Wilson v. Doss et al

Filing 19

MEMORANDUM OPINION AND ORDER that plaintiff's 12 MOTION to Remand is DENIED. Signed by Hon. Chief Judge Mark E. Fuller on 8/14/2009. (Attachments: # 1 Civil Appeals Checklist)(cc, )

IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION M A R G A R E T WILSON, as Guardian and n e x t friend to J.W., a minor child, P la in tif f , v. B IL L Y GENE DOSS, et al., D e f e n d a n ts. ) ) ) ) ) ) ) ) ) )

C A S E NO. 2:09-cv-21-MEF (W O )

M E M O R A N D U M OPINION AND ORDER I . INTRODUCTION This cause is before the Court on a Motion to Remand (Doc. # 12) filed on F e b ru a ry 6, 2009 by Margaret Wilson ("Plaintiff"). On December 8, 2008, Plaintiff filed a lawsuit in the Circuit Court for Montgomery County, Alabama against defendants Billy G e n e Doss ("Doss"), City of Montgomery, Art Baylor, William E. Herman and Jerry M c Q u e e n (collectively "Defendants") relating to Doss's inappropriate sexual conduct w ith J.W., a minor child, during the time Doss was employed by the City of Montgomery a s a police officer. Plaintiff's complaint contained six counts, which consist of five state la w claims and one federal law claim. The five state law claims include assault and b a tte ry (Count I), negligence/wantonness/ willfulness (Count II), intentional infliction of e m o tio n a l and mental distress (Count III), negligent infliction of emotional and mental d is tre s s (Count IV), and negligent unskillfull [sic] conduct (Count V). Plaintiff also

alleges that four of the five defendants violated J.W.'s constitutional rights in violation of 4 2 U.S.C. § 1983 ("section 1983") in Count VI. Plaintiff asserted Count I against Doss, C o u n ts II-V against all Defendants, and Count VI against the City of Montgomery, Art B a ylo r, William E. Herman and Jerry McQueen. On January 7, 2009, defendants City of Montgomery, Art Baylor, William E. H e rm a n and Jerry McQueen removed this action to federal court by invoking this Court's s u b je c t matter jurisdiction pursuant to 28 U.S.C. § 1331 and §1441(b). On February 6, 2 0 0 9 , Plaintiff filed her Motion to Remand (Doc. #12), arguing that removal could only b e proper under 28 U.S.C. §1441(c) and that this case is due to be remanded. The Court h a s carefully considered the applicable law and the arguments in support of and in o p p o sitio n to the motion to remand. The Court finds that the motion is due to be D E N IE D because Defendants' removal was proper under 28 U.S.C. § 1441(b). I I. DISCUSSION A. Introduction F e d e ra l courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. C o . of Am., 511 U.S. 375 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th C ir. 1994); Wymbs v. Republican State Executive Comm. of Fla., 719 F.2d 1072, 1076 (1 1 th Cir. 1983), cert. denied, 465 U.S. 1103 (1984). As such, federal courts only have th e power to hear cases that they have been authorized to hear by the Constitution or the C o n g re s s of the United States. Kokkonen, 511 U.S. at 377.

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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, th e non-moving party may move for remand, which will be granted if "it appears that the d is tric t court lacks subject matter jurisdiction." See 28 U.S.C. § 1447(c). Because re m o v a l jurisdiction raises significant federalism concerns, "removal statutes are c o n s tru e d narrowly; where plaintiff and defendant clash about jurisdiction, uncertainties a re resolved in favor of remand." Burns, 31 F.3d at 1095. When a case is removed from s ta te court, the burden is on the party who removed the action to prove federal-court ju ris d ic tio n . Id. 1. Statutory Removal A defendant's right to remove a case from state to federal court is statutory in n a tu re . See 14B Wright, Miller, & Cooper, Federal Practice and Procedure § 3721 (3d e d . 1998). The present removal statute is §1441 of the Judicial Code ("section 1441"). 28 U.S.C. § 1441. Section 1441 permits removal of "any civil action brought in a State c o u rt." Id. Removal gives a defendant who has been sued in state court the right to s u b s titu te a federal forum in certain instances. a. Section 1441(b) S e c tio n 1441(b) sets forth removal jurisdiction in cases involving a federal q u e s tio n . It reads: (b ) Any civil action of which the district courts have original jurisdiction f o u n d e d on a claim or right arising under the Constitution, treaties or laws 3

of the United States shall be removable without regard to the citizenship or re s id e n c e of the parties. Any other such action shall be removable only if n o n e of the parties in interest properly joined and served as defendants is a c itiz e n of the State in which such action is brought. 2 8 U.S.C. § 1441(b) (emphasis added). Thus, under section 1441(b), a civil action filed in state court may be removed to federal court if the claim is one "arising under" federal la w . Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003). In order to determine w h e th e r a complaint "arises under" federal law, a court must examine the "well pleaded" a lle g a tio n s of the complaint and ignore potential defenses. Id. A suit arises under the C o n s titu tio n and laws of the United States only when the plaintiff's statement of her own c a u s e of action shows that it is based upon federal law or the Constitution. Id. As a g e n e ra l rule, a case is removable if the complaint affirmatively alleges a federal claim. Id.; See also Pacheco de Perez v. AT & T Co., 139 F.3d 1368 (11th Cir. 1998) (stating th a t a case "arises under" federal law, as required for federal question jurisdiction, if f e d e ra l law creates the cause of action). In sum, section 1441(b) provides the basis of re m o v a l for a claim presenting a federal question. b . Section 1441(c) S e c tio n 1441(c), in contrast, provides the basis of removal under a "separate and in d e p e n d e n t" theory. Under this theory, a "separate and independent" state law claim m a y be removed to federal court when the case contains a federal question cause of action a n d the state law claim is distinct. Section 1441(c) states:

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(c) Whenever a separate and independent claim or cause of action within th e jurisdiction conferred by section 1331 of this title is joined with one or m o re otherwise non-removable claims or causes of action, the entire case m a y be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates. 2 8 U.S.C. § 1441(c). Section 1441(c), therefore, allows defendants to append a state law c la im to a federal question claim if the claims are so distinct that they could not constitute p a rt of the same action.1 Importantly, section 1441(c) limits its "separate and in d e p e n d e n t" removal to federal question cases.2 Am. Fire & Casualty Co. v. Finn, 341 U .S . 6 (1954). Courts apply a single wrong test to determine whether a state law claim is " s e p a ra te and independent" within the meaning of section 1441(c). "Separate and in d e p e n d e n t" federal claim jurisdiction does not exist under section 1441(c) when both f e d e ra l and state causes of action are asserted as a result of a single wrong based on a c o m m o n event or an interlocked series of transactions. Am. Fire & Cas. Co. v. Finn, 341 U .S . 6, 14 (1951) (finding that there is no separate and independent claim under section 1 4 4 1 (c ) where there is a single wrong to the plaintiff); accord In re City of Mobile, 75

Scholars have noted the tension between section 1441(c) and section 1367(a). Section 1367(a) permits state law claims to attach to federal question claims on the theory that they are inextricably linked to the same underlying case or controversy. 28 U.S.C. § 1367(a); see 14C Wright, Miller, & Cooper, Federal Practice and Procedure § 3724 (3d ed. 1998). In other instances, a federal district court may exercise subject matter jurisdiction over civil actions in which only state law claims are alleged if the civil action arises under the federal court's diversity jurisdiction ("diversity jurisdiction") . See 28 U.S.C. § 1332(a). The diversity statute confers jurisdiction on the federal courts in civil actions "between citizens of different states," in which the jurisdictional amount, currently in excess of $75,000, is met. Id. 5
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F.3d 605, 608 (11th Cir. 1996) (holding that claims relating to injuries from a car crash p la in tif f received from eluding police were not "separate and distinct" from a section 1 9 8 3 claim against defendant city). Section 1441(c) is inapplicable where there is only a s in g le wrong, even if the defendant seeking removal may be responsible for only part of th e single wrong. Newman v. Spectrum Stores, Inc., 109 F. Supp. 2d 1342, 1347 (M.D. A la . 2000). "What is determinative is the singularity of the harm suffered by the plaintiff, a n d not the various theories of recoveries used to address or compensate for that harm." Id. (citing Rey v. Classic Cars, 762 F. Supp. 421, 424 (D. Mass. 1991) (internal citations o m itte d ). 2 . Removal May Be Proper Under Section 1441(b) And Not Section 1441(c) S e c tio n s 1441(b) and 1441(c) provide separate grounds for removal. Section 1 4 4 1 (b ) allows removal based upon federal question jurisdiction, while section 1441(c) a llo w s removal under a "separate and independent" theory. A court may find removal a p p ro p ria te based upon section 1441(b) while finding that section 1441(c) is an in a d e q u a te basis for removal. See Belasco v. W.K.P. Wilson & Sons, Inc., 833 F.2d 277, 2 8 2 (11th Cir. 1987) (finding removal available under 1441(b) and improper under 1 4 4 1 (c )); Williams v. Huron Valley Sch. Dist., 858 F. Supp. 97, 99 (E.D. Mich. 1994) (re a s o n in g that both the plaintiff's state and federal claims were based on "a common n u c le u s of operative facts" and therefore removal under section 1441(b) was justified and re m o v a l was not justified under section 1441(c)). 6

B. Present Action 1 . Plaintiff's Claims Arise From A Single Wrong In seeking remand, Plaintiff contends that J.W.'s state law claims are separate and in d e p e n d e n t from J.W.'s federal question claim and that J.W.'s case "may only be re m o v e d to federal court under section 28 U.S.C. § 1441(c)." (Doc. #15, pg. 1.) (e m p h a s is in original). Defendants argue that they properly removed the case to federal c o u rt under section 1441(b). The Court agrees that removal is appropriate under section 1 4 4 1 (b ). P la in tif f premises her argument on her belief that J.W.'s claims arise from two d is tin c t wrongs: (1) Doss's inappropriate sexual conduct with minor J.W. and (2) claims a risin g from the conduct of the remaining defendants in hiring and supervising Doss. See D o c . #12, pg. 3. Plaintiff's argument fails because Plaintiff alleges a single wrong: im p ro p e r sexual conduct with minor J.W. All of Plaintiff's claims are a result of the im p ro p e r sexual conduct. As previously explained, no "separate and independent" federal c la im jurisdiction exists under section 1441(c) when both federal and state causes of a c tio n are asserted as a result of a single wrong. Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 1 4 (1951); In re City of Mobile, 75 F.3d 605, 608 (11th Cir. 1996). Although Plaintiff a s s e rts several causes of actions against different combinations of Defendants, the claims a g a in s t City of Montgomery, Art Baylor, William E. Herman and Jerry McQueen do not c o n s titu te "separate and independent claims" under section 1441(c). Accordingly, section 1 4 4 1 (c ) is inapplicable to this case. 7

2. Removal Proper Under 1441(b) Plaintiff's complaint contained a section 1983 claim, which states a basis for f e d e ra l question jurisdiction. Section 1441(b) provides removal jurisdiction for "any civil a c tio n of which the district courts have original jurisdiction founded on a claim or right a risin g under the Constitution, treaties or laws of the United States." Here, Plaintiff a f f irm a tiv e ly alleged a federal cause of action under section 1983. Accordingly, D e f e n d a n ts had a clear basis to remove this action. Defendants properly removed the a c tio n under section 1441(b) on January 7, 2009. I I I . CONCLUSION F o r the reasons set for above, it is hereby ORDERED that Plaintiff's Motion to R e m a n d (Doc. # 12) is DENIED. D O N E this the 14th day of August, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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