Opinion
Cause No. 1:02-CV-22.
March 4, 2002
MEMORANDUM OF DECISION AND ORDER
On January 25, 2002, Defendant National Serv-All (hereinafter "Serv-All") filed a "Notice of Removal and Request for Joinder of Claims." Plaintiff Jeffrey M. Forguson (hereinafter "Forguson"), through counsel, filed an "Objection to Defendant's Notice of Removal and Request for Joinder of Claims," which this Court construes as a motion for remand to the Allen Superior Court, on February 1, 2002. As part of his motion to remand, Plaintiff seeks fees and costs on the ground that Serv-All dos not have objectively reasonable grounds to believe that removal was proper. Defendant replied on February 25, 2002. For the following reasons, Forguson's motion to remand will be GRANTED. Forguson's motion for fees and costs will be DENIED.
BACKGROUND
Forguson filed suit in the Allen Superior Court, No. 02D01-0104-CP-796, on or about April 24, 2001, alleging that his former employer, Serv-All had fired him in retaliation for filing a worker's compensation claim. On or about December 10, 2001, counsel for Forguson delivered to Serv-All answers to interrogatories in the state action. These interrogatory answers stated, in relevant part, "I also contend that I was terminated for reasons protected under federal statutes as spelled out in my complaint." In addition, on December 26, 2001, Forguson filed a second complaint in the United States District Court for the Northern District of Indiana, seeking relief against Serv-All pursuant to the Americans with Disabilities Act of 1990 (hereinafter "ADA"), 42 U.S.C. § 12101 et seq. Serv-All removed the state action to this Court on January 25, 2002 and sought joinder with the ADA case already pending in this Court. The Court is asked to determine whether such removal was appropriate and concludes it was not.
APPLICABLE STANDARD
Generally, the party seeking a federal forum has the burden of establishing that jurisdiction in the federal courts is appropriate. See Wellness Community-National v. Wellness House, 70 F.3d 46, 49 (7th Cir. 1995). Indeed, when a federal court's exercise of jurisdiction is challenged following removal, the burden of establishing federal jurisdiction rests on the party seeking to preserve removal. See Shaw v. Dow Brands, Inc., 994 F.2d 364, 366 (7th Cir. 1993); P.P. Farmer's Elevator Co. v. Farmers' Mutual Insurance Co., 395 F.2d 546, 548 (7th Cir. 1968) ("The burden of proof as to any material issue is upon the party who removed to show that the suit was properly removed.") In short, any doubts regarding jurisdiction should be resolved in favor of remanding the action to state court. See Bush v. Roadway Express, Inc., 152 F. Supp.2d 1123, 1125; Tom's Quality Millwork, Inc. v. Delle Vedove USA, Inc., 10 F. Supp.2d 1042, 1044 (E.D.Wis. 1998).
DISCUSSION
I. Propriety of Removal
28 U.S.C. § 1446(b) governs the procedure for removal of a state court action. Specifically, this section provides:
The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant . . . of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. . . . If the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant . . . 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. . . . (emphasis added.)
Thus, a defendant has thirty days from the date it receives a plaintiff's complaint in which to remove the case to federal court. After that thirty days, a defendant may only file a notice of removal if the case subsequently becomes removable.
Serv-All argues that it did not become aware that this case was removable until it was served with the federal court complaint and received Forguson's responses to its interrogatories, specifying that Forguson believed his rights under certain "federal statutes" had been violated. Thereafter, Serv-All argues, it filed its notice of removal within the requisite thirty days allotted by section 1446(b). Neither of these documents, however, was sufficient to make the state case removable.
First, Serv-All contends that the federal court complaint constitutes an "other paper" which would make the case removable under section 1446(b). However, several federal courts have ruled that an "other paper" must be "part and parcel" of the state court proceeding in order to make the state court action removable. See Gilardi v. Atchison, T. S. F. Ry. Co., 189 F. Supp. 82, 85 (N.D.Ill. 1960); Broderick v. Dellasandro, 859 F. Supp. 176, 179 (E.D.Pa. 1994); Golden Apple Management Co., Inc. v. GEAC Computers, Inc., 990 F. Supp. 1364, 1367 (M.D. Ala. 1998). Because a filing of a complaint in a separate case in a separate court is not "part and parcel" of the state court proceeding, the Court does not believe Forguson's federal court complaint is sufficient to make the state court case removable.
Serv-All also argues that Forguson's answers to interrogatories, which state that he believed his rights under federal statutes had been violated, were sufficient to make the state court action removable. Although answers to interrogatories can constitute an "other paper" which would make a state court case removable, see Leboeuf v. Texaco, 9 F. Supp.2d 661, 664 (E.D.La. 1998) ("An interrogatory response which reveals the removability of an action can constitute `other paper' pursuant to § 1446(b)."), the Court does not believe the interrogatory responses in this case were sufficient to give notice of removability. Forguson stated, "I also contend that I was terminated for reasons protected under federal statutes as spelled out in my complaint." Although Forguson appears to be referencing the federal court complaint in his interrogatory response, this statement does not give any indication that Forguson intends to bring claims under the federal statutes in the state court action. Therefore, the interrogatory response is not sufficient to make the state court action removable.
Moreover, even if the interrogatory response were sufficient to make the state action removable, it was filed more than thirty days before Serv-All removed. According to section 1446(b), Serv-All had "30 days after receipt . . . 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" to file a notice of removal. Here, Forguson delivered the interrogatory answers to Serv-All on December 10, 2001. Serv-All did not remove until January 25, 2002, clearly outside the 30 day time limit. As a result, Forguson's motion for remand will be granted.
The Court acknowledges that this result conflicts with the policy justifications often cited for the pendent jurisdiction, removal, and remand statutes — judicial economy, procedural convenience, and fairness to litigants. See, e.g., Carnegie-Mellon University v. Cohill, 484 U.S. 343, 348-350 (1988), Maus v. Curran, 945 F. Supp. 1217, 1219 (E.D.Wis. 1996). Essentially, Forguson is being permitted to pursue claims arising from the same set of facts in two different fora. However, in Stevo v. CSX Transportation, Inc., 940 F. Supp. 1222 (N.D.Ill. 1996), the District Court for the Northern District of Illinois allowed a similar result. In that case, the plaintiffs had filed a claim against his employer, CSX, in state court under the Federal Employers' Liability Act, 45 U.S.C. § 51-60, alleging that CSX's negligence caused plaintiff a debilitating back injury. Several years later, the plaintiff filed a second suit against CSX in state court alleging violations of the Americans with Disabilities Act and retaliatory discharge. CSX removed the second case to federal court. The district court denied plaintiff's motion to remand, in effect, allowing the parties to proceed in two different fora on related claims. The court allowed this result, even though it noted that "it might be intuitively troublesome to contemplate the prospect that the parties should do battle on two different fronts on such closely related claims." Id. at 1226 (internal citations omitted). Thus, at this time, this Court will also allow Forguson to proceed "on two different fronts" despite the awkwardness of this result.
The District Court found that it was possible for the court to remand based on the Colorado River abstention doctrine, which permits federal courts to abstain from jurisdiction where a related state court case is pending. However, the Stevo court did not believe the claims in the first lawsuit were sufficiently similar to the claims in the second lawsuit to warrant remand on the basis of abstention.
II. Fees and Costs
Plaintiff Forguson has also requested that this Court award fees and costs pursuant to 28 U.S.C. § 1447(c). That statute reads, in relevant part, "An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." Thus, the award of fees and costs is discretionary with this Court. See Castellanos v. U.S. Long Distance Corp., 928 F. Supp. 753, 756 (N.D.Ill. 1996). The Seventh Circuit has stated that a finding of bad faith is not necessary for the award of fees and costs under section 1447(c). Moreover, "the presence or absence of good faith is not the standard for determining whether costs should be awarded. Rather, the propriety of a defendant's removal [is the critical element] in determining whether to impose fees." Katonah v. USAir, Inc., 876 F. Supp. 984, 990 (N.D. Ill 1995). Here, the Court believes that Serv-All's notice of removal was not filed in bad faith. However, as noted above, this is not the standard for imposition of costs and fees. Still, the Court does not believe that Serv-All's attempt at removal was necessarily improper. As noted above, it is troublesome that such closely related claims would proceed in two separate fora and no reported cases instruct on whether or how a defendant may effectively consolidate claims in this situation. Therefore, the Court finds that Serv-All's attempt at removal in a somewhat unique and novel situation was not unreasonable. As a result, no fees and costs will be awarded.
CONCLUSION
For the foregoing reasons, Forguson's motion to remand this case to the Allen Superior Court is GRANTED. Forguson's motion for fees and costs is DENIED.
SO ORDERED.