Martin v. Fort Wayne Police Department et al
Filing
16
OPINION AND ORDER DENYING Plaintiff's 11 28 U.S.C, 1447(c) Motion to Object to Defendants' Removal Plaintiff's Seek/Request toRemand. Signed by Judge Rudy Lozano on 11/3/2011. (kjm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ANTHONY C. MARTIN,
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Plaintiff,
vs.
FORT WAYNE POLICE DEP., et. al.
Defendants.
NO. 1:11-CV-350
OPINION AND ORDER
This matter is before the Court on the “28 U.S.C, 1447(c)
Motion to Object to Defendants’ Removal Plaintiff’s Seek/Request to
Remand” filed by Anthony C. Martin (“Martin”) on October 19, 2011.
For the reasons set forth below, the motion is DENIED.
BACKGROUND
On February 22, 2011, Martin filed a Complaint in the Allen
Superior Court. The Complaint alleges that Defendants violated his
Fourth and Fourteenth Amendment rights, and additionally alleges
state
law
claims
for
emotional distress.
On
October
6,
Defendants. (DE #2).
harassment,
retaliation,
defamation
and
(DE #1).
2011,
a
Notice
of
Removal
was
filed
by
In that Notice, Defendants set forth their
contentions for removal based on federal question jurisdiction
under 28 U.S.C. §§ 1441 and 1446.
On October 19, 2011, Plaintiff
filed the instant motion.
Plaintiff frames his argument as
follows:
1).
Did
the
defendants
meet
the
requirements of presenting the merits of
raising the Federal Question Rule.
2). Did the defendants abuse the Court’s
discretion, when removal by the defendants was
merely an act of “forum shopping” (ERIE
DOCTRINE) by the defendants.
3). Have the diversity issues been raised
or fully cleared before the removal to the
federal Court.
(DE #11 at 2).
Defendants filed their response to Plaintiff’s
request for remand on October 27, 2011.
reply.
Plaintiff has not filed a
The motion is ripe for adjudication.
DISCUSSION
A case may be removed from state court to federal court if it
is based on statutorily permissible grounds and if it is timely.
Boyd v. Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir. 2004).
See 28 U.S.C. § 1441; 28 U.S.C. § 1446.
The Seventh Circuit has
directed that, “[c]ourts should interpret the removal statute
narrowly and presume that the plaintiff may choose his or her
forum.
Any doubt regarding jurisdiction should be resolved in
favor of the states, and the burden of establishing federal
jurisdiction
falls
on
the
party
seeking
removal.”
Doe
v.
Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993) (citations
omitted).
is proper.
The party seeking removal must demonstrate that removal
Boyd, 366 at 529.
“[I]t is not enough to file a
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pleading and leave it to the court or the adverse party to negate
jurisdiction.”
Brill v. Countrywide Home Loans, Inc., 427 F.3d
446, 447 (7th Cir. 2005) (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992).
When challenged, the party seeking
federal jurisdiction bears the burden of proving by a preponderance
of the evidence that a case belongs in federal court.
Meridian
Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 540-43 (7th Cir. 2006).
Subject-matter Jurisdiction
Defendants removed this case from state court based on federal
question jurisdiction pursuant to 28 U.S.C. § 1331.
28 U.S.C.
section 1331 provides that “[t]he district courts shall have
original jurisdiction of all civil actions arising under the
Constitution, laws or treaties of the United States.”
Both the original complaint and an amended complaint filed
October 19, 2011, clearly assert federal claims.
Plaintiff claims
violations of the Fourth and Fourteenth Amendments of the United
States Constitution.
Accordingly, this civil action arises under
the constitution and laws of the United States, and this Court has
jurisdiction over these claims.
Pursuant
to
28
U.S.C.
section
1367,
this
Court
has
jurisdiction over any pendent state law claims that are “so related
to claims in the action ... that they form part of the same case or
controversy.”
In this case, Plaintiff asserts both federal and
state claims all stemming from the same common nucleus of operative
3
facts.
See Sanchez v. Koresko, 502 F.3d 610, 614 (7th Cir. 2007).
Accordingly, this Court also has subject matter jurisdiction over
Plaintiff’s state law claims.
Procedural Requirements
Defendants desiring to remove a civil action from state court
to federal court must comply with the procedures set forth in 28
U.S.C. § 1446.
These procedures mandate that the notice “shall be
filed within thirty days after the receipt by the defendant,
through service or otherwise, of a copy of the initial pleading
setting forth the claim for relief upon which such action or
proceeding is based.”
28 U.S.C. § 1446(b).
Although the thirty
day time limit in § 1446(b) is not jurisdictional, it is a
mandatory
and
strictly
applied
rule
of
procedure.
Northern
Illinois Gas Co. v. Airco Industrial Gases, 676 F.2d 270, 273 (7th
Cir. 1982). The Supreme Court has clarified that the removal clock
under § 1446(b) is triggered when one of four events occurs: (1) if
the summons and complaint are served together, the 30-day period
for removal runs at once; (2) if the defendant is served with the
summons but the complaint is furnished to the defendant sometime
after, the period for removal runs from the defendant’s receipt of
the complaint; (3) if the defendant is served with the summons and
the complaint is filed in court, but under local rules, service of
the complaint is not required, the removal period runs from the
date the complaint is made available through filing; and (4) if the
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complaint is filed in court prior to any service, the removal
period runs from the service of the summons.
Murphy Bros., Inc. v.
Michetti Pipe Stringing, Inc., 526 U.S. 344, 354 (1999).
It appears from the docket sheet in the state court case that
Defendants were not served until at least September 28, 2011.
The
Notice of Removal was filed on October 6, 2011, well within the
time allowed under 28 U.S.C. § 1446(b).
Plaintiff’s Contentions in Support of Remand
The Plaintiff’s motion seeks remand because defendants didn’t
present “the merits of raising the Federal Question Rule”, because
defendants are “forum shopping” and abusing the Court’s discretion,
and because diversity issues were not “raised or fully cleared.”
Plaintiff’s concerns demonstrate a fundamental misunderstanding of
what is required for this case to be removed to federal court.
None of Plaintiff’s concerns have merit. Defendants have satisfied
their burden of demonstrating that removal is proper.
CONCLUSION
For the reasons set forth above, the “28 U.S.C, 1447(c) Motion
to
Object
to
Defendants’
Removal
Plaintiff’s
Seek/Request
to
Remand” filed by Anthony C. Martin (“Martin”) on October 19, 2011,
is DENIED.
DATED: November 3, 2011
/s/RUDY LOZANO, Judge
United States District Court
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