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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`AUTO-OWNERS INSURANCE CO.,
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`Defendants.
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`______________________________________/
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`OPINION AND ORDER DISMISSING CASE
`FOR LACK OF FEDERAL SUBJECT MATTER JURISDICTION
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`At a session of said Court, held in
`the U.S. Courthouse, Detroit, Michigan
`on December 05, 2014
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`PRESENT: Honorable Gerald E. Rosen
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`United States District Judge
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`I.
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`INTRODUCTION
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`This declaratory judgment action is presently before the Court on the Court’s
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`September 12, 2014 Order to Show Cause directing Plaintiff Auto-Owners Insurance
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`Company to show cause in writing why this case should not be dismissed for lack of
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`federal subject matter jurisdiction. Plaintiff timely responded to the Court’s Order.
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`Having reviewed the Plaintiff’s response brief and the entire record of this matter, the
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`Court finds that the pertinent facts and legal contentions are sufficiently presented in
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`these materials, and that oral argument would not significantly assist in the resolution of
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`1
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`Plaintiff,
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`No. 2:14-cv-13046-GER-DRG
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`Hon. Gerald E. Rosen
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`vs.
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`ERGONOMICS PLUS, INC., and
`HUMANTECH, INC.,
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`2:14-cv-13046-GER-DRG Doc # 16 Filed 12/05/14 Pg 2 of 14 Pg ID 167
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`this matter. Accordingly, the Court will decide this matter “on the briefs.” See Eastern
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`District of Michigan Local Rule 7.1(f)(2). This Opinion and Order sets forth the Court’s
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`ruling.
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`II.
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`PERTINENT FACTS
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`On August 6, 2014, Plaintiff Auto-Owners Insurance Company filed the instant
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`declaratory judgment action against its insured, Ergonomics Plus, Inc. (“Ergonomics”),
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`and Humantech, Inc. seeking a declaration that it owes no duty to defend or indemnify
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`Ergonomics in another civil action that is currently pending in this court, Humantech, Inc.
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`v. Ergonomics Plus, Inc., No. 14-12141. The Humantech action arises out of
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`Ergonomics’ alleged infringement of Humantech’s copyrighted materials and its
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`subsequent electronic distribution of those copyrighted works.
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`According to the complaint in the Humantech action, Humantech owns copyrights
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`for manuals, guidelines and other works relating to ergonomic risk assessment and
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`workplace improvement. Among the works copyrighted by Humantech are certain
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`“lifting calculators” that Humantech created to calculate guidelines for manual material
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`handling tasks based upon a lifting equation which was created by the National Institute
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`of Occupational Safety and Health (“NIOSH”). These calculators use an interactive form
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`to be filled out by a user through Microsoft Excel Workbooks. The calculators are
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`distributed to authorized users through Humantech’s website and other media but are
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`password protected to prevent access by users to the equations embedded in the
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`calculators and to prevent alteration to the workbooks. The calculators are distributed to
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`2
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`2:14-cv-13046-GER-DRG Doc # 16 Filed 12/05/14 Pg 3 of 14 Pg ID 168
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`customers for use in performing workplace ergonomic assessments, but even paying
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`customers do not have access to the specific equations embedded in the calculators.
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`Defendant Ergonomics, an Indiana corporation, also specializes in the field of
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`ergonomics. Ergonomics offers a “NIOSH Composite Lifting Calculator” for free
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`download on its website, in the form of a Microsoft Excel Workbook. According to
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`Humantech, the Ergonomics calculator is substantially similar to Humantech’s and it
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`incorporates large amounts of content and data from Humantech’s calculators and utilizes
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`the same proprietary equations that are contained in the Humantech calculator.
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`Humantech contends that Ergonomics obtained a Humantech calculator through the
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`State of Michigan website or through some other means,1 circumvented Humantech’s
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`password protections, removed Humantech’s name and copyright management
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`information from the calculator and copied and distributed the calculator as its own.
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`Therefore, Humantech brought suit against Ergonomics based on its unlawful
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`copying of Humantech’s copyrighted work, as well as based on Ergonomics’ failure to
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`provide attribution for the copied works, its removal of copyright notices from
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`Humantech’s works, and other associated actions that are contrary to Humantech’s rights
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`in its proprietary works, specifically alleging violations of the Copyright Act, 17 U.S.C.
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`§101 et seq., the Digital Millennium Copyright Act, 17 U.S.C. §1201, et seq., and
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`Michigan trade secrets law.
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`1 A version of its calculator was at some point in time available as a free download from
`the State of Michigan, Department of Labor and Economic Growth’s website, although
`Humantech states that it did not authorize the posting of the calculator on the Michigan
`website.
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`3
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`2:14-cv-13046-GER-DRG Doc # 16 Filed 12/05/14 Pg 4 of 14 Pg ID 169
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`Upon being served with the Humantech complaint, Ergonomics tendered the
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`defense of the action to its insurer, Auto-Owners, requesting indemnification under a
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`Tailored Protection Policy that included commercial general liability coverage. See
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`Complaint for Declaratory Relief, ¶ 9.
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`The general liability provisions of the policy provide coverage for damages that an
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`insured is legally obligated to pay because of a “personal injury” or an “advertising
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`injury” to which the insurance applies, subject to the terms and conditions of the policy.
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`Id. ¶10. There is, however, no duty to indemnify or defend an insured for any damages
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`that are not covered by the policy. In this regard, the policy excludes from coverage: any
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`advertising injury that is caused by or at the direction of the insured with the knowledge
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`that the act would violate the rights of another and would inflict personal or advertising
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`injury, including injury “arising out of the infringement of a copyright, patent, trademark,
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`trade secret, or other intellectual property.” Id. ¶ 11; see also Commercial General
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`Liability Policy, Doc. #1-3, Pg ID 79.
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` Auto-Owners claims that the alleged conduct of Ergonomics is excluded from
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`coverage as it falls within the scope of the exclusions found in the insurance contract.
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`Therefore, Auto-Owners instituted this declaratory judgment action.
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`In its Complaint for Declaratory Relief, Auto-Owners alleges federal question
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`jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338 or, in the alternative, supplemental
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`jurisdiction pursuant to 28 U.S.C. § 1367, as the basis of this Court’s subject matter
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`jurisdiction. Specifically, Plaintiff alleges jurisdiction pursuant to the Copyright Act, 17
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`U.S.C. § 101 et seq., and the Digital Millennium Copyright Act [“DMCA”], 17 U.S.C. §
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`4
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`2:14-cv-13046-GER-DRG Doc # 16 Filed 12/05/14 Pg 5 of 14 Pg ID 170
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`1201, et seq., based upon the copyright infringement claims alleged in the underlying
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`case.
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`III. DISCUSSION
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`A. FEDERAL QUESTION JURISDICTION
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`The most fundamental question presented in every civil action brought in federal
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`court must be whether there is subject matter jurisdiction. Metro Hydroelectric Co., LLC
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`v. Metro Parks, 541 F.3d 605, 610 (6th Cir.2008); Caudill v. North American Media
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`Corp., 200 F.3d 914, 916 (6th Cir.2000). The Court has an independent obligation to
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`strictly police the boundaries of its subject matter jurisdiction to ensure that jurisdiction
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`exists, regardless of the assessment of the parties. Valinski v. Detroit Edison, 197
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`Fed.Appx. 403, 405 (6th Cir.2006); Olden v. Lafarge Corp., 383 F.3d 495, 498 (6th
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`Cir.2004); Douglas v. E.G. Baldwin & Associates, Inc., 150 F.3d 604, 607 (6th Cir.
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`1998). Fed.R.Civ.P. 12(h)(3) provides: “If the court determines at any time that it lacks
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`subject matter jurisdiction, the court must dismiss the action.”
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`Federal courts are courts of limited jurisdiction and may exercise only those
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`powers authorized by the United States Constitution and federal statutes enacted by
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`Congress. It is presumed that a cause of action lies outside this limited jurisdiction, and
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`Plaintiff bears the burden of overcoming the presumption and demonstrating that this
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`Court has subject matter jurisdiction over the claims. Kokkonen v. Guardian Life
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`Insurance Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673 (1994); Fisher v. Peters,
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`249 F.3d 433, 444 (6th Cir.2001); Douglas, 150 F.3d at 606.
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`5
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`2:14-cv-13046-GER-DRG Doc # 16 Filed 12/05/14 Pg 6 of 14 Pg ID 171
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`Auto-Owners filed the instant action in this Court alleging federal question
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`jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a) as the basis for this Court’s
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`jurisdiction. See Complaint for Declaratory Relief, ¶ 2. Specifically, Auto-Owners
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`contends that the Court has jurisdiction over this action because it “involves a
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`determination as to the rights and obligations of the parties with respect to the remedies
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`under [the Copyright Act and/or the DMCA] as alleged in the underlying action.” Id.
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`Under 28 U.S.C. § 1331, federal district courts have original jurisdiction over civil
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`actions “arising under” the Constitution, laws, or treaties of the United States. Id.
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`Similarly, §1338(a) provides that “[t]he district courts shall have original jurisdiction of
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`any civil action ‘arising under’ any Act of Congress relating to patents, plant variety
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`protection, copyrights and trademarks.” 28 U.S.C. § 1338(a) (internal quotation marks
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`added). The phrase “arising under” is interpreted identically in the § 1331 federal
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`question jurisdiction context and the § 1338 patent/copyright jurisdiction context, and the
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`the two statutes’ precedents are applied interchangeably. Gunn v. Minton, ___ U.S. ___,
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`133 S.Ct. 1059, 1064 (2013); USPPS Ltd. v. Forrester Environmental Serv., Inc. v.
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`Wheelaborator Technologies, Inc., 715 F.3d 1329, 1333 n.2 (Fed. Cir. 2013).2
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`For statutory purposes, a case can “arise under” federal law in two ways. “Most
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`directly, a case arises under federal law when federal law creates the cause of action
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`asserted.” Gunn, 133 S.Ct. at 1064. Although Humantech’s underlying suit against
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`2 However, for cases falling within the patent/copyright-specific arising under
`jurisdiction of § 1338(a), Congress not only provided for federal jurisdiction, but also
`eliminated state jurisdiction. (“No State court shall have jurisdiction over any claim for
`relief arising under any Act of Congress relating to patents, plant variety protection, or
`copyrights.” 28 U.S.C. § 1338(a).).
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`6
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`2:14-cv-13046-GER-DRG Doc # 16 Filed 12/05/14 Pg 7 of 14 Pg ID 172
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`Ergonomics arose under federal law in this manner because it was authorized by 17
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`U.S.C. § 501, it is indisputable that the instant declaratory judgment action finds its
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`origins in state contract law, rather than federal law. Merely because a federal law is
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`implicated in a state law action “does not automatically confer federal-question
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`jurisdiction.” Merrell Dow Pharm., Inc. v. Thompson¸478 U.S. 804, 813, 106 S.Ct. 3229
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`(2001).
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`However, there is “a special and small category” of state law cases in which
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`federal question jurisdiction may lie. Gunn, 133 S.Ct. at 1064 (citing Empire
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`Healthchoice Assurance, Inc. v. McVeigh¸ 547 U.S. 677, 699, 126 S.Ct. 2121 (2006)):
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`Federal jurisdiction over a state law claim will lie 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. Where all four of these requirements are met, we
`have held, jurisdiction is proper because there is a “serious federal interest
`in claiming the advantages thought to be inherent in a federal forum,”
`which can be vindicated without disrupting Congress’s intended division of
`labor between state and federal courts.
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`133 S.Ct. at 1065 (citing Grable & Sons Metal Prod., Inc. v. Darue Engineerintg & Mfg,
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`545 U.S. 308, 313-314, 125 S.Ct. 2363 (2005)).
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`Gunn involved a state court legal malpractice case brought by Vernon Minton,
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`predicated upon alleged attorney error in an underling federal patent suit. Specifically,
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`Minton claimed that his attorneys in the patent suit committed malpractice by failing to
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`timely raise an exception to the on-sale bar in the earlier federal district court litigation
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`that led to his patent being held invalid. After the state trial court granted summary
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`judgment in favor of the attorneys, Minton appealed. On appeal, Minton argued that
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`2:14-cv-13046-GER-DRG Doc # 16 Filed 12/05/14 Pg 8 of 14 Pg ID 173
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`because federal district courts have exclusive jurisdiction over cases “arising under an
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`Act of Congress relating to patents,” the state trial court lacked jurisdiction, and he
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`should, therefore, be able to start over with his malpractice suit in federal court. The state
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`court of appeals rejected Minton’s argument but the Supreme Court of Texas reversed.
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`Applying the Grable test, a unanimous United States Supreme Court determined
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`that Minton’s legal malpractice claim did not arise under federal patent law.
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`The Court first acknowledged in Gunn that resolution of a federal patent question
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`was “necessary” to Minton’s case because under Texas law, in malpractice cases in
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`which the attorney’s alleged error came in failing to make a particular argument, the
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`causation element requires a “case within a case” analysis of whether, had the argument
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`been made, the outcome of the underlying litigation would have been different. Gunn,
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`133 S.Ct. at 1065. The Court also acknowledged that the federal issue was “actually
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`disputed.” Id.
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`However, the Court determined that the federal issue in the malpractice case was
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`not “substantial,” in the relevant sense. Id. at 1066:
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`It is not enough that the federal issue be significant to the particular parties
`in the immediate suit; that will always be true when the state claim
`“necessarily raise[s] a disputed federal issue, as Grable separately requires.
`The substantiality inquiry under Grable looks instead to the importance of
`the issue to the federal system as a whole.
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`***
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`Here the federal issue carries no such significance.
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`Id.
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`2:14-cv-13046-GER-DRG Doc # 16 Filed 12/05/14 Pg 9 of 14 Pg ID 174
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`The Gunn Court further found that not allowing state courts to resolve the matter
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`would not undermine “the development of a uniform body of [patent] law,” because
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`“Congress ensured such uniformity by vesting exclusive jurisdiction over actual patent
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`cases in the federal district court and exclusive appellate jurisdiction in the Federal
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`Circuit.” Id. at 1067.
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`Although Gunn involved a patent claim, it is no less applicable in this action
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`where “arising under” jurisdiction is predicated on a copyright claim. While federal
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`courts have jurisdiction over all cases arising under the patent and copyright laws, Gunn
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`makes clear that the same is not true of all questions in which a patent or copyright may
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`be the subject matter of the controversy. Plaintiff has the responsibility to show that its
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`Complaint “arises under” federal copyright law, and is not merely couched in terms of a
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`federal question in order to ostensibly confer jurisdiction. Plaintiff Auto-Owners has
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`failed to make the required showing.
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`A straightforward application of the Grable/Gunn test here demonstrates that
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`Auto-Owners’ declaratory judgment action does not arise under federal copyright law.
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`First, no resolution of a federal copyright question is necessary in the instant action. The
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`Court need do nothing more than look to the face of the complaint in the Humantech
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`action to see that a copyright infringement claim is asserted and that Humantech claims to
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`have been injured by the copyright infringement. Indeed, unlike the case-within-a-case
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`analysis required for a malpractice claim, no “resolution” of the copyright claim is
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`necessary to determine whether that the asserted claim is covered by an exclusion from
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`2:14-cv-13046-GER-DRG Doc # 16 Filed 12/05/14 Pg 10 of 14 Pg ID 175
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`policy coverage. Moreover, that a copyright infringement claim is being asserted in the
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`underlying suit is not disputed.
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`Further, as in Gunn, while the copyright issue may be significant to the particular
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`parties in the immediate suit, this is insufficient to satisfy the substantiality inquiry under
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`the Grable/Gunn test which looks instead to the importance of the issue to the federal
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`system as a whole. And, just as the Gunn Court found with respect to the patent issue in
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`that malpractice case, not allowing state courts to resolve the instant declaratory
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`judgment matter would not undermine “the development of a uniform body of
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`[copyright] law,” even if resolution of the underlying copyright claim is necessary
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`because “Congress ensured such uniformity by vesting exclusive jurisdiction over actual
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`[copyright] cases in the federal district court and … appellate jurisdiction in the [f]ederal
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`[c]ircuit[s],” and “state courts can be expected to hew closely to the pertinent federal
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`precedents.” Gunn at 1067.
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`Moreover, even if the Court were to determine that application of Gunn should be
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`limited to cases presenting underlying patent claims, the Court would reach the same
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`conclusion by application of pre-Gunn jurisprudence squarely addressing “arising under”
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`jurisdiction in the copyright context.
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`Under pre-Gunn jurisprudence, federal courts developed a framework for dealing
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`with questions of “arising under” jurisdiction presented in the copyright context which is
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`even more stringent than the Grable test followed by the Court in Gunn. In T.B. Harms
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`Co. v. Eliscu, 339 F2d 823 (2d Cir. 1964), the Second Circuit elucidated the following
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`framework of analysis:
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`10
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`2:14-cv-13046-GER-DRG Doc # 16 Filed 12/05/14 Pg 11 of 14 Pg ID 176
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`[A]n action “arises under” the Copyright Act if and only if the complaint is
`for a remedy expressly granted by the Act, e.g., a suit for infringement or
`for the statutory royalties for record reproduction, or asserts a claim
`requiring construction of the Act, ... or, at the very least and perhaps more
`doubtfully, presents a case where a distinctive policy of the Act requires
`that federal principles control the disposition of the claim.
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`339 F2d at 828 (emphasis added); see also Scandinavian Satellite Sys., AS v. Prime TV
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`Ltd., 291 F3d 839, 844 (D.C. Cir. 2002); Royal v. Leading Edge Prods., Inc., 833 F.2d 1,
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`2 (1st Cir.1987); Gibralter P.R., Inc. v. Otoki Group, Inc., 104 F.3d 616, 619 (4th Cir.
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`1997) (applying T.B. Harms in trademark context)
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`This declaratory judgment case does not fall under a remedy expressly granted by
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`the Copyright Act, nor does it assert a claim requiring construction of the Act. Plaintiff’s
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`claim rests upon the phrasing of an insurance contract and is governed by Michigan law.
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`There is no distinctive policy of the Copyright Act or the DMCA requiring that federal
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`principles control here. Simply relying on a generalized statement that a “determination”
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`of rights and responsibilities is required with respect to the remedies of “one or more
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`these acts” does not establish that this declaratory judgment action “arises under” federal
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`law.
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`B, SUPPLEMENTAL JURISDICTION
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`In the alternative, Auto-Owners claims that the supplemental jurisdiction statute,
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`28 U.S.C. § 1367, provides this Court with original federal jurisdiction. Plaintiff is
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`mistaken. “The supplemental jurisdiction statute is not a source of original subject matter
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`jurisdiction.” Ahearn v. Charter Twp. Of Bloomfield, 100 F.3d 451, 456 (6th Cir. 1996).
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`“By its terms, § 1367 contemplates supplemental jurisdiction arising only from
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`2:14-cv-13046-GER-DRG Doc # 16 Filed 12/05/14 Pg 12 of 14 Pg ID 177
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`claims within a single action.” Sebring Homes v. T.R. Arnold & Assoc., 927 F. Supp.
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`1098, 1101 (S.D. Ind. 1995) (citation omitted; emphasis added). “[I]n a subsequent
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`lawsuit involving claims with no independent basis for jurisdiction, a federal court lacks
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`the threshold jurisdictional power that exists when ancillary claims are asserted in the
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`same proceeding as the claims conferring federal jurisdiction.” Peacock v. Thomas, 516
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`U.S. 349, 355 (1996). Thus a plaintiff “may not base subject matter jurisdiction on the
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`supplemental jurisdiction statute, even if the action . . . is related to another action over
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`which the federal district court already has subject matter jurisdiction.” Ahearn, 100 F.3d
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`at 452. See also Hudson v. Coleman, 347 F.3d 138, 143 (6th Cir. 2003) (no basis for
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`district court to exercise ancillary jurisdiction over plaintiff’s state law indemnity claim in
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`second lawsuit); cf. Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1147 (9th Cir.
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`1998) (underlying § 1983 civil rights claim in earlier suit provided no basis for federal
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`court jurisdiction of subsequently filed insurance declaratory judgment action). As such,
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`Humantech’s claims in the earlier filed copyright infringement action does not provide an
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`basis for federal question jurisdiction in this separately-filed declaratory judgment action.
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`C. DECLARATORY JUDGMENT JURISDICTION
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`In response to the Order to Show Cause, Auto-Owners asserts that this Court has
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`jurisdiction over this pendant action pursuant to the Declaratory Judgment Act, 28 U.S.C.
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`§ 2201(a). The Declaratory Judgment Act bestows upon federal courts the authority to
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`exercise discretionary jurisdiction over declaratory judgment actions. The Act provides,
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`in relevant part,
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`12
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`2:14-cv-13046-GER-DRG Doc # 16 Filed 12/05/14 Pg 13 of 14 Pg ID 178
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`In a case of actual controversy within its jurisdiction . . . any court of the United
`States, upon the filing of an appropriate pleading, may declare the rights and other
`legal relations of any interested party seeking such declaration. . . .
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`28 U.S.C. § 2201(a).
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`However, this statute does not itself confer subject matter jurisdiction upon the
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`federal courts; for any suit brought under the Act there must be some independent source
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`of federal jurisdiction, such as the existence of diversity of citizenship or the specific
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`presentation of a federal question. Skelly Oil Co. v. Phillips Co., 339 U.S. 667 (1950).
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`But § 2201 does not independently establish federal subject matter jurisdiction. See
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`Skelly Oil, 339 U.S. at 671 (1950) (holding that by enacting the Declaratory Judgment
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`Act “Congress enlarged the range of remedies available in the federal courts but did not
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`extend their jurisdiction”). A federal court “must have jurisdiction already under some
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`other federal statute” before a plaintiff can “invok[e] the Act.” Toledo v. Jackson, 485
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`F.3d 836, 839 (6th Cir. 2007) (quotation marks omitted). A court must examine carefully
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`any action for declaratory judgment in order to ensure that the underlying required
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`jurisdiction exists. The actual controversy between the parties must remain the focal point
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`for determining jurisdiction and in this case, that controversy is one involving state
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`contract law. The “mere fact” that a federal question may be “lurking in the background”
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`of plaintiffs' complaint is not sufficient to confer federal question jurisdiction. Michigan
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`Sav. & Loan League v. Francis, 490 F. Supp. 892, 896 (E.D. Mich. 1980) aff'd, 683 F.2d
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`957 (6th Cir. 1982). Thus, Plaintiff’s appeal to the Declaratory Judgment Act fails. It is
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`the Plaintiff’s burden to show that this court has the threshold original subject matter
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`2:14-cv-13046-GER-DRG Doc # 16 Filed 12/05/14 Pg 14 of 14 Pg ID 179
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`jurisdiction, and Plaintiff has not met this burden. Therefore, this case must be
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`dismissed.
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`CONCLUSION
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`For all of the reasons set forth above in this Opinion and Order,
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`IT IS HEREBY ORDERED that this case be, and hereby is, DISMISSED for lack
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`of federal subject matter jurisdiction.
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`Dated: December 5, 2014
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`s/Gerald E. Rosen
`Chief, Judge, United States District Court
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` I
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` hereby certify that a copy of the foregoing document was served upon the parties and/or
`counsel of record on December 5, 2014, by electronic and/or ordinary mail.
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`s/Julie Owens
`Case Manager, (313) 234-5135
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`14