Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING SUBJECT MATTER JURISDICTION AND DEFENDANT’S MOTION TO DISMISS CLAIMS TABLE OF CONTENTS I. INTRODUCTION.1386 A. The Cases.1386 B. The Claims And Counterclaims .1386 C. The Motions To Dismiss .1388 D. The Jurisdictional Question.1390 II. BACKGROUND.1390 III. LEGAL ANALYSIS .1391 A. Subject Matter Jurisdiction.1391 1. General principles.1391 a. The “well-pleaded complaint” rule.1393 b. Claims “arising under” federal law .1394 2. Do the present claims “arise under” federal law?.1395 a. Declaratory judgment elaims .1395 b. Breach-of-contract elaims .1398 c. Other federal claims.1400 B. The Motions To Dismiss .1403 1. Standards for dismissal pursuant to Fed.R.Civ.P. 12(b)(6).1404 2. The CEA fraud claims.1404 a. Rescission as a remedy under the CEA.1405 b. Pleading of fraud with sufficient particularity.1405 i. Fed.R.Civ.P. 9(b).1407 ii. The pleading of fraud here.1408 3. Adequacy of other claims.1409 C. Subject Matter Jurisdiction Revisited.1409 1. Supplemental jurisdiction and compulsory counterclaims.1409 2. Disposition of all claims.1411 IV. CONCLUSION.1412 BENNETT, District Judge. This opinion is the court’s third endeavor to answer the question, when does a federal court have subject matter jurisdiction over the issue of whether so-called “hedge-to-arrive” contracts (HTAs) for the sale and purchase of grain are illegal futures contracts under the Commodity Exchange Act (CEA), 7 U.S.C. §§ 1-25? In its prior decisions considering this question, the court was presented with breach-of-contract eases filed in state court by elevators, but removed to this federal court by the defendant grain producers, who asserted that the issue of the legality or illegality of the contracts under the CEA established the subject matter jurisdiction of the federal court. See Farmers Coop. Elevator of Buffalo Center, IA v. Abels, 950 F.Supp. 931, (N.D.Iowa 1996) (fifty-three related cases); Farmers Co-op. Elevator v. Doden, 946 F.Supp. 718 (N.D.Iowa 1996). The court rejected that contention, because the federal question upon which subject matter jurisdiction was asserted was raised only as a defense to a state-law cause of action. The present cases are upon different procedural footings. In these cases, it is the court, not one of the parties, that has raised the threshold question of subject matter jurisdiction. Furthermore, both of these cases are declaratory judgment actions originally brought in federal court, one by an elevator and the other by grain producers, and each presents additional claims or counterclaims ostensibly under the CEA upon which the parties assert the subject matter jurisdiction of the court may be based. In addition to the question of subject matter jurisdiction, the court is presented here with entirely new questions raised by the elevator’s motions to dismiss the grain producers’ claims or counterclaims in each case. The elevator asserts that fraud claims have not been pleaded with sufficient particularity and that other counts fail to state claims upon which relief can be granted. I. INTRODUCTION Although the present opinion addresses questions of subject matter jurisdiction and motions to dismiss claims or counterclaims in two cases, those two cases have not been formally consolidated in any way. Rather, the court and the parties, represented by the same counsel in each case, have recognized the near identity of issues presented, despite differences in whether the suit was filed by the elevator or the grain producers. Therefore, for the sake of convenience, the court conducted a joint hearing on subject matter jurisdiction and the motions to dismiss in each case on December 12, 1996, and now files a single opinion. A. The Cases The controversy in each of these cases centers on so-called “hedge-to-arrive” or HTA contracts entered into by the parties. In each of the cases, one or both of the parties raise the question of the legality or illegality of the HTAs under the CEA. Additionally, the cases involve claims arising from alleged breach of the contracts and alleged fraud or misrepresentation in the inducement to enter into the contracts. North Central F.S., Inc. (the Elevator), filed the first of these actions, Case No. C96-3074 (the North Central Case), on August 20,1996, by filing a complaint for declaratory judgment and other relief against grain producers Alan L. Brown, David Burmester, Don Butson, Steve Hackbarth, Ken Mutsehler, Marlyn Tripp, Kurt Wolf, and Maurice Wolf. The second of these actions, Case No. C96-3080 (the CeBar Farms Case), which also seeks declaratory judgment and other relief, was filed against the Elevator on September 10, 1996, by another group of grain producers, CeBar Farms, Inc., Barbara Lyon and Jerry Lyon, who are the principals of CeBar Farms, and James Dean Krabbe. All of the grain producers will be referred to herein collectively as the Producers, but where distinctions must be made, they will be identified as either the North Central Defendants or the CeBar Farms Plaintiffs. The Elevator is represented in both of these cases by counsel Steven H. Hoeft and Steven S. Scholes of McDermott, Will & Emery in Chicago, Illinois, and by local counsel Roger T. Stetson and Edward M. Mansfield of Belin, Harris, Lamson, McCormick in Des Moines, Iowa. The Producers are represented in each case by counsel Glenn L. Norris and George F. Davison, Jr., of Hawkins & Norris in Des Moines, Iowa. The North Central Defendants answered the Elevator’s complaint in the North Central Case on August 27, 1996, asserting affirmative defenses and counterclaims. On September 16, 1996, the Elevator moved to dismiss all of the counterclaims in the North Central Case. Prior to answering the complaint in the CeBar Farms Case, the Elevator filed, on October 11, 1996, a motion to dismiss all but the first count of the complaint for failure to state a claim upon which relief can be granted. However, the Elevator eventually answered the complaint in the CeBar Farms Case on October 21, 1996, asserting various affirmative defenses and counterclaims. The court will detail the claims and counterclaims in these actions in the next section of this opinion. B. The Claims And Counterclaims In the North Central Case, the Elevator seeks, in Count I, declaratory judgment that the HTA contracts it has entered into with each of the North Central Defendants are valid, binding, and enforceable contracts exempt from the CEA and that each of the defendants is obligated under the HTAs to deliver com to the Elevator under terms specified in the HTAs. As further relief on this count, the Elevator also seeks attorneys fees and costs incurred in pursuing this action and such other relief as the court deems just and proper. In Count II of its complaint, the Elevator seeks damages for repudiation of the HTAs, including lost revenues, as well as attorneys fees and costs. In Count III, the Elevator asserts a claim of promissory estoppel, and as relief asks the court to impose a constructive trust in favor of the Elevator on all com the defendants currently have in storage or that they have planted, but not yet harvested; to impose an equitable lien in favor of the Elevator on all corn the defendants currently have in storage or have planted, but not yet harvested; to order the defendants to account for any and all proceeds from sales of com harvested in 1995; to compensate the Elevator for its actual damages from repudiation of the HTAs, including lost revenues; temporarily and permanently to enjoin the defendants from selling or otherwise transferring or encumbering in any way any interest in corn the defendants currently have in storage or have planted, but not yet harvested, to any person other than the Elevator; and to award the Elevator fees, costs, and any other proper relief. Finally, in Count IV of the complaint in the North Central Case, the Elevator asserts a claim for unjust enrichment. The Elevator seeks the same relief on this count as is sought under Count III. Thus, at least at first blush, only Count I of the Elevator’s complaint appears to be the basis for federal question jurisdiction in this case, as the remaining counts are state-law claims. However, as shall be seen below, the Elevator contends that its breach-of-contract claims also arise under federal law. In addition to their answer and affirmative defenses to the Elevator’s claims in the North Central Case, the North Central Defendants have filed a counterclaim. Count I of their counterclaim also seeks declaratory judgment concerning the legality of the HTAs, but this time the claim asserts that the HTAs are illegal futures contracts under section 4(a) of the CEA, 7 U.S.C. § 6(a). As relief, the North Central Defendants ask the court to declare the rights and other legal relations of the parties with respect to the HTAs in light of controlling statutes, rules, and regulations of the United States; to declare the HTAs in question illegal, void, and unenforceable; and to grant such other relief as the court deems just and proper in addition to costs and disbursements in this action. Count II of the counterclaim alleges fraud in violation of section 4b of the CEA, 7 U.S.C. § 6b. It seeks as relief the same declarations sought in Count I of the counterclaim, as well as rescission of any purported obligation under the HTAs and such other relief as the court deems just and proper in addition to costs and disbursements of this action. Count III of the counterclaim is again a claim of fraud in violation of section 4b of the CEA, 7 U.S.C. § 6b, but this count seeks as relief damages, plus interest, costs, and attorneys fees. Count IV of the counterclaim is a common-law claim of fraudulent misrepresentation by representatives of the Elevator allegedly intended to induce the North Central Defendants to enter into the HTAs. It seeks rescission or cancellation of the contracts as relief, as well as such other relief as the court deems equitable. Count V is another common-law claim for fraudulent misrepresentation, but this count seeks damages, both actual and punitive, plus costs, attorneys fees, and such other relief as the court deems equitable. Count VI asserts negligent misrepresentation against the Elevator, and seeks as relief actual and punitive damages, interest, costs, and any other relief the court deems equitable. Finally, Count VII of the counterclaim is a cause of action for breach of contract. It asserts that the Elevator breached material terms of the HTAs, including a covenant that it would be responsible for commission and margin requirements of the transactions involved in the HTAs, and a covenant that, if the North Central Defendants were dissatisfied with the price they were to receive under the HTAs, they could “roll” the contracts into a deferred month and sell grain otherwise committed to contract on the open market. On this count of their counterclaim, the North Central Defendants seek actual and punitive damages, interest, and the costs of the action. Thus, Counts I — III of the counterclaim may assert an “independent basis” for federal jurisdiction over the counterclaim, because they are ostensibly brought pursuant to the CEA. However, the Producers assert that the remaining counterclaims, and the parallel claims in the CeBar Farms action, although state-law causes of action, also provide the basis for the subject matter jurisdiction of this court. The Producers argue that these state-law claims fall within the CEA as the result of “conflict preemption,” and therefore are governed by federal law. The complaint filed by the CeBar Farms Plaintiffs exactly parallels the seven counts of the counterclaim filed by the other group of grain producers in the North Central Case. Thus, Count I is for declaratory judgment that the HTAs are illegal under the CEA; Count II alleges fraud in violation of the CEA and seeks rescission of the HTAs; Count III again alleges fraud in violation of the CEA, but seeks damages; Count IV alleges common-law fraudulent misrepresentation and seeks rescission; Count V alleges common-law fraudulent misrepresentation, but seeks damages; Count VI seeks damages for negligent misrepresentation; and Count VII seeks damages for breach of contract. Not only are the claims exactly parallel to the counterclaims in the North Central Case, but the factual allegations of conduct of the Elevator are identical. The Elevator’s counterclaims in the CeBar Farms Case omit the Elevator’s own claim for declaratory judgment, but otherwise exactly parallel the Elevator’s claims in the North Central Case as to allegations and relief sought. Thus, Count I of the Elevator’s counterclaim seeks damages for repudiation of the HTAs; Count II seeks equitable relief for promissory estop-pel; and Count III seeks the same equitable relief as stated in Count II, but for unjust enrichment. Only counts I — III of the complaint in the CeBar Farms Case specifically plead federal causes of action, and therefore suggest an obvious basis for subject matter jurisdiction, although the Producers again contend that all of their claims are governed by federal law. No counts of the counterclaim directly assert any federal cause of action that would stand as an independent basis for federal jurisdiction over the Elevator’s counterclaim, although the Elevator appears to argue that its breach-of-contract claims arise under federal law and do establish such an independent basis for federal jurisdiction. C. The Motions To Dismiss The Elevator responded to the North Central Defendants’ counterclaims in the North Central Case by moving to dismiss all of them on September 16, 1996. The North Central Defendants resisted the motion to dismiss on October 29, 1996, and the Elevator filed a reply brief in support of its motion to dismiss all counterclaims on November 19, 1996. On October 11,1996, the Elevator also moved to dismiss counts II through VII of the complaint filed against it in the CeBar Farms Case. The Elevator omitted from this motion to dismiss any challenge to the declaratory judgment count. No resistance was ever filed to the motion to dismiss in the CeBar Farms Case. It appears that the CeBar Farms Plaintiffs assumed that the court would also consider in the CeBar Farms Case the resistance filed by the North Central Defendants to the Elevator’s motion to dismiss parallel claims, on identical grounds, in the North Central Case. The arguments of the parties concerning the motions to dismiss individual claims or parallel counterclaims, at least in skeletal form, are as follows. Only the arguments concerning dismissal of Count I of the counterclaim in the North Central Case are peculiar to that case. The Elevator has moved to dismiss Count I of that counterclaim, the count seeking declaratory judgment, on the ground that it is redundant of the Elevator’s own principal claim for declaratory judgment. The Elevator contends that, under Fed.R.Civ.P. 12(f), a counterclaim that only restates the controversy initiated by the complaint should be stricken as redundant. The Elevator contends that the North Central Defendants’ claim for declaratory judgment simply alleges the converse of what the Elevator has alleged, i.e., instead of seeking a declaration that the HTAs are valid and enforceable, the North Central Defendants seek a declaration that the HTAs are illegal futures contracts that are not valid or enforceable under the CEA. The North Central Defendants assert that Count I of their counterclaim is viable, because their own request for declaratory judgment is based on different facts and requests different relief. They contend that the Elevator’s declaratory claim requests a declaration requiring that each defendant deliver corn to the Elevator under the terms of the HTAs, while their declaratory judgment claim seeks a declaration that the HTAs violate the CEA and that the contracts are therefore illegal, void, and unenforceable. The North Central Defendants contend that their claim for declaratory judgment can stand alone without reference to the Elevator’s declaratory judgment claim, and to reject their claim as redundant would leave them without the relief to which they are entitled under the Declaratory Judgment Act. For rejoinder, the Elevator contends that the claims are different sides of the same coin: Both parties seek a declaration of their rights under the HTAs, in light of all pertinent facts, and the differing relief the parties seek will necessarily flow from a declaration favorable to one side or the other. The remaining claims the Elevator seeks to dismiss appear in both lawsuits. The Elevator seeks dismissal of all of the fraud claims, both those under the CEA and those under the common law, found in Counts II through V of the claims or counterclaims filed by the Producers, on the ground that the Producers have failed to allege fraud with the particularity required by Fed.R.Civ.P. 9(b). The Elevator contends that the pleadings fail to identify what fraudulent statements were purportedly made, instead alleging only that unidentified statements were made that amounted to “express or implied” representations about certain events. The Elevator contends that pleading what someone inferred from a statement is not adequate; the statement itself must be pleaded. The Elevator also contends that the makers of the statements are inadequately identified, because statements are attributed to one person “and/or” another. Furthermore, the Elevator contends that the fraud allegations do not identify the time and dates of the unidentified statements, whether they were made orally or in writing, or the location where they were made. Finally, the Elevator contends that conclusory allegations of scienter are insufficient. In response, the Producers quote lengthy sections from their complaints or counterclaims that they assert establish the requisite specificity of the fraud pleadings, and cite other sources, such as the dates the HTA contracts were executed, as identifying adequately by inference the time and place misrepresentations were made. The Producers also contend that the Elevator is well aware of when its representatives had meetings with individuals and where those meetings took place, so that the Elevator is not unaware of the necessary circumstances surrounding the alleged frauds. In reply, the Elevator contends that the Producers have admitted in their resistance some of the inadequacies of their fraud pleadings and failed to address others. The Elevator’s remaining grounds for dismissal of the fraud and other claims are more simply stated. The Elevator contends that Counts II and III are inadequately pleaded, because they do not allege that the Elevator acted “for and on behalf of’ the Producers, as required for a cause of action pursuant to § 4b of the CEA, 7 U.S.C. § 6b. Instead, the Elevator contends that the pleadings establish only that it acted as a principal in an arms-length transaction with the Producers. The Elevator contends that Count II must also be dismissed, because rescission is not a remedy available under the CEA, and Count III must be dismissed, because the Producers have not alleged that they sustained any losses as the result of any action by the Elevator. The Elevator contends that the common-law fraud claims asserted in Counts IV and V of the Producers’ complaint and counterclaim again are inadequately pleaded under Fed.R.Civ.P. 9(b) and that the Elevator had no duty to disclose information to the Producers, because there was no fiduciary duty owed by the Elevator to the Producers. Furthermore, the Elevator contends that the rescission claim in Count IV fails, because the Producers did not return any benefits they obtained from the bargain. As to Count VI, the Elevator contends that it was not in the business of supplying information or opinions to the Producers, so that a negligent representation claim will not lie. Finally, as to Count VII, which alleges breach of covenants alleged to be part of the HTAs, the Elevator contends that the Producers have “abjectly” failed to allege their version of the terms and conditions of the HTAs. In response, the Producers point to portions of their pleadings and the elements of the alleged offenses, which they assert demonstrate the adequacy with which they have pleaded each of their claims. D. The Jurisdictional Question Although the Elevator brought these matters before the court on its assertion that the Producers have failed to state claims upon which relief can be granted, it was the court that raised the threshold issue of its subject matter jurisdiction over these cases. The court had already decided the question of subject matter jurisdiction in one similar ease between an elevator and grain producers involving HTAs contracts, and motions challenging the court’s subject matter jurisdiction had been filed in dozens of other such cases. See Farmers Co-op. Elevator v. Doden, 946 F.Supp. 718 (N.D.Iowa 1996). Following a status conference on October 31, 1996, the court directed the parties to file supplemental briefs on the question of the court’s subject matter jurisdiction in the North Central and CeBar Farms Cases. The Producers filed a submission in support of the court’s subject matter jurisdiction, consisting of complaints in actions before the Commodity Futures Trading Board considering HTA contracts, on November 15, 1996. Next, the Elevator filed a brief in support of the court’s subject matter jurisdiction on November 22, 1996, followed by an amended version of that brief on November 25, 1996. On December 2, 1996, the Producers filed a brief in support of the contention that the court had subject matter jurisdiction. The Elevator contends that its causes of action are created by federal law, specifically, the CEA, and require construction of that federal law. The Elevator also contends that its claims involve substantial federal questions in light of its own and its opposing party’s threatened or actual actions. The Producers assert that two arguments are “dispositive” on the question of the court’s subject matter jurisdiction in these cases: “(1) both sides agree that their claims are based on federal law, and (2) neither side has filed an action in state district court.” Counterclaim Plaintiffs Brief In Support Of The Court’s Jurisdiction Of The Subject Matter (North Central Case), at 1. They focus on the question of whether the court has subject matter jurisdiction over their own claims and counterclaims, rather than on the question of the court’s subject matter jurisdiction over the Elevator’s claims or counterclaims. They contend that their own claims, particularly Count III, a fraud claim for damages purportedly under the CEA, falls within the court’s exclusive jurisdiction pursuant to § 22(c) of the CEA, 7 U.S.C. § 25(c). However, they also contend that the remainder of their claims arise directly under federal law or arise under federal law as the result of “conflict preemption” with the CEA. Finally, they contend that the court should, in its discretion, exercise jurisdiction over the declaratory judgment claims presented. These contentions are stated and considered more fully in the court’s legal analysis. II. BACKGROUND Because both subject matter jurisdiction and motions to dismiss are to be considered on the basis of the face of the complaint, see Victor Foods, Inc. v. Crossroads Economic Dev. of St. Charles County, Inc., 977 F.2d 1224, 1227 (8th Cir.1992) (federal subject matter jurisdiction must be apparent from the face of the complaint); and compare Fed.R.Civ.P. 12(b)(6) (a motion to dismiss pursuant to Rule 12(b)(6) requires the court to review only the pleadings to determine whether the pleadings state a claim upon which relief can be granted), the court looks to the factual allegations of the claims and counterclaims of the parties for the necessary factual background to the present disputes. The Elevator, which is an agricultural cooperative owned by its members, operates grain elevators in Alexander, Chapin, Coulter, and Hansell, Iowa. The Producers are each producers of grain in central Iowa. In its claims, the Elevator alleges that each of the Producers entered into so-called “hedge-to-arrive” or HTA contracts with the Elevator for the purchase and sale of corn. The HTAs are alleged to be contracts that protect the farmers from fluctuations in grain prices while providing the Elevator with grain for actual delivery. The HTAs provide that the sellers may “roll” their delivery dates in light of price fluctuations and the opportunity to sell grain on the open market. However, the Elevator alleges that the Producers all eventually repudiated the HTA contracts, claiming, among other things, that they were illegal and unenforceable under the CEA. The Elevator alleges that as a result of repudiation of the HTAs, it has incurred substantial losses from its failure to deliver grain on its own contracts. The Elevator alleges further that each of the Producers promised and agreed to deliver grain to the Elevator under the HTAs, but has refused to do so, forcing the Elevator to close short futures contracts it had carried to hedge its obligations under the HTAs. The Elevator also alleges that the Producers have been unjustly enriched, because they will realize or have realized substantially higher prices by selling the corn due under the HTAs on the cash market, while forcing the Elevator to incur losses. Although the Producers deny the majority of the Elevator’s factual allegations, they make further factual allegations in support of their own claims. They allege that the terms of the HTAs are such that the contracts are not valid “cash forward” contracts, exempt from the CEA, but illegal, off-market futures contracts prohibited by the CEA. Among other things, they assert that the contracts were not for actual delivery of com, because the total amount of grain due under the contracts exceeds their maximum annual corn production; thus, the contracts must be intended as futures contracts. They allege that the HTAs have not only disrupted their own grain production and marketing, but have disrupted and impacted the price of grain on the contract and futures markets. They also allege that the HTAs were procured by various misrepresentations by representatives of the Elevator. These misrepresentations allegedly included misrepresentation of the risk the Producers would run by entering into the HTAs, their responsibility for commissions and margins payable under the contracts, their ability to choose to sell their grain either under the HTAs or on the cash market, and furthermore, that these misrepresentations included failure to disclose that the HTAs would be subjected to moves in the futures market, that the Elevator could unilaterally terminate the contracts, and that the Producers would incur risks for more than one year. Finally, the Producers allege that the Elevator has breached covenants in the HTAs, including a covenant that the Elevator would be responsible for commission and margin requirements of the transaction in question and a covenant that the Producers could “roll” the contracts if they were dissatisfied with the price they were to receive for grain under the contracts and instead sell their grain on the open market. III. LEGAL ANALYSIS Although these matters initially came before the court on the Elevator’s motions to dismiss, the court must first determine whether it has subject matter jurisdiction over either case before it can proceed to the question of the adequacy of the pleadings. Therefore, the first section of the court’s legal analysis examines subject matter jurisdiction. A. Subject Matter Jurisdiction 1. General principles The federal district courts have always been courts of limited jurisdiction. See U.S. Const., Art. Ill, § 1. “Federal courts are not courts of general jurisdiction and have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.” Mo- rine, Equip. Management Co. v. United States, 4 F.3d 643, 646 (8th Cir.1993) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501, reh’g denied, 476 U.S. 1132, 106 S.Ct. 2003, 90 L.Ed.2d 682 (1986), citing in turn Marbury v. Madison, 1 Cranch 137 [5 U.S. 137], 2 L.Ed. 60 (1803)); see also Neighborhood Transp. Network, Inc. v. Pena, 42 F.3d 1169, 1171 (8th Cir.1994) (federal court jurisdiction is limited by Article III of the Constitution). A federal court therefore has a duty to assure itself that the threshold requirement of subject matter jurisdiction has been met in every case. Bradley v. American Postal Workers Union, AFL-CIO, 962 F.2d 800, 802 n. 3 (8th Cir.1992) (citing Sanders, infra); Thomas v. Basham, 931 F.2d 521, 523 (8th Cir.1991); Jader v. Principal Mut. Life Ins. Co., 925 F.2d 1075, 1077 (8th Cir.1991); Barclay Square Properties v. Midwest Fed. Sav. & Loan Ass’n, 893 F.2d 968, 969 (8th Cir.1990); Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir.1987). “The parties ... may not confer subject matter jurisdiction upon the federal courts by stipulation, and lack of subject matter jurisdiction cannot be waived by the parties or ignored by the court.” Pacific Nat’l Ins. Co. v. Transport Ins. Co., 341 F.2d 514, 516 (8th Cir.), cert. denied, 381 U.S. 912, 85 S.Ct. 1536, 14 L.Edüd 434 (1965); see also Pennsylvania v. Union Gas Co., 491 U.S. 1, 25, 109 S.Ct. 2273, 2287, 105 L.Ed.2d 1 (1989) (Stevens, J., concurring) (“[T]he cases are legion holding that a party may not waive a defect in subject-matter jurisdiction or invoke federal jurisdiction simply by consent,” citing Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 377 n. 21, 98 S.Ct. 2396, 2404 n. 21, 57 L.Ed.2d 274 (1978); Sosna v. Iowa, 419 U.S. 393, 398, 95 S.Ct. 553, 556-57, 42 L.Ed.2d 532 (1975); California v. LaRue, 409 U.S. 109, 112 n. 3, 93 S.Ct. 390, 394 n. 3, 34 L.Ed.2d 342 (1972); American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18, and n. 17, 71 S.Ct. 534, 541-42, and n. 17, 95 L.Ed. 702 (1951); Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338 (1934); Jackson v. Ashton, 8 Pet. 148, 149 [33 U.S. 148, 149], 8 L.Ed. 898 (1834)); Lawrence County v. South Dakota, 668 F.2d 27, 29 (8th Cir.1982) (“[F]ederal courts operate within jurisdictional constraints and ... parties by their consent cannot confer subject matter jurisdiction upon the federal courts.”). Even where “ ‘the parties did not raise any jurisdictional issues[, t]his court is obligated to raise such jurisdictional issues if it perceives any.’ ” White v. Nix, 43 F.3d 374, 376 (8th Cir.1994) (quoting Lewis v. United States Farmers Home Admin., 992 F.2d 767, 771 (8th Cir.1993)). The federal courts have a duty to examine the substantiality of the federal claim throughout the litigation, and must dismiss all claims if the federal claim proves patently meritless even after the trial begins. Pioneer Hi-Bred Int’l v. Holden Found. Seeds, Inc., 35 F.3d 1226, 1242 (8th Cir.1994); Sanders, 823 F.2d at 216. However, the Eighth Circuit Court of Appeals has very recently cautioned that “subject matter jurisdiction should not be used to dismiss a ease containing even a remotely plausible federal claim if the parties and the courts have already made [a] vast expenditure of resources.” Id. Because jurisdiction is a threshold issue for the court, the district court has “broader power to decide its own right to hear the case than it has when the merits of the case are reached.” Bellecourt v. United States, 994 F.2d 427, 430 (8th Cir.1993) (quoting Osborn v. United States, 918 F.2d 724, 729 (8th Cir.1990), which in turn quotes Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981)), cert. denied, 510 U.S. 1109, 114 S.Ct. 1049, 127 L.Ed.2d 371 (1994). The court of appeals will review de novo a district court’s determination that it lacks subject matter jurisdiction. Schneider v. United States, 27 F.3d 1327, 1331 (8th Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 723, 130 L.Ed.2d 628 (1995); General Elec. Capital Corp., 991 F.2d 1376, 1380 (8th Cir.1993); Keene Corp. v. Cass, 908 F.2d 293, 296 (8th Cir.1990). Thus, the Producers’ broad contentions that the court has subject matter jurisdiction over these cases are plainly without merit. The Producers assert that two arguments are “dispositive” on the question of the court’s subject matter jurisdiction in these eases: “(1) both sides agree that their claims are based on federal law, and (2) neither side has filed an action in state district court.” Counterclaim Plaintiffs Brief In Support Of The Court’s Jurisdiction Of The Subject Matter (North Central Case), at 1. The agreement of the parties simply is not dispositive of any issue of the court’s subject matter jurisdiction. Pacific Nat’l Ins. Co., 341 F.2d at 516; see also Union Gas Co., 491 U.S. at 25, 109 S.Ct. at 2287; Owen Equip. & Erection Co., 437 U.S. at 377 n. 21, 98 S.Ct. at 2404 n. 21; Sosna, 419 U.S. at 398, 95 S.Ct. at 556-57; LaRue, 409 U.S. at 112 n. 3, 93 S.Ct. at 394 n. 3; American Fire & Casualty Co., 341 U.S. at 17-18, and n. 17, 71 S.Ct. at 541-42 and n. 17; Mitchell, 293 U.S. at 244, 55 S.Ct. at 165; Jackson, 8 Pet. at 149 [33 U.S. at 149]; Lawrence County, 668 F.2d at 29. Nor has the court found any authority whatsoever, and the Producers cite none, for the proposition that this court’s subject matter jurisdiction depends upon whether or not the parties have filed another action in state court. Furthermore, because the federal courts have a duty to examine the substantiality of the federal claim throughout the litigation, and must dismiss all claims if the federal claim proves patently meritless even after the trial begins, Pioneer Hi-Bred Int’l 35 F.3d at 1242; Sanders, 823 F.2d at 216, it cannot be the rule that the court should in any way refer to the presence or absence of a comparable action in another court to determine whether the federal court has subject matter jurisdiction. The Elevator’s own assertions of subject matter jurisdiction over its complaint in the North Central Case may be somewhat more substantial, as may some of the Producers’ more specific assertions of subject matter jurisdiction over their claims and counterclaims in both cases. a. The “well-pleaded complaint” rule The party seeking federal jurisdiction over its claims “must sufficiently allege the basis for federal subject matter jurisdiction in its complaint.” Victor Foods, Inc. v. Crossroads Economic Dev. of St. Charles County, Inc., 977 F.2d 1224, 1227 (8th Cir.1992); Bowe v. Northwest Airlines, Inc., 974 F.2d 101, 103 (8th Cir.1992), cert. denied, 507 U.S. 992, 113 S.Ct. 1602, 123 L.Ed.2d 164 (1993). The Eighth Circuit Court of Appeals has explained this “well-pleaded complaint” rule further, albeit in the context of the court’s removal jurisdiction: The “well-pleaded complaint rule” requires that a federal cause of action must be stated on the face of the complaint before the defendant may remove the action based on federal question jurisdiction. [Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429-30, 96 L.Ed.2d 318 (1987)]. A federal defense, including the defense that one or more claims are preempted by federal law, does not give the defendant the right to remove to federal court. Id. at 392-93, 107 S.Ct. at 2429-30. Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536, 542-43 (8th Cir.1996); Reding v. FDIC, 942 F.2d 1254, 1257 (8th Cir.1991) (“The judicially created well-pleaded complaint rule states that the basis of federal jurisdiction must appear on the face of the plaintiffs complaint and that removal to federal court is improper if federal jurisdiction is premised solely upon a plaintiffs allegation of an anticipated defense or upon a defendant’s responsive pleading,”) citing Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 808, 809 & n. 6, 106 S.Ct. 3229, 3232, 3233 & n. 6, 92 L.Ed.2d 650 (1986); M. Nahas & Co. v. First Nat’l Bank of Hot Springs, 930 F.2d 608, 611 (8th Cir.1991) (“When plaintiffs action is properly brought under state law, the defendant is not entitled to remove simply because federal law or principles of federal preemption will provide a defense, even a complete defense, to plaintiffs state law claims.”); accord Virgin Islands Hous. Auth. v. Coastal Gen. Constr. Servs. Corp., 27 F.3d 911, 915 (3d Cir.1994) (“[T]he fact that a defense based on federal law will be raised does not create jurisdiction in the federal courts unless the case falls within that small category where the governing federal statute preempts the field and was clearly intended to support removal jurisdiction,” citing Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66-67, 107 S.Ct. 1542, 1547-48, 95 L.Ed.2d 55 (1987)); Caudill v. Blue Cross & Blue Shield of N.C., 999 F.2d 74, 77 (4th Cir.1993) (“Of course, a cause of action arises under federal law only when the plaintiffs “well-pleaded complaint’ raises federal issues; federal issues interposed as a defense generally do not create a cause of action ‘arising under’ federal law,” citing Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908)). Indeed, a defense based on federal law, even one anticipated in the plaintiffs complaint, cannot support original or removal jurisdiction “ ‘even if both parties admit that the defense is the only question truly at issue in the case.’” Hurt v. Dow Chem. Co., 963 F.2d 1142, 1144 (8th Cir.1992) (quoting Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust, 463 U.S. 1, 14, 103 S.Ct. 2841, 2848-49, 77 L.Ed.2d 420 (1983)). b. Claims “arising under” federal law The parties here are not diverse, so federal jurisdiction must be based on some federal question. Federal question jurisdiction is defined by statute as follows: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331 (emphasis added). Thus, in order to assert federal question jurisdiction, the court must be satisfied that the plaintiffs claim is one “‘arising under’ federal law.” National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 850, 105 S.Ct. 2447, 2450-51, 85 L.Ed.2d 818 (1985). In Three Buoys Houseboat Vacations U.S.A., Ltd. v. Morts, 878 F.2d 1096 (8th Cir.1989), cert. granted and judgment vacated on other grounds, 497 U.S. 1020, 110 S.Ct. 3265, 111 L.Ed.2d 775 (1990), the Eighth Circuit Court of Appeals observed that there is “no ‘single, precise definition’ ” of whether a cause of action “arises under” federal law, but that “ ‘the phrase “arising under” masks a welter of issues regarding the interrelation of federal and state authority and the proper management of the federal judicial system.’ ” Three Buoys, 878 F.2d at 1100 (quoting Merrell Dow Pharmaceuticals, Inc., 478 U.S. at 808, 106 S.Ct. at 3232). However, in the context of whether a claim was one “arising under” federal law, the court also asserted the principle that “[t]here is a ‘long-settled understanding that the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction,’ ” so that assertion of “ ‘[a] defense that raises a federal question is inadequate to confer federal jurisdiction.’ ” Id. (again quoting Merrell Dow, 478 U.S. at 813 and 808, 106 S.Ct. at 3234-35 and 3232, respectively, with emphasis added by the Three Buoys court). More recently, in Humphrey v. Sequentia, Inc., 58 F.3d 1238 (8th Cir.1995), the Eighth Circuit Court of Appeals has found that a venerable decision of the Supreme Court provided guidance on the question of whether claims “arise under” federal law: In Gully v. First Nat’l Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936), the Supreme Court considered whether the action in dispute arose under federal law for purposes of applying 28 U.S.C. §§ 1331 and 1441 (district court’s original and removal jurisdiction of actions “arising under” the Constitution, laws, or treaties of the United States). The Court explained, How and when a case arises “under the Constitution or laws of the United States” has been much considered in the books. Some tests are well established. To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff’s cause of action.... The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another.... A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto ... and the controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal_ Indeed, the complaint itself will not avail as a basis of jurisdiction in so far as it goes beyond a statement of the plaintiffs cause of action and anticipates or replies to a probable defense. Id. at 112-13, 57 S.Ct. at 97-98 (citations omitted). Humphrey, 58 F.3d at 1246 (footnote omitted; emphasis added); accord Ultramar Am., Ltd. v. Dwelle, 900 F.2d 1412, 1414 (9th Cir.1990) (whether a claim is one “arising under” federal law depends on whether federal law is “a necessary element of one of the well-pleaded claims,” citing Franchise Tax Bd., 463 U.S. at 13, 103 S.Ct. at 2848). 2. Do the present claims “arise under” federal law? The parties assert that the court has subject matter jurisdiction based on three sets of claims or counterclaims. First, they contend that the court has subject matter jurisdiction over both cases based on the declaratory judgment claims seeking declarations of the legality or illegality of the HTAs under the CEA. Next, the Elevator contends that the court has subject matter jurisdiction over the original complaint in the North Central Case, because its breach-of-contract claims were “created by” or “arise under” the CEA. Finally, the Producers contend that they have pleaded claims or counterclaims that establish the subject matter jurisdiction of the court, specifically, fraud claims under the CEA, and other state-law claims that are nonetheless governed by federal law, because of “conflict preemption” by the CEA. a. Declaratory judgment claims The Declaratory Judgment Act, 28 U.S.C. § 2201, itself does not provide an independent basis for federal jurisdiction. Starter Corp. v. Converse, Inc., 84 F.3d 592, 594 (2nd Cir.1996) (“[I]t is well-settled that the Declaratory Judgment Act does not expand the jurisdiction of the federal courts”; therefore, the court would only have jurisdiction if a federal question “arising under” federal law, as required by 28 U.S.C. § 1331, was the “actual controversy” presented by the declaratory claim); Victor, 977 F.2d at 1227; First Fed. Sav. & Loan Ass’n v. Anderson, 681 F.2d 528, 533 (8th Cir.1982); accord Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959, 964 (10th Cir.1996) (“The Declaratory Judgment Act does not confer jurisdiction upon federal courts,” citing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 878-79, 94 L.Ed. 1194 (1950), “so the power to issue declaratory judgments must he in some independent basis of jurisdiction,” and, absent diversity, that basis must be federal question jurisdiction); Gaar v. Quirk, 86 F.3d 451, 454 (5th Cir.1996) (“A petition for declaratory judgment concerning federal law is not sufficient to create federal jurisdiction; ‘hence the relevant cause of action must arise under some other federal law,’ ” quoting Lowe v. Ingalls Shipbuilding, 723 F.2d 1173, 1177 (5th Cir.1984)). Thus, a federal question, or some other proper basis for federal subject matter jurisdiction, must be raised even in an action under the Declaratory Judgment Act. Starter Corp., 84 F.3d at 594-95 (“[W]e must first determine whether a federal question exists, and if it does — thereby providing the court with original jurisdiction — we must then determine whether the dispute presents a substantial controversy or merely an abstract question.... If both a federal question and an actual controversy exist, then declaratory judgment jurisdiction may appropriately be exercised.”). The Eighth Circuit Court of Appeals has noted that the Declaratory Judgment Act is not to be used to open a new portal of entry to federal court for suits that are essentially defensive or reactive to state actions. Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 18 n. 20, 103 S.Ct. 927, 937 [n. 20], 74 L.Ed.2d 765 (1983); BASF [Corp. v. Symington], 50 F.3d [555,] 558 [(8th Cir.1995)] (citing cases); Continental Cas. Co. v. Robsac Indus., 947 F.2d 1367, 1372-73 (9th Cir.1991); Omaha Property [and Cas. Ins. Co. v. Johnson], 923 F.2d [446,] 448 [(6th Cir.1991)]; Continental Airlines [v. Goodyear Tire & Rubber Co.], 819 F.2d [1519,] 1524 [(9th Cir.1987)]; Transamerica [Occidental Life Ins. Co. v. DiGregorio], 811 F.2d [1249,] 1253 [(9th Cir.1987)]; Home Fed. Sav. and Loan Ass’n v. Ins. Dept. of Iowa, 571 F.2d 423, 427 (8th Cir.1978). More specifically, the Declaratory Judgment Act is not to be used to bring to the federal courts an affirmative defense which can be asserted in a pending state action. Franchise Tax Bd., 463 U.S. at 16, 103 S.Ct. at 2849-50 (discussing Shelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950)); BASF, 50 F.3d at 558. In addition, the Declaratory Judgment Act is not meant to expand federal jurisdiction. Franchise Tax Bd., 463 U.S. at 15-16, 103 S.Ct. at 2849-50; Home Federal, 571 F.2d at 427 n. 17. International Ass’n of Entrepreneurs v. Angoff, 58 F.3d 1266, 1270 (8th Cir.1995) (emphasis in the original), cert. denied, — U.S. —, 116 S.Ct. 774, 133 L.Ed.2d 726 (1996); Three Buoys, 878 F.2d at 1100-01 (concluding that a statute similar to the Declaratory Judgment Act, the Limitation of Liability Act (LLA), was not jurisdictional, and did not make a claim implicating the LLA one arising under federal law). Although federal courts “regularly consider the merits of affirmative defenses raised by declaratory plaintiffs,” BASF Corp. v. Symington, 50 F.3d 555, 558 (8th Cir.1995) (citing, inter alia, Kelly v. Robinson, 479 U.S. 36, 40, 107 S.Ct. 353, 355-56, 93 L.Ed.2d 216 (1986)), that does not mean that federal jurisdiction over a declaratory judgment action can be founded on a federal question that is properly an affirmative defense. Franchise Tax Bd., 463 U.S. at 16, 103 S.Ct. at 2849-50 (“[I]f, but for the availability of the declaratory judgment procedure, the federal claim would arise only as a defense to a state created action, jurisdiction is ‘lacking.’”); Angoff, 58 F.3d at 1270 (citing Franchise Tax Bd.); accord Cardtoons, L.C., 95 F.3d at 965 (quoting Franchise Tax Bd., 463 U.S. at 16, 103 S.Ct. at 2849-50); Gaar, 86 F.3d at 454 (“The general rule is that a federal defense to a state law claim does not confer federal question jurisdiction_ [Thus, w]hen a declaratory judgment complaint essentially invokes a federal-law defense to a state-based claim, it is the character of the threatened state action that determines whether federal courts have jurisdiction.”). The Tenth Circuit Court of Appeals noted that “[i]n actions for declaratory judgment ... the position of the parties is often reversed: the plaintiff asserts a defense to an anticipated action by the declaratory judgment defendants.” Cardtoons, 95 F.3d at 964. Thus, that court reiterated, “It is the character of the impending action, not the plaintiffs defense, that determines whether there is federal question jurisdiction.” Id. (citing Public Serv. Comm’n v. Wycoff Co., 344 U.S. 237, 248, 73 S.Ct. 236, 242-43, 97 L.Ed. 291 (1952)). “[F]ederal question jurisdiction exists in a declaratory judgment action if the potential suit by the declaratory judgment defendant would arise under federal law.” Id. The reversal of positions noted by the Tenth Circuit Court of Appeals is present in the CeBar Farms Case, in which the declaratory plaintiffs, the CeBar Farms Plaintiffs, do indeed seek declaratory judgment on their defense to the Elevator’s anticipated action for breach of contract. Such a reversal of positions is not present, however, in the North Central Case, in which the original declaratory plaintiff, the Elevator, sought a declaration on the declaratory defendants’ anticipated defense to the Elevator’s own action. The reversal of positions reappears in the North Central Case only on the basis of the declaratory counterclaim filed by the North Central Defendants. This tangle suggests the efficacy of the general rule asserted by the Tenth Circuit Court of Appeals, that it is the character of the impending action, not who has asserted what contention in the declaratory judgment action, that determines whether there is federal question jurisdiction in a declaratory judgment action. Id. The declaratory claims in the Elevator’s Count I and the Producers’ Count I, whatever party has asserted them, all seek a declaration on the legality or illegality of the HTAs under § 4(a) of the CEA, 7 U.S.C. § 6(a). Although the Elevator asserts that it filed its declaratory claim in anticipation of the various claims under the CEA filed by the Producers, including their fraud claims, the pleadings themselves do not support such a contention. First, none of the declaratory claims gives the merest hint that the CEA fraud claims actually asserted by the Producers were contemplated by any party when seeking a declaration that the HTAs were illegal under the CEA. The Elevator combined its declaratory claim in the North Central Case with an actual action for breach of contract, thus anticipating in its declaratory claim a defense to its own substantive claim. Similarly, the Producers filed their declaratory claims in Count I of each of their pleadings in response to actual filing of one breach-of-eontract claim, in the North Central Case, and sought in the CeBar Farms Case to raise a declaration of illegality to any potential claim for enforcement of the contracts, as the relief requested shows. The declaratory claims of the Producers in Count I center on the legality or illegality of the HTAs under 7 U.S.C. § 6(a) as bars to the enforcement of the HTAs, because they seek a declaration that the contracts are void and unenforceable. Such a declaration would necessarily include a declaration as to whether the contracts in fact fall within the purview of the CEA. However, the pleading of these declaratory claims does not suggest a concern with any other illegality associated with the contracts, such as fraud in violation of the CEA. Furthermore, the court finds that the Producers’ Count II seeks the necessary declarations for the CEA fraud claims, in that it seeks declarations of the rights of the parties under the CEA and declarations that the contracts are void owing to fraud in violation of § 4b of the CEA, 7 U.S.C. § 6b. Thus, the threatened or actual action prompting the purely declaratory claims here is a state-law breach-of-eontract suit to which the assertedly federal issue of the illegality of the HTAs under the CEA is an affirmative defense. Fees v. Mutual Fire and Auto. Ins. Co., 490 N.W.2d 55, 58 (Iowa 1992) (defenses to breach of contract include that the contract is void or voidable, or that admitting the facts of the adverse pleading, the defendant is entitled to avoid their legal effect, and such affirmative defenses must be pleaded and proved by the party seeking to avoid the contract); accord McCabe/Marra Co. v. Dover, 100 Ohio App.3d 139, 652 N.E.2d 236 (illegality or invalidity of a contract is an affirmative defense that must be pleaded and proved by the party seeking to avoid the contract), appeal not allowed, 72 Ohio St.3d 1529, 649 N.E.2d 839 (1995); Rice v. James, 844 S.W.2d 64 (Mo.Ct.App.1992) (illegality of a contract is an affirmative defense that must be pleaded and proved by the party seeking to avoid the contract); MJR Corp. v. B & B Vending Co., 760 S.W.2d 4 (Tex.Ct.App.1988) (illegality of a contract is a defensive issue to be pleaded and proved by the defendant in a suit over breach of contract). The court concludes that it does not have subject matter jurisdiction on the basis of the declaratory judgment claims in the Elevator’s Count I in the North Central Case, Count I of the North Central Defendants’ counterclaim in that case, or Count I of the CeBar Farms Plaintiffs in the CeBar Farms Case. The federal issue asserted in those declaratory claims is only a defense to a threatened or actual state-law action, which consequently cannot establish federal question jurisdiction. Caterpillar, Inc., 482 U.S. at 392-93, 107 S.Ct. at 2429-30; Merrell Dow Pharmaceuticals, Inc., 478 U.S. at 808, 809 & n. 6, 106 S.Ct. at 3232, 3233 & n. 6; Franchise Tax Bd., 463 U.S. at 14, 103 S.Ct. at 2848-49; Gaming Corp. of Am., 88 F.3d at 542-43; Hurt, 963 F.2d at 1144; Reding, 942 F.2d at 1257; M. Nahas & Co., 930 F.2d at 611. b. Breach-of-contract claims Nor does the Elevator’s breach-of-contract claim itself “arise under” federal law, as the Elevator contends. The Elevator contends that the CEA created its cause of action, because the CEA provides for exclusive jurisdiction in the federal courts of all public and private actions under the CEA. 7 U.S.C. § 25(c). This argument, of course, begs the question, rather than answering it: Is the Elevator’s declaratory or breach-of-contract claim an action under the CEA? The Elevator also contends that the legality of the contracts is a “core” issue under the CEA. That might well be so. However, as this court has previously observed, to say that the legality of the contracts is a core issue under the CEA is to say no more than that the CEA governs the Producers’ defense to the Elevators’ state-law claims for breach of contract. Abels, 950 F.Supp. at 938. As this court observed in Doden, Although the illegality of the contracts upon which [the elevator] is suing is an issue in the case, and indeed an issue controlled by federal law, the illegality, voidness, or voidability of a contract is an affirmative defense to enforcement of the contracts in question. Doden, 946 F.Supp. at 729-30 (citations omitted). Again, as this court stated in Doden, “This court’s conclusion that [the Producers’] federal issue is in fact a defensive issue has fatal consequences for this court’s removal jurisdiction over th[ese] action[s].” Id. The effect of that conclusion is just as fatal to the court’s original jurisdiction. A defense based on federal law, even one anticipated in the plaintiffs complaint, cannot support original or removal jurisdiction “ ‘even if both parties admit that the defense is the only question truly at issue in the case.’ ” Hurt, 963 F.2d at 1144 (quoting Franchise Tax Bd., 463 U.S. at 14, 103 S.Ct. at 2848-49). The Elevator nonetheless asserts that the decision in W. 14th St. Comm. Corp. v. 5 W. 14th Owners Corp., 815 F.2d 188 (2d Cir.1987), suggests a different result as to the court’s subject matter jurisdiction over both the Elevator’s declaratoxy and breach-of-contract claims. In W. llpth St., the Second Circuit Court of Appeals found that the federal courts had subject matter jurisdiction over essentially a breach-of-contract claim, because a federal defense under the Condominium and Cooperative Abuse Relief Act (CCARA), 15 U.S.C. §§ 3601-3616, had been anticipated in a claim for declaratory relief. W. 14th St., 815 F.2d at 193. The Second Circuit Court of Appeals first concluded that, under the well-pleaded complaint rule, the action was a direct product of the CCARA. Id. The court stated, “It would make little sense to relegate developers to a state law remedy when the actions complained of are taken under the authority of a federal statute.” Id. at 194. However, the Second Circuit Court of Appeals either failed to consider or did not then have available the copious authority, cited above, including authority from the United States Supreme Court and this circuit’s court of appeals, holding that determinations of federal jurisdiction must exclude reference to any anticipated federal defense. Caterpillar, Inc., 482 U.S. at 392-93, 107 S.Ct. at 2429-30; Merrell Dow Pharmaceuticals, Inc., 478 U.S. at 808, 809 & n. 6, 106 S.Ct. at 3232, 3233 & n. 6; Franchise Tax Bd., 463 U.S. at 16, 103 S.Ct. at 2849-50; Gaming Corp. of Am., 88 F.3d at 542-43; Angoff, 58 F.3d at 1270; Reding, 942 F.2d at 1257; M. Nahas & Co., 930 F.2d at 611; accord Cardtoons, L.C., 95 F.3d at 965; Gaar, 86 F.3d at 454; Virgin Islands Housing Auth., 27 F.3d at 915; Caudill, 999 F.2d at 77. The court reiterates, a defense based on federal law, even one anticipated in the plaintiffs complaint, cannot support original or removal jurisdiction “ ‘even if both parties admit that the defense is the only question truly at issue in the ease.’ ” Hurt, 963 F.2d at 1144. In W. 14th St., the Second Circuit Court of Appeals also found that, even if the only causes of action asserted were state-law claims, they involved a substantive question of federal law, because the complaint asserting such claims would have to set forth the opponents’ right of possession, a matter covered by the CCARA. Id. at 195. This conclusion is equally untenable, because it also amounts to anticipating the opponent’s defense. The basis for an opposing party’s current possession is not an essential element of an action for trespass or ejectment, Humphrey, 58 F.3d at 1246 (“To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiffs cause of action,” quoting Gully, 299 U.S. at 112, 57 S.Ct. at 97), although presence of the opposing party on property claimed by another certainly is. The court concludes that the Elevator’s breach-of-contract claims do not “arise under” the CEA, and hence cannot provide the basis for this court’s subject matter jurisdiction. Again as in Doden, 946 F.Supp. at 733-34, the Producers’ federal issue, the illegality of the contracts involved, is not an essential element of the Elevator’s claims. Humphrey, 58 F.3d at 1246 (“To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiffs cause of action,” quoting Gully, 299 U.S. at 112, 57 S.Ct. at 97). Instead, as determined above, the illegality, voidness, or voidability of a contract is an affirmative defense to enforcement of the contracts in question. Fees, 490 N.W.2d at 58; accord McCabe/Marra Co., 652 N.E.2d at 236; Rice, 844 S.W.2d at 64; MJR Corp., 760 S.W.2d at 4. Nor can the court conclude that the Elevator’s claims are such that “ ‘[t]he right or immunity’ ... will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another.” Humphrey, 58 F.3d at 1246 (quoting Gully, 299 U.S. at 112, 57 S.Ct. at 97). It is not the construction or effect of the CEA that is determinative of the Elevator’s claims, but the construction and effect of the HTAs as either “cash forward” contracts or illegal futures contracts under the CEA that is determinative of the Producers’ defense of illegality of the contracts. For these reasons, the breach-of-contract claims do not involve claims “arising under” federal law and do not provide a basis for federal jurisdiction over either of these cases. Because neither the declaratory judgment claim nor the breach-of-contract clai