White v. OSHA Security et al

Filing 10

MEMORANDUM OPINION AND ORDER as follows: (1) Plaintiff's 5 Motion to Remand is GRANTED. (2) This case is REMANDED to the Circuit Court of Montgomery County, Alabama. (3) The Clerk is DIRECTED to take appropriate steps to effect the remand. (4) Any other pending motions are left for resolution by the Circuit Court of Montgomery County, Alabama. Signed by Hon. Chief Judge Mark E. Fuller on 6/19/2009. (Attachments: #(1) Civil Appeals Checklist) Copy mailed to Clerk, Circuit Court of Montgomery County, Alabama. (dmn)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION A N N IE J. WHITE P L A IN T IF F , v. O S H A SECURITY, INC., e t al., D EFEN D A N TS. ) ) ) ) ) ) ) ) ) )

C A S E NO.: 2:08-cv-731-MEF

(W O )

M E M O R A N D U M OPINION AND ORDER T h is cause is before the Court on the Motion to Remand (Doc. # 5) filed on September 2 9 , 2008 by Annie J. White ("Plaintiff"). On July 30, 2008, Plaintiff filed a lawsuit in the C irc u it Court for Montgomery County, Alabama against defendants Osha Security Inc. and O b ra Hogan (collectively "Defendants"). Plaintiff's complaint contained eleven counts, in c lu d in g nine state causes of action. Plaintiff also alleged disparate treatment, hostile e n v iro n m e n t, employment discrimination, and retaliation in violation of 42 U.S.C. § 2000e, e t seq ("Title VII") in two separate counts. On September 5, 2008, Defendants removed the a c tio n to this Court by invoking this Court's subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a) and §1441. On September 29, 2008, Plaintiff filed her Motion to Remand (Doc. # 5 ). The Court has carefully considered the applicable law and the arguments in support of a n d in opposition to the motion to remand. The Court finds that the motion is due to be G R A N T E D because Defendants' removal was untimely.

FACTUAL AND PROCEDURAL BACKGROUND A. Introduction F e d e ra l courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. o f Am., 511 U.S. 375 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994); W y m b s v. Republican State Executive Comm. of Fla., 719 F.2d 1072, 1076 (11th Cir. 1983), c e r t. denied, 465 U.S. 1103 (1984). As such, federal courts only have the power to hear c a s e s that they have been authorized to hear by the Constitution or the Congress of the United S ta te s. Kokkonen, 511 U.S. at 377. When a case is originally filed in state court, a party may remove it if the case o rig in a lly could have been brought in federal court. See 28 U.S.C. § 1441(a). However, the n o n -m o v in g party may move for remand, which will be granted if "it appears that the district c o u rt lacks subject matter jurisdiction." See 28 U.S.C. § 1447(c). Because removal

ju ris d ic tio n raises significant federalism concerns, "removal statutes are construed narrowly; w h e re plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of re m a n d ." Burns, 31 F.3d at 1095. When a case is removed from state court, the burden is on th e party who removed the action to prove federal-court jurisdiction. Id. i. Diversity Jurisdiction T w o kinds of cases are removable to federal court. In the first instance, a federal d is tric t court may exercise subject matter jurisdiction in suits where only state law claims are a lle g e d if the civil action arises under the federal court's diversity jurisdiction. See 28 U.S.C.

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§ 1332(a). The diversity statute confers jurisdiction on the federal courts in civil actions " b e tw e e n citizens of different states," in which the jurisdictional amount, currently in excess o f $75,000, is met. Id. ii. Federal Question Jurisdiction A civil action filed in a state court may also be removed to federal court if the c la im is one "arising under" federal law. Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003). In order to determine whether a complaint "arises under" federal law, a court m u s t examine the "well pleaded" allegations of the complaint and ignore potential d e f e n s e s . Id. A suit arises under the Constitution and laws of the United States only w h e n the plaintiff's statement of her own cause of action shows that it is based upon f e d e ra l law or the Constitution. Id. As a general rule, a case is removable if the c o m p la in t affirmatively alleges a federal claim. Id.; See also Pacheco de Perez v. AT & T C o ., 139 F.3d 1368 (11th Cir. 1998) (stating that a case "arises under" federal law, as re q u ire d for federal question jurisdiction, if federal law creates the cause of action). B . Timeliness F e d e ra l law limits the period in which a defendant may exercise his removal right f ro m state to federal court. The notice of removal of a civil action or proceeding shall be file d within thirty days after the receipt by the defendant, th ro u g h service or otherwise, of a copy of the initial pleading s e ttin g forth the claim for relief upon which such action or p ro c e e d in g is based....

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28 U.S.C. § 1446(b) (emphasis added). Given that removal statutes must be construed n a rro w ly, § 1446's time requirement is mandatory and must be strictly applied; "[t]imely o b je c tio n to a late petition for removal will therefore result in remand." Webster v. Dow U n ite d Techs. Composite Prods., Inc., 925 F. Supp. 727, 729 (M.D. Ala. 1996) (citations o m itte d ) (remanding case removed more than thirty days after complaint filed and more th a n thirty days after plaintiff written responses to discovery revealed basis for federal ju ris d ic tio n ). Accord, Clingan v. Celtic Life Ins. Co., 244 F. Supp. 2d 1298, 1302-03 (M .D . Ala. 2003) (granting motion to remand because defendant failed to remove case w ith in thirty days of receipt of complaint from which it could have ascertained case was re m o v a b le ). Thus, the relevant inquiry is when the removing defendant could have first " in te llig e n tly ascertained" that the case was removable. See, e.g., Clingan, 244 F. Supp. 2 d at 1302; Webster, 925 F. Supp. at 729. C. Present Action In seeking remand, Plaintiff contends that Defendants did not timely remove this c a s e to federal court. Defendants argue that the jurisdictional amount was not readily d is c e rn a b le on the face of the complaint and that it removed the case within thirty days of f irs t becoming aware that the requisite amount in controversy was met for diversity ju ris d ic tio n . Defendants ignore that federal question jurisdiction existed on the face of th e complaint. As the party bearing the burden of proving federal jurisdiction, D e f e n d a n ts have the task of proving to the Court that the removal was timely. See, e.g.,

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Clingan, 244 F. Supp. 2d at 1302. The Court concludes that the Defendants did not tim e ly remove the present action. T h e notice of removal of a civil action must be filed within thirty days after the d e f e n d a n t receives a copy of the initial pleading setting forth the claim for relief upon w h ic h such action is based. See 28 U.S.C. § 1446(b). Defendants were served with P la in tif f 's complaint on July 10, 2008. Plaintiff complaint contained two counts of Title V II claims, which each state a basis for federal question jurisdiction. As previously e x p la in e d , 28 U.S.C. § 1441(b) provides removal jurisdiction for "any civil action of w h ic h the district courts have original jurisdiction founded on a claim or right arising u n d e r the Constitution, treaties or laws of the United States." Here, Plaintiff affirmatively a lle g e d several federal claims under Title VII. Accordingly, Defendants had a clear basis to remove this action upon service of the complaint. Even if this Court accepted D e f e n d a n ts ' argument that the initial pleading in this case was not one from which the D e f e n d a n ts could have intelligently ascertained that the jurisdictional amount was met, th e case was still removable under federal question jurisdiction. Therefore, when D e f e n d a n t removed the action on September 5, 2008, it did so outside the thirty days p re s c rib e d by 28 U.S.C. § 1446. D. Conclusion M in d f u l of the clear Eleventh Circuit precedent mandating remand of removed c a s e s where compliance with the procedural requirements for removal is not absolutely

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clear, the Court finds that the removal of this case from the Circuit Court of Montgomery C o u n ty, Alabama was not timely for the reasons explained in this Memorandum Opinion a n d Order. Accordingly, the case must be remanded. CONCLUSION F o r the reasons discussed in this Memorandum Opinion and Order, it is hereby O R D E R E D as follows: (1 ) (2 ) P la in tif f 's Motion to Remand (Doc. # 5) is GRANTED. This case is REMANDED to the Circuit Court of Montgomery County, A la b a m a . (3 ) (4 ) The Clerk is DIRECTED to take appropriate steps to effect the remand. Any other pending motions are left for resolution by the Circuit Court of M o n tg o m e ry County, Alabama. D O N E this the 19th day of June 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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