New Mexico Ex Rel. Stein v. Western Estate Services, Inc. , 139 F. App'x 37 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 29, 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
STATE OF NEW MEXICO, ex rel.
Stuart L. Stein, Esq.,
Plaintiff-Appellant, No. 04-2234
(D.C. No. CIV-04-920 JH/DJS)
v. (D. N.M.)
WESTERN ESTATE SERVICES,
INC.; AMERICAN FAMILY LEGAL
CENTERS,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRISCOE , ANDERSON , and BRORBY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Stuart L. Stein is a New Mexico attorney who maintains an estate planning
practice in Albuquerque. Defendants are corporations who placed an
advertisement in a Santa Fe newspaper, offering living trust seminars and estate
planning services. Mr. Stein brought this action in federal district court against
the defendants, seeking to enjoin them from “ongoing acts of illegal advertising”
and from future violations of New Mexico’s statutes prohibiting the unauthorized
practice of law. Aplt. App. at 7-8. Mr. Stein’s complaint asserted two bases for
jurisdiction in federal court: (1) the defendants’ alleged “violation of the First
Amendment commercial speech provisions of the United States Constitution”; and
(2) their alleged violations of state laws “with cumulative damages in excess of
$75,000.” Id. The district court dismissed his complaint with prejudice for lack
of federal jurisdiction.
On appeal, Mr. Stein argues that since his complaint “raises the issue of the
application of the First Amendment to the issues concerning the subject
advertisement,” Aplt. Br. at 6, the district court had subject matter jurisdiction
over the “federal question” raised in his complaint. See 28 U.S.C. § 1331 (stating
federal district courts “shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States.”). 1
The district
1
Mr. Stein does not continue to argue on appeal that his complaint belongs
in federal court under a theory of diversity jurisdiction.
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court concluded that Mr. Stein’s argument, that the defendants had no First
Amendment right to engage in illegal advertising, did not establish federal
jurisdiction. See Aplt. App. at 66. Our review is de novo, see Qwest Corp. v.
City of Santa Fe , 380 F.3d 1258, 1263 (10th Cir. 2004), and we affirm.
It is hornbook law that in order to establish jurisdiction under § 1331, a
plaintiff must show that a question of federal law appears on the face of his well-
pleaded complaint.
Whether a claim arises under federal law must be determined by
reference to the [plaintiff’s] well-pleaded complaint. It is well
settled that a defense that raises a federal question is inadequate to
confer federal jurisdiction. Federal-question jurisdiction is not
present even if the [federal] defense is anticipated in the plaintiff’s
complaint, and even if both parties admit that the defense is the only
question truly at issue in the case.
Nicodemus v. Union Pacific Corp ., 318 F.3d 1231, 1236 (10th Cir. 2003) (internal
quotations omitted). Mr. Stein’s only attempt to meet the well-pleaded complaint
requirement in his complaint was to charge the defendants with “violating” the
commercial speech provisions of the First Amendment. The facts of the
complaint, however, establish no such “violation” by the defendants. Instead, the
First Amendment’s commercial speech doctrine is relevant only as a defense to
Mr. Stein’s complaint concerning illegal advertising. As we have noted, however,
the potential for such a constitutional defense, even if central to the issues at
stake in the action, does not itself create federal question jurisdiction. See id.-3-
Therefore, the district court properly found that it lacked federal question
jurisdiction over Mr. Stein’s complaint.
Mr. Stein further argues that the case should have been dismissed “without
prejudice for the plaintiff to file the matter again in a proper forum.” Aplt. Br. at
8. We need not remand for entry of a dismissal without prejudice, as he requests.
His ability to refile in another court rests on questions of claim-preclusion
law–not in the way the dismissal is styled. Styskal v. Weld County Bd. of County
Comm’rs , 365 F.3d 855, 859 (10th Cir. 2004). “Whether [Mr. Stein] is barred
from filing [his] claim in [New Mexico] state court . . . is not determined solely
by how the federal court dismissal is styled. As a result, the relief sought by
Plaintiff–restyling the federal court dismissal as ‘without prejudice’– is beside the
point.” Id.For the foregoing reasons, the judgment of the district court is AFFIRMED.
Entered for the Court
Wade Brorby
Circuit Judge
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