It is also pellucid that federal diversity jurisdiction does not exist either, as both parties are
citizens of Colorado.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 06-cv-01073-REB-PAC
BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF LINCOLN,
EMERSON FALLICE CALVERT,
ORDER GRANTING MOTION TO REMAND
The matter before me is plaintiff’s Motion to Remand to State Court and
Request for Expidited [sic] Ruling [#4], filed June 13, 2006. I grant the motion.
Pursuant to D.C.Colo.LCivR 7.1C, I may rule on a motion at any time after it is
filed without awaiting or commissioning a response, and I find it appropriate to exercise
that discretion here. It is clear beyond peradventure that this case was improperly
removed. The underlying lawsuit itself involves state law zoning claims. Under the
well-pleaded complaint rule, defendant’s counterclaims, which allegedly arise under
federal law, provide no basis for federal question jurisdiction. Holmes Group, Inc. v.
Vornado Air Circulation Systems, Inc., 535 U.S. 826, 831, 122 S.Ct. 1889, 1893, 153
L.Ed.2d 13 (2002); Vanguard Car Rental USA, Inc. v. Dalponte, 2005 WL 1635445 at
*1 (D. Colo. July 12, 2005) (slip op.). Even if plaintiff’s complaint itself contained a
Case 1:06-cv-01073-REB Document 7 Filed 06/16/2006 Page 1 of 2
Lincoln County, Board of County Commissioners v. Calvert
federal question, which it clearly does not, plaintiff would have waived any right to
remove by failing to effectuate his removal within 30 days of the filing of the complaint
in September, 2002. See 28 U.S.C. § 1446(b).
THEREFORE, IT IS ORDERED as follows:
1. That plaintiff’s Motion to Remand to State Court and Request for
Expidited [sic] Ruling [#4], filed June 13, 2006, is GRANTED; and
2. That this case is REMANDED to the state district court of Lincoln County,
Colorado, Case No. 02CV40.
Dated June 16, 2006, at Denver, Colorado.
BY THE COURT: