Opinion
Case No. 3:02CV7438
November 6, 2002
ORDER
This is a pro se prisoner case in which the plaintiff asserts that actions of the defendants deprived him of rights secured under the United States and Ohio Constitutions. In view of the plaintiff's recitation of the federal Constitution as a basis for relief, the defendants removed this case from the Lucas County, Ohio, Court of Common Pleas, in which it had originally been filed.
Plaintiff has filed an objection to removal. His objection shall be deemed to be a motion for remand. For the reasons that follow, remand shall not be granted.
Plaintiff claims that remand is required because: 1) the Lucas County defendants failed to invoke the jurisdiction of this court properly; 2) those defendants failed to comply with the provisions of 28 U.S.C. § 1446(a) because they did not attache copies of his interrogatories to the removal motion; 3) remand is not proper because issues of state law predominate; and 4) there is no federal claim not grounded in state law claims.
There was nothing improper about the removal. All defendants joined in the removal motion. Contrary to plaintiff's argument, it was not necessary for the defendants to attach plaintiff's interrogatories to their removal petition. Though the petition must attach all "pleadings," 28 U.S.C. § 1446(a), Rule 7 of the Federal Rules of Civil Procedure defines "pleadings" as the complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served." Interrogatories are not among the pleadings that must be attached to a removal petition.
Plaintiff next claims that his complaint does not assert a federal question. A reading of the complaint belies this assertion: the plaintiff repeatedly references the United States Constitution as one of the bases for his claims. Thus, federal question jurisdiction arises in this case.
Finally, plaintiff claims that he is entitled to remand under 28 U.S.C. § 1441(c), which provides:
Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.
Plaintiff challenges the defendants' actions on federal constitutional grounds. He also asserts that those actions violated the Ohio Constitution. The same actions give rise to the federal and state claims alike. To be entitled to remand on the basis of the predominance of a state claim, the claim must be:1) a separate and independent claim or cause of action; 2) joined with a federal question; 3) otherwise non-removable; and 4) a matter in which state law predominates. Smith v. Amedisys Inc., 298 F.3d 434, 439 (5th Cir. 2002).
These conditions have not been met here. Plaintiff has claims that both federal and state provide a basis for relief. He asserts a single set of operative facts as to both bases. In analogous circumstances, the court stated in Smith, supra
"[W]here there is a single wrong to [the] plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441." "A case involving the violation of a single primary right or wherein a party seeks redress for one legal wrong cannot contain separate and independent claims, despite multiple theories of liability against multiple defendants." Moreover, "[w]e have held that a claim is not independent if it involves substantially the same facts." All of Smith's claims, state and federal, are seeking redress for Smith's allegations that the individual Defendants sexually harassed her, discriminated against her, and retaliated against her during her employment with Amedisys. Both Title VII and Louisiana employment discrimination statutes prohibit sexual harassment, discrimination, and retaliation, and Louisiana courts routinely look to federal law for guidance in determining whether a viable claim has been asserted. Thus, the proof required by Smith on the federal and state employment discrimination claims will involve "substantially the same facts." Further, Smith's intentional infliction of emotional distress claim is based on the "outrageous" behavior — i.e., the alleged verbal and physical harassment — of the individual Defendants. For the federal claims and state law claims in the instant case, the single wrong is the sexual harassment, discrimination, and retaliation allegedly committed by the individual Defendants, and the various claims are simply different theories of recovery. As a result, the federal claims and the state law claims are not "separate and independent claim[s] or cause[s] of action" under § 1441(c).
Id. at 439-40 (citations omitted).
In light of the foregoing, removal was proper and remand shall not be ordered. It is, therefore, ORDERED THAT plaintiff's motion for remand be, and the same hereby is denied.
So ordered.