Opinion
HHDCV116027112S
01-10-2017
Luke Weinstein v. University of Connecticut et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
ROBERT B. SHAPIRO, JUDGE
Following the remand of this matter from the United States District Court, this court heard argument at short calendar on November 7, 2016 concerning the defendants' motion to dismiss. (#137.) At oral argument, the court requested briefs as to whether the plaintiff's amended complaint (#103) is the operative complaint in this matter. Pursuant to a briefing schedule, the parties filed memoranda of law addressing the issue. The motion to dismiss was marked off.
Briefs were filed on December 9, 2016. After considering the parties' arguments as to the issue of which complaint is operative, the court issues this memorandum of decision.
I
Background
The return date in this matter was December 20, 2011. In the plaintiff's complaint, dated November 8, 2011, four counts were set forth: Count One, violation of General Statutes § 31-51q; Count Two, violation of General Statutes § 31-51m; Count Three, violation of the First Amendment pursuant to 42 U.S.C. § 1983; and Count Four, intentional interference with advantageous business relationship. By notice of removal dated December 9, 2011, the defendants removed this matter to the United States District Court. (#102.)
In the federal court, the defendants, University of Connecticut and Dean Christopher Barley filed a motion for summary judgment which was granted in part and denied in part. See Weinstein v. University of Connecticut, 136 F.Supp.3d 221, 226-27 (D.Conn., January 22, 2016) (decision). Therein, the court declined to exercise supplemental jurisdiction over the plaintiff's remaining state law claims, which were dismissed without prejudice. See id., 235. In addition, the court stated that the state law claims " are hereby remanded to state court." (Footnote omitted.) Id. That court's judgment, dated January 26, 2016, page 2, stated that, " The case is remanded to state court as to the remaining state law claims."
Subsequently, on February 4, 2016, the plaintiff moved for reconsideration, in the United States District Court, as to the decision granting the defendants' motion for summary judgment on Count Three of the plaintiff's complaint, which alleged First Amendment retaliation against defendant Earley.
In this court, on February 16, 2016, the plaintiff filed a request to amend the complaint (#103). This court's docket reflects a notice of remand from the federal court, dated May 3, 2016. See #106.
Additional references to the procedural background are set forth below.
II
Discussion
The defendants contend that the plaintiff's February 16, 2016 request to amend the complaint (#103), was a nullity, since it was filed before the United States District Court's notice of remand dated May 3, 2016. The plaintiff argues that the federal court (Eginton, Senior United States District Judge) remanded the plaintiff's state law claims back to this court in its decision, in which it declined supplemental jurisdiction over the plaintiff's state law claims. See decision, 136 F.Supp.3d 235.
As the Appellate Court has explained, " [t]he federal removal statute, 28 U.S.C. § 1446(d), provides that, upon removal, 'the State court shall proceed no further unless and until the case is remanded.' When however a certified copy of a remand to state court is mailed to the state court clerk, 28 U.S.C. § 1447(c) authorizes the state court to proceed again with the case." (Footnote omitted.) Massad v. Greaves, 116 Conn.App. 672, 678, 977 A.2d 662 (2009).
28 U.S.C. § 1447(c) provides, " A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case ." (Emphasis added.)
Section 28 U.S.C. § 1446(d)'s language " has consistently been construed, by both federal and state courts, to require that a remand by the federal court actually occur before the state court may properly proceed." LoSacco v. Serra, Superior Court, judicial district of Middlesex at Middletown, Docket No. 073177 (June 16, 1995, Stanley, J.) (14 Conn.L.Rptr. 390, ).
" The general rule is that a district court loses jurisdiction over a case once it has completed the remand by sending a certified copy of the remand order to the state court . . . This view is premised on both the language of § 1447(c) and (d) and the need to establish a determinable jurisdictional event after which the state court can exercise control over the case without fear of further federal interference. The district court is also barred from reconsidering its decision if the remand was under § 1447(c) and the case thereby falls under the bar of § 1447(d) . . . But the physical mailing of the certified copy is the key jurisdictional event to divest the district court of jurisdiction because a removal order is not self-executing ." (Citations omitted; emphasis added.) Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 225 (3d Cir. 1995).
28 U.S.C. § 1447(d) provides, " An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise."
Where, as here, the district court's remand was a discretionary decision to decline supplemental jurisdiction under 28 U.S.C. § 1367(c), and not based on a motion for a remand under § 28 U.S.C. 1447(c), the district court had jurisdiction to reconsider the order of remand until the district court " sent a certified copy of the remand order to the state court . . ." Trans Penn Wax Corp. v. McCandless, supra, 50 F.3d 227.
28 U.S.C. § 1367(c) provides, " The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if-(1) the claim raises a novel or complex issue of State law; (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction; (3) the district court has dismissed all claims over which it has original jurisdiction; or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction."
In this context, the plaintiff's reliance on Insurance Co. of Pennsylvania v. Waterfield, 102 Conn.App. 277, 282-83, 925 A.2d 451 (2007), is unpersuasive. There, the court simply noted that " the case was remanded to the state court." Id., 279. The discussion there did not deal with notice of the remand.
Here, as explained above, on February 4, 2016, the plaintiff moved for reconsideration, in the United States District Court, as to Judge Eginton's decision granting the defendants' motion for summary judgment on Count Three of the plaintiff's complaint, which alleged First Amendment retaliation against defendant Earley. While that motion was pending in the federal court, the plaintiff also filed his request to amend his complaint in this court. On February 24, 2016, Judge Eginton granted the plaintiff's motion for reconsideration, but adhered to the previous decision. The notice of remand was not issued until May 3, 2016.
The United States District Court had jurisdiction over this matter until sending the notice of remand to the clerk of this court. Prior thereto, it was empowered to reconsider its entire decision, not just its ruling as to the Third Count, as sought by the plaintiff. Until the remand notice was sent to the clerk of this court, this court was not authorized to proceed further. Thus, the plaintiff's February 16, 2016 request to amend, which was filed here while the case was still pending in the federal court, was a nullity. The amended complaint did not become the operative complaint.
CONCLUSION
For the reasons stated above, the court concludes that the original complaint, dated November 8, 2011, is the operative complaint. The motion to dismiss may be re-claimed for argument at the short calendar.
It is so ordered.