Opinion
3:03-CV-1278 (EBB)
November 24, 2003
RULING ON MOTION TO REMAND
INTRODUCTION
On December 5, 2002, Plaintiff Kenneth Oakes, ("Plaintiff"), filed a one-count Complaint against Roncalli Health Care Management, Inc. And Medway Development Systems, LLC, ("Defendants"). The Complaint was filed in the Superior Court for the Judicial District of New London at New London, Connecticut. Plaintiff's Complaint alleged common law wrongful discharge from employment in violation of public policy, which public policy is alleged to be derived from Connecticut General Statutes Sections 31-49, 31-369, and 31-370. Those statutes are asserted to prohibit employers from exposing employees to a place or condition; that poses an objectively substantial risk of death, disease, or serious bodily injury; in this case, Plaintiff refers to exposure to asbestos. The acronym "OSHA", i.e., the Occupational Safety and Health Act, is twice referenced in the Complaint, but is not cited as a statute from which the public policy at issue derives. On March 17, 2003, Defendants filed an answer and special defense,
On June 25, 2003, Plaintiff moved for permission to amend his Complaint, which motion was granted. The Amended Complaint remains in one-count. It continues to assert a cause of action for discharge of employment in violation of the law of Connecticut, but alleges two more public policies in addition to those statutes noted above: one derived from Connecticut Department of Health Regulations; the second is derived from Connecticut General Statues Sections 10a-176, et seq., and/or from 28 U.S.C. § 1715w. The statutes and Regulations refer to emergency and financial needs of nursing homes, inasmuch as the construction of such a home is the basis for Plaintiff's allegations of additional violations of public policy. The two sole references to OHSA are identical to those in the original Complaint and contain no substantive allegations based on these two cites. The references to HUD, as subsumed in the public policy of Connecticut General Statutes Sections 10a-176 et seq., are in de minimus part and set forth some additional facts, as additional authority for the two additional public policies set forth in the Amended Complaint.
On July 24, 2003, Defendants removed this action to this Court, declaring in the Civil Cover sheet that a federal question provided the basis of jurisdiction, contending that the nature of the suit was "Civil Rights — Employment." It was further claimed that the cause of action was based on the "Occupational Safety and Health Act, 29 U.S.C. § 651, et. seq., the Housing and Urban Development Act of 1987 ("HUD"), 12 U.S.C. § 1715w, and associated HUD regulations."
Plaintiff now moves to remand the litigation back to the State court in which it was commenced.
LEGAL ANALYSIS
I. The Standards of Review
Section 1441(b) of Title 28 provides that a civil action initially: brought in a state court may be removed to federal district court only if the cause of action is founded on a claim or right existing under federal law, or, in any other action, "only if none of the parties . . . served by defendants is a citizen of the State in which the action is brought." See 28 U.S.C. § 1441(b). The removal of the present case presents the inquiry if it was properly removed under federal question jurisdiction.
"When a party removes a state court action to the federal court on the basis of [federal question] jurisdiction, and the party seeding remand challenges the predicate for removal, the burden falls squarely upon the removing party to establish its right to a federal forum by competent proof.'" McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936), cited in R.G. Barry Corporation v. Mushroom Makers, Incorporated, 612 F.2d 651, 655 (2d Cir. 1979) (Defendant's reliance on Lanham Act failed to create federal question jurisdiction where Plaintiff carefully brought State law claims only; case remanded). See also Wilson v. Republic Iron Co., 257 U.S. 92, 97 (1921) (removing defendant "must take and carry the burden of proof, he being the actor in the removal proceeding.").
The time for filing notice of removal in a district court is triggered when the writ of summons or complaint provides adequate notice to the defendant of federal jurisdiction and the removal petition must be filed within thirty days of such notice. Foster v. Mutual: Fire. Marine Inland Ins. Co., 986 P.2d 48, 54 (3rd Cir. 1993). Accord 28 U.S.C. § 1446(b).
II. The Standards As Applied A. OSHA
Initially, the Court agrees with Plaintiff that that part of the Amended Complaint, referring to the identical OSHA regulations in two paragraphs as were found in the Original Complaint, was untimely removed. Firstly, the two citations are not cited as a statute or regulation upon which any public policy is based. Secondly, the first time such two references were alleged was in the Superior Court, in the Original Complaint. Thus, if Defendants determined to file a removal petition, based on claimed questions of federal law pursuant to OSHA, they were required to do so on or before January 7, 2003.
It is beyond cavil that, if any issue concerning OSHA created a federal question, that question existed as of December 5, 2002, the date of service of the Original Complaint. As provided in Section 1446(b), the time for filing a petition of removal is when a defendant "first ascertain[s] that the case is one which is or has become removable." In the present case, Defendants did not file their removal petition, based in significant part pursuant to OSHA, until July 24, 2003. Accordingly, the removal petition asserting federal question jurisdiction based on the OSHA statute was filed in excess of six and one-half months too late. The Motion to Remand is hereby GRANTED as to the citations to OSHA, as such citations also do not form any basis for federal question jurisdiction.
B. HUD
A district court's federal question jurisdiction extends over ". . . only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law," Franchise Tax Board of California v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983), in that "federal law is a necessary element of one of the well-pleaded state claims, or that [the] claim is "really' one of federal law." Id. at 13. The Supreme Court, mostly in the Section 1331 context, as here, established principles for both defining the "well-pleaded . . . claims" and discerning which elements are "necessary" or "essential" to them. Under the well-pleaded complaint rule, whether a claim arises under [federal] law "must be determined from what necessarily appears in plaintiff's statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation or avoidance of defenses which it is thought a defendant may interpose." Christianson v. Colt Industries Operating Corporation, 486 U.S. 800, 809 (1987), citing Franchise Tax Board, 463 U.S. at 10. See also Taylor v. Anderson, 234 U.S. 74, 75-76 (1914); Louisville National R. Co. v. Mottley, 211 U.S. 149 (1908).
It is also well established that the mere presence of a federal issue in a state cause of action does not automatically confer federal question jurisdiction. Merrill Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 813 (1985). See also Textile Workers v. Lincoln Mills, 353 U.S. 448, 470 (1957)(Frankfurter, J., dissenting) (defining inquiry as "the degree to which federal law must be in the forefront of the case and not collateral, peripheral, or remote");Gully v. First National Bank, 299 U.S. 109, 115, 118 (1936)("not every question of federal law emerging in a suit is proof that a federal law is the basis of the suit . . . If we follow the ascent far enough, countless claims of right can be discovered to have their source or their operative limits in the provisions of a federal statute or in the Constitution itself with its circumambient restrictions upon legislative power. To set bounds to the pursuit, the courts have formulated the distinction between controversies that are basic and those that are collateral, between disputes that are necessary and those that are merely possible. We shall be lost in a maze if we put that compass by.").
An application of these well-settled principles must result in a holding that Plaintiff's citation to certain HUD regulations, which relate tangentially to his state-law claims of violations of public policies supported by state statutes and regulations, fails to establish either that said HUD regulations create a federal cause of action or that his right to relief necessarily depends on resolution of a substantial question under the HUD Act. Federal law is collateral and remote to Plaintiff's well-pleaded Amended Complaint, rather than in the requisite forefront. Section 1215w of the HUD Act contains no "necessary" elements of the claim of wrongful discharge from employment in violation of the public policies of the laws and regulations of Connecticut.
Finally, the absence of a private remedy under HUD public policy as set forth in 12 U.S.C. § 1715w further dooms Defendant's right to remove. Cases have held that a private cause of action against HUD should be brought pursuant to the civil rights statute, 42 U.S.C. § 1983, or the Administrative Procedure Act ("APA"), 5 U.S.C. § 701-706. See Wright v. Roanoke Redevelopment Housing Authority, 479 U.S. 418, 424 (1986); Latinos Unidos de Chelsea v. Secretary of Housing, 779 F.2d 774, 793 (1st Cir. 1986). Plaintiff's claims for violation of state law public policies forbidding certain acts of wrongful discharge could not be brought pursuant to a federal civil rights act or the APA. They may be brought, however, under the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship when "the reason for [the employee's] discharge . . . involves impropriety derived from some important violation of a public policy." Parsons v. United Technologies Corp., 243 Conn. 66, 79 (1997) (noting clear public policy that employer must provide safe working environment for at-will employees and is supportive of a private cause of action for wrongful discharge, which is one of the present Plaintiff's allegations.), citing Carbone v. Atlantic Richfield Co., 204 Conn. 460, 470 (1987).
CONCLUSION
Defendants failed to remove the alleged OSHA claim in a timely matter pursuant to Section 1446(b). As to Defendants' HUD claim to federal question jurisdiction, any citation to subsections of the HUD Act in Plaintiff's Amended Complaint are collateral to his well-pleaded cause of action and his right to relief is in no manner dependent on resolution of a substantial question of federal law. Franchise Tax Board, 463 U.S. at 27-28.
Even if Defendants had filed removal papers in a timely manner, this Court would have determined that the two citations were unsupportive of federal question jurisdiction.
Accordingly, Plaintiff's Motion to Remand [Doc. No. 11] is hereby GRWTED and this case is hereby REMANDED TO THE SUPERIOR
SO ORDERED.