Opinion
No. 1:22-cv-02433-JMS-TAB
2023-03-07
Taliyah BROOKS, Plaintiff, v. USA TRACK & FIELD, INC., Defendant.
Adam R. Doerr, William Bock, III, Cass Elaine Lawson, Kroger Gardis & Regas, Indianapolis, IN, for Plaintiff. April M. Jay, Zachary Tohen, Jeffrey D. Hawkins, John B. Drummy, Kightlinger & Gray, LLP, Indianapolis, IN, Brett T. Clayton, Trenton W. Gill, Joseph A. Zumpano, III, Reminger Co. LPA, Indianapolis, IN, for Defendant.
Adam R. Doerr, William Bock, III, Cass Elaine Lawson, Kroger Gardis & Regas, Indianapolis, IN, for Plaintiff. April M. Jay, Zachary Tohen, Jeffrey D. Hawkins, John B. Drummy, Kightlinger & Gray, LLP, Indianapolis, IN, Brett T. Clayton, Trenton W. Gill, Joseph A. Zumpano, III, Reminger Co. LPA, Indianapolis, IN, for Defendant. ORDER Jane Magnus-Stinson, Judge
Plaintiff Taliyah Brooks seeks injunctive and declaratory relief against Defendant USA Track & Field, Inc. ("USATF") regarding the enforceability of a USATF Waiver and Release of Liability, Assumption of Risk and Indemnity Agreement (the "Waiver") that she signed before competing in a track event. [Filing No. 1-5.] Ms. Brooks initially filed suit in the Marion Superior Court, [Filing No. 1-5], and USATF subsequently removed the case to this Court, [Filing No. 1]. Ms. Brooks has filed a Motion to Remand and for Payment of Just Costs, Expenses and Fees of Improvident Removal, which is ripe for the Court's review. [Filing No. 25.]
Additionally, USATF has filed a Motion for Leave to File a Surreply, [Filing No. 32], and Ms. Brooks has filed a Motion for Leave to Respond to Defendant's Surreply, [Filing No. 36]. Both Motions are GRANTED to the extent that Court will only consider USATF's Surreply and Ms. Brooks' Response as appropriate pursuant to the applicable Seventh Circuit authority and the Local Rules of the Southern District of Indiana. See, e.g., Meraz-Camacho v. United States, 417 F. App'x 558, 559 (7th Cir. 2011); Gates v. City of Chicago, 623 F.3d 389, 413 (7th Cir. 2010). Any inappropriate or extraneous material advanced in either will not be considered.
I.
STANDARD OF REVIEW
The federal district courts are courts of limited jurisdiction. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005). Federal courts have original jurisdiction over cases arising under federal law and over cases between citizens of different States where the amount in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. § 1331; 28 U.S.C. § 1332. A defendant may remove a case from state court to a federal district court if the district court has original jurisdiction over the matter. 28 U.S.C. § 1441. "[F]ederal courts should interpret the removal statute narrowly, resolving any doubt in favor of the plaintiff's choice of forum in state court." Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009). Accordingly, "[t]he party seeking removal bears the burden of proving the propriety of removal." Morris v. Nuzzo, 718 F.3d 660, 668 (7th Cir. 2013).
II.
BACKGROUND
The following factual allegations are set forth in Ms. Brooks' Complaint, [Filing No. 1-5], which the Court accepts as true for purposes of this Order.
USATF is a corporation that is incorporated in Virginia and has its principal place of business in Indianapolis, Indiana. [Filing No. 1-5 at 2.] USATF is the recognized national governing body for track and field athletics in the United States as authorized by the US Olympic and Paralympic Committee (the "USOPC") pursuant to the Ted Stevens Olympic and Amateur Sports Act (the "Sports Act"), 36 U.S.C. § 220501 et seq. [Filing No. 1-5 at 3-4.] Under the Sports Act, the USOPC can select organizations, such as USATF, to function as the governing body for a sport. 36 U.S.C. § 220512.
Ms. Brooks is an individual and a citizen of Arkansas. [Filing No. 1-5 at 1.] Ms. Brooks is a decorated track and field athlete, who has been recognized as a National Champion in the indoor pentathlon, a twelve-time All-American, and a three-time Southeastern Conference Champion. [Filing No. 1-5 at 2.] Ms. Brooks is also an athlete member of USATF. [Filing No. 1-5 at 17.]
During the relevant period, Ms. Brooks competed in the women's heptathlon - a combined event consisting of seven contests over two days, including the 100-meter hurdles, high jump, shot put, 200-meter dash, long jump, javelin throw, and 800-meter sprint. [Filing No. 1-2 at 2; Filing No. 1-2 at 21.] The heptathlon portion of the 2021 Olympic Trials took place on June 26-27, 2021 in Eugene, Oregon. [Filing No. 1-5 at 20.] As the Olympic Trials were about to begin, the Pacific Northwest was hit with a "record heatwave." [Filing No. 1-5 at 20.] Despite requests from athletes, the heptathlon schedule remained as originally scheduled. [Filing No. 1-5 at 21.] Because of the extreme heat, Ms. Brooks collapsed twice, the second time onto the surface of the track, where she remained "unconscious, motionless and unattended." [Filing No. 1-5 at 26.] In response to Ms. Brooks' collapse, USATF suspended all track and field events until later in the day. [Filing No. 1-5 at 29.]
Following the events that occurred at the Olympic Trials, Ms. Brooks sought to recover from USATF for her injury. She received a letter from USATF's insurer, Philadelphia Insurance Companies ("PIC"), which stated that PIC conducted an "investigation of your incident which occurred on June 27, 2021," which "found that this incident did not occur due to any negligence on the part" of USATF. [Filing No. 1-5 at 33.] Additionally, the letter from PIC claimed that Ms. Brooks had signed the Waiver as part of her registration packet for the Olympic Trials. [Filing No. 1-5 at 33.]
On November 29, 2022, Ms. Brooks filed this case in Marion Superior Court as Taliyah Brooks v. USA Track & Field, Inc., Cause No. 49D12-2211-PL-041124, seeking a declaratory judgment regarding the enforceability of the Waiver and an injunction prohibiting USATF from enforcing the Waiver against her in relation to any claim of negligence arising from the Olympic Trials. [Filing No. 1-5 at 39-40.]
III.
DISCUSSION
A. Removal Procedure
Removal is governed by two different 30-day windows. First, a state-court defendant has 30 days to remove an action to federal court from receipt of the complaint or "other paper" that clarifies that the case has become removable. 28 U.S.C. § 1446(b). The removing party bears the burden of establishing the Court's jurisdiction and must file a notice of removal containing a short and plain statement of the grounds for removal. 28 U.S.C. § 1446(a); Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 81, 135 S.Ct. 547, 190 L.Ed.2d 495 (2014) (observing that the Removal Statute "tracks the general pleading requirement"). Before the 30-day period for removal expires, a removing defendant may freely amend its notice of removal. See 28 U.S.C. § 1653. However, once the 30-day removal period has passed, a removing defendant may not add new or different grounds for federal jurisdiction. Samori v. Ralphs Grocery Co., 2021 WL 1212798, at *4 (N.D. Ill. Mar. 31, 2021); 14C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3733 (rev. 4th ed. 2020). Accordingly, "if a removal notice invokes one ground, like federal-question jurisdiction, after the 30-day period expires, the removing defendant may not switch gears and invoke diversity jurisdiction." Samori, 2021 WL 1212798, at *4.
Once in federal court, a second 30-day window begins for the plaintiff to seek remand based upon any non-jurisdictional defects in the removal procedure. 28 U.S.C. § 1447(c). A procedural defect is an error that "does not go to the question of whether the case originally could have been brought in federal district court." Rodas v. Seidlin, 656 F.3d 610, 623 (7th Cir. 2011). One such procedural defect is the forum defendant rule, which precludes removal of a case to federal court based on diversity jurisdiction if at least one of the defendants is a citizen of the state where the action was filed. 28 U.S.C. § 1441(b). Because the forum defendant rule is procedural in nature rather than jurisdictional, a party waives the ability to seek remand based on the forum defendant rule by not seeking remand on that basis within 30 days after the filing of the notice of removal. In re Repository Techs., Inc., 601 F.3d 710, 722 (7th Cir. 2010) (citing Hurley v. Motor Coach Indus. Inc., 222 F.3d 377, 379-80 (7th Cir. 2000)); see also Matter of Cont'l Cas. Co., 29 F.3d 292, 294 (7th Cir. 1994) ("Procedural defects in removal are in this respect similar to the lack of personal jurisdiction and other shortcomings that may be waived or forfeited").
At times, the parties have conflated a lack of subject matter jurisdiction as a procedural defect. The Court reiterates that subject matter jurisdiction goes to the heart of the Court's "adjudicative authority," and the Court cannot resolve a dispute without it. Kontrick v. Ryan, 540 U.S. 443, 454-455, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). Unlike a procedural defect, subject matter jurisdiction can never be waived or forfeited. Gonzalez v. Thaler, 565 U.S. 134, 141, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012) ("The objections may be resurrected at any point in the litigation, and a valid objection may lead a court midway through briefing to dismiss a complaint in its entirety").
B. USATF's Notice of Removal
USATF removed the case to this Court on December 20, 2022. [Filing No. 1.] In its Notice of Removal, USATF states "[a] defendant may remove any civil action filed in state court over which federal district courts have original jurisdiction." [Filing No. 1.] It further alleges that Ms. Brooks claims that the Waiver violates the Sports Act and, thus, "this case will necessarily involve interpretation" of the Sports Act and "a federal question appears on the face of [Ms. Brooks'] Complaint." [Filing No. 1 at 2.] Additionally, USATF alleges that both the Sports Act and the bylaws of the USOPC and USATF require that "any dispute be resolved through arbitration rather than litigation," under the Federal Arbitration Act, 9 U.S.C § 1 et. seq., and, therefore, the Court has jurisdiction pursuant to the Federal Arbitration Act. [Filing No. 1 at 2.] Finally, USATF argues that the Court has "supplemental jurisdiction over [Ms. Brooks'] state law claims pursuant to 28 U.S.C. § 1367, because the [Ms. Brooks'] allegations arise from and are part of the same case or controversy as the federal question." [Filing No. 1 at 3.] The Notice also contains a reference to 28 U.S.C. § 1332. [Filing No. 1 at 1.] The Civil Cover Sheet indicates federal question jurisdiction as the basis for jurisdiction. [Filing No. 1-6 at 1.]
C. Ms. Brooks' Motion to Remand
1. Federal question jurisdiction.
On November 29, 2022, Ms. Brooks filed a Motion to Remand. [Filing No. 25.] In support of her Motion to Remand, Ms. Brooks argues that the "sole ground" articulated by USATF for removal is federal question jurisdiction, but her claims arise solely under state law. [Filing No. 25 at 1.] Specifically, Ms. Brooks argues that she seeks declaratory and injunctive relief because the Waiver is unenforceable as a matter of Indiana contract law. [Filing No. 25 at 3.] Ms. Brooks argues that while her Complaint mentions the obligations that USATF has under the Sports Act, the Sports Act is mentioned purely for "background and context" for her state law claims. [Filing No. 25 at 5.] Ms. Brooks further argues that because her Complaint does not implicate the meaning of the Sports Act, there is no substantial federal question in this case. [Filing No. 25 at 4.] To the extent that USATF intends to rely upon the Sports Act as a defense, Ms. Brooks argues that a defense cannot create federal question jurisdiction. [Filing No. 25 at 5-6.] In any event, Ms. Brooks argues that USATF's argument that the Sports Act requires arbitration in all disputes is not "supported by any citation" and is contrary to "numerous District Court decisions." [Filing No. 25 at 6-11.]
USATF did allege the existence of a federal question in accordance with the relevant pleading standards, so the Court can evaluate if Ms. Brooks' Complaint arises under federal law. [See Filing No. 1.] That said, USATF did not respond to Ms. Brooks' arguments in support of remand regarding federal question jurisdiction. [See Filing No. 28.] The Seventh Circuit has explained that a party forfeits an argument by failing to present the argument before the Court. See Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011). Accordingly, the Court considers USATF's arguments in opposition to remand related to federal question jurisdiction to be waived. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) ("Failure to respond to an argument . . . results in waiver."); United States v. Turcotte, 405 F.3d 515, 536 (7th Cir. 2005) ("unsupported andundeveloped arguments are waived"). However, because the Court prefers to resolve motions on the merits, the Court will address the applicability of federal question jurisdiction to the case at hand.
As discussed above, federal courts have original jurisdiction over cases arising under federal law. 28 U.S.C. § 1331. Under the Grable doctrine, "federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress." Gunn v. Minton, 568 U.S. 251, 257-58, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013) (citing Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 313-14, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005)). However, the case law is clear that the type of case that confers federal jurisdiction under the Grable doctrine is limited to a "special and small category" of state law claims. Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 699-701, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006) (cleaned up). In practice, "[f]ederal jurisdiction is rarely established on this basis." Webb v. Fin. Indus. Regul. Auth., Inc., 889 F.3d 853, 860 (7th Cir. 2018) (noting that for a state law claim to arise under federal law, "an issue of federal law must be the 'cornerstone' of the plaintiff's complaint"). In order for a federal question to be "necessarily raised," the federal question "must appear on the face of the complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 399, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Moreover, the resolution of the federal issue must be dispositive. Chicago Trib. Co. v. Bd. of Trustees of Univ. of Illinois, 680 F.3d 1001, 1004 (7th Cir. 2012).
Despite USATF's argument to the contrary, Ms. Brooks does not seek declaratory relief that the Waiver is violative of the Sports Act. Instead, Ms. Brooks seeks declaratory and injunctive relief that the Waiver is invalid as a matter of Indiana contract law. [Filing No. 1-5 at 39-41.] While Ms. Brooks alleges that USATF's conduct fell short of its obligations under the Sports Act, the Sports Act is not the source of Ms. Brooks' claims. [Filing No. 1-5 at 9-19.] Accordingly, the application of the Waiver does not turn on the interpretation of the Sports Act and is not dispositive to Ms. Brooks' claims. Chicago Trib. Co., 680 F.3d at 1004. Ms. Brooks' Complaint does not contain a federal cause of action or an embedded federal question. Accordingly, the Court finds that Ms. Brooks' claims do not present a substantial federal question and do not fall within the Court's federal question jurisdiction.
2. Diversity Jurisdiction.
In an apparent attempt to salvage its faulty federal question removal, USATF claims for the first time in its Response to the Motion to Remand that it also sought removal on the basis of diversity jurisdiction. [Filing No. 28.] USATF claims that its Notice of Removal meets the requisite pleading standard, among other reasons, because it separately filed a mandatory Rule 7.1 Disclosure Statement. [Filing No. 28 at 3.] Additionally, USATF requests that the Court divine its intention to invoke diversity jurisdiction because it incorporated Ms. Brooks' Complaint by reference, and the Complaint "provides the necessary information to establish" diversity. [Filing No. 28 at 2.]
Ms. Brooks replies that USATF's Notice of Removal falls short for several reasons, including: (1) never mentioning the term "diversity jurisdiction"; (2) failing to set forth any facts related to the diversity of the parties as required by Local Rule 81-1; (3) focusing entirely on the existence of a federal question; and (4) solely indicating on its Civil Cover Sheet that the basis for the Court's jurisdiction is federal question jurisdiction. [Filing No. 29 at 3-5.] Ms. Brooks concedes that USATF did include a citation to 28 U.S.C § 1332 in its Notice of Removal but argues that the body of USATF's Notice of Removal makes clear that "the reference to 28 U.S.C. § 1332 in the Notice of Removal was a typographical error only and could only have been intended to refer to 28 U.S.C. § 1331." [Filing No. 29 at 5.] Even if USATF intended to allege diversity jurisdiction, Ms. Brooks argues that USATF is barred from seeking removal based on diversity jurisdiction because USATF is a citizen of the state where the action was brought. [Filing No. 29 at 2-3.]
In its surreply, USATF argues that its Civil Cover Sheet alleges both diversity and federal question jurisdiction for two reasons: (1) it listed the citizenship of the parties on the Civil Cover Sheet; and (2) it was only permitted to select one checkbox indicating the jurisdictional basis for removal and federal question jurisdiction is given priority so, therefore, it could not have selected both the box for federal question and the box for diversity jurisdiction. [Filing No. 32-1 at 2-3.] Going on the offensive, USATF argues that "the presence of a diverse but instate defendant in a removed action is a procedural defect, not a jurisdictional bar," and Ms. Brooks has waived any objections based on procedural defects by not seeking remand on this basis within 30 days of removal. [Filing No. 32-1 at 2-3-4.] Additionally, USATF reiterates its argument that it has sufficiently set forth the necessary allegations to establish diversity jurisdiction by incorporating Ms. Brooks' Complaint by reference in its Notice of Removal and through its Rule 7.1 Disclosure Statement. [Filing No. 32-1 at 3-5.]
Ms. Brooks was permitted to respond to the surreply, and the Court considers her argument in opposition to USATF's waiver argument on the forum defendant rule to be appropriately preserved.
a. Pleading standards for removal
As discussed above, a notice of removal must contain a short plain statement setting forth the grounds for removal. Dart Cherokee Basin Operating Co., 574 U.S. at 81, 135 S.Ct. 547; Betzner v. Boeing Co., 910 F.3d 1010, 1014 (7th Cir. 2018). Additionally, the Local Rules for the Southern District of Indiana require that every notice of removal based on diversity jurisdiction include: (1) a statement that the amount in controversy satisfies the jurisdictional requirement; and (2) the citizenship of each party." S.D. Ind. L. R. 81-1(a).
The record here establishes that USATF's Notice falls well below these pleading standards. The notice of removal explicitly invokes federal question jurisdiction. [Filing No. 1 at 1.] The only mention of diversity jurisdiction comes from a single passing citation to 28 U.S.C. § 1332, which appears to be a typographical error. [Filing No. 1 at 1.] This impression is further compounded by the fact that: (1) USATF fails to sets forth the citizenship of the parties; (2) USATF never mentions any allegations related to the amount in controversy; and (3) USATF alleges that the Court has "supplemental jurisdiction over [Ms. Brooks'] state law claims pursuant to 28 U.S.C. § 1367, because [Ms. Brooks'] allegations arise from and are part of the same case or controversy as the federal question" (emphasis added). [Filing No. 1 at 2-4.]
Supplemental jurisdiction is only implicated in cases in which federal question, but not diversity, jurisdiction exists. Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381, 387, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998) (quoting 28 U.S.C. § 1367(a)) ("Supplemental jurisdiction allows federal courts to hear and decide state-law claims along with federal-law claims when they 'are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy.' ")
With respect to USATF's argument that its Rule 7.1 Disclosure Statement preserved a diversity jurisdiction basis for removal, the Federal Rules of Civil Procedure are clear that the Rule 7.1 Disclosure Statement "does not relieve a party that asserts diversity jurisdiction" of its pleading obligations. Fed. R. Civ. P. 7.1 advisory committee's note (2022). More fundamentally, USATF did not file its Rule 7.1 Disclosure Statement until after the 30-day removal window closed and after Ms. Brooks had already moved for remand. [Filing No. 25; Filing No. 27.]
USATF's arguments concerning the incorporation by reference of Ms. Brooks' Complaint fare no better. USATF failed to set forth, in its initial Notice of Removal, the allegedly already-then-existing jurisdictional and removal allegations necessary to support diversity jurisdiction. [See Filing No. 1.] And simply stating "Plaintiff's Complaint is attached hereto and incorporated herein as 'Exhibit B' " fails to meet the pleading standard for notices of removal and is insufficient to invoke the Court's diversity jurisdiction.
b. Waiver of arguments not raised in the Motion to Remand
USATF argues in its surreply that Ms. Brooks failed to raise the forum defendant rule in her original motion to remand. [Filing No. 32-1 at 3.] Ms. Brooks, of course, counters that because diversity jurisdiction was not invoked, there was no reason for her to assert the forum defendant rule. [Filing No. 36-1 at 3-6.] It is undisputed that Ms. Brooks is an Arkansas citizen, that USATF is a citizen of Indiana and Virginia, and that the amount in controversy exceeds $75,000, exclusive of interest and costs. [See Filing No. 28; Filing No. 29; Filing No. 32-1.] At first glance, this case might seem to fall within the purview of the Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332. However, Ms. Brooks filed her state law claims in the state courts of Indiana, which is one of USATF's home states. [Filing No. 1-3.] Accordingly, USATF was subject to the forum defendant rule and could not remove Ms. Brooks' Complaint based on diversity jurisdiction. 28 U.S.C. § 1441(b)(2). Had USATF removed based on diversity jurisdiction, Ms. Brooks would have only 30 days to seek remand under the forum defendant rule or waive her ability to do so. 28 U.S.C. § 1447(c).
However, as noted above, USATF did not remove based on diversity jurisdiction. Accordingly, the Court finds that Ms. Brooks did not waive her ability to seek remand based upon the forum defendant rule. While this is an unusual circumstance, it is not wholly without precedent. When confronted with similar circumstances, courts have found that the non-removing party's 30-day clock for challenging removal based on procedural defects began when they first learned of the newly asserted and procedurally defective grounds for removal. Caggiano v. Pfizer, Inc., 384 F. Supp. 2d 689, 692 (S.D.N.Y. 2005) (tolling the period to assert the forum defendant rule until diversity jurisdiction was initially asserted); see also Shkolnik v. Citimortgage, Inc., 2011 WL 6001138, at *2 (C.D. Cal. Dec. 1, 2011) (tolling the 30-day deadline where non-consenting defendants were not informed of removal and reasonably believed that all parties consented to remand); Olson v. Lui, 2011 WL 5330445, at *6 (D. Haw. Nov. 4, 2011) (noting that the 30-day deadline is "not absolute" and tolling the deadline where plaintiffs were not on notice of removal); Nipponkos Ins. Co. v. Globe-Ground Servs., Inc., 2006 WL 2861126, at *4 (N.D. Ill. Sept. 28, 2006) (noting that plaintiff could not have asserted forum defendant rule where defendant misstated their citizenship).
The Court agrees with Ms. Brooks that USATF's argument that she waived her right to seek remand based on the forum defendant rule is disingenuous given USATF's failure to invoke diversity jurisdiction. The Court declines to endorse "bait-and-switch" style removal tactics by permitting a suit to proceed on diversity jurisdiction, which could not have been removed on that basis in the first instance and where a plaintiff had no opportunity to object to removal. Otherwise, an in-state defendant hoping to avoid the forum defendant rule would simply do as USATF did here — remove on a different jurisdictional basis, wait for 30 days, and then clarify the jurisdictional basis as diversity. In addition to being unfair and contrary to the notice pleading standards for removal, this would undermine the home-state-defendant exception to diversity removal.
Therefore, the Court finds that Ms. Brooks had no responsibility to invoke the forum defendant rule in her initial motion to remand. Alternatively, the Court finds that her window to seek remand based on the forum defendant rule began running not when the case was removed on another basis, but when she became aware of diversity jurisdiction was being asserted in USATF's response to the motion to remand as an alternative basis for removal. Accordingly, the Court finds the forum defendant rule is applicable, and it cannot exercise diversity jurisdiction over Ms. Brooks' claims. 28 U.S.C. § 1447(c).
For the aforementioned reasons, Ms. Brooks' Motion to Remand is GRANTED and this case is remanded to Marion Superior Court. 28 U.S.C. § 1447(c).
D. Ms. Brooks' Request for Attorneys' Fees and Expenses
Ms. Brooks seeks Attorneys' Fees and Expenses for the cost of filing her remand motion. USATF argues that Ms. Brooks is not entitled to attorneys' fees and costs because it had an objectively reasonable basis for seeking removal under federal question jurisdiction based upon Ms. Brooks "dedicat[ing] over 13 paragraphs of her Complaint" to the Sports Act and her allegations that USATF was not "following[ ] its own rules." [Filing No. 28 at 6-8.]
"An order remanding a removed case to state court 'may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.' " Martin v. Franklin Cap. Corp., 546 U.S. 132, 134, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005) (quoting 28 U.S.C. § 1447(c)). The Seventh Circuit has explained that if, at the time of removal, "clearly established law demonstrated that [the defendant] had no basis for removal, then a district court should award a plaintiff [her] attorneys' fees. By contrast, if clearly established law did not foreclose a defendant's basis for removal, then a district court should not award attorneys' fees." Wolf v. Kennelly, 574 F.3d 406, 412 (7th Cir. 2009) (quoting Lott v. Pfizer, Inc., 492 F.3d 789, 793 (7th Cir. 2007)). Accordingly, "sanctions may be awarded when removal is clearly improper, but not necessarily frivolous." Jackson County Bank v. DuSablon, 915 F.3d 422, 424 (7th Cir. 2019) (cleaned up).
The Court finds that USATF lacked an objectively reasonable basis for removal. First, USATF incorrectly argued that a federal question appeared on the face of Ms. Brooks' Complaint because it claimed that she alleged that the Waiver violated the Sports Act. However, Ms. Brooks made no such assertion. Moreover, clearly established law foreclosed federal question jurisdiction. Seemingly conceding the lack of federal question jurisdiction, USATF then attempted a jurisdictional volte-face to claim not only the existence of diversity jurisdiction but also to mispresent that it had already alleged diversity jurisdiction. However, USATF did not remove on this basis and could not have done so in the first place.
Accordingly, Ms. Brooks' request for fees and expenses is GRANTED. The Court concludes by noting that USATF's removal strategy has resulted in an unnecessary and protracted waste of this Court's and Ms. Brooks' time. Going forward, the Court encourages USATF to properly identify and clearly articulate its jurisdictional basis during removal.
IV.
CONCLUSION
For the foregoing reasons, Ms. Brooks' Motion to Remand, [25], is GRANTED, and her claims are REMANDED to the Marion Superior Court. The Court requests that the Magistrate Judge confer with the parties in an effort to resolve the issue of attorneys' fees as ordered herein and, if no agreement can be reached, to establish a briefing schedule. The Court retains jurisdiction to resolve the fee issue, but the case should be immediately remanded back to the Marion Superior Court.