TUR

v.

NETTLETON

THIS CAUSE is before the Court on Plaintiffs Michael F. Tur, Henry P. Tur, Jr., Ann Marie Tur, and Aline M. Byrnes’ Motion for Remand to State Court, (Doc. 23; Motion for Remand) filed June 25, 2021. Defendant John R. Nettleton filed a Response in Opposition to the Motion for Remand on June 28, 2021. (Doc. 24; Response to Remand). Defendant Sabanosh has failed to file a timely response; accordingly, this matter is ripe for review. For the reasons explained below, the Court lacks subject matter jurisdiction over this action, and as such, the Motion for Remand will be granted.

I. BACKGROUND1

In 2015, Christopher Tur was a civilian employee of the Navy who worked at a general store located within Naval Station Guantanamo Bay (“NSGB” or “the Base”) on the island of the Republic of Cuba. (Doc. 3;

Complaint) ¶¶ 2-3, 17. At the time, Tur was married to Lara Sabanosh. Id. ¶ 17.2 At some point, Sabanosh began an extramarital affair with Defendant John Nettleton, NSGB’s Commanding Officer. Id. ¶¶ 3, 24. When Tur caught wind of the affair, he confronted Nettleton outside Nettleton’s home on the Base. Id. ¶¶ 25–27. A physical altercation ensued in which Nettleton severely injured Tur. Id. ¶¶ 27, 37–45. According to Plaintiffs, Nettleton ultimately “took the injured Tur to the water, and caused him to be drowned” in

Guantanamo Bay “knowing that his body would wash out to sea and likely never be found.” Id. ¶¶ 44–46. Following Tur’s death, Nettleton destroyed physical evidence and misdirected the search for Tur’s body. Id. ¶¶ 47–50, 73–96, 98–102. Sabanosh also hindered the investigation by failing to disclose the altercation between

Florida returned an Indictment charging Nettleton with various criminal offenses as a result of his actions following Tur’s death. Id. ¶ 148. After a trial, a jury convicted Nettleton of concealing material facts, obstructing justice,

falsifying records, and making false statements. Id. ¶ 149. During the trial, Tur’s siblings and mother, Plaintiffs in this case, learned for the first time about the altercation between Tur and Nettleton and the details of the events surrounding Tur’s death. Id. ¶ 148.

Plaintiffs now bring this civil action against Nettleton and Sabanosh.³ See generally Complaint. Although Plaintiffs’ eleven-count Complaint is grounded entirely on state tort law, the actions giving rise to the claims against Nettleton predominately occurred on NSGB. Id. ¶¶ 186, 199–204, 212–16, 227–

Remand arguing that remand is inappropriate because the Court has subject matter jurisdiction over Plaintiffs’ claims. See Response to Remand. After removal, Nettleton also filed a motion seeking to dismiss Plaintiffs’

Complaint. Nettleton argued that all of Plaintiffs’ claims are preempted by federal law, and because federal law provides no remedy, the claims must be dismissed with prejudice. See Captain Nettleton’s Motion to Dismiss and Incorporated Memorandum of Law (Doc. 21; Motion to Dismiss) at 2-12.

Plaintiffs filed a response challenging these assertions, see Plaintiffs’ Response in Opposition to Motion to Dismiss (Doc. 25; Response to Motion to Dismiss), and Nettleton filed a reply, see Defendant Nettleton’s Reply Brief in Further Support of His Motion to Dismiss and Incorporated Memorandum of Law (Doc.

39; Reply). Because the parties, in briefing the Motion to Dismiss, elaborate on their arguments regarding the existence of subject matter jurisdiction, the Court, in an abundance of caution, also considers those arguments in ruling on the Motion for Remand. On this record, before considering any other matters,

the Court now determines whether Nettleton has properly invoked the jurisdiction of the federal courts.

II. LEGAL STANDARD

A defendant may remove a case from a state court to federal court if the federal district court has original jurisdiction over the action. 28 U.S.C. § 1441(a). Original jurisdiction exists where a federal district court has “at least one of three types of subject matter jurisdiction: (1) jurisdiction under a specific statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).” PTA-FLA, Inc. v. ZTE USA, Inc., 844 F. 3d 1299, 1305 (11th Cir. 2016) (quoting Baltin v. Alaron Trading Corp., 128 F. 3d 1466, 1469 (11th Cir. 1997)). Here, Nettleton seeks to invoke only the Court’s federal question jurisdiction under § 1331, which provides: “The district courts shall have original jurisdiction over all civil actions arising under the Constitution, laws or treaties of the United States.” See Notice of Removal at 3; 28 U.S.C § 1331. In determining whether a claim arises under federal law, the Court is guided by the “well-pleaded complaint rule.” Aetna Health Inc. v. Davila, 542

U.S. 200, 207 (2004). That rule demands that a federal question appear on the face of the plaintiff’s well-pleaded complaint. Gully v. First Nat’l Bank, 299 U.S. 109, 112–113 (1936); see also Kemp v. Int’l Bus. Mach. Corp., 109 F. 3d 708, 712 (11th Cir. 1997) (“A case does not arise under federal law unless a federal question is presented on the face of plaintiff’s complaint.”). Generally, a federal question appears on the face of the complaint when federal law creates the cause of action. Pacheco de Perez v. AT&T Co., 139 F. 3d 1368, 1373 (11th Cir. 1998). To meet the burden of establishing the existence of proper federal jurisdiction, the removing “defendant [ ] must show that the plaintiff[‘s] complaint, as it existed at the time of removal, provides an adequate basis for the exercise of federal jurisdiction.” Adventure Outdoors Inc. v. Bloomberg, 552 F. 3d 1290, 1294-95 (11th Cir. 2008); see also Ehlen Floor Covering, Inc. v. Lamb, 660 F. 3d 1283, 1287 (11th Cir. 2011). Because a federal question must appear on the face of the complaint, a federal defense alone will not support removal. Kemp, 109 F. 3d at 712. Nevertheless, “even when a plaintiff has pled only state-law causes of action, he may not avoid federal jurisdiction if either (1) his state-law claims raise substantial questions of federal law or (2) federal law completely preempts his state-law claims.” Dunlap v. G&L Holding Grp., Inc., 381 F. 3d 1285, 1290 (11th Cir. 2004) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S.¹, 13 (1983)). A state-law claim raises substantial questions of federal law where federal law is “‘an essential element’” of the claim, such that the federal right or immunity that forms the basis of the claim “‘will be supported if the federal law is given one construction or effect and defeated if it is given another.’” Id. (quoting Mobil Oil Corp. v. Coastal

Petroleum Co., 671 F. 2d 419, 422 (11th Cir. 1982)). However, “‘[t]he mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction.’” Id. (quoting Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 813 (1986)). Rather, to confer federal jurisdiction, “the state-law claim must ‘really and substantially involve[ ] a dispute or controversy respecting the validity, construction or effect of [federal] law.’” Id.

(quoting Mobile Oil Corp., 671 F. 2d at 422); Grable & Sons Metal Products, Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005). As a separate matter, the Supreme Court has long recognized the

“complete preemption doctrine” as an “independent corollary to the wellpleaded complaint rule.” Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987) (citing Franchise Tax Bd., 463 U.S. at 22). In describing complete preemption, the Supreme Court has explained that “on occasion … the preemptive force of a statute is so ‘extraordinary’ that it ‘converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.’” Id.; see also Franchise Tax Bd., 463 U.S. at 24 (explaining that, “if a federal cause of action completely preempts a state cause of action,

any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law”). The Supreme Court has recognized complete preemption hesitatingly, see Blab T.V. of Mobile, Inc. v. Comcast Cable Commc’ns, Inc., 182 F. 3d 851,

856 (11th Cir. 1999), and only in rare circumstances, see Ammedie v. Sallie Mae Inc., 485 F. App’x 399, 401 (11th Cir. 2012) (citing Community State Bank v. Strong, 651 F. 3d 1241, 1261, n. 16 (11th Cir. 2011)).⁴ In doing so, the Court has emphasized that the “touchstone” of the determination of whether complete preemption supplies federal subject matter jurisdiction by converting a state law claim to one arising under federal law “is congressional intent.”

Blab T.V., 182 F. 3d 851, 857 (quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66 (1987)). To conclude that a state law claim is completely preempted, the court must find that Congress intended to not only provide a federal preemption defense, but also “intended to grant a defendant the ability to remove the adjudication of the cause of action to a federal court by transforming the state cause of action into a federal [one].” Id. (alteration in original) (citing Arthur R. Miller, Artful Pleading: A Doctrine in Search of

Definition, 76 TEX. L. REV. 1781, 1794 (1998)).

III. DISCUSSION

Nettleton argues that this Court has subject matter jurisdiction over Plaintiffs’ claims because, in his view, they arise under federal law. First, he contends that jurisdiction exists because Congress has “exclusive legislative jurisdiction”5 over NSGB, and federal law is exclusive on the Base. See Notice

A. The Exclusivity of Federal Law

According to Nettleton, Congress has the exclusive power to regulate NSGB pursuant to the Property Clause of the United States Constitution, Art. IV, § 3, cl. 2. See Response to Remand at 5–6.6 He contends that Congress invoked its power under the Property Clause when it granted the President authority to enter into the Lease Agreement with Cuba for the property which NSGB occupies. Id.7 The Lease Agreement grants the United States “complete

5.

Nettleton further contends that Congress’s exclusive legislative jurisdiction creates a federal question. See Notice of Removal at 4–7. He largely bases his argument on case law arising under the “Enclave Clause” of the

Constitution. See Notice of Removal at 3–9.9 Those cases stand for the proposition that federal question jurisdiction exists over state law claims that arise on federal enclaves if Congress exercises exclusive legislative jurisdiction

Paul v. United States, 371 U.S. 245, 263-264 (1963). For that reason, state law causes of action that existed at the time of consent or cession arise under federal law and create federal question jurisdiction. See, e.g., Mater, 200 F. 2d at 123–25; Durham v. Lockheed Martin Corp., 445 F. 3d 1247, 1250 (9th Cir. 2006) (citing Mater, 200 F. 2d at 125); Stiefel v. Bechtel Corp., 497 F. Supp. 2d 1153, 1156 (S.D. Cal. 2007) (citing Durham, 445 F. 3d at 1250); Stokes v. Adair, 265 F. 2d 662, 665–66 (4th Cir. 1959). Thus, without any additional action by

Congress, the Enclave Clause itself operates to convert state law to federal law and create federal question jurisdiction. Paul, 371 U.S. at 263 (“The cases make clear that the grant of ‘exclusive’ legislative power to Congress over enclaves that meet the requirements of Art. I, s⁸, cl.¹⁷, by its own weight, bars state regulation without specific congressional action.”). The Property Clause, in contrast, only gives Congress the power to regulate federal land. Kleppe, 426 U.S. at 540 (citation omitted). Unlike the Enclave Clause, the Property Clause, on its own, does not convert state law to federal law nor does it displace state law. Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 580 (1987) (“The Property Clause itself does not automatically conflict with all state regulation of federal land.”). As one court explained, the Property Clause “does not place the exclusive control of the federal public domain in the United States Government.” Texas Oil & Gas Corp. v. Phillips Petroleum Co., 277 F. Supp. 366, 368–69 (W.D. Okla. 1967) (citations omitted). Instead, Congress must activate its broad Property Clause powers by taking affirmative action. Id. When Congress so acts, state law continues to apply unless it conflicts with federal law, in which case the

Supremacy Clause causes federal law to preempt the state law. Kleppe, 426 U.S. at 543 (citing U.S. Const. Art. VI, cl. 2); Cal. Coastal Comm’n, 480 U.S. at 580-81 (“[W]hen Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause.”) (emphasis in original) (citation omitted).¹¹ Absent a conflict, however, there is no preemption, and state law continues to apply. With respect to subject matter jurisdiction, the fundamental difference between the Enclave Clause and the Property Clause is significant. While the

Enclave Clause itself converts state law into federal law, thereby creating a federal question and, as a consequence, subject matter jurisdiction, the

However, neither the Property Clause nor the Supremacy Clause convert state law into federal law. Cal. Coastal Comm’n, 480 U.S. at 580 (“‘[T]he State is free to enforce its criminal and civil laws’ on federal land so long as those laws do not conflict with federal law.”) (quoting Kleppe, 426 U.S. at 543). Nor do they create “exclusive legislative jurisdiction.” Kleppe, 426 U.S. at 542–43 (stating that Congress’s exclusive legislative jurisdiction pursuant to the Enclave Clause “has nothing to do with Congress’ powers under the Property Clause”).

Instead, the Property Clause and Supremacy Clause only allow Congress to displace conflicting state law through preemption. With this understanding of Congress’s power under the Property Clause, the Court turns to Nettleton’s argument in support of subject matter jurisdiction over this action. Nettleton contends that Congress—pursuant to the Property Clause—made federal law exclusive on NSGB when it authorized the Lease Agreement. But even if Congress did act pursuant to its authority under the Property Clause to make federal law exclusive on NSGB, that would not convert Plaintiffs’ state law claims into federal claims creating a federal question for purposes of subject matter jurisdiction. Instead, this argument, if correct, presents a federal preemption defense. In other words, to resolve the merits of Plaintiffs’ claims, a court authorized to hear the case will have to determine whether the terms of the Lease Agreement show Congress’s intent to preempt all state laws on the Base leaving Plaintiffs’ only with whatever remedies are available under federal law.¹² But before this Court can reach that question, it must determine whether this federal preemption defense that Nettleton raises creates subject matter jurisdiction. The answer to this threshold question is no.13

“necessary” federal issue in the well-pleaded complaint. See Las Vegas Dev. Grp., LLC v. Heuke, No. 2:15-CV-00922-RCJ, 2015 WL 4523510, at *1 (D. Nev. July 27, 2015) (holding that anticipated defenses under the Property Clause and Supremacy Clause were not necessary elements of the state law claim);

City of N. Las Vegas v. Clark Cty., No. 2:11-CV-00944-PMP-PAL, 2011 U.S. Second Nettleton argues that the Supreme Court in Rasul v. Bush, 542 U.S. 466, 467 (2004) found that the “United States exercises exclusive jurisdiction and control, over” NSGB. Notice of Removal at 4 (citing Rasul, 542 U.S. at 476). Not so. The Court in Rasul said nothing about legislative jurisdiction. It considered only whether federal courts have jurisdiction to hear federal habeas corpus petitions brought by persons detained on NSGB. Rasul, 542 U.S. at 470. In holding that the federal habeas statute applies to NSGB detainees, the Court refused to apply the general principle that congressional legislation is presumed not to have extraterritorial application. Id. at 480. The Court reasoned that the NSGB detainees were within the “‘territorial jurisdiction’ of the United States” because, by the terms of the Lease Agreement, the United States “exercises complete jurisdiction and control over” NSGB. Rasul, 542 U.S. at 480. In short, Rasul established that NSGB is within the territorial jurisdiction of the United States for the purpose of habeas petitions because of the United States’ “complete jurisdiction.” The Court said nothing about “legislative jurisdiction,” exclusive or otherwise, and it certainly did not consider whether civil actions that arise on the Base are governed by state or federal law. Nor did it suggest that the federal government’s jurisdiction over NSGB pursuant to the Lease Agreement was co-extensive with the Dist. LEXIS 88590, at *1 (D. Nev. Aug. 9, 2011) (holding that a preemption defense based on the Property Clause could not support federal question jurisdiction). Despite this authority, in his Response to Remand, Nettleton argues that “[F]ederal substantive law applies exclusively to the conduct that forms the basis for Plaintiffs’ Complaint. That is to say that federal substantive law applies exclusively to all of Plaintiffs’ claims.” See Response to Remand at 6. He further suggests that Congress has completely preempted all state law causes of action on NSGB by making federal law exclusive and thereby creating federal question jurisdiction over this action. Id. at 8 (stating that Congress left Plaintiffs solely with federal substantive remedies). In making this argument, Nettleton appears to conflate ordinary preemption with complete preemption. Complete preemption is distinct from ordinary preemption. While ordinary preemption occurs when federal law displaces state law pursuant to the Supremacy Clause, Geddes v. Am. Airlines, Inc., 321 F. 3d 1349, 1352 n.3 (11th Cir. 2003), complete preemption occurs when Congress so completely preempts a particular area that the state law claims are necessarily federal in character and necessarily arise under federal law. Metropolitan Life, 481 U.S. at 63–64. For complete preemption, the preemptive force of the federal law must be so extraordinary that it entirely displaces the state cause of action, converting it into a federal one that gives the defendant a right to remove the case to federal court. Geddes, 321 F. 3d at 1353 (citations omitted). When state law is completely preempted, federal question jurisdiction exists. Geddes, 321 F. 3d at 1352 (citing Caterpillar v. Williams, 482 U.S. 386, 393 (1987)). Complete preemption, however, is a rare, extraordinary occurrence. So rare, in fact, that the Supreme Court has found the doctrine applicable to just three statutes.¹⁴ Dunlap, 381 F. 3d at 1291; Turner v. Bristol at Tampa Rehab. & Nursing Ctr., LLC, No. 8:21-cv-0719-KKM-CPT, 2021 WL 4261430, at *2 (M.D. Fla. Sept.²⁰, 2021).15 Indeed, the Eleventh Circuit has noted that the

Supreme Court recognizes complete preemption “hesitatingly, and it [has] display[ed] no enthusiasm to extend the doctrine to” new areas. Blab T.V., 182 F. 3d at 856. Therefore, complete preemption is strictly limited to those

“statutes with ‘extraordinary’ preemptive force.” Geddes, 321 F. 3d at 1353 (quoting Caterpillar, 482 U.S. at 393; Metropolitan Life, 481 U.S. at 65). The critical consideration of the complete preemption analysis is congressional intent. Blab T.V., 182 F. 3d at 857. The question is whether

Congress not only intended to preempt the state claim by providing a federal

Plaintiffs’ state law claims. As an initial matter, the Court observes that Congress’s failure to create a federal cause of action that covers the preempted state claim is likely a dispositive indication that Congress did not intend to completely preempt the state law claims. See Franchise Tax Bd., 463 U.S. at 26; Metropolitan Life, 481 U.S. at 66. Indeed, in Franchise Tax Bd., the Supreme Court held that an ERISA provision did not completely preempt a state law claim because the provision contained no alternative cause of action in favor of the plaintiff taxing authority. 463 U.S. at 26. The Court explained that complete preemption cannot occur unless the state claim falls within the scope of the

the Court held that ERISA completely preempted the state law disability benefits claim presented in the complaint. Id. at 64-67. For that reason, the state law claim was “necessarily federal in character” such that removal to federal court based on the presence of a federal question was proper. Id. at 67. The main distinction between Franchise Tax Bd. and Metropolitan Life is that the plaintiff in Metropolitan Life alleged a state law claim that was both preempted by ERISA’s preemption provision and replaced by ERISA’s civil enforcement provision. As noted by the First Circuit Court of Appeals in Fayard v. Ne. Vehicle Servs., LLC, 533 F. 3d 42 (1st Cir. 2008), these two elements—an exclusive federal regulation coupled with a federal cause of action—are common denominators of Supreme Court cases finding complete preemption by federal statute. Id. at 46 (citations omitted).¹⁷ Indeed, a majority of circuit courts have concluded that complete preemption requires a replacement federal cause of action. Fayard, 533 F. 3d at 46; Briarpatch Ltd., L.P v. Phoenix Pictures, Inc., 373 F. 3d 296, 305 (2d Cir. 2004); Goepel v. Nat’l Postal Mail Handlers Union, 36 F. 3d 306, 313 (3d Cir. 1994); Strong v. Telectronics Pacing Sys., Inc., 78 F. 3d 256, 260–61 (6th Cir. 1996) (citing

Warner v. Ford Motor Co., 46 F. 3d 531, 534 (6th Cir.1995)); Utley v. Varian

§ 301 of the LMRA). Looking to the Lease Agreement’s legislative history, the Court has not uncovered—nor been presented with—a single reference to state law, state

B. Anticipated Immunity Defense

The Federal Torts Claims Act (“FTCA”) confers absolute immunity to federal employees who commit a tort while acting within the scope of their employment.²¹ See 28 U.S.C. § 2679(b)(1). In his Response to Remand,

Nettleton states that much of his conduct “appears to have been committed within the course and scope of [his] employment.” See Response to Remand at 8. Nettleton contends that this anticipated immunity defense is a substantial,

IV. CONCLUSION

For the foregoing reasons, the Court concludes that Plaintiffs have alleged only state law claims that present no basis for the exercise of subject matter jurisdiction over this action. As such, the Motion for Remand is due to be granted, and this case will be remanded to the Circuit Court, Fourth Judicial Circuit, in and for Duval County, Florida. Accordingly, it is

ORDERED: 1. Plaintiffs’ Motion for Remand to State Court (Doc. 23) is

GRANTED.

2. The case is hereby REMANDED to the Circuit Court of the Fourth

Judicial Circuit in and for Duval County, Florida.

See Captain Nettleton’s Motion to Dismiss and Incorporated Memorandum of Law (Doc. 21). His attempt to rely on any regulation arising from the FTCA and the Defense Base Act is unavailing as neither applies here based on the pleading. Plaintiffs have sued Nettleton, not the United States, and the requisite certification of Nettleton acting within the scope of his employment is lacking. His invocation of conflict preemption also fails. Like his assertions of ordinary preemption and immunity, conflict preemption raises a potential defense but does not create a federal question supporting removal. See Conn. State Dental Association v. Anthem Health Plans, Inc., 591 F. 3d 1337, 1344 (11th Cir. 2009) (noting that conflict 3. The Clerk is DIRECTED to mail a certified copy of this Order to the Circuit Court of the Fourth Judicial Circuit in and for Duval County, Florida, terminate any pending motions, and CLOSE the

case. DONE and ORDERED in Jacksonville, Florida this 26th day of April, 2022.

MARCIA MORALES HOWARD

United States District Judge

Copies to: Counsel of Record Clerk, Fourth Judicial Circuit