Mendel et al v. Morgan Keegan & Company Inc

Filing 13

MEMORANDUM OPINION AND ORDER re 7 MOTION to Remand filed by Jake Mendel; for reasons as set out within, the motion to remand is DENIED. Although the schedule may hereinafter be modified it is ORDERED as follows: Mendel is relieved of any obligation to comply with the procedures in Rule 71B; Mendel shall within fourteen days file a motion or petition to vacate the subject arbitration award, stating the facts and legal theories under which the award should be vacated; Within fourteen d ays after receiving Mendels motion, Morgan Keegan shall answer or otherwise respond to the motion; Each party is allowed to take no more than five depositions, and to submit no more than ten interrogatories, and no more than five requests for production; Discovery shall be completed within ninety days; Dispositive motions shall be filed within thirty days after the expiration of discovery. Signed by Judge William M Acker, Jr on 10/28/13. (SAC )

FILED
2013 Oct-28 PM 04:30
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAKE MENDEL, etc., et al.,
Plaintiffs,
v.
MORGAN KEEGAN & COMPANY,
INC.,
Defendant.

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CIVIL ACTION NO.
13-AR-1630-S

MEMORANDUM OPINION AND ORDER
On October 24, 2013, the court conducted an oral hearing on
the motion of plaintiff, Jake Mendel (“Mendel”), to remand the
above-entitled matter to the Circuit Court of Jefferson County,
Alabama, from which it was removed by defendant, Morgan Keegan &
Company, Inc. (“Morgan Keegan”).
This is a case of first impression.

An “appeal” was filed by

Mendel in the state court pursuant to Rule 71B, Alabama Rules of
Civil Procedure, initiating a challenge to an arbitration award.
Obviously, Rule 71B could not have been invoked by Mendel if he had
originally

petitioned

arbitration award.

this

court

to

vacate

the

very

same

The Federal Rules of Civil Procedure do not

contain Rule 71B or anything like it.

The removal statute, 28

U.S.C. § 1441(a), only allows the removal of “any civil action
brought in a State court of which the district courts of the United
States have original jurisdiction”.

(emphasis added).

This court

is known as a stickler for enforcing the bedrock proposition that

the removal jurisdiction of federal courts is strictly limited by
statute and that the primary and presumptively correct forum is the
state courts.
The court was worried until October 24, 2013, about whether
the “appeal” Mendel filed in the state court was a “civil action”
and a matter over which this court would have had “original
jurisdiction”.

If Mendel’s filing was neither of these things,

this court would lack subject-matter jurisdiction.
During oral argument, both Mendel and Morgan Keegan allayed
this court’s fears by agreeing that Mendel will, in this court,
have open to him any and all avenues of attack on the arbitration
award that he would have had if the case had remained in state
court.

Accordingly, this court concludes that the “appeal” filed

under Rule 71B is the functional equivalent of an original action
or

petition

filed

in

this

court

seeking

to

set

aside

the

arbitration award. This is precisely the same relief Mendel sought
by his “appeal” under Rule 71B.

If Morgan Keegan had not conceded

this point, the court might well have granted the motion to remand.
Because of the clarification arrived at on October 24, 2013, and
because the requisites of diversity jurisdiction under 28 U.S.C. §
1332 exist, the motion to remand is not well taken, and is hereby
DENIED.
This case does not fit the mold for application of Rules 16
and 26, F.R.Civ.P.

The hearing of October 24, 2013, will be

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treated as the meeting required by Rule 16.

Although the schedule

may hereinafter be modified on motion for good cause shown, it is
hereby ORDERED as follows:
1.

Mendel is relieved of any obligation to comply with the

procedures in Rule 71B.
2.

Mendel shall within fourteen (14) days file a motion or

petition to vacate the subject arbitration award, stating the facts
and legal theories under which the award should be vacated.
3.

Within

fourteen

(14)

days

after

receiving

Mendel’s

motion, Morgan Keegan shall answer or otherwise respond to the
motion.
4.

Each

party

is

allowed

to

take

no

more

than

five

depositions, and to submit no more than ten interrogatories, and no
more than five requests for production.
5.

Discovery shall be completed within ninety (90) days.

6.

Dispositive motions shall be filed within thirty (30)

days after the expiration of discovery.
7.

In the event that the case is not disposed of on summary

judgment, the case will be set for non-jury trial within sixty (60)
days after the ruling on any motion for summary judgment, or within
sixty (60) days after the last date upon which motions for summary
judgment could have been filed.

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DONE this 28th day of October, 2013.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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