship of unitholders; and providing the plaintiff an opportunity to amend its complaint to prove diversity of citizenship). Many of these courts rely upon the Supreme Court's holding in Carden.

This Court agrees with several other district courts that have already ruled that MLPs must be treated as limited partnerships for the purpose of establishing citizenship. Although public unitholders may be more functionally equivalent to stockholders in a corporation, the court is bound to follow Carden, and must determine T.C. PipeLines, LP's citizenship by looking to the citizenship of all of its partners, including the public unitholders. Because Plaintiff's counsel declined the opportunity to reconstruct the public unitholders' citizenship, and conceded during oral argument that at least one unitholder's citizenship is likely Minnesota, the Court holds that complete diversity between the parties does not exist, and Plaintiff has accordingly failed to establish diversity jurisdiction in this case.

C. Federal Question Jurisdiction

Although Plaintiff only pled diversity jurisdiction in its First Amended Complaint, the Court may nevertheless determine that it has federal question jurisdiction based on the underlying facts alleged in the First Amended Complaint. See Jones v. Freeman, 400 F.2d 383, 387 (8th Cir. 1968) (finding that federal question jurisdiction existed based on the facts of the case, " although [the facts were] not [pled] artfully" ). The Court is encouraged to construe even inartfully pled facts to find " a remotely plausible federal claim" particularly when " the parties and the courts have already made [a] vast expenditure of resources," as the parties and the Court have done so here. See Pioneer Hi-Bred Int'l v. Holden Found. Seeds, Inc., 35 F.3d 1226, 1242 (8th Cir. 1994); see also Mummelthie v. City of Mason City, Ia., 873 F.Supp. 1293, 1305 (N.D. Iowa 1995) aff'd sub nom., 78 F.3d 589 (8th Cir. 1996).

Federal question jurisdiction exists if the " well-pleaded complaint" establishes jurisdiction through one of two means, or portals. Williams v. Ragnone, 147 F.3d 700, 702 (8th Cir. 1998) (citing Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). The first portal to federal question jurisdiction exists when " federal law creates the cause of action." Id. The second portal exists if the " plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.'" Franchise Tax Bd., 463 U.S. at 28; see also Louisville & N.R. Co. v. Rice, 247 U.S. 201, 203, 38 S.Ct. 429, 62 L.Ed. 1071 (1918) (explaining that " [a] suit arises under an act of Congress when 'it really and substantially involves a dispute or controversy respecting the validity, construction or effect of such a law, upon the determination of which the result depends'" ) (internal quotations and citation omitted).

A plaintiff may avoid the first type of federal question jurisdiction by exclusively relying on state law in the complaint. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Defendants seeking to remove the case to federal court are " not permitted to inject a federal question into an otherwise state-law claim and thereby transform the action into one arising under federal law." Gore v. TWA, 210 F.3d 944, 948 (2000).

As to the second portal of federal question jurisdiction, there is no " single, precise, all-embracing test for jurisdiction over federal issues embedded in state-law claims between nondiverse parties." Baker v. Martin Marietta Materials, Inc., 745 F.3d 919, 924 (8th Cir. 2014) (internal quotations and citations omitted). To determine whether a case fits " within th[is] special and small category," Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 699, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006), " the question is, does a state-law claim necessarily raise 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." Grable & Sons Metal Prods., Inc. v. Darue Engineering & Mfg., 545 U.S. 308, 314, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005).

The United States Supreme Court has firmly established that access to the federal courts through either portal may not be established through a federal defense. Caterpillar, 482 U.S. at 393. In Caterpillar, the Supreme Court held that a federal defense, including a preemption defense, does not provide a basis for removal, " even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue in the case." Id. (citing Franchise Tax Bd., 463 U.S. at 12). Below, the ...


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