Lamar v. The Home Depot et al
ORDER granting in part and denying in part 10 Motion to Remand. The plaintiff's motion to remand is granted with respect to Count One and denied with respect to Counts Two, Three and Four. Count One is hereby REMANDED to the Circuit Court of Mobile County. Signed by Chief Judge William H. Steele on 12/3/2012. (sdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
THE HOME DEPOT, et al.,
) CIVIL ACTION 12-0552-WS-C
This matter is before the Court on the plaintiff’s motion to remand. (Doc. 10).
The parties have filed numerous briefs concerning the propriety of removal, (Docs. 1, 57, 10, 15-17), and the motion is ripe for resolution. After careful consideration, the Court
concludes that the motion to remand is due to be granted in part and denied in part.
The defendants removed on the basis of diversity of citizenship. The complaint
contains four counts. Count One is brought under the Alabama Worker’s Compensation
Act for medical benefits. Counts Two, Three and Four are brought under Alabama
common law for breach of contract, fraud and outrageous conduct.1 The parties agree
that removal of the worker’s compensation claim is barred by 28 U.S.C. § 1445(c) and
that this claim must be remanded. The question is whether the remaining claims must
also be remanded.
7 at 1).
All parties agree with this characterization of the claims. (Doc. 5 at 1; Doc. 6 at 2; Doc.
“Except as otherwise provided by Act of Congress, any civil action brought in a
State court of which the district courts of the United States have original jurisdiction, may
be removed by the defendant or the defendants ….” 28 U.S.C. § 1441(a). However, “[a]
civil action in any State court arising under the workmen’s compensation laws of such
State may not be removed to any district court of the United States.” Id. § 1445(c). As
the parties agree, Count One “aris[es] under the workmen’s compensation laws of”
Alabama but the remaining counts do not.2 The plaintiff’s motion thus requires
consideration of the interplay between the two quoted statutory provisions.
The only published decision of the Eleventh Circuit known to have addressed the
scope of a remand under Section 1445(c) is Reed v. Heil Co., 206 F.3d 1055 (11th Cir.
2000). The plaintiff in Reed brought in state court a claim for retaliatory discharge under
the Alabama worker’s compensation statute (“Section 25-5-11.1”), which the Court held
to be a claim “arising under” the worker’s compensation laws for purposes of Section
1445(c). Id. at 1060. The plaintiff also brought a claim under the Americans with
Disabilities Act (“ADA”).3 The defendant removed based on the ADA claim “and
possible diversity of citizenship as well.” Id. at 1058. The plaintiff sought remand of the
entire case, id., but the lower court retained the case and granted summary judgment to
the defendant on all claims. Id.
See, e.g., Raye v. Employer’s Insurance of Wausau, 345 F. Supp. 2d 1313, 1316 (S.D.
Ala. 2004) (“[S]tate causes of action that are creatures of the common law do not ‘arise under’
the worker’s compensation laws.”); accord Hernandez v. Gregory Land Development II, LLC,
2009 WL 3334322 at *1 (S.D. Fla. 2009); Moore v. CNA Foundation, 472 F. Supp. 2d 1327,
1331 n. * (M.D. Ala. 2007).
It appears that the plaintiff may also have brought other state-law claims, not falling
within Section 1445(c). See Reed, 206 F.3d at 1056-57 (“Reed brought suit in Alabama state
court alleging that his termination constituted a breach of contract and violated both [Section 255-11.1] and the ADA.”); id. at 1058 (the plaintiff “alleg[ed] a violation of the ADA and state law
claims, including retaliatory discharge in violation of [Section 25-5-11.1]”). The Reed Court did
not address these claims, and they do not appear to have impacted its analysis.
On appeal, the plaintiff argued that Section 1445(c) precluded jurisdiction over the
worker’s compensation claim. 206 F.3d at 1058. The Eleventh Circuit concluded that
the trial court lacked subject matter jurisdiction over the worker’s compensation claim
and that this claim therefore “must be remanded to state court.” 206 F.3d at 1061.4 The
Court then proceeded to address the merits of the ADA claim, without separate
Under Section 1447(c), any objection to removal “other than lack of subject matter
jurisdiction” is waived if not raised within 30 days after removal. Apparently every other Circuit
to have addressed the issue has concluded that Section 1445(c) does not impact subject matter
jurisdiction, such that objections under that section can be waived by delayed assertion. See
Belyea v. Florida Department of Revenue, 859 F. Supp. 2d 1272, 1274-75 (N.D. Fla. 2012)
(collecting cases). Because there is no indication that the Reed plaintiff first asserted Section
1445(c) more than 30 days after removal, see 206 F.3d at 1058, this portion of Reed is likely
dicta, not holding.
The issue was squarely presented to the Eleventh Circuit in Alansari v. Tropic Star
Seafood Inc., 388 Fed. Appx. 902 (11th Cir. 2010), where the plaintiff sought remand more than
30 days after removal. Id. at 905-06. The Court engaged in no independent analysis but simply
assumed that Reed had already resolved that Section 1445(c) goes to subject matter jurisdiction,
such that the plaintiff’s delay was immaterial. Id. Alansari represents a holding, but
“[u]npublished opinions are not controlling authority and are persuasive only insofar as their
legal analysis warrants.” Bonilla v. Baker Concrete Construction, Inc., 487 F.3d 1340, 1345 n.7
(11th Cir. 2007). With no independent analysis but only an unexplained assumption that Reed
had already so held, Alansari is not particularly persuasive.
The Eleventh Circuit in New v. Sports & Recreation, Inc., 114 F.3d 1092 (11th Cir. 1997),
announced that “Section 1445(c) is a jurisdictional-based limitation on the district court’s
removal power,” id. at 1097, a statement it characterized as a “hold[ing].” Id. at 1095 n.5. This
characterization is doubtful, since the only issue before the New Court was whether a remand
based on Section 1445(c) is immune from review under Section 1447(d), and such review is
precluded even if remand under Section 1445(c) is based on a procedural defect, as the New
Court recognized. Id. at 1097 n.7.
In sum, the Eleventh Circuit has thrice indicated that Section 1445(c) impacts subject
matter jurisdiction, but two of the statements are dicta and the third appears in an unpublished
opinion. Moreover, none of the three provides any analysis in support of its conclusion, nor any
explanation why Section 1445(c) should be considered jurisdictional when Section 1441(b)(2)’s
prohibition on removal by resident defendants is not. See generally Courtney v. BLP Mobile
Paint Manufacturing Co., 2012 WL 5869120 at *2 (S.D. Ala. 2012) (citing three Eleventh
Circuit cases stating, in dicta, that Section 1441(b)(2) is not jurisdictional); see also Cogdell v.
Wyeth, 366 F.3d 1245, 1248 (11th Cir. 2004) (distinguishing removal jurisdiction from subject
matter jurisdiction). Because the plaintiff moved to remand within 30 days of removal, it is
unnecessary for the Court to resolve the issue.
explanation why it was not remanding that claim as well. Id. Earlier portions of the
opinion, however, reflect the Court’s reasoning.
In its preliminary statement summarizing its decision, the Reed Court said:
Because we conclude that claims brought pursuant to Alabama’s statute
barring retaliation for the filing of workers’ compensation claims do arise
under that state’s workers’ compensation laws, the district court lacked
jurisdiction to entertain Reed’s retaliatory discharge claim. Reed’s ADA
claim, however, was properly before the district court.
206 F.3d at 1057. Thus, the ADA claim remained in federal court because it was
properly removed there.
The Court later explained the mechanism by which the ADA claim was properly
Defendants can remove civil actions over which the federal courts would
have had original jurisdiction. See 28 U.S.C. § 1441(a). The federal district
court would have had original jurisdiction over Reed’s ADA claim because it
arose under federal law. See 28 U.S.C. § 1331. In addition, federal courts
can exercise supplemental jurisdiction over state law claims that form
part of the same case or controversy as the claim with original federal
jurisdiction. See 28 U.S.C. § 1367(a); see also 28 U.S.C. § 1441(c).
A few actions, however, cannot be removed from state to federal
court. Specifically, 28 U.S.C. § 1445(c) bars the removal of claims from
state court “arising under the workmen’s compensation laws” of the forum
Id. at 1058. It is clear from the quoted material that the Court construed the ADA claim
as properly removed under Section 1441(a). The inclusion of a non-removable worker’s
compensation claim in the same lawsuit did not render removal of the action improper
under either that statute or Section 1445(c). Instead, the presence of the worker’s
compensation claim triggered Section 1445(c) as to only that claim and required remand
of only that claim. Thus, “the limits on federal jurisdiction imposed by 28 U.S.C. §
1445(c)” served only to require that the worker’s compensation claim “must be remanded
to state court.” Id. at 1056, 1061.
It is important to note that the Reed Court did not base the propriety of removing
and retaining the ADA claim on Section 1441(c).5 It is plain from the previous quotation
that the Reed Court relied instead on Section 1441(a) to justify removal and retention of
the federal claim. Although the Court also cited Section 1441(c), it did so only in the
course of listing the different ways that removed state law claims unsupported by
diversity can be properly retained in federal court.
Moreover, Section 1441(c) could have been in play in Reed only if the federal
claim was “separate and independent” from the state claim. See note 5, supra. “Where
both federal and state causes of actions are asserted as a result of a single wrong based on
a common event or transaction, no separate and independent federal claim exists under
section 1441(c).” In re: City of Mobile, 75 F.3d 605, 608 (11th Cir. 1996). Section
1441(c) was not in play in Reed, because both his worker’s compensation retaliation
claim and his ADA claim were based on a single event – his termination. See note 3,
supra. Since Section 1441(c) was not implicated, the Reed Court could not have relied
on it sub silentio.
Some courts have determined that the retention of a federal claim despite remand
of the worker’s compensation claim under Section 1445(c) can be justified under Section
1441(c), and the Court agrees.6 But if retention of the federal claim depends on Section
1441(c) rather than on Section 1441(a), then a different rationale must be found for
retaining a state claim despite remand of a worker’s compensation claim, since Section
As it existed at the time Reed was decided, Section 1441(c) provided as follows:
“Whenever a separate and independent claim or cause of action within the jurisdiction conferred
by section 1331 of this title is joined with one or more otherwise non-removable claims or causes
of action, the entire case may be removed and the district court may determine all issues therein,
or, in its discretion, may remand all matters in which State law predominates.”
As discussed in text, this was true under the former version of Section 1441(c) only if
the federal claim was separate and independent from the state claim. Under the recently revised
version of Section 1441(c), removal of an action is allowed any time the case contains both a
claim under Section 1331 and a claim made non-removable by statute (or that is not within the
federal courts’ original or supplemental jurisdiction), with the non-removable claim to be
severed and remanded.
1441(c) is triggered only by a federal question under Section 1331 and not by diversity of
citizenship under Section 1332. As noted, however, the Reed Court based the propriety
of removing and retaining the ADA claim on Section 1441(a), not Section 1441(c).
“[T]he holding of a case is … comprised both of the result of the case and those
portions of the opinion necessary to that result by which we are bound.” United States v.
Kaley, 579 F.3d 1246, 1253 n.10 (11th Cir. 2009) (internal quotes omitted). The result of
Reed was retention of the federal claim despite remand of the worker’s compensation
claim. Necessary to this result was the conclusion that the federal claim was properly
removed, and necessary to the conclusion that the federal claim was properly removed
was an identification of a legal basis for proper removal. Thus, the Reed Court’s
identification of Section 1441(a) as the source of proper removal of the federal claim and
for retention of that claim despite remand of the worker’s compensation claim constitutes
Section 1441(a) authorizes removal of “any civil action brought in a State court of
which the district courts of the United States have original jurisdiction.” Section 1332(a)
furnishes “original jurisdiction” over diversity actions with a threshold amount in
controversy, so removal of a diversity action is accomplished through Section 1441(a).
E.g., Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202, 1204 (11th Cir. 2008). This
case was removed based on diversity jurisdiction, and therefore removal was proper
under Section 1441(a).7 Because Reed holds that, when removal is properly
accomplished under Section 1441(a), the federal court is to remand the worker’s
compensation claim and retain the properly removed claims, it forecloses remand of the
plaintiff’s state law claims.
As the plaintiff points out, a number of trial courts have ruled that, when the
worker’s compensation claim is paired with no federal claim but with only state law
As the removal papers make plain, the parties are completely diverse and the amount in
controversy exceeds $75,000.
claims, remand of the entire action is required.8 As only one of these cases originated
within the Eleventh Circuit so as to be subject to Reed, the Court pays it special attention.
In Bryant v. Wausau Underwriters, 2008 WL 1808325 (M.D. Ala. 2008), the
Court concluded that “Reed can not be interpreted as authority for severing and
remanding worker’s compensation claims in cases that are removed under § 1332
(diversity) because Reed involved a case removed under § 1331 (federal question).” Id.
at *2. The question, however, is not whether the founts of original jurisdiction are the
same but whether the removal vehicle is the same. As noted above, Reed’s analysis is
grounded in the removal vehicle of Section 1441(a), not in the jurisdictional fount of
Section 1331. Because Section 1441(a) applies to removals based on Section 1332 just
as surely as it applies to removals based on Section 1331, Reed applies equally in the
The Bryant Court next noted that, while Section 1441(c) as it then existed supplied
special provisions when a federal claim is paired with a “separate and independent” nonremovable claim, there is no analog applicable to removable state law claims paired with
a non-removable claim. 2008 WL 1808325 at *2. This is correct but, as discussed
above, Reed is not based on Section 1441(c) but on Section 1441(a).
Finally, the Bryant Court believed that “‘[p]ermitting [the] defendant to remove
this action under § 1441(a) in anticipation of a remand of the nonremovable workers’
compensation claim would be tantamount to permitting piecemeal removal in diversity
cases, which Congress has prohibited.’” 2008 WL 1808325 at *2 (quoting Wilson v.
Lowe’s Home Center, Inc., 401 F. Supp. 2d 186, 197 (D. Conn. 2005)). As an initial
matter, it does not appear that “piecemeal removal” is at issue when an entire case is
See Carey v. Bank of America, __ F. Supp. 2d __, 2012 WL 5503838 at *2-3 (N.D. Tex.
2012); Escobedo v. Time Warner Entertainment Advance Newhouse Partnership, 811 F. Supp.
2d 1289, 1294 (W.D. Tex. 2011); Burris v. Zale Delaware, Inc., 2009 WL 3762987 at *3 (W.D.
Mo. 2009); Bryant v. Wausau Underwriters Insurance Co., 2008 WL 1808325 at *2 (M.D. Ala.
2008); Horn v. Kmart Corporation, 2007 WL 1138473 at *5 (S.D. Ohio 2007); Wilson v. Lowe’s
Home Center, Inc., 401 F. Supp. 2d 186, 197 (D. Conn. 2005); Husk v. E.I. DuPont de Nemours
& Co., 842 F. Supp. 895, 898 (S.D.W. Va. 1994).
removed and a portion of it remanded, under Section 1445(c) or for any other reason.
According to the secondary authority on which the Wilson Court relied, “piecemeal
removal” denotes “removal of parts of cases,” not the removal of an entire case, parts of
which may thereafter be remanded.9 This is also the meaning assigned the phrase by the
few federal courts employing it.10
At any rate, the secondary authority on which the Wilson Court relied pegs the
elimination of piecemeal removal to 1948 amendments to Section 1441(c) ending
piecemeal removal in all cases, federal question as well as diversity.11 If retaining
removable claims while remanding a non-removable worker’s compensation claim
constitutes “piecemeal removal,” then Reed has already blessed the practice. And since it
did so based on Section 1441(a), which applies equally to removals based on diversity, it
necessarily blessed such a practice in the diversity context.12
The question here is not whether permitting partial remands under Section 1445(c)
is good policy, or even whether it represents a faithful reading of the governing statutes.
The threshold questions for the Court are whether the Eleventh Circuit has already
resolved the issue of partial versus total remand and whether it has done so on grounds
Edward Hartnett, A New Trick from an Old and Abused Dog: Section 1441(c) Lives
and Now Permits the Remand of Federal Question Cases, 63 Fordham L. Rev. 1099, 1103
See Archuleta v. Lacuesta, 131 F.3d 1359, 1370 (10th Cir. 1997) (quoting lower court
decision); Alko Jewelry Manufacturing Corp. v. Lloyd’s of London, 1993 WL 51299 at *1 (9th
Cir. 1993); In re: Pikeville School Bus Collision Cases, 2011 WL 6752654 at *4 (E.D. Ky.
2011); Allen v. Pataki, 207 F. Supp. 2d 126, 127 (S.D.N.Y. 2002); Salei v. Boardwalk Regency
Corp., 913 F. Supp. 993, 1012 (E.D. Mich. 1996); University of Chicago Hospitals & Clinics v.
Olson, 1988 WL 9051 at *1 (N.D. Ill. 1988); Killian v. Union L.P. Gas System, Inc., 568 F.
Supp. 679, 680 (W.D. Mo. 1983).
Hartnett, supra note 9, at 1132.
The Wilson Court itself recognized that “the language of §§ 1441(a) and 1445(c) draws
no distinction between federal question and diversity cases.” 401 F. Supp. 2d at 197 n.13. The
Wilson Court used this point to argue that partial remand should be impermissible in the federal
question context because (it ruled) it is impermissible in the diversity context, but in this Circuit
the result is the opposite: the acknowledged propriety of partial remand in the federal question
context under Reed compels the propriety of partial remand in the diversity context.
that must apply to removals based on diversity. As discussed above, the answers to these
questions are in the affirmative. The Court is thus bound by Reed to remand only the
plaintiff’s worker’s compensation claim.
Although no defense of Reed is needed (since it is controlling in any event), it is
worth noting that partial remands are not unique to the Section 1445(c) situation. Under
Section 1441(a), the presence of a single claim as to which the federal courts have
original jurisdiction constitutes the state lawsuit a “civil action” removable in its entirety
under that statute; the presence of additional claims as to which the federal courts lack
original jurisdiction is irrelevant. City of Chicago v. International College of Surgeons,
522 U.S. 156, 166 (1997); accord Exxon Mobil Corp. v. Allapattah Services, Inc., 545
U.S. 546, 562-63 (2005).13 In this situation, the entire case is removable, but Section
1367 “applies with equal force to cases removed to federal court.” College of Surgeons,
522 U.S. at 165. Thus, any additional claim that is not part of the same case or
controversy as the claim over which the federal court has original jurisdiction must be
remanded under Section 1367(a), and any claim surviving that round of inquiry may be
remanded on certain specified grounds under Section 1367(d), even though other parts of
the case remain in federal court.
The plaintiff argues that, even if remand of the entire action is not required by
statute, her tort claims should be severed from her worker’s compensation claim pursuant
to Rule 21 and, having been severed, be remanded. (Doc. 7 at 5). It is not apparent how
severance could render appropriate a remand of the tort claims, and the plaintiff does not
offer to explain her theory.
Finally, the plaintiff suggests that remand of the entire action should be ordered in
the interests of judicial economy, since her tort claims are “related to” her worker’s
The Wilson Court, overlooking this line of authority, incorrectly concluded that, “in the
context of the removal statutes, ‘civil action’ should be interpreted to refer to an entire case,
rather than individual claims,” such that “an action containing a claim outside the original
jurisdiction of the district court is not removable under this section [Section 1441(a)], even if the
action contains other claims within the district court’s original jurisdiction.” 401 F. Supp. 2d at
193 & n.7.
compensation claim. (Doc. 7 at 5). Several lower courts have indicated that judicial
economy supports remand of removable claims along with a non-removable worker’s
compensation claim.14 The problem, at least in this Circuit, is that Reed holds that a nonworker’s compensation claim properly removed under Section 1441(a) is not subject to
remand under Section 1445(c). When, as here, a claim has been properly removed and is
not subject to remand under the governing statutes, it cannot be remanded on the grounds
that judicial economy will be served thereby. In re: City of Mobile, 75 F.3d at 607-08 (a
properly removed federal claim could not be remanded along with state claims as to
which there was no diversity jurisdiction, even though that might serve judicial economy,
where Section 1367(c) did not permit such remand; “‘[W]e are not convinced that
Congress ever intended to extend carte blanche authority to district courts to revise the
federal statutes governing removal by remanding cases on grounds that seem justifiable
to them but which are not recognized by the controlling statute.’”) (quoting Thermtron
Products v. Hermansdorfer, 423 U.S. 336, 351 (1976)).
For the reasons set forth above, the plaintiff’s motion to remand is granted with
respect to Count One and denied with respect to Counts Two, Three and Four. Count
One is hereby remanded to the Circuit Court of Mobile County.
DONE and ORDERED this 3rd day of December, 2012.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
E.g., Wilson, 401 F. Supp. at 196; Burris, 2009 WL 3762987 at *3; Horn, 2007 WL
1138473 at *5; Hummel v. Kamehameha Schools/Bernice Pauahi Bishop Estate, 749 F. Supp.
1023, 1030 (D. Haw. 1990).
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