B. v. THE SCHOOL DISTRICT OF PHILADELPHIA et al

Filing 17

MEMORANDUM AND ORDER THAT PLAINTIFF'S MOTION TO REMAND IS GRANTED; ETC.. SIGNED BY HONORABLE J. CURTIS JOYNER ON 6/14/16. 6/20/16 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NICOLE B.,individually and on
behalf of her son, N.B.,
CIVIL ACTION

Plaintiff,

v.
NO. 16-cv-1457
THE SCHOOL DISTRICT OF
PHILADELPHIA, et al.,
Defendants.

Joyner, J.

June

fi,

2016

Before the Court are Plaintiff's Motion to Remand (Doc. No.
7), Defendants' Responses in Opposition thereto (Doc. Nos. 10, 11,
13), and Plaintiff's Reply in Further Support thereof (Doc. No.
16). For the reasons below, the Court will GRANT the Plaintiff's
Motion to Remand. An Order follows.

I. Factual and Procedural Backqround1
This action was brought by Plaintiff Nicole B., individually
and on behalf of her minor son, N.B, against the School District of
Philadelphia

("School District") ;

Jala Pearson

principal of William C. Bryant School

("Bryant")

("Pearson") ,

the

at the time in

question; and Jason Johnson ("Johnson") , a teacher at Bryant at the

1

Facts for this section are taken from Plaintiff's Third Amended
Complaint. (Doc. No. 2-55)

1

xc: Le:P1

time in question.
N.B. began attending Bryant on or around September 14, 2011,
as a fourth grader. N.B. had not previously attended public school
and Plaintiff expressed concern about her son's integration into
the student population. After assurances from Pearson that N.B.
would be safe, Plaintiff decided to keep N.B. enrolled at Bryant.
Schoolmates began harassing N. B.

on a daily basis,

calling him

derogatory names related to race and sex. Schoolmates physically
assaulted N.B. on multiple occasions and they forced him to commit
humiliating and violent acts under threat of violence. Plaintiff
spoke with Johnson about this harassment, and Johnson also assured
Plaintiff that N.B. would be safe.
On October 25,

2 011,

three

of

N. B. 's

classmates

sexually

assaulted N.B. in the bathroom at Bryant. N.B. did not tell anyone
about this incident until November 4, 2011. When Plaintiff learned
about the sexual assault,

she contacted the police,

as well as

Pearson and Johnson, and she withdrew N.B. from Bryant. Plaintiff
alleges that Defendants were aware of the risk to N.B. and failed
to take steps to prevent the harm her son suffered. Plaintiff also
alleges that the School District and Pearson attempted to cover up
the sexual assault and encouraged a police officer to lie about
what

took

place. N.B. has suffered significant psychological

problems from this abuse and has needed intensive psychological
therapy.

2

Plaintiff filed a Complaint in the Court of Common Pleas,
Philadelphia County, Philadelphia, PA on April 29, 2014. She filed
a third and final Amended Complaint ("Complaint") on February 17,
2016, bringing claims under the Pennsylvania Human Relations Act
(Counts

I,

II),

Pennsylvania

tort

law

(Counts

III,

IV),

and

Pennsylvania contract law (Count V). On March 7, 2016, Plaintiff
served three expert reports 2 on Defendants.
Felicia Hurewitz, Ph.D. ("Hurewitz Report")

One,

the report of

(Doc. No. 1-4), invokes

the Individuals with Disabilities in Education Act
U.S.C.

§§

("IDEA") ,

20

1400, et seq., and Section 504 of the Rehabilitation Act

("Section 504"), 29 U.S.C.

§

794. Doc. No. 1-4 at 2. The Hurewitz

Report indicates that she intends to testify about the requirements
outlined under these statutes for schools to identify and provide
accommodations

for students with disabilities, that the school

failed to follow these requirements with regard to the student
attackers of N. B., and that this led to the harm N. B. suffered. Id.
A second report,

by Malcolm Smith,

Ph.D.

("Smith Report")

(Doc. No. 1-5), looked to Title IX of the Education Amendments of
1972

("Title IX"),

20 U.S.C.

1681, et seq., as providing the

§§

"applicable standard" that Bryant should have followed to prevent
N.B.'s abuse. Doc. No. 1-5 at 9.
After reviewing these reports, counsel for the Defendants and

2

Defendants at various times refer to these as "expert reports" or
"answers to interrogatories." We will refer to them as "expert reports"
throughout this memorandum.

3

the Plaintiff corresponded in writing about whether the mention of
these statutes put Defendants on notice of federal claims Plaintiff
intended to pursue. (Doc. Nos. 1-6-10). Plaintiff's counsel refused
to sign a stipulation that his client would not bring any federal
claims,

while maintaining that the Complaint did not plead any

federal claims.
Defendants removed the case to this court on March 30, 2016.
(Doc.

No.

1).

They filed a

second and final amended Notice of

Removal on April 6, 2016.

(Doc. No. 14). Plaintiff filed a Motion

to

2016. · (Doc.

Remand

on April

29,

No.

7).

Defendants

filed

Responses in Opposition to Plaintiff's Motion (Doc. Nos. 10, 11.
13), and Plaintiff filed a Reply. (Doc. No. 16). This matter is now
ripe for decision.

II. Motion to Remand
Plaintiff filed this motion to remand pursuant to 28 U.S.C.
1447 (c),

which states in relevant part:

§

"If at any time before

final judgment it appears that the district court lacks subject
matter jurisdiction,

the case shall be remanded."

28 U.S.C.

§

1447(c). Federal district courts have original jurisdiction over
"all

civil

actions

arising

under

the

treaties of the United States." 28 U.S.C.
of

citizenship,

federal-question

Caterpillar Inc. v. Williams

Constitution,
§

laws,

or

1331. "Absent diversity

jurisdiction

is

required."

, 482 U.S. 386, 392 (1987).

"The

presence or absence of federal-question jurisdiction is governed by

4

the

'well-pleaded complaint rule,'

which provides

that

federal

jurisdiction exists only when a federal question is presented on
the face of the plaintiff's properly pleaded complaint." Id.
A defendant must generally file a notice of removal "within 30
days

after

otherwise,

the
of a

receipt

by

the

defendant,

through

service

or

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} (1). If the initial pleading does not make the

case removable,

"a notice of removal may be filed within 30 days

after receipt by the defendant, through service or otherwise, of a
copy of an amended pleading,

motion,

order or other paper from

which it may first be ascertained that the case is one which is or
has become removable." 28 U.S.C.

§

1446(b) (3). The defendant bears

the burden of proof respecting the propriety of removal,

and we

resolve all doubts in favor of remand. Steel Valley Auth. v. Union
Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987).
Defendants assert that this case was not removable at the time
of the initial pleading,
U.S.C.
2016

§

but that it became removable under 28

1446(b) (3) because the expert reports served on March 7,

"place[d]

Defendants

jurisdiction over Plaintiffs'
1331." Doc. No. 14

~25.

on

notice

that

this

Court

has

[sic] claims pursuant to 42 U.S.C.

§

Defendants argue 1) that the expert reports

constitute "other paper" within the meaning of this statute, and 2)
that the expert reports indicate that this case has become

5

removable.

Plaintiff responds that because her Complaint brings

only state law claims, and because these claims are not preempted
by any federal law,

there is no basis for federal subject matter

jurisdiction.
The "Third Circuit has not defined 'other paper' but district
courts in our circuit have interpreted the phrase widely ...
StateFarm Fire & Cas.

Minissale v.

Co.,

988

F.Supp.2d 472,

II

477

(E.D. Pa. 2013); see also Connolly v. Aetna U.S. Healthcare, Inc.,
286 F.Supp.2d 391, 399 (D.N.J. 2003)

(finding expert's deposition

testimony can be "other paper"); Efford v. Milam,
380, 386 (E.D. Pa. 2005)

368 F.Supp.2d

(correspondence between counsel); Cabibbo

v. Einstein/Noah Bagel Partners, L.P., 181 F.Supp.2d 428, 432-33
(E.D. Pa. 2002)

(answers to interrogatories).

Because of the broad construction of the statute, we find that
the

expert

reports as well as the correspondence between the

parties' attorneys are "other paper" that could indicate a case has
become removable under 1446(b). The determination that something
qualifies as "other paper" does not, however, end the inquiry. See
Connolly, 286 F.Supp.2d at 399-406. The Defendants must show that
the papers indicate that a case not previously removable has become
one under which removal is proper. The Defendants have failed to do
this here.
Under the well-pleaded complaint rule, a plaintiff is master
of her claim;

"she may avoid federal

6

jurisdiction by exclusive

reliance on state law." Caterpillar, 482 U.S. at 392. Accordingly,
a plaintiff has no obligation to bring a cause of action to which
a certain set of facts might give rise. In the Complaint, the
Plaintiff

brought

only

state

law

claims against non-diverse

parties. Defendants do not dispute this. See Doc. No. 10 at 5 of
15. Instead, Defendants allege that the expert reports provide new
facts from which federal jurisdiction arises. It is unclear what
kinds of facts these might be.
Typically,
1446(b) (3)

a

when

case
a

becomes removable under

28

u.s.c.

§

document reveals facts indicating federal

jurisdiction based on diversity under 28 U.S.C.
nearly every case cited by Defendants

§

1332. Indeed,

in their Response

is

a

diversity jurisdiction case. See Erekson v. Ashford Phila. Annex,
LLC,

Civ. A.

No.

12-5815,

(E.D. Pa. Apr. 23, 2013)
indicating

the

sufficient

notice

(finding that a case management memorandum

plaintiff
that

2013 U.S. Dist. LEXIS 57745, at *8-9

sought

more

than

$75,000

the case was removable);

Dellasandro, 859 F.Supp. 176, 179-80 (E.D. Pa. 1994)
a

letter

from

plaintiffs'

provided

Broderick v.
(finding that

counsel indicating that his client

resided in Pennsylvania provided actual notice that a case had
become removable); Cabibbo v. Einstein/Noah Bagel Partners, L.P.,
181 F.Supp.2d 428,

431-33

(E.D.

Pa.

2002)

(concerning amount in

controversy); Marchiori v. Vanguard Car Rental U.S.A., Inc., Civ.
A. No. 05-5686, 2006 U.S. Dist. LEXIS 11385 (E.D. Pa. Mar. 17,

7

2006) (same); LaCaffinie v. The Standard Fire Ins. Co., Civ. A. No.
10-207,

U.S.

Dist.

LEXIS 53151

(W.D.

Pa.

May 28,

2010)

(same);

Craul v. Wal-Mart Stores E., LP, No. 1:12-CV-1380, 2012 U.S. Dist.
LEXIS 184111 (M.D. Pa. Nov. 29, 2012)

(same).

Only in rare circumstances have courts used the "other paper"
doctrine to find federal question jurisdiction. See Dougherty v.
Cerra,

987

F.Supp.2d

721,

729

(S.D.W.

Va.

2013);

Freeman

v.

Phillips 66 Co., Civ. A. No. 14-2257, 2014 WL 7330620, at *2 (E.D.
La. Dec. 18, 2014); Blanding v. Bradley, Civ. Case No. SAG-14-337,
2014

WL

1514675, at *2 (D. Md. Apr. 15, 2014). One such

circumstance occurs when an ambiguous existing claim is clarified
by later papers. See Efford,

368 F.Supp.2d at 384. The court in

Efford found that when the initial praecipe did not specify the
legal or factual basis for a claim, a letter from the plaintiff
indicating that they intended to bring a federal claim constituted
"other paper from which it may be first ascertained that the case
is one which is or has become removable" under 1446(b). Id. at 386.
The letter 1) stated that the facts of the case supported a federal
claim, 2) described what was needed to make the federal claim, and
3)

stated what facts of the case were relevant to the federal

claim.

Id.

The

Court

concluded

that

this

letter

made

it

"'unequivocally clear and certain' to defendants that the case was
removable [,] ... especially

when

the

defendants'

counsel

was

anticipating correspondence from plaintiffs' counsel regarding the

8

basis of the suit, and when it appears from the face of the letter
that the yet-to-be-filed complaint had already been written." Id.
Efford is easily distinguishable from this case. Here, it is
clear that the Complaint brings only state law claims. 3 Even if the
Complaint

were

ambiguous,

the

expert

unequivocally clear and certain that

reports
the

do

not

Plaintiff

make

it

intends

to

bring, or has brought, a federal claim.
If a plaintiff's complaint does not plead a federal question,
a

case may nevertheless

invoke

federal

jurisdiction under

the

"complete pre-emption" doctrine. See Caterpillar, 482 U.S. at 393.
Under this doctrine, "the pre-emptive force of a [federal] statute
is so 'extraordinary' that it converts an ordinary state common-law
complaint into one stating a federal claim
Metropolitan Life Ins.

Co.,

"

Id.

(quoting

481 U.S. 58, 65 (1987)). Defendants

concede they are not invoking the complete preemption doctrine, so
we need not discuss it here. 4 We note, however, that Connolly, the

3

Efford relied on Foster v. Mut. Fire, Marine & Inland Ins. Co., 986
F.2d 48 (3d Cir. 1993), in determining that the writ of summons, which
apparently contained no factual or legal details, triggered the 30-day period
for removal. The Third Circuit acknowledged that Foster was implicitly
overruled by the Supreme Court in Murphy Bros., Inc. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344 (1999). Sikirica v. Nationwide Ins. Co., 416
F.3d 214, 223 (3d Cir. 2005). The Third Circuit held that after Murphy, "a
writ of summons alone can no longer be the 'initial pleading' that triggers
the 30-day period for removal under the first paragraph of 28 U.S.C. §
1446(b) ."Id.; See also Sacko v. Greyhound Lines, Inc., Civ. A. No. 13-cv1966, 2013 WL 2392906, at *2 (E.D. Pa. May 31, 2013). It is hard to imagine a
proper complaint that is so ambiguous as to require subsequent papers to
clarify whether the plaintiff brings a federal claim. Even if possible, that
is not the case here.
4

Additionally, Plaintiff's explanation for why IDEA and Section 504 do
not apply here, and for why Title IX and Section 1983 do not preempt their
state law claims, is comprehensive and accurate.

9

one case cited by Defendants in their Notice of Removal, concerned
new facts that may have indicated that the state law claims were
preempted. The court found that although the expert testified "that
plaintiffs
monitor

had requested coverage

twice

and

were

denied,

for
this

a

home uterine

does

not

activity

indicate that

plaintiffs necessarily seek relief for such actions in their
complaint, or that their complaint should be completely preempted
on that factual basis." Connolly, 286 F.Supp.2d at 404. The court
ultimately decided the case was not removable by looking to the
face of the complaint,

as we do here.

A case is not removable

simply because it alleges facts that could give rise to a claim
under federal law. 5
Because Defendants do not invoke diversity jurisdiction, or
the complete pre-emption doctrine, and the Complaint brings only
state-law claims, we are left wondering what facts the Defendants
believe indicate this court has jurisdiction and why they believe
that to be the case. It seems that Defendants' misunderstanding of
the well-pleaded complaint rule led them to believe Plaintiff's
counsel "was setting a

'trap' to prevent removal in the future."

Doc. No. 10 at 10 of 15. We understand this is an important issue
because it triggers the 30-day period after which Defendants are
barred from removing an otherwise-eligible case. Nevertheless, a
5

We also agree with the Plaintiff that the experts do not testify to
new facts. The facts pled in the complaint may already give rise to the
certain federal claims, but that is irrelevant because the Plaintiff, as
master of her complaint, chose not to bring those claims.

10

case

cannot

jurisdiction.
federal

be

removed

when

there

is

no

basis

for

federal

We find that the expert reports have not created

subject

matter

jurisdiction. 6

Accordingly,

we

grant

Plaintiff's Motion to Remand.
III. Attorney Fees

A district court may award attorney fees as part of a remand
order.

See 28 U.S.C.

§

1447(c).

"Absent unusual circumstances,

courts may award attorney's fees under

§

1447(c)

only where the

removing party lacked an objectively reasonable basis for seeking
removal."

Martin v.

Franklin Capital Corp.,

546 U.S. 132, 141

(2005) . District courts have broad discretion to determine whether
attorney fees should be awarded. Mints v. Educ. Testing Serv., 99
F.3d 1253, 1257 (3d Cir. 1996). We find that Defendants here lacked

6
Defendants also argue that their correspondence with Plaintiff's
counsel, in which he refuses to stipulate that the Plaintiff will not plead
federal claims, also put them on notice of the federal claims. In the context
of determining the amount in controversy for diversity jurisdiction cases,
courts tend to find a refusal to stipulate that damages were less than $75,000
to be insufficient to establish federal jurisdiction. See Lee v. Walmart,
Inc., 237 F.Supp.2d 577, 580 (E.D. Pa. 2002); Fosbenner v. Wal-Mart Stores,
Inc., Civ. A. No. 01-3358, 2001 U.S. Dist. LEXIS 16695, at *7 (E.D. Pa. Oct.
12, 2001). Indeed, one of the cases cited in Defendant's response to
Plaintiff's Motion to Remand notes that a refusal to stipulate damages may be
insufficient to show federal jurisdiction, and distinguished a situation in
which the plaintiff affirmatively stated the value of the case met the
jurisdictional requirement. Craul, 2012 U.S. Dist. LEXIS 184111, at *13; See
also Minissale, 988 F.Supp.2d at 478 (noting that most district courts in this
circuit have remanded when the only evidence was a plaintiff's refusal to
stipulate the amount in controversy) . Not only would requiring the Plaintiff
to stipulate that she will not in the future bring federal claims against the
Defendants be unfair, it also would shift the burden of showing jurisdiction
is proper from the Defendants to the Plaintiff. Additionally, in his
correspondence with Defendants' cousnel, Plaintiff's attorney unequivocally
states that they have not pled any federal claims. Mr. Berney's response that
there is no need for a stipulation because the complaint does not plead
federal claims is exactly right.

11

an objectively reasonable basis for seeking removal. 7 Accordingly,
we grant Plaintiff's Motion for Attorney Fees and Costs.

IV. Conclusion
For the reasons above, the Court grants Plaintiff's Motion to
Remand,

and awards Plaintiff reasonable attorney fees.

An Order

follows.

\EMT~RED

JUN 2 (b 2016
CLERK OF COURT

7
We agree with the Plaintiff that the timing of the filing of the
Notice of Removal, a day before parties were scheduled to appear before Judge
Rau as she decided whether to impose sanctions against counsel for the
Defendants, is suspect. Nevertheless, it is sufficient for purposes of this
motion that we find no objectively reasonable basis for removal, so we need
not get into the motives of the Defendants.

12