Ortiz-Bonilla v. Federación De Ajedrez De Puerto Rico, Inc.

United States Court of Appeals
For the First Circuit

No. 12-1022

RAFAEL ORTIZ-BONILLA; LUIS J. TORRES-BAUZÁ;
JUAN MARTÍN SANTA-TORRES; JULIO GUZMÁN-FREIRE;
CRISTÓBAL VEGA-ADORNO; JUAN JAVIER HERNÁNDEZ-LEBRÓN,

Plaintiffs, Appellants,

FERNANDO MARTÍNEZ-BUITRAGO,

Plaintiff,

v.

FEDERACIÓN DE AJEDREZ DE PUERTO RICO, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, U.S. District Judge]

Before

Torruella, Howard, and Thompson,
Circuit Judges.

Donato Rivera-de Jesús, for appellants.
Albéniz Couret-Fuentes, with whom Lee R. Sepulvado-Ramos,
Jorge A. Galiber-Sánchez, and Sepulvado & Maldonado, PSC were on
brief, for appellee.

August 21, 2013
 THOMPSON, Circuit Judge. In this case, we are called

upon to referee a dispute between a group of chess players and

their opponent, the Puerto Rico Chess Federation. Having come to

a stalemate over events leading up to and during a chess federation

meeting, the chess players filed suit against the federation in

Puerto Rico Superior Court, alleging violations of their rights

protected by the United States and Puerto Rico constitutions and

Puerto Rico law. The chess federation removed the case to federal

court pursuant to 28 U.S.C. § 1441. The chess players filed a

second case, similar to the first, again in Puerto Rico court, this

time excluding and waiving any claims under federal law. The chess

federation removed this case as well, the district court

consolidated the two, and declared jurisdiction over the second

case under the All Writs Act, 28 U.S.C. § 1651(a). The district

court ultimately granted summary judgment in favor of the chess

federation and dismissed the chess players' claims. They now

appeal, first challenging the district court's exercise of

jurisdiction over their claims and then the court's dismissal of

several of their Puerto Rico law claims. After careful

consideration we affirm in part and reverse in part.

Background

Appellants Rafael Ortiz-Bonilla, Luis José Torres-Bauzá,

Juan Martín Santa-Torres, Julio Guzmán-Freire, Cristóbal Vega-

Adorno, and Juan Javier Hernández-Lebrón (collectively "the

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Chessplayers"), are members of the Puerto Rico Chess Federation,

appellee Federación de Ajedrez de Puerto Rico, Inc. ("FAPR"). FAPR

is a private, not-for-profit corporation, organized under the laws

of the Commonwealth of Puerto Rico, established for the promotion

and dissemination of chess. As a member of the international chess

federation, Fédération Internationale des Eches ("FIDE"), FAPR also

participates in international chess competitions.

Every two years, FAPR elects a Board of Directors in

charge of the administration of the affairs of the organization.

The election of interest in this case was scheduled to take place

at the ordinary meeting scheduled for January 2011. On November 7,

2010, one of the Chessplayers, Cristóbal Vega-Adorno, submitted his

candidacy for FAPR President in the upcoming election. The next

day, ten FAPR members submitted a petition calling for an

extraordinary meeting on November 20, 2010, to amend FAPR's

constitution and restructure its organization administratively and

fiscally.

FAPR's then-administrator, Vance Berríos, sent a message

to the group e-mail address "ajedrezpr@yahoo.com" (it is not

entirely clear which members subscribed to this group e-mail

address). Berríos's message contained a notification written by

FAPR's then-President, Omar Añeses Bocanegra, summoning all active

members to a special meeting to be held on November 20, for the

purpose of amending the FAPR constitution. Añeses's message

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contained the text of the proposed amendments and a section titled

"The Right to Participate in Meetings" that featured excerpts from

the FAPR constitution pertaining to membership, voting rights, and

new members. Five members, including three of the Chessplayers,

responded to Añeses twice, challenging the validity of the

extraordinary meeting. Añeses did not respond to those messages.

When several members of FAPR, including some of the

Chessplayers, arrived at the extraordinary meeting they were barred

from participating. Añeses excluded those members claiming they

were not active members in good standing and denied permission to

other members wanting to renew their memberships on the spot in

order to participate in the meeting. And so the meeting was held

without those members, with a quorum of sixty-four active members

(fifteen members appeared via proxy). The proposed amendments were

approved and the FAPR constitution was amended.

A. The First Case

Unwilling to proceed like pawns, a few weeks later, on

December 10, 2010, the Chessplayers filed a Request for Injunction

against FAPR in the Superior Court of Puerto Rico, seeking

invalidation of the November 20 meeting and the newly adopted

constitutional amendments. This request alleged FAPR violated

rights guaranteed to its members under the Constitution of the

United States, the Constitution of Puerto Rico, and the General

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Corporations Law of Puerto Rico. FAPR's counterplay was to remove

the case to the Federal District Court of Puerto Rico.

The Chessplayers moved to remand, arguing lack of federal

jurisdiction and in the alternative, appropriate application of the

doctrine of abstention. Characterizing their claims under the

United States Constitution as passing references that merely

presented an alternative theory for relief, the Chessplayers relied

predominantly on issues of Puerto Rico law and described their

claims as Commonwealth law issues that in no way depended on the

resolution of any substantial federal issues. Alternatively, the

Chessplayers asked the district court to abstain from adjudicating

any substantial federal questions and instead remand to the Puerto

Rico court to allow that court to adjudicate the case on the merits

of the Puerto Rico law issues and make moot any federal questions.

The district court denied the Chessplayers' request for

remand, ruling they had pled a claim under the United States

Constitution, and also denied their request for abstention. The

Chessplayers moved to partially vacate the district court's order

denying remand, again arguing lack of subject matter jurisdiction;

the district court denied this motion. Soon after that, the

Chessplayers filed a motion to amend their first request for

injunction, voluntarily dismissing the federal claims the district

court found in their first case. But, the district court denied

this motion as well.

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 B. The Second Case

Knowing they could not win by resigning, the Chessplayers

filed a second Request for Injunction against FAPR again in the

Superior Court of Puerto Rico. This second request alleged the

same facts as the first, but omitted all claims of violations of

rights guaranteed by the United States Constitution. The

Chessplayers' complaint explicitly waived any claims they might

have had under the United States Constitution.

Like the first round, FAPR removed the second case to

federal court arguing that it contained identical facts, claims,

and parties as the first case, and so the district court had

subject matter jurisdiction over the second case and supplemental

jurisdiction over the related Puerto Rico law claims therein.1

FAPR argued the Chessplayers filed this second case in an attempt

to divest the district court of the jurisdiction it previously

asserted over the first case.

C. The Consolidated Cases

The next day, FAPR moved to consolidate the cases, and

the district court granted its request. FAPR then filed an answer

to the Chessplayers' second complaint asserting there was no viable

cause of action against them because as a private association FAPR

1
According to FAPR's translation of the second request,
paragraph twenty-four alleged violations of "rights that are
federal in origin (under the United States legal system)" in
addition to rights protected by the Commonwealth of Puerto Rico.

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was not a state actor and thus was entitled to the court's

deference regarding its private determinations. The Chessplayers

moved to vacate the consolidation but the district court denied

their motion. In response, the Chessplayers moved to remand the

second case, stressing all federal claims in the second case were

removed and expressly waived,2 so there was no federal subject

matter jurisdiction warranting removal.

Although the second case had already been removed and

consolidated with the first case, FAPR filed a petition with the

court the following day to enter an order retaining removal

jurisdiction over the second case under the All Writs Act, and/or,

in the alternative, enjoining the Chessplayers from prosecuting the

second case in state court under either the Anti-Injunction Act or

the All Writs Act. The district court denied the Chessplayers'

request for remand of the second case, and found moot FAPR's

petition, explaining its reasoning in an electronic order:

The Court shall not remand to state court consolidated
case 11-1208. Said case presents identical facts and
claims to the instant case, and was filed subsequent to
this court sustaining the removability of the present
case. Plaintiffs, hence, have attempted to thwart this
court's removal jurisdiction by filing the second case.

2
In their motion to remand, the Chessplayers also explained
FAPR relied upon an erroneous English translation of the second
request, "the claims of the co-plaintiffs in this case are
protected by rights that are federal in origin." According to the
Chessplayers, an accurate translation of paragraph twenty-four
states their claims "could be protected by rights that are federal
in origin." The Chessplayers argued this correct translation makes
clear their second case pleads no federal claims.

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 Removal of 11-1208 is hence proper under the All-Writs
Act in order for this court to sustain its jurisdiction.
(emphasis added).

The Chessplayers then filed a motion for leave to file an

interlocutory appeal regarding the district court's denial of their

request to remand the second case; the district court denied this

motion.

Finding themselves in a closed position, the Chessplayers

moved for voluntary dismissal of their United States and Puerto

Rico constitutional claims for lack of case or controversy, as both

parties initially agreed that there were insufficient allegations

to establish state action for the purposes of federal jurisdiction.

Ignoring the issue of state action for the moment, FAPR opposed

dismissal of the federal claims, asserting the Chessplayers were

simply trying to somehow divest the district court of jurisdiction

or find a way to have the case returned to state court. The

district court denied the Chessplayers' motion.

FAPR then moved for summary judgment dismissing the

consolidated cases, arguing its conduct did not constitute state

action and the Chessplayers' Puerto Rico law claims did not warrant

judicial intervention into the affairs of FAPR as a private

association, and they failed to establish the four criteria

required for an award of preliminary injunction. The Chessplayers

opposed, arguing for summary judgment in their favor on what they

asserted was now a request for permanent injunction. The district

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court considered FAPR's motion as it applied to the Chessplayers'

request for a permanent injunction, ultimately granting summary

judgment in favor of FAPR, and dismissed the Chessplayers' claims

under the United States and Puerto Rico constitutions premised on

state action by FAPR. As to the Chessplayers' Puerto Rico law

claims, the district court determined that FAPR's actions did not

warrant judicial intervention and dismissed the claims. The

district court's order did not include any discussion of the

requirements for permanent injunction beyond success on the merits.

Checkmated, the Chessplayers now appeal the district court's grant

of summary judgment, arguing both cases should have been remanded

to the Puerto Rico court for lack of subject matter jurisdiction.

As to the merits of their claims, they do not appeal the district

court's dismissal of their claims under the United States and

Puerto Rico constitutions, but assert their Commonwealth claims

should have been decided, on the merits, in their favor. We have

jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

Discussion

We divide our analysis into two parts. In the first we

discuss the issues concerning federal subject matter jurisdiction,

and then address the district court's dismissal of the

Chessplayers' Puerto Rico law claims.

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 A. Federal Subject Matter Jurisdiction

The Chessplayers generally assert that both cases

belonged in the Puerto Rico court and not federal district court.

FAPR contends the district court properly denied remand of both

cases. To resolve this issue, we must determine whether the

district court had federal subject matter jurisdiction over the

cases. We review questions of federal subject matter jurisdiction

de novo, when the relevant facts are not in dispute, and the

removing party bears the burden of persuasion for the existence of

federal jurisdiction. Samaan v. St. Joseph Hosp., 670 F.3d 21, 27

(1st Cir. 2012); BIW Deceived v. Local S6, Indus. Union of Marine

& Shipbuilding Workers of Am., 132 F.3d 824, 830-31 (1st Cir.

1997). We begin by setting forth some guiding principles.

When a civil action is originally filed in state court,

removal to federal court is proper only if the action could have

initially been brought in federal court. 28 U.S.C. § 1441(a).

This is so because of the "important federalism concerns at play in

considering removal jurisdiction." Rosselló-González v. Calderón-

Serra, 398 F.3d 1, 11 (1st Cir. 2004); see also Franchise Tax Bd.

v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 7-8

(1983). For cases, like this one, where there is no diversity of

citizenship between parties, removal jurisdiction turns on whether

the case falls within "federal question" jurisdiction: "The

district courts shall have original jurisdiction of all civil

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actions arising under the Constitution, laws, or treaties of the

United States." 28 U.S.C. § 1331. But there is "no mechanical

test for determining when an action aris[es] under federal law."

R.I. Fishermen's Alliance, Inc., v. R.I. Dep't of Envtl. Mgmt., 585

F.3d 42, 47-48 (1st Cir. 2009) (citing Franchise Tax Bd., 463 U.S.

at 8). As the Supreme Court has noted, the phrase "arising under"

has "resisted all attempts to frame a single, precise definition

for determining which cases fall within, and which cases fall

outside, the original jurisdiction of the district courts."

Franchise Tax Bd., 463 U.S. at 8.

The jurisdictional question is determined from what

appears on the plaintiff's claim, without reference to any other

pleadings. Templeton Bd. of Sewer Comm'rs v. Am. Tissue Mills of

Mass., Inc., 352 F.3d 33, 37 (1st Cir. 2003). There are two types

of actions that may come within federal question jurisdiction. The

first category "involves direct federal questions; that is, suits

in which the plaintiff pleads a cause of action that has its roots

in federal law (say, a claim premised on the United States

Constitution or on a federal statute)." R.I. Fishermen's Alliance,

585 F.3d at 48. These cases, which constitute the "vast majority"

of cases brought under the general federal question jurisdiction of

the district courts, are those "in which federal law creates the

cause of action." Merrell Dow Pharm. Inc. v. Thompson, 478 U.S.

804, 808 (1986). Where a complaint "is so drawn as to seek

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recovery directly under the Constitution or laws of the United

States," the federal court must entertain the suit. Bell v. Hood,

327 U.S. 678, 681 (1946); see also Ortiz De Arroyo v. Barcelo, 765

F.2d 275, 279 (1st Cir. 1985).

If a claim does not allege a federal cause of action, "we

must inquire into whether some element of the [plaintiff's] claim

depends on the resolution of a substantial, disputed question of

federal law." Templeton, 352 F.3d at 36. These constitute the

second (and more controversial) category of cases, those with an

"embedded federal question," meaning suits in which the plaintiff

pleads a state-law cause of action that necessarily turns on some

construction of federal law. Id. at 37 (citing Merrell Dow Pharm.

Inc., 478 U.S. at 808-09); Almond v. Capital Props., Inc., 212 F.3d

20, 23 (1st Cir. 2000). These are cases where the issue is

governed by state law, but "a federal issue is decisive to the

dispute and the federal ingredient . . . is sufficiently

substantial to confer the arising under jurisdiction." One & Ken

Valley Housing Grp. v. Me. State Hous. Auth., 716 F.3d 215, 224

(1st Cir. 2013) (alteration in original) (quoting W. 14th St.

Commercial Corp. v. 5 W. 14th Owners Corp., 815 F.2d 188, 196 (2d

Cir. 1987)) (internal quotation marks omitted). In evaluating the

constitutional claims, we do not pass on the merits of the case.

See Ortiz De Arroyo, 765 F.2d at 279. "A federal court that

exercises federal question jurisdiction over a single claim may

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also assert supplemental jurisdiction over all state-law claims

that arise from the same nucleus of operative facts." BIW

Deceived, 132 F.3d at 833; see 28 U.S.C. § 1367(a). With these

principles in mind, we turn our analysis to the removal of the

Chessplayers' first case.

1. The First Case

The first request for injunction, the Chessplayers argue,

should have been remanded back to the Puerto Rico court for lack of

federal subject matter jurisdiction. According to the

Chessplayers, the first case merely mentioned the United States

Constitution and relied predominantly on Puerto Rico law claims

that did not depend on the resolution of a federal question. They

further assert any references made to the United States

Constitution were only alternative legal theories for their Puerto

Rico law claims. FAPR contends that on its face, the first case

alleged violations of federal constitutional rights and there is

nothing therein to suggest the Chessplayers intended to limit their

claims to Puerto Rico law.3

FAPR effected removal of the first case pursuant to §

1441, so we begin by asking whether the federal district court

would have had original jurisdiction over the first case, had it

3
On appeal, the Chessplayers do not reprise their argument
below that the district court should have abstained from deciding
the federal issues and instead confine their argument to lack of
subject matter jurisdiction.

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been filed in that court. BIW Deceived, 132 F.3d at 830. There is

no basis for diversity jurisdiction in this case, so we look to

whether the district court would have had subject matter

jurisdiction over the first case as one "arising under the

Constitution, laws, or treaties of the United States." 28 U.S.C.

§ 1331.

The Chessplayers' complaint first asserted FAPR "receives

public funds from the Government of the Commonwealth of Puerto

Rico, currently amounting to $200 Thousand a year, for the public

purpose of carrying out programs to quantitatively and

qualitatively organize, further, and develop chess in Puerto Rico"

and Puerto Rico public schools. According to the Chessplayers, the

actions of FAPR board members (attributable to the organization)

amounted to state action "because of the funds that the

Commonwealth of Puerto Rico contributes annually to the FAPR." The

complaint went on to allege:

23. In addition to the right of the plaintiff and the
other members of FAPR to vote in the assembly that is the
subject of this request, their right to attend and
participate in the same was also violated; without
considering whether or not they would be allowed to vote
at the relevant time. The above violated the right to
freedom of speech and to freedom of association of the
co-plaintiffs guaranteed by the Constitution of the
Commonwealth of Puerto Rico and the Constitution of the
United States of America. . . .

37. The series of arguments contained in this petition,
and specially the elements just described, illegally
injured the right to vote, and the rights of freedom of
speech and of free association of the above-mentioned
members of the FAPR. These are rights that are

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 guaranteed by the Constitution of the Commonwealth of
Puerto Rico and the Constitution of the United States of
America . . . .

48. If the remedy granted herein is not granted,
plaintiffs will suffer serious and irreparable harm as
members of the FAPR, consisting of the fact that they
will lose the right of direct vote and the exercise of
their freedom of expression and of association in all of
the matters to be considered in assemblies of the FAPR,
including decisions with an impact on the use of public
funds that the institution receives as a direct allotment
from the PR Legislative Assembly; and particularly
including the right to vote directly for the president
and the other members of the Board of Directors of the
FAPR every two years; and the right of freedom of
expression and freedom of association guaranteed by the
Constitution of the Commonwealth of PR and the
Constitution of the United States of America. (emphasis
added).

These paragraphs plainly allege state action violations of speech

and association rights guaranteed by the Constitution of the United

States, claims "premised on the United States Constitution." R.I.

Fishermen's Alliance, 585 F.3d at 48. The Chessplayers "seek

recovery directly under the Constitution" of the United States, and

their federal question appears on the face of their request. Bell,

327 U.S. at 681. Accordingly, the federal courts must entertain

the suit. See id.; see also W. Side Belt R.R. Co. v. Pittsburgh

Constr. Co., 219 U.S. 92, 99 (1911) (explaining an assertion of a

right under the Constitution of the United States necessarily

raises a federal question).

It is immaterial that a claimant in retrospect views her

federal claims as surplus, or after removal, moves to strike the

federal claims. See Ching v. Mitre Corp., 921 F.2d 11, 13 (1st

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Cir. 1990). The plaintiff is the "master of the claim; he or she

may avoid federal jurisdiction by exclusive reliance on state law."

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Here, the

Chessplayers, as masters of their claim, could have avoided federal

jurisdiction by relying exclusively on Puerto Rico law. See id. at

399. Thus, the Chessplayers' decision to allege a violation of

their rights under the United States Constitution opened the door

for FAPR to remove the case to federal court. See id.; see also

Ching, 921 F.2d at 14.

The Chessplayers argue the first case did not pose a

"substantial" federal question, and any mention of the United

States Constitution was merely an alternative legal theory to their

state law claims. These arguments are unavailing as the

Chessplayers ignore the crucial fact that their first request posed

a direct federal question. An investigation into whether a cause

of action asserts a "substantial" federal question is relevant only

for state-law causes of action containing embedded federal

questions. Templeton, 352 F.3d at 36 (stating that if the

complaint does not allege a federal cause of action, the inquiry is

then into "whether some element of the claim depends on the

resolution of a substantial, disputed question of federal law").

The Chessplayers' first request alleged violations of their rights

guaranteed by the Constitution of the United States, which

constituted a "direct federal question" as "a claim premised on the

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United States Constitution," so we need not continue our analysis

to the "substantial" question query. R.I. Fishermen's Alliance,

585 F.3d at 48; see also Templeton, 352 F.3d at 36.

Next citing a handful of out-of-circuit cases and one

Supreme Court case, the Chessplayers argue federal jurisdiction

will not extend to cases where the federal question appears only in

an alternative argument for relief. But this standard is applied

to cases that assert causes of action created by state law, not

direct federal question cases. Unlike the plaintiffs in the cases

they cite, the Chessplayers asserted an explicit federal question,

clear on the face of their first complaint, not a state-law cause

of action containing an embedded federal question.4 While the

Chessplayers urge us to apply these inquiries to their first case,

we cannot; the "substantial" element and "alternative theory"

analyses are inapplicable in the present case because the

Chessplayers pled in part an explicit federal question under the

United States Constitution.

4
The cases cited by the Chessplayers explain that the
"alternative legal theory" inquiry is applied in cases where state
law creates the cause of action. See Dixon v. Coburg Dairy, Inc.,
369 F.3d 811 (4th Cir. 2004); Howery v. Allstate Ins. Co., 243 F.3d
912 (5th Cir. 2001); Rains v. Criterion Sys. Inc., 80 F.3d 339 (9th
Cir. 1996); Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148
(4th Cir. 1994). The Chessplayers also rely on Christianson v.
Colt Indus. Operating Corp., 486 U.S. 800 (1988). However, the
Supreme Court in Christianson reasoned that the complaint itself
alleged no federal claim, so the inquiry centered on whether patent
law was a necessary element of one of the well-pleaded state-law
claims. Id. at 809.

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 Accordingly, we conclude the district court had subject

matter jurisdiction over the Chessplayers' first request for

injunction, and thus could exercise supplemental jurisdiction over

the Puerto Rico law claims arising from the "same nucleus of

operative facts." See BIW Deceived, 132 F.3d at 833.

2. The Second Case

As we explained, the district court denied the

Chessplayers' motion to remand the second case and deemed removal

of it from the Puerto Rico court proper under the All Writs Act, 28

U.S.C. § 1651(a). The Chessplayers challenge the district court's

subject matter jurisdiction over the second filed action, arguing

that there was no original jurisdiction under § 1441 and that

removal of the second case pursuant to the All Writs Act was

improper. Although FAPR sought relief in the district court under

both the All Writs and Anti-Injunction Acts, on appeal it plays

around the issue of whether removal was proper under the All Writs

Act. Instead it makes an argument based on an interpretation of

the Anti-Injunction Act that other federal jurisdictions have

adopted. FAPR contends the Chessplayers made an illegal move by

filing the second case, in an attempt to thwart the district

court's jurisdiction over the same claims presented in first case.

FAPR reasons the district court properly prevented the Chessplayers

from continuing in Puerto Rico court, thereby protecting its

jurisdiction over the first case, as authorized by the Anti-

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Injunction Act. And so we examine whether the district court had

jurisdiction over the second case. We start by considering the

appropriateness of the All Writs Act as a vehicle for removal.

The All Writs Act provides that the "Supreme Court and

all courts established by Act of Congress may issue all writs

necessary or appropriate in aid of their respective jurisdictions

and agreeable to the usages and principles of law." 28 U.S.C.

§ 1651(a). It is a "residual source of authority to issue writs

that are not otherwise covered by statute." Clinton v. Goldsmith,

526 U.S. 529, 537 (1999) (quoting Carlisle v. United States, 517

U.S. 416, 429 (1996)) (internal quotation marks omitted). "[W]here

a statute specifically addresses the particular issue at hand, it

is that authority, and not the All Writs Act, that is controlling."

Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002)

(quoting Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34,

43 (1985)). The "right of removal is entirely a creature of

statute," and the Supreme Court has made clear that a suit

"'commenced in a state court must remain there until cause is shown

for its transfer under some act of Congress.'" Id. (quoting Great

N. Ry. Co. v. Alexander, 246 U.S. 276, 280 (1918)). The removal

statute is the controlling authority for removal, and the All Writs

Act cannot excuse "compl[iance] with the statutory requirements for

removal." Id. at 32-33.

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 Applying these standards to this case, it is clear the

district court lacked jurisdiction over the second case under the

All Writs Act. The district court's order denying the

Chessplayers' motion to remand the second case states, "[s]aid case

presents identical facts and claims to the [first] one, and was

filed subsequent to this court sustaining the removability of the

[first] case. Plaintiffs, hence, have attempted to thwart this

court's removal jurisdiction by filing the second case." The order

goes on to proclaim removal of the second case "proper under the

All-Writs Act in order for this court to sustain its jurisdiction."

The district court's order is concise, but it is clear the court

deemed removal proper "under the All-Writs Act" and not any other

statutory provision. The statutory requirements for removal may

not be avoided by relying upon the All Writs Act and accordingly,

the Act could not provide the district court with jurisdiction over

the second case. See id. at 33.

We also find no basis for jurisdiction pursuant to the

removal statute, 28 U.S.C. § 1441(b). As we have explained above,

removal of a case from state court to federal district court under

§ 1441 is proper only if the district court has original subject

matter jurisdiction over the case. And so, to remove the second

case pursuant to § 1441, it must have posed, on its face, a direct

federal question or a state-law cause of action that necessarily

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turned on some construction of federal law. See R.I. Fishermen's

Alliance, 585 F.3d at 48; Templeton, 352 F.3d at 36.

Unlike the first complaint, the Chessplayers' second

request did not assert claims "premised on the United States

Constitution." R.I. Fishermen's Alliance, 585 F.3d at 48. No

elements of their state law claims required "resolution of a

substantial, disputed question of federal law." Templeton, 352

F.3d at 36. They expressly waived any federal claims in their

second request. As such, the district court was mistaken in its

assertion that the second case made identical claims to the first.

And therefore no basis for federal subject matter jurisdiction

existed, and the original jurisdiction required for removal

pursuant to § 1441 was absent.5 Consequently, we find the district

court erroneously concluded it had jurisdiction over the second

case and so we remand it to the district court with instructions to

5
Because the district court incorrectly deemed the All Writs
Act a proper vehicle for removal of the second case it never ruled
on the merits of FAPR's alternative argument that the court was
nonetheless correct in preventing the second case from proceeding
in the Commonwealth court pursuant to an exception to the Anti-
Injunction Act. Given the particular circumstances of this case,
we need not decide--and we express no view on--that argument now.
Instead, we leave the issue to be litigated on remand if necessary.

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remand to the Commonwealth court.6 We proceed to our review of the

last claims.7

B. Summary Judgment

To remind the reader, FAPR's motion for summary judgment

addressed the Chessplayers' initial request for a preliminary

injunction. In their opposition to FAPR's motion, the Chessplayers

clarified their position: they were now seeking a permanent, not a

preliminary, injunction and they claimed entitlement to summary

judgment on that request (the ultimate claim in their consolidated

cases).

In ruling on FAPR's motion for summary judgment the

district court found no state action and dismissed all of the

Chessplayers' claims premised on such a theory under the United

States and Puerto Rico constitutions. The court also dismissed all

6
We do not accept jurisdiction over cases that belong in
state court, as 28 U.S.C. § 1447(c) requires us to remand them back
to state court if, before final judgment, it appears we incorrectly
assumed jurisdiction. See Franchise Tax Bd., 463 U.S. at 8.
7
The Chessplayers also argue that even if the district court
did have jurisdiction over the first case and not the second, the
exercise of jurisdiction was vitiated by the consolidation of the
cases, which prevented them from effectively pursuing their second
case in Puerto Rico state court, where they had already obtained a
preliminary injunction hearing. This argument was not raised below
and is therefore waived. Martex Farms, S.E. v. U.S. Envtl. Prot.
Agency, 559 F.3d 29, 33 (1st Cir. 2009). We further note the
Chessplayers do not reprise their argument below, seeking
abstention by the federal court, so we also consider this issue
waived. Beatty v. Michael Bus. Mach. Corp., 172 F.3d 117, 120 n.2
(1st Cir. 1999).

-22-
claims based on Puerto Rico law. Citing Finn v. Beverly Country

Club, 683 N.E.2d 1191, 1193 (Ill. App. Ct. 1997),8 the district

court noted that the conduct of a voluntary association is subject

to judicial review only when it fails to exercise powers consistent

with its own rules. It then concluded that after reviewing the

submitted documents, the constitution and bylaws of FAPR, none of

the actions taken by FAPR were done in an arbitrary or capricious

manner, and thus judicial intervention was not warranted.

On appeal, the Chessplayers do not challenge the district

court's dismissal of their constitutional claims premised on state

action. They focus only on their Commonwealth claims, arguing that

FAPR's actions preceding and during the extraordinary meeting

violated the FAPR constitution and the General Corporations Law of

Puerto Rico. They reprise their argument to the district court

that FAPR's actions were clearly arbitrary and capricious and

inconsistent with its own internal rules.

8
The district court explained that because FAPR cited
Illinois case law in its summary-judgment motion and the
Chessplayers also referenced this same law in their response, it
would likewise apply this principle of judicial noninterference in
making its determinations. Puerto Rico and other legal authorities
recognize the same standard. See Universidad del Turabo v. L.A.I.,
126 D.P.R. 497 (P.R. 1990); 6 Am. Jur. 2d Associations and Clubs
§ 27. Louisiana (the only other state that operates, like Puerto
Rico, under a civil code) also uses this standard. See English v.
Nat'l Collegiate Athletic Ass'n, 439 So. 2d 1218, 1221-22 (La. Ct.
App. 1983).

-23-
 1. Standard of Review

We review the district court's grant of summary judgment

de novo. Shafmaster v. United States, 707 F.3d 130, 135 (1st Cir.

2013). And we view the record in the light most favorable to the

Chessplayers, as the unsuccessful party, drawing all reasonable

inferences in their favor. See Gerald v. Univ. of P.R., 707 F.3d

7, 16 (1st Cir. 2013). Summary judgment is appropriate when there

is "no genuine issue of material fact, and the moving party is

entitled to judgment as a matter of law." Kelley v. Corr. Med.

Servs., Inc., 707 F.3d 108, 115 (1st Cir. 2013); Fed. R. Civ. P.

56(a). That the matter was resolved on cross motions does not

change our standard of review. Segrets, Inc. v. Gillman Knitwear

Co., 207 F.3d 56, 61 (1st Cir. 2000). "Cross motions simply

require us to determine whether either of the parties deserves

judgment as a matter of law on facts that are not disputed."

Barnes v. Fleet Nat'l Bank, N.A., 370 F.3d 164, 170 (1st Cir. 2004)

(quoting Wightman v. Springfield Terminal Ry., 100 F.3d 228, 230

(1st Cir. 1996)) (internal quotation marks omitted). We are not

bound by the reasoning of the district court, but rather, "may

affirm the entry of summary judgment on any ground made manifest by

the record." Harrington v. Aggregate Indus.-Ne. Region, Inc., 668

F.3d 25, 30 (1st Cir. 2012) (citing Houlton Citizens' Coal. v. Town

of Houlton, 175 F.3d 178, 184 (1st Cir. 1999)).

-24-
 The issuance of a permanent injunction would be

appropriate only if the district court made four findings: "(1)

plaintiffs prevail on the merits; (2) plaintiffs would suffer

irreparable injury in the absence of injunctive relief" (i.e., an

injury for which there is no adequate remedy at law); "(3) the harm

to plaintiffs would outweigh the harm the defendant would suffer

from the imposition of an injunction; and (4) the public interest

would not be adversely affected by an injunction." Asociación de

Educación Privada de P.R., Inc. v. García-Padilla, 490 F.3d 1, 8

(1st Cir. 2007).

2. Relevant Law

Many jurisdictions, including Puerto Rico and Illinois,

consider the constitution and bylaws of a not-for-profit

organization to constitute a contract between the organization and

its members. Diamond v. United Food & Commercial Workers Union

Local 881, 768 N.E.2d 865, 870 (Ill. App. Ct. 2002); Universidad

del Turabo, 126 D.P.R. 497. These are a unique type of contract

in which the member, either expressly or implicitly, "agrees to

abide by all rules and regulations adopted by the organization."

Diamond, 768 N.E.2d at 869 (quoting Blackshire v. Nat'l Ass'n for

the Advancement of Colored People (NAACP), Inc., 673 N.E.2d 1059,

1061 (Ill. App. Ct. 1996)) (internal quotation marks omitted); Lee

v. Snyder, 673 N.E.2d 1136, 1139 (Ill. App. Ct. 1996) (quoting

Engel v. Walsh, 101 N.E. 222, 223-24 (Ill. 1913)); Universidad del

-25-
Turabo, 126 D.P.R. 497. The constitution or bylaws may provide

procedures to resolve issues that arise within the organization and

might also expressly endow authority in an officer or director to

interpret the constitution or bylaws. See, e.g., Finn, 683 N.E.2d

at 1193-94; Edwards v. Ind. State Teachers Ass'n, 749 N.E.2d 1220,

1225 (Ind. Ct. App. 2001). Where this sort of authority is

granted, the members, through their contractual relationship with

the organization, agree that the authorized officer has the power

to interpret and the members may be bound by those interpretations;

accordingly, the court gives deference to the authorized officer's

interpretations. Diamond, 768 N.E.2d at 870; see Finn, 683 N.E.2d

at 1194.

That is not to say there is no place for judicial

intervention. The organization's bylaws and constitution are a

contract, and thus by virtue, can be breached. Diamond, 768 N.E.2d

at 870. And "if the organization provides no avenue for internal

review or appeal, then judicial intervention in an internal dispute

may be appropriate." 6 Am. Jur. 2d Associations and Clubs § 27;

see also Engel, 101 N.E. at 224. "[C]ourts generally will not

interfere with the internal affairs of a voluntary association

absent mistake, fraud, collusion or arbitrariness." Poris v. Lake

Holiday Prop. Owners Ass'n, 983 N.E.2d 993, 1001 (Ill. 2013); Finn,

683 N.E.2d at 1193. But, the conduct of voluntary associations

will be subject to judicial review "when they fail to exercise

-26-
power consistently with their own internal rules or when their

conduct violates the fundamental right of a member to a fair

hearing." Finn, 683 N.E.2d at 1193; see also Diamond, 768 N.E.2d

at 870; Hernández v. Asociación Hosp. del Maestro, Inc., 106 D.P.R.

72 (P.R. 1977).9

In our de novo review we must examine the record before

us to determine whether the district court properly awarded summary

judgment to FAPR on the Chessplayers' request for injunction. The

heart of the Chessplayers' argument is that FAPR acted in an

arbitrary and capricious manner, based on unauthorized or erroneous

interpretations of the organization's constitution. They do not

detail the four specific requirements for permanent injunction, but

instead focus their argument as a challenge to the district court's

determination on the merits (which is where the district court

ended its analysis). The Chessplayers' appeal is limited to the

district court's grant of summary judgment on the following issues:

exclusion of certain members from the extraordinary meeting; proxy

voting; freezing renewals and new memberships; and notification of

the extraordinary meeting only though e-mail. We take each of the

Chessplayers' assigned claims of error in turn.

9
We note that while no one has presented this argument here,
judicial intervention into the dealings of a private association is
warranted when other due-process type violations have occurred.
Finn, 683 N.E.2d at 1193; Hernández, 106 D.P.R. 72; Diamond, 768
N.E.2d at 870.

-27-
 a. Exclusion of Existing Members

The Chessplayers challenge FAPR's exclusion of certain

members from participating in the extraordinary meeting on the

grounds they were not "active" members. They specifically take

issue with former president Añeses's definition for "active"

membership, which he enforced prior to and at the extraordinary

meeting. The definition of "active" imposed by Añeses allowed

members who were "up to date with the payment of their membership

fees" and "also participated in at least one chess tournament

sponsored by the Federation during the immediately preceding twelve

months" to participate in the November 20 meeting. Citing Article

III of the FAPR constitution, the Chessplayers assert this

definition of "active" member is contrary to the organization's

rules and regulations. FAPR maintains the exclusion of certain

members was based in sound reasoning.

We look to the FAPR constitutional provisions regarding

member voting in extraordinary meetings. Article VI(2) of the FAPR

constitution states that in meetings "whether ordinary or

extraordinary, only active members whose annual dues are current

may participate. The same day of the meeting - and before it

begins - a member may bring his membership current." Article III

requires FAPR members to "remain active attending the meetings,

participating in the activities, and paying the assigned dues."

-28-
There are no additional definitions for "active" in the FAPR

constitution.

The constitution states the "Board of Directors will

govern with the best criteria and will be the supreme body, with

the exception of the assembly." It goes on to grant the President

powers to "act as the Federation's official representative and will

make whatever decisions he/she needs to take when the Board of

Directors or the Assembly is not meeting." But FAPR's constitution

contains no provision granting the President or any other Board

Member the power to interpret the terms of the constitution.

Accordingly, there is no authorized officer whose interpretations

require our deference. See Diamond, 768 N.E.2d at 870.

The definition of "active" employed by Añeses draws from

the FIDE (the International Chess Federation) handbook,

specifically the section pertaining to the criteria for ranking the

top FIDE chess players. Six times each year, the Qualification

Commission of FIDE prepares a list of the top active players; a

player will not be included on the list if he or she is inactive.

The handbook describes inactivity as when a player has played "no

rated games in a one year period." Añeses's definition of "active"

combined the FIDE handbook's description of inactivity for

-29-
inclusion in the top players list with Article III of the FAPR

constitution.10

But the FAPR constitution does not require the adoption

of terms in the FIDE handbook pertaining to ratings, nor does it

state that terms as described by FIDE must or may be employed by

FAPR. FIDE is mentioned only twice in the FAPR constitution:

Article II(b) states FAPR will "divulge the game of chess" as

regulated by the FIDE, and Article IV(a) states FAPR "must be

affiliated with the F.I.D.E." There is no specific provision in

the FAPR constitution for the implementation of FIDE terminology or

definitions. Rather, Article III defines "the members" of FAPR

without any reference to the FIDE. Thus, Añeses's incorporation of

the FIDE description of "inactivity," taken from the criteria for

inclusion in the top rated players list, to the FAPR constitutional

provisions for member participation in meetings was not grounded in

any FAPR constitutional provision. Nor was his interpretive action

authorized by any power enunciated in the constitution, so we owe

it no deference. See Diamond, 768 N.E.2d at 870. As such, FAPR

"fail[ed] to exercise power consistently with its own internal

rules," and so its "conduct is subject to judicial review." Finn,

683 N.E.2d at 1193.

10
Añeses's message, sent to the group e-mail address,
justified this definition of active, stating the FIDE provisions
complement the rules and regulations of FAPR, and FIDE considered
active members those who participated in activities (which he
clarified as "tournaments, etc.") in the previous twelve months.

-30-
 Applying de novo review, we conclude the Chessplayers

successfully demonstrated this action was arbitrary and warranted

judicial intervention.

b. Proxy Voting

The minutes from the extraordinary meeting clearly state

that fifteen of the sixty-three member quorum voted by proxy. The

Chessplayers assert the inclusion of votes by proxy was not

authorized by any FAPR provision and was inconsistent with the

Rules of Parliamentary Procedure adopted in Article VI of its

constitution. FAPR contends inclusion of votes by proxy was

permissible.

We turn to Article VI of the FAPR constitution--"About

the Meetings"--which states that meetings "whether ordinary or

extraordinary . . . will be guided by Roberts Rules of Order."

Robert's Rules state, "[p]roxy voting is not permitted in ordinary

deliberative assemblies unless the laws of the state in which the

society is incorporated require it, or the charter or by-laws of

the organization provide for it." RONR (11th ed.), p. 428-29.

It is clear that the November 20 meeting was not an

ordinary meeting, rather it was an extraordinary meeting. And

Robert's Rules regarding proxy voting pertain specifically to

"ordinary deliberative assemblies" and are silent as to

extraordinary meetings or deliberative assemblies. As the

November 20 meeting was not an ordinary meeting, the limitations on

-31-
proxy voting enunciated in Robert's Rules cannot be applied as

though it were an ordinary deliberative assembly. While the FAPR

constitution is silent on the specific issue of proxy voting, the

inclusion of proxy votes at the extraordinary meeting does not

appear to be inconsistent with the FAPR constitution, as it

incorporates Robert's Rules of Order. The Chessplayers have not

shown they prevail even on the merits of this claim, and we

conclude the district court did not err in its grant of summary

judgment on this issue.

c. Freezing Renewals

The Chessplayers argue FAPR violated its constitution

by prohibiting existing members from renewing their memberships up

to or on the day of the extraordinary meeting, thereby preventing

them from participating. FAPR plays around this argument, and

admits the constitution provides for payment of dues on the day of

an assembly. They contend Article VI(2)'s participation provision

may be limited based on the previously discussed "active"

membership requirement as defined by former president Añeses.

We turn again to Article VI(2) of the FAPR constitution,

the provision pertaining to member voting: "The same day of the

meeting - and before it begins - a member may bring his membership

current." It is clear from the text of Article VI(2) that existing

members who wished to bring their membership current on November 20

were entitled to do so. As we already determined, Añeses's

-32-
adoption of the FIDE definition of "active" to bar member

participation in meetings was not supported by the FAPR

constitution, and was an exercise of power inconsistent with the

organization's internal rules. See Diamond, 768 N.E.2d at 870. We

believe this claim has merit.

d. Barring New Members

Next, the Chessplayers allege FAPR violated its own

constitution by refusing to allow new members to join the

organization. FAPR counters that admission as a member is not

automatic, as provided in the constitution. The Chessplayers point

to Articles V and VI(1) of the FAPR constitution to support their

claim that new members could participate in the meeting if they

joined no later than November 30. But the Chessplayers' citations

are to provisions that pertain to meetings for Board of Directors

elections, not extraordinary meetings, the type of meeting at issue

in this case. FAPR correctly refers to Article III(b), which

states any person with knowledge of chess or interest in learning

may "apply for admission" and "acquire it by majority decision" of

the Board. The November 20 extraordinary meeting was not for the

election of Board of Directors; thus FAPR's refusal to allow new

members to apply and participate in the extraordinary meeting was

not inconsistent with its internal rules. See Diamond, 768 N.E.2d

at 870; Finn, 683 N.E.2d at 1193. We find no arbitrary or

capricious action.

-33-
 e. Notification by E-mail

The last issue for our review is the notification FAPR

provided for the extraordinary meeting. The Chessplayers claim

they never authorized FAPR to provide them notice via e-mail, and

so notification of the extraordinary meeting sent only by e-mail

violated Puerto Rico corporations law. We note that this is the

only argument, on appeal, for which the Chessplayers invoke a

specific provision of Puerto Rico law. So we apply the relevant

provision from Puerto Rico law for the analysis of this issue.

P.R. Laws Ann. tit. 14, § 3661 (2009) addresses notice by

electronic transmission, and subsection (d) clarifies that this

section applies to any corporation not authorized to issue capital

stock (for which all references to stockholders are deemed to refer

to members of the corporation). Section 3661(b)(2) states that

notice shall be deemed given "by electronic mail, when directed to

an electronic mail address at which the stockholder has consented

to receive notice."

It is undisputed that FAPR's former administrator Berríos

sent the notification for the extraordinary meeting only by e-mail,

not to individual e-mail addresses, but rather to the group address

"ajedrezpr@yahoo.com." FAPR stops short of arguing its members

consented to receiving notice via e-mail and instead merely cites

-34-
prior instances of notification for meetings sent by e-mail.11 It

argues only that e-mail correspondence was customary. However, we

find nothing in § 3661 to support the contention that prior receipt

or customary practice constitutes consent. Because FAPR did not

have the consent of its members to issue e-mail only notification,

we find the Chessplayers have carried their burden to show success

on the merits, that this was indeed arbitrary and capricious action

by FAPR.

As previously noted, because the district court concluded

its analysis after finding no merit to any of the Chessplayers'

claims, it became unnecessary for the court to discuss any of the

three remaining permanent injunction elements. Because we disagree

in part with that conclusion, remand is necessary to allow the

district court to determine if the Chessplayers have satisfied the

remaining elements for the issuance of a permanent injunction.

See McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC, 511 F.3d

350, 357, 369 (3d Cir. 2007) (where the district court erroneously

"denied injunctive relief only on the basis that [plaintiff] did

not demonstrate a likelihood of success on the merits, and

[plaintiff] raises appellate arguments limited to that basis,"

deciding only the merits issue and remanding for a consideration of

the remaining factors); Idaho Watersheds Project v. Hahn, 187 F.3d

11
FAPR members were previously alerted to extraordinary
meetings held in July 2010 and October 2010 by e-mails sent to this
group address.

-35-
1035, 1037 (9th Cir. 1999) (where the district court erred in

concluding that the appellants failed to establish a likelihood of

success on the merits, remanding for the district court to consider

the possibility of irreparable injury and whether the balance of

hardships tips in favor of the appellants); Black & Decker, Inc. v.

Hoover Serv. Ctr., 886 F.2d 1285, 1296 (Fed. Cir. 1989) (same);

Tatro v. Texas, 625 F.2d 557, 558 n.1 (5th Cir. 1980) (same). In

our review of the record before us, we note that the Chessplayers,

in opposing FAPR's motion for summary judgment, did file a

statement of facts citing to affidavits of individual Chessplayers

which discuss how the arbitrary actions harmed their interest and

which arguably address the remaining three factors for permanent

injunction.12 As to those claims we find meritorious the district

court will have to determine if this record supports a finding that

the Chessplayers suffered irreparable injury, whether the harm to

them outweighs the harm to the defendants from the imposition of an

injunction, and whether the public interest would not be adversely

affected by the issuance of an injunction.

Conclusion

To recap, we find the district court had federal subject

matter jurisdiction over the first case. The district court did

12
For example, one affidavit stated the amendments to the FAPR
constitution "violated my most fundamental democratic rights" yet
Berríos and Añeses "went ahead and re-structured the organization
in such a way that it is practically impossible for an outsider
like me to gain an elective position in a fair election."

-36-
not have subject matter jurisdiction over the second case, and we

remand it to the district court with instructions to remand it to

the Commonwealth court where it was originally filed. Utilizing

our de novo review, we conclude the district court correctly

granted summary judgment to FAPR in part. However, the

Chessplayers showed success on the merits for three of their

appealed claims, and we remand those claims to the district court

for further consideration in accordance with this court's decision.

Each party shall bear its own costs.

-37-