Opinion
CASE NO.: 2:08-cv-731-MEF (WO).
June 19, 2009
MEMORANDUM OPINION AND ORDER
This cause is before the Court on the Motion to Remand (Doc. # 5) filed on September 29, 2008 by Annie J. White ("Plaintiff"). On July 30, 2008, Plaintiff filed a lawsuit in the Circuit Court for Montgomery County, Alabama against defendants Osha Security Inc. and Obra Hogan (collectively "Defendants"). Plaintiff's complaint contained eleven counts, including nine state causes of action. Plaintiff also alleged disparate treatment, hostile environment, employment discrimination, and retaliation in violation of 42 U.S.C. § 2000e, et seq ("Title VII") in two separate counts. On September 5, 2008, Defendants removed the action to this Court by invoking this Court's subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a) and § 1441. On September 29, 2008, Plaintiff filed her Motion to Remand (Doc. #5). The Court has carefully considered the applicable law and the arguments in support of and in opposition to the motion to remand. The Court finds that the motion is due to be GRANTED because Defendants' removal was untimely.
FACTUAL AND PROCEDURAL BACKGROUND
A. Introduction
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994); Wymbs v. Republican State Executive Comm. of Fla., 719 F.2d 1072, 1076 (11th Cir. 1983) , cert. denied, 465 U.S. 1103 (1984). As such, federal courts only have the power to hear cases that they have been authorized to hear by the Constitution or the Congress of the United States. Kokkonen, 511 U.S. at 377.When a case is originally filed in state court, a party may remove it if the case originally could have been brought in federal court. See 28 U.S.C. § 1441(a). However, the non-moving party may move for remand, which will be granted if "it appears that the district court lacks subject matter jurisdiction." See 28 U.S.C. § 1447(c). Because removal jurisdiction raises significant federalism concerns, "removal statutes are construed narrowly; where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand." Burns, 31 F.3d at 1095. When a case is removed from state court, the burden is on the party who removed the action to prove federal-court jurisdiction. Id.
i. Diversity Jurisdiction
Two kinds of cases are removable to federal court. In the first instance, a federal district court may exercise subject matter jurisdiction in suits where only state law claims are alleged if the civil action arises under the federal court's diversity jurisdiction. See 28 U.S.C. § 1332(a). The diversity statute confers jurisdiction on the federal courts in civil actions "between citizens of different states," in which the jurisdictional amount, currently in excess of $75,000, is met. Id.
ii. Federal Question Jurisdiction
A civil action filed in a state court may also be removed to federal court if the claim is one "arising under" federal law. Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003). In order to determine whether a complaint "arises under" federal law, a court must examine the "well pleaded" allegations of the complaint and ignore potential defenses. Id. A suit arises under the Constitution and laws of the United States only when the plaintiff's statement of her own cause of action shows that it is based upon federal law or the Constitution. Id. As a general rule, a case is removable if the complaint affirmatively alleges a federal claim. Id.; See also Pacheco de Perez v. AT T Co., 139 F.3d 1368 (11th Cir. 1998) (stating that a case "arises under" federal law, as required for federal question jurisdiction, if federal law creates the cause of action).
B. Timeliness
Federal law limits the period in which a defendant may exercise his removal right from state to federal court.
The notice of removal of a civil action or proceeding 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) (emphasis added). Given that removal statutes must be construed narrowly, § 1446's time requirement is mandatory and must be strictly applied; "[t]imely objection to a late petition for removal will therefore result in remand." Webster v. Dow United Techs. Composite Prods., Inc., 925 F. Supp. 727, 729 (M.D. Ala. 1996) (citations omitted) (remanding case removed more than thirty days after complaint filed and more than thirty days after plaintiff written responses to discovery revealed basis for federal jurisdiction). Accord, Clingan v. Celtic Life Ins. Co., 244 F. Supp. 2d 1298, 1302-03 (M.D. Ala. 2003) (granting motion to remand because defendant failed to remove case within thirty days of receipt of complaint from which it could have ascertained case was removable). Thus, the relevant inquiry is when the removing defendant could have first "intelligently ascertained" that the case was removable. See, e.g., Clingan, 244 F. Supp. 2d at 1302; Webster, 925 F. Supp. at 729.
C. Present Action
In seeking remand, Plaintiff contends that Defendants did not timely remove this case to federal court. Defendants argue that the jurisdictional amount was not readily discernable on the face of the complaint and that it removed the case within thirty days of first becoming aware that the requisite amount in controversy was met for diversity jurisdiction. Defendants ignore that federal question jurisdiction existed on the face of the complaint. As the party bearing the burden of proving federal jurisdiction, Defendants have the task of proving to the Court that the removal was timely. See, e.g., Clingan, 244 F. Supp. 2d at 1302. The Court concludes that the Defendants did not timely remove the present action.
The notice of removal of a civil action must be filed within thirty days after the defendant receives a copy of the initial pleading setting forth the claim for relief upon which such action is based. See 28 U.S.C. § 1446(b). Defendants were served with Plaintiff's complaint on July 10, 2008. Plaintiff complaint contained two counts of Title VII claims, which each state a basis for federal question jurisdiction. As previously explained, 28 U.S.C. § 1441(b) provides removal jurisdiction for "any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States." Here, Plaintiff affirmatively alleged several federal claims under Title VII. Accordingly, Defendants had a clear basis to remove this action upon service of the complaint. Even if this Court accepted Defendants' argument that the initial pleading in this case was not one from which the Defendants could have intelligently ascertained that the jurisdictional amount was met, the case was still removable under federal question jurisdiction. Therefore, when Defendant removed the action on September 5, 2008, it did so outside the thirty days prescribed by 28 U.S.C. § 1446.
D. Conclusion
Mindful of the clear Eleventh Circuit precedent mandating remand of removed cases where compliance with the procedural requirements for removal is not absolutely clear, the Court finds that the removal of this case from the Circuit Court of Montgomery County, Alabama was not timely for the reasons explained in this Memorandum Opinion and Order. Accordingly, the case must be remanded.
CONCLUSION
For the reasons discussed in this Memorandum Opinion and Order, it is hereby ORDERED as follows:
(1) Plaintiff's Motion to Remand (Doc. # 5) is GRANTED.
(2) This case is REMANDED to the Circuit Court of Montgomery County, Alabama.
(3) The Clerk is DIRECTED to take appropriate steps to effect the remand.
(4) Any other pending motions are left for resolution by the Circuit Court of Montgomery County, Alabama.A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST 1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4 Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , , (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).