Gonzales et al v. Haydon Brothers Contracting, Inc.
MEMORANDUM OPINION & ORDER: it is ORDERED that the motion to remand, R. 7 , is GRANTED. All other pending motions are DENIED as moot, and this case is REMANDED to the Pike Circuit Court. It is further ORDERED that plas file a statement cataloguing their costs, including attorney's fees, incurred as a result of the removal no later than July 27, 2011. 28 U.S.C. § 1447(c). Signed by Judge Amul R. Thapar on 6/27/2011. (TDA)cc: COR & Pike Circuit Court (certified copy w/ docket sheet)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
EDWIN GONZALES, and
Civil Action No. 11-83-ART
KENTUCKY EMPLOYERS’ MUTUAL
MEMORANDUM OPINION &
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Haydon Brothers Construction claims this personal injury case belongs in federal
court because it presents a “Pandora’s Box of liability” for everyone involved in the
litigation, and that “[t]his Court, and this Court alone, has the power to open that box.” R.
12. However, just as Greek mythology recounts that Pandora was NOT to open the box, see
Hesiod, Works and Days, in Theogony and Works and Days 35, 39–40 (M.L. West trans.,
Oxford Univ. Press 1999), this Court’s limited jurisdiction dictates that jurisdiction not be
assumed solely as a means of discovery. Neither diversity nor federal-question jurisdiction is
present. Indeed, the only purported connection to federal law is Haydon Brothers’ pursuit of
evidence that the plaintiff, Edwin Gonzales, is an illegal immigrant. But neither Gonzales’s
citizenship status nor Haydon Brothers’ desire to obtain discovery of this status is relevant to
federal jurisdiction. Because this result is obvious, and the eve-of-trial removal is egregious,
Haydon Brothers must pay the fees and costs Gonzales incurred fighting removal.
In October 2009, Haydon Brothers was performing blasting operations while working
on a highway project. R. 1, Attach. 8. A rock from the blasting allegedly struck Edwin
Gonzales in the head. Id. Gonzales and his wife sued Haydon Brothers, a Kentucky
Corporation, in state court on strict-liability and loss-of-consortium theories and later added a
negligent hiring theory. Id.
During the litigation, Haydon Brothers consulted with the Social Security Agency
(“SSA”) about Gonzales’s Social Security number. R. 1, Attach. 2. The SSA informed
Haydon Brothers that the social security number did not belong to Gonzales. Id. Only a few
weeks before trial, Haydon Brothers removed this case to federal court claiming that the
SSA’s regulations allow disclosures only in federal court, thus justifying federal jurisdiction.
R. 1 (citing 20 C.F.R. § 401.180(d)). In essence, Haydon Brothers claims this Court has
jurisdiction because it needs discovery of impeachment material and that material potentially
is available from a federal agency. Of course, Haydon Brothers cannot cite a single case for
this startling proposition.
Haydon Brothers claims discovery of Gonzales’s citizenship status is necessary for
three reasons: (1) the information is important as it relates to Gonzales’s credibility, (2)
discovery could uncover a potential Medicare lien that would complicate Gonzales’s
recovery, and (3) Gonzales’s citizenship status could affect the lost wages damages
By invoking the Court’s federal-question jurisdiction, R. 1, Haydon Brothers took
upon itself the burden of showing how this garden-variety tort case arises under federal law.
See 28 U.S.C. § 1331. To do so, Haydon Brothers chose to anchor removal completely on its
perceived entitlement to discovery. The problem is that discovery has never been a basis for
federal-question jurisdiction. Instead, a complaint “arises under federal law” if it “(1) states
a federal cause of action; (2) includes state-law claims that necessarily depend on a
substantial and disputed federal issue; (3) raises state-law claims that are completely
preempted by federal law; or (4) artfully pleads state-law claims that amount to federal law
claims in disguise.” Ohio ex rel. Skaggs v. Brunner, 629 F.3d 527, 530 (6th Cir. 2010)
(citing Mikulski v. Centerior Energy Corp., 501 F.3d 555, 560 (6th Cir. 2007) (en banc)).
This case satisfies none of these grounds for removal.
I. Grounds for Removal
Federal cause of action: To meet this ground of removal, the complaint by its terms
must state a federal cause of action. Brunner, 629 F.3d at 530. But, Gonzales’s complaint
does not even hint at a federal cause of action. Instead, the complaint is based purely on
Kentucky tort law. R. 1, Attach. 9.
Substantial Federal Question:
This ground cannot be satisfied either because
Gonzales’s state-law claims do not turn on a disputed and substantial federal issue. Grable
& Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 313, 318 (2005). Haydon
Brothers asserts that Gonzales’s citizenship status affects his future income potential and so
must be determined in order to calculate damages. But even if true, this does not make
Gonzales’s tort claims dependent on a federal issue. See, e.g., Merrell Dow Pharms. Inc. v.
Thompson, 478 U.S. 804, 817 (1986) (finding a substantial federal issue where the plaintiff’s
state-law tort claim was based on violation of a federal standard of care). At best, this is
simply a defense (i.e., mitigation) Haydon Brothers hopes to employ. But defenses are
inadequate to confer federal-question jurisdiction. See Merrell Dow, 478 U.S. at 808 (“A
defense that raises a federal question is inadequate to confer federal jurisdiction.”); Louisville
& Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908) (“It is not enough [for removal]
that the plaintiff alleges some anticipated defense to his cause of action . . . .”). Haydon
Brothers cannot convert Gonzales’s state-law claim into a federal question simply because it
wants discovery for a potential defense.
At first, Haydon Brothers appeared to suggest that the
possibility that Gonzales’s claims could raise immigration issues meant that it was
completely preempted by federal law. R. 1. But Haydon Brothers has since abandoned this
suggestion, a wise choice for two reasons. First, the doctrine of complete preemption has
only been applied in three areas: the Labor Management Relations Act, ERISA, and the
National Bank Act. Brunner, 629 F.3d at 531. In fact, the Supreme Court recently affirmed
that federal immigration law does not completely preempt state law.
See Chamber of
Commerce of the United States v. Whiting, 131 S.Ct. 1968, 1979 (2011) (“The simple fact
that federal law creates procedures for federal investigations and adjudications [in
immigration] culminating in federal civil or criminal sanctions does not indicate that
Congress intended to prevent States from establishing their own procedures for imposing
their own sanctions through licensing.”).
Second, Gonzales’s claims do not implicate
immigration law. It has nothing to do with whether Haydon Brothers is strictly liable for
Gonzales’s injury or whether Haydon Brothers negligently hired someone.
Additionally, even if Gonzales was discovered to be a noncitizen, it is not pertinent
for federal jurisdiction purposes. Whether a noncitizen can bring a Kentucky case is a
question of Kentucky law. And, that question—a pure state-law question—Kentucky courts
can decide without this Court’s intervention. See Collins v. Santiago, No. 2007-CA-00391,
2007 WL 3037762, at *2 (Ky. Ct. App. Oct. 19, 2007) (holding that an illegal immigrant
does have standing to file a custody suit in Kentucky state court). Rather than argue the
contrary, Haydon Brothers suggests that Gonzales’s citizenship status is critical to his
But the logical leap from simple discovery for impeachment to federal
jurisdiction cannot be made. Absent Congress changing the rules, discovery between two
private parties (even if it is sought from a federal agency) has not, is not, and will not ever be
a basis for federal jurisdiction.
Artful Pleading: Removal cannot be justified on the grounds of artful pleading
because there are no “federal issues [that] necessarily must be resolved to address the state
law causes of action.” Brunner, 629 F.3d at 532. Haydon Brothers may have meant to
invoke this ground when it stated that a Medicare lien might exist. In certain cases, federal
regulations require that Medicare must be reimbursed out of settlement amounts. 42 C.F.R. §
411.24. Haydon Brothers asserts that if the social security number Gonzales provided is not
his, there may be unknown Medicare payments attached to it that would complicate the
proceedings. R. 12. Even if this were an issue requiring resolution, it does not expose
Gonzales’s state-law claims as federal ones. Whether a Medicare lien exists is at best a
procedural issue, and it has nothing to do with Haydon Brothers’ potential liability or federal
Rather than focus on the potential grounds for removal, Haydon Brothers’ three
“reasons” instead describe how its defense will be prejudiced without discovery from the
SSA and the potential complications that could result if Gonzales is a noncitizen. None of
these provide a basis for federal jurisdiction, and it was not reasonable to believe that any
II. Attorney Fees
As part of the remand order, a court “may require payment of just costs and any
actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C.
§ 1447(c). The Court has discretion to grant fees to the opposing party if “the removing
party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin
Capitol Corp., 546 U.S. 132, 141 (2005). Haydon Brothers lacked a reasonable basis for
removal. Gonzales’s action relies exclusively on state law and could not reasonably be
construed as supporting federal-question jurisdiction. The “ground” chosen as justifying
removal by Haydon Brothers—discovery—simply has nothing to do with federal
jurisdiction. This consideration on its own is sufficient to award the plaintiff attorney’s fees.
See Chase Manhattan Mortgage Corp. v. Smith, 507 F.3d 910, 913–14 (2007). But couple
this with the timing of Haydon Brothers’ removal—a mere three weeks before scheduled
trial—and the only reasonable conclusion is that Haydon Brothers removed this case to delay
litigation. The Court therefore awards Gonzales attorney fees and costs incurred as a result
of the removal.
Accordingly, it is ORDERED that the motion to remand, R. 7, is GRANTED. All
other pending motions are DENIED as moot, and this case is REMANDED to the Pike
Circuit Court. It is further ORDERED that the plaintiffs file a statement cataloguing their
costs, including attorney’s fees, incurred as a result of the removal no later than July 27,
2011. 28 U.S.C. § 1447(c).
This the 27th day of June, 2011.
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