The opinion of the court was delivered by: WARE
JAMES WARE, UNITED STATES DISTRICT JUDGE
For the reasons set forth below, the Court REMANDS this action to state court, pursuant to 28 U.S.C. § 1446(c)(4), for want of jurisdiction.
Plaintiffs filed an action against American Red Cross in Superior Court on June 16, 1989. They claimed that Lovada Faust, who died of AIDS, contracted the disease from a blood transfusion she received. The blood came from the American Red Cross blood center. On June 26, 1991, the Red Cross removed the action to federal court. On July 24, 1991, plaintiffs filed a motion to remand the action to state court for want of jurisdiction.
When removal is sought, the United States district court shall dismiss the petition if it "clearly appears on the face of the petition and any exhibits annexed thereto that the petition for removal should not be granted . . . ." 28 U.S.C. § 1446(c)(4).
A district court must have original jurisdiction of an action in order to grant removal from state court. 28 U.S.C. § 1441. As there is no diversity in this case, in order for removal to be granted, the court must find that this case presents a question "arising under" the Constitution, laws, or treaties of the United States, or that Congress specifically made a provision for a special grant of original jurisdiction.
Mere incorporation of the Red Cross does not, by itself, create jurisdiction "arising under" the Constitution. See 28 U.S.C. § 1349. Therefore, the basis of the defendants' argument is that Congress intended to grant original jurisdiction to district courts over actions against the Red Cross when they drafted the language of the Red Cross Congressional Charter ("Charter"). This Charter provides in relevant part:
The name of this corporation shall be "The American Red Cross", and by that name it shall have perpetual succession, with the power to sue and be sued in courts of law and equity, State or Federal, within the jurisdiction of the United States.
36 U.S.C. § 2 (emphasis added).
Defendants contend that this language created a special grant of jurisdiction, which permits them access to federal court upon any action by or against them. The plaintiffs, however, contend that this case should be remanded for lack of jurisdiction. Their argument is that the "sue and be sued" language merely provides the Red Cross with certain threshold powers, one of which is the capacity to sue.
A. Power to "Sue and be Sued"
The United States Supreme Court has addressed whether the "sue and be sued" language contained in Congressional Charters confers jurisdiction, but so ...