Summary
awarding fees in case where removability question was "not sufficiently close"
Summary of this case from Fathergill v. RouleauOpinion
Civil Action No. 3:01-CV-1887-D
December 5, 2001
ORDER
Defendants removed this case based on federal question jurisdiction, contending that plaintiff had alleged claims under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., and 42 U.S.C. § 1983. Plaintiff moves to remand and for costs. The court grants the motion.
Defendants filed their notice of removal before plaintiff filed his first amended original petition in state court. The court therefore decides the removal question based on plaintiffs original state court petition. Considering that pleading, it is clear that plaintiff does not allege federal question claims — that is, claims that "arise under" federal law.
This court's federal question jurisdiction is determined by the well-pleaded complaint rule, which holds that "[r]emoval is not possible unless the plaintiff's `Well pleaded complaint' raises issues of federal law sufficient to support federal question jurisdiction." Rodriguez v. Pacificare of Tex., Inc., 980 F.2d 1014, 1017 (5th Cir. 1993). The well-pleaded complaint rule makes the plaintiff "the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Although plaintiff could have based his petition on federal law, that fact does not of itself demonstrate that his state-law claims arise under federal law. See Franchise Tax Bd. v. Constr. Laborers Vacation Trust for So. Cal., 463 U.S. 1, 10 (1983). That plaintiff mentions the FMLA in his petition does not make the case removable. Plaintiff's petition must itself establish that the case arises under federal law. Id This means that a right or immunity created by the Constitution or laws of the United States must be an essential element of plaintiff's cause of action. Id. at 10-11. Moreover, any lack of clarity in plaintiff's petition undercuts rather than supports removal. "The removing party bears the burden of establishing federal jurisdiction." Laughlin v. Prudential Ins. Co., 882 F.2d 187, 190 (5th Cir. 1989). "[I]t is axiomatic that ambiguities are generally construed against removal[.]" Butler v. Polk, 592 F.2d 1293, 1296 (5th Cir. 1979).
The court grants plaintiff's request for attorney's fees and costs. Under 28 U.S.C. § 1447(c), "[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." Defendants maintain that the court should not award such relief because there are no grounds to do so. The court disagrees. Plaintiff incurred fees and costs obtaining the remand of a case that should not have been removed. The removability question is not sufficiently close as to warrant dispensing with reimbursement of the plaintiff who expended cost to procure relief to which he was entitled.
Accordingly, plaintiff shall recover the "fees and costs incurred in federal court that would not have been incurred had the case remained in state court." Avitts v. Amoco Prod. Co., 111 F.3d 30, 32 (5th Cir. 1997). In the present case, this would appear to be limited to the attorney's fees and costs that plaintiff incurred in preparing his motion to remand and associated briefing, a sum that the parties ought to be able to agree upon without court action. Plaintiff may apply for an award within 30 days of the date this order is filed if the parties cannot reach agreement as to the proper amount.
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The court holds that it lacks subject matter jurisdiction and, pursuant to § 1447(c), remands this case to the 86th Judicial District Court of Kaufman County, Texas. The clerk of court shall effect the remand according to the usual procedure.SO ORDERED