Opinion
CIVIL ACTION NO. 3:99-CV-1986-G
February 16, 2000
MEMORANDUM ORDER
Before the court is the motion of the plaintiff, Dani A. Dixon ("Dixon"), to remand this case to state court. For the reasons discussed below, Dixon's motion is granted.
I. BACKGROUND
In February of 1999, Dixon was terminated from her employment with defendant Alcatel USA, Inc. ("Alcatel") for alleged insubordination. See Plaintiff's Original Petition ("Petition") at 2, attached as Exhibit A to Brief in Support of Plaintiffs Motion to Remand ("Plaintiff's Brief"). Dixon, who had been injured on the job in September of 1997, filed suit in a Texas state court, alleging state law claims of retaliation and discrimination against employees sustaining injuries that are compensable by workers' compensation, and discrimination based on a disability. See id. at 2-3. During the course of discovery, Dixon responded to Alcatel's request for disclosures by stating that "[p]laintiff's claims are based upon retaliatory discharge and violations of the Americans with Disabilities Act." Plaintiff's Responses to Defendant's Request for Disclosures from Plaintiff at 1, attached as Exhibit D to Plaintiffs Brief. Arguing that Dixon had invoked the protection and relief provided under federal law, Alcatel removed the case to this court. See Defendant's Response to Plaintiff's Motion to Remand and Brief in Support ("Response") at 1. Dixon now files this motion to remand, contending that the disclosure response regarding the Americans with Disabilities Act was a "clerical error." See Affidavit of Tonya Beavert Lonon ("Lonon Affidavit"), attached as Exhibit F to Plaintiffs Brief.
II. ANALYSIS A. Removal Jurisdiction
Title 28 U.S.C. § 1441 (b) permits removal of "[a]ny 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." Removal jurisdiction must be strictly construed, however, because it implicates important federalism concerns. Frank v. Bear Stearns Company, 128 F.3d 919, 922 (5th Cir. 1997); see also Willy v. Coastal Corporation, 855 F.2d 1160, 1164 (5th Cir. 1988). Furthermore, "any doubts concerning removal must be resolved against removal and in favor of remanding the case back to state court." Cross v. Bankers Multiple Line Insurance Company, 810 F. Supp. 748, 750 (N.D. Tex. 1992). The burden of establishing federal jurisdiction is on the party seeking removal — in this case, Alcatel. See Frank, 128 F.3d at 921-22; Willy, 855 F.2d at 1164.
District courts have original jurisdiction over civil cases arising under the laws of the United States. See 28 U.S.C. § 1331. A cause of action arises under federal law only when the plaintiff's well-pleaded complaint raises issues of federal law. Metropolitan Life Insurance Company v. Taylor, 481 U.S. 58, 63 (1987). This scheme allows a plaintiff to be the "master to decide what law he will rely upon" in pursuing his claims. The Fair v. Kohler Die Specialty Company, 228 U.S. 22, 25 (1913). Therefore, where potential remedies exist under both state and federal law, a plaintiff may choose to proceed only under state law and avoid federal court jurisdiction. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).
Despite the lack of a federal claim on the face of Dixon's complaint, other documents may evince a case's federal character:
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. . . .28 U.S.C. § 1446 (b) (emphasis added). In this case, Alcatel maintains that Dixon's response to its request for disclosure is a type of "other paper," within the meaning of § 1446(b), and that removal was therefore proper. Response at 2-5.
B. "Other Paper"
Federal courts have deemed a variety of documents to be the "other paper" necessary to give notice to defendants of the existence of federal jurisdiction. See, e.g., S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 491-92. 494 (5th Cir. 1996) (holding that deposition transcript of plaintiffs president was "other paper"); Chapman v. Powermatic, Inc., 969 F.2d 160, 164 (5th Cir. 1992), cert. denied, 507 U.S. 967 (1993) (construing "other papers" to "clearly refer to actions normally and logically occurring after the filing of the initial pleading," including plaintiff's answers to defendant's interrogatories); Stramel v. GE Capital Small Business Finance Corporation, 955 F. Supp. 65, 66-68 (E.D. Tex. 1997) (holding that settlement letter from plaintiff's attorney to defendant's counsel was "other paper"); Johnson v. Dullard Department Stores, Inc., 836 F. Supp. 390, 391-95 (N.D. Tex. 1993) (finding that plaintiff's first amended original petition and answers to defendant's second set of requests for admission were "other paper"). Here, Dixon's disclosure response falls squarely within the category of documents deemed by the courts of this circuit to be an "other paper" sufficient to give Alcatel notice of federal jurisdiction.
C. Clerical Error
Dixon, however, contends that her response invoking the Americans with Disabilities Act was simply a clerical error and does not evince the presence of a federal question. To correct this error, Dixon's attorney has filed an affidavit swearing that the invocation of the Americans with Disabilities Act was a "clerical error" and that Dixon's claims "were not at the time Plaintiffs responses were served on Defendant, or at any other time since the institution of this lawsuit, based upon violations of the Americans with Disabilities Act." See Lonon Affidavit at 2. Further, Dixon has attempted to amend her response to Alcatel's request for disclosures to reflect that Dixon's claims "are based upon retaliatory discharge and violations of the Texas Version of the Americans with Disabilities Act." Plaintiff's First Amended Responses to Defendant's Request for Disclosures from Plaintiff at 2 (emphasis added), attached as Exhibit G to Plaintiffs Brief. Though post-removal events cannot deprive the court of jurisdiction once it has attached, the Fifth Circuit has allowed consideration of a post-removal affidavit that clarifies any ambiguity regarding federal jurisdiction. See Association National de Pescadores a Pequena Escala o Artesanales de Colombia (ANPAC) v. Dow Quimica de Colombia S.A., 988 F.2d 559, 565 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994), abrogated on other grounds, Marathon Oil Company v. Ruhrgas, 145 F.3d 211 (5th Cir. 1998). When considering the effect of Dixon's erroneous disclosure response, "the court is still examining the jurisdictional facts as of the time the case is removed, but the court is considering information submitted after removal." Id. Here, the affidavit of Dixon's attorney clarifies the ambiguity as to whether Dixon's claim involved a federal question at the time of removal by stating that the reference to the Americans with Disabilities Act was a clerical error.
Alcatel, however, relies on Bank One Texas National Association v. Morrison, 26 F.3d 544 (5th Cir. 1994), in which a clerical error resulted in federal jurisdiction. Response at 8. There, the defendant's counter-claim made certain allegations regarding Mbank, an insolvent financial institution. Believing that the defendant had asserted legal claims against MBank, the Federal Deposit Insurance Corporation ("FDIC") intervened as receiver for MBank and removed the case to federal court. In his appeal following a trial, Morrison asserted that the federal district court should have remanded the case for want of jurisdiction since the counter-claim reference to MBank was a "mere clerical error." Id. at 547. The Fifth Circuit disagreed, concluding that removal was proper because the FDIC had a legitimate interest in the action at the time it intervened. See id. The appeals court also noted that Morrison had never requested a remand for lack of federal jurisdiction, nor moved to dismiss the claims against the FDIC, until after the trial court had granted the FDIC's motion for partial summary judgment. See id.
Here, unlike the Bank One case, Dixon made a timely request for remand, and the clerical error did not create a legitimate federal interest. Dixon's clerical error has now been corrected to show that she is asserting only state law claims against Alcatel.
Finally, the court's ruling today does not prejudice Alcatel. Title 28 U.S.C. § 1446 (b) imposes no time limit on the removal of federal question cases. Such cases may be removed at any time prior to entry of judgment, within 30 days of a defendant's receipt of an order, filing, or other paper from which it may be first ascertained that the case has become removable. This attempt at removal will not necessarily prevent a subsequent removal effort from being successful. See Fritzlen v. Boatmen's Bank, 212 U.S. 364, 372 (1909) (an order remanding a case does not control the right to make a second application for removal if, because of subsequent proceedings or the conduct of the parties, the case becomes removable). If at a later stage of litigation, it becomes clear that Dixon is in fact asserting a federal claim under the Americans with Disabilities Act or any other federal law, then Alcatel may again attempt to remove.
III. CONCLUSION
Removal to this court is proper only if the court has original jurisdiction over the case based upon the presence of a federal question. Dixon's petition, which contains only state law causes of action that do not require the resolution of any issue of federal law, fails to provide such a question. Though Dixon filed a disclosure response invoking the Americans with Disabilities Act, Dixon's attorney has sworn that this disclosure response was a clerical error and subsequently has attempted to amend it. Furthermore, the court's doubts concerning removal under these circumstances must be resolved against removal and in favor of remanding the case to the state court. Accordingly, Dixon's motion to remand is GRANTED, and this case is REMANDED to the 191st Judicial District Court of Dallas County, Texas. The clerk shall mail a certified copy of this memorandum order to the district clerk of Dallas County, Texas. See 28 U.S.C. § 1447 (c).
SO ORDERED.