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United States Court of Appeals,
Fifth Circuit.
No. 95-10645
Summary Calendar.
Jean K. HERRON, Plaintiff-Appellant,
v.
CONTINENTAL AIRLINES, INC., and Peter Armstrong, Defendants-
Appellees.
Jan. 23, 1996.
Appeal from the United States District Court for the Northern
District of Texas.
Before KING, SMITH and BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Jean Herron appeals the dismissal of her claims against
Continental Airlines, Inc. ("Continental"), and Peter Armstrong.
Because we find that the district court lacked jurisdiction, we
vacate and remand to the district court with instructions to remand
to state court.
I.
Armstrong is a private process server whom Continental
enlisted to serve process on Herron's husband at his Dallas home.
When Armstrong arrived, Mrs. Herron was home alone, five months
pregnant, and resting because of complications from the pregnancy.
Armstrong repeatedly rang the Herron's buzzer, even after Mrs.
Herron informed him that her husband was not at home. Armstrong
finally left, but only after shining a bright light into the home.
The following day, as Mrs. Herron was entering her driveway,
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Armstrong served process by putting papers under her windshield
wiper. According to Mrs. Herron, Armstrong "flashed something
shiny in his hand" and "yelled something." Mrs. Herron now alleges
that Armstrong's efforts caused her to become enraged and
disoriented and to begin experiencing stomach cramps.
Mrs. Herron sued in state court against Armstrong and
Continental, alleging only state-law tort claims. The defendants
removed to federal court, and the district court dismissed Herron's
claims.
II.
Herron argues that the district court did not have
jurisdiction over her state-law claims and should have granted her
motion to remand to state court. We review de novo a denial of
remand after removal. Burden v. General Dynamics Corp., 60 F.3d
213, 216 (5th Cir.1995); Leffall v. Dallas Indep. Sch. Dist., 28
F.3d 521, 524 (5th Cir.1994). Removal statutes are strictly
construed against removal. Id. at 524; Brown v. Demco, Inc., 792
F.2d 478, 482 (5th Cir.1986).
The defendants maintain that the district court had
jurisdiction for two reasons. First, they argue that Armstrong, as
a process server, was an officer of the court and entitled to
removal under 28 U.S.C. § 1442(a)(3), which permits the removal of
a case when the defendant is "[a]ny officer of the courts of the
United States, for any act under color of office or in the
performance of his duties...." Neither this section nor any other
federal statute defines the term "officer of the court." No other
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court of appeals has addressed the issue of whether a private
process server is an "officer of the court" within the meaning of
§ 1442.1
We conclude that Armstrong was not an officer of the court.
Our decision is guided by Cammer v. United States, 350 U.S. 399, 76
S.Ct. 456, 100 L.Ed. 474 (1956), holding that an attorney was not
a court "officer" within the ordinary meaning of that term:
Certainly nothing that was said in Ex Parte Garland[, 4 Wall
333, 18 L.Ed. 366 (1866) ] or in any other case decided by
this court places attorneys in the same category as marshals,
bailiffs, court clerks or judges. Unlike these officials a
lawyer is engaged in a private profession, important though it
be to our system of justice. In general he makes his own
decisions, follows his own best judgment, collects his own
fees and runs his own business. The word "officer" as it has
always been applied to lawyers conveys quite a different
meaning from the word "officer" as applied to people serving
as officers within the conventional meaning of that term. We
see no reason why the category of "officers" subject to
summary jurisdiction of a court under § 401(2) should be
expanded beyond the group of persons who serve as conventional
court officers and are regularly treated as such in the laws.
Id. at 405, 76 S.Ct. at 459 (citations omitted). Like the attorney
in Cammer, a private process server "makes his own decisions,
follows his own best judgment, collects his own fees and runs his
own business." He is not a conventional court officer as are
"marshals, bailiffs, court clerks or judges." We therefore
conclude that private process servers are not "officers of the
courts of the United States" within the meaning of § 1442.2
1But see In re Betts, 165 B.R. 233 (Bankr.N.D.Ill.1994)
(holding that a court-appointed special process server was
entitled to quasi-judicial immunity).
2We do not attempt to fashion a definition of "officer of
the court," nor do we opine as to whether attorneys are "officers
of the courts of the United States" within the meaning of § 1442.
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The cases cited by the defendants are unconvincing. See Klein
v. Robinson, 328 F.Supp. 417, 420 (E.D.N.Y.1971), aff'd, 468 F.2d
619 (2d Cir.1972) (per curiam); Simpson v. McVey, 217 F.Supp. 575
(S.D.Ohio 1963). These cases all involved lawsuits against federal
marshals engaged in serving process. Marshals do fall within the
conventional meaning of "officers of the court," as Cammer
recognized. 350 U.S. at 405, 76 S.Ct. at 459.3
The defendants also maintain that the district court had
jurisdiction under 28 U.S.C. § 1441(b), which declares that federal
courts "have original jurisdiction founded on a claim or right
arising under the ... law ... of the United States." The
defendants maintain that Herron's complaint, although alleging only
Texas tort claims, was founded on a claim or right arising under
the law of the United States, inasmuch as the alleged tortious
conduct occurred while Armstrong was serving process pursuant to
FED.R.CIV.P. 4.
This argument is without merit. "Not every question of
federal law emerging in a suit is proof that a federal law is the
basis of the suit." Gully v. First Nat'l Bank, 299 U.S. 109, 115,
57 S.Ct. 96, 99, 81 L.Ed. 70 (1936). A claim "arises under"
federal law when federal law supplies an essential element of the
claim. Id. "[I]t must appear from the complaint that the
3Section 1442(a)(3) requires both that the defendant be an
"officer of the court" and that he raise a federal defense.
Because Armstrong is not an "officer of the court," we find it
unnecessary to decide whether he raised a federal defense.
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construction of a federal statute will have an adverse effect on
the right of recovery if the statute is construed in one way rather
than another way." Eastern Air Lines, Inc. v. Flight Eng'rs Int'l
Ass'n, 340 F.2d 104, 106 (5th Cir.) (quoting Dickson v. Edwards,
293 F.2d 211, 215 (5th Cir.1961) (en banc)), cert. denied, 382 U.S.
811, 86 S.Ct. 23, 15 L.Ed.2d 59 (1965). Rule 4 does nothing more
than describe the procedure for serving process. It does not
supply an essential element of any of Herron's state-law tort
claims, nor is the construction of rule 4 likely to have an adverse
effect on her right of recovery. Removal was not proper under §
1441.
Because the court lacked jurisdiction over Herron's state-law
claims, it did not have the power to dismiss those claims. The
judgment of dismissal is VACATED, and this case is REMANDED to the
district court with instructions to remand to state court.

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