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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION MILLER VENEERS, INC., Plaintiff, vs. CLIFFORD W. BROWNING, KRIEG, DEVAULT, LLP, WOODARD, EMHARD,T MORIARTY, MCNETT & HENRY, LLP, Defendants.

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1:12-cv-01455-RLY-TAB

ORDER REMANDING CASE

On September 7, 2012, Plaintiff, Miller Veneers, Inc., filed its complaint against

Defendants, Clifford W. Browning, Krieg DeVault, LLP, and Woodard, Emhardt,

Moriarty, McNett & Henry, LLP (collectively, the “Defendants”), in Marion Superior

Court, Cause No. 49D05-1209-CT-035371. The complaint alleges attorney malpractice

regarding the acquisition of patents. The Defendants removed the case to this court on

October 9, 2012, based on federal question jurisdiction and 28 U.S.C. § 1338(a) (2008).

On August 6, 2013, Plaintiff moved to continue a stay.

The court must first determine whether it has subject matter jurisdiction before

issuing a ruling. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998).

Although the court originally found it had subject matter jurisdiction under 28 U.S.C.

§ 1338(a), the Supreme Court’s recent decision in Gunn v. Minton, leads this court to

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conclude that it does not have subject matter jurisdiction. See Gunn v. Minton, 133 S. Ct.

1059, 1064 (2013) (stating “we are comfortable concluding that state legal malpractice

claims based on underlying patent matters will rarely, if ever, arise under federal patent

law for purposes of § 1338(a).”).

According to Gunn, federal jurisdiction exists over state law claims “if a federal

issue is (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of

resolution in federal court without disrupting the federal-state balance approved by

Congress.” Id. at 1065. As in Gunn, the present case meets the first two prongs, and fails

the second two prongs. See id. The third prong requires that the issue be “substantial”

which requires the court “to look to the importance of the issue to the federal system as a

whole.” Id. at 1066. As in Gunn, this issue is not important to the federal system as a

whole but merely to the parties. In addition, the fourth prong is not met because the

balance is in favor of the states as they have “a special responsibility for maintaining

standards among members of the licensed professions.” Id. at 1068 (quoting Ohralik v.

Ohio State Bar Assn., 436 U.S. 447, 460 (1978)).

Following the reasoning in Gunn v. Minton, the court does not see any

distinguishing factors that would make the case before it one of the rare attorney

malpractice cases that meets the test for subject matter jurisdiction. The court thus

concludes it does not have subject matter jurisdiction in this matter. As such, the court

cannot determine Plaintiff’s Motion to Continue Stay and hereby REMANDS the case

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back to the Marion Superior Court. The Clerk of Court is directed to CLOSE this case

and REMAND to Marion Superior Court.

SO ORDERED this 25th day of September 2013.

________________ ________________ RICHARD L. YOUNG, CHIEF JUDGE

United States District Court Southern District of Indiana

Distributed electronically to registered counsel of record.

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RICHARD L. YOUNG, CHIEF JUDGE United States District Court Southern District of Indiana

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