Opinion
No. 1:02CV123-D-D
June 20, 2002
OPINION GRANTING MOTION TO REMAND
Presently before the court is the Plaintiffs' motion to remand this matter to the Circuit Court of Itawamba County, Mississippi. Upon due consideration, the court finds that the motion should be granted and this cause remanded to state court for ultimate resolution.
A. Factual Background
The Plaintiffs instituted this action in the Circuit Court of Itawamba County, Mississippi, on June 1, 2001, seeking compensation for state law claims of fraud and negligence, in connection with investment advice and services provided to the Plaintiffs by the Defendants during the Plaintiffs' purchase of certain promissory notes. In addition, as part of this action, the Plaintiffs seek a declaratory judgment against American Automobile Insurance Company (AAIC), the Defendants' insurer, that an insurance policy it issued covers the claims asserted in this action. AAIC removed the case to this court on April 15, 2002, asserting removal jurisdiction under 28 U.S.C. § 1441 (c) as the basis for removal. The Plaintiffs subsequently filed the pending motion to remand.
B. Standard for Remand
The Defendant's Notice of Removal asserts that this case is removable pursuant to 28 U.S.C. § 1441 (c), which provides that:
[w]henever 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.28 U.S.C. § 1441 (c) (2002).
The Defendant AAIC argues that the Plaintiffs have asserted claims against it that are separate and independent from the Plaintiffs' non-removable claims against the other Defendants, thereby giving this court jurisdiction over the Plaintiffs' claims against AAIC pursuant to 28 U.S.C. § 1441 (c).
C. Discussion
After removal of a case to federal court, the plaintiff may move for remand, and "[if] it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." See 28 U.S.C. § 1447 (c) (2002). Further, it is axiomatic that federal courts are to construe removal statutes "strictly against removal and for remand." Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 106 (5th Cir. 1996); Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100, 108-109, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941).
Here, it is undisputed that this case is not removable in its entirety due to a lack of complete diversity and the absence of federal question jurisdiction. The Defendant AAIC concedes as much. Instead, pursuant to 28 U.S.C. § 1441 (c), AAIC seeks to have the court sever the Plaintiffs' claims against it from the Plaintiffs' remaining claims, with those claims being remanded to state court and the Plaintiffs' claims against AAIC remaining in this court pursuant to the court's federal diversity jurisdiction.
In light of the court's disposition of the Plaintiffs' motion to remand, it is not necessary to determine whether the court would possess diversity jurisdiction over the Plaintiffs' claims against AAIC, were those claims presented in a separate cause of action.
The court finds, however, that this case is not removable pursuant to Section 1441(c). Section 1441(c) plainly provides that removal under its auspices is proper only when a separate and independent claim within a district court's federal question jurisdiction is joined with one or more otherwise non-removable claims in a state court action. See 28 U.S.C. § 1441 (c). In such cases, the entire case may be removed from state court. Id. The district court may then adjudicate all of the plaintiff's claims, or may adjudicate only the federal claims and remand the claims that are based predominately on state law. Id.
Removal under Section 1441(c) is only permitted, however, when the separate and independent claim presents a federal question; claims falling solely within a federal court's diversity jurisdiction may not be removed under Section 1441(c). See, e.g. Snuggs v. Excel Mfg. of Kentucky, Inc., 187 F.3d 638 (6th Cir. 1999) (holding that " 28 U.S.C. § 1441(c) . . . is inapplicable to diversity cases");National Am. Ins. Co. v. Advantage Contract Servs., Inc., No. 01-3615, 2002 WL 662947 (E.D.La. April 22, 2002) ("diversity case[s] may no longer invoke removal under Section 1441(c); only federal question claim[s] will support a Section 1441(c) removal."); Bady v. Estate of Woodrow, 941 F. Supp. 71, 71-72 (N.D.Miss. 1996) ("removal based on [ 28 U.S.C. § 1441(c)] is available only in case[s] in which subject matter jurisdiction is based on . . . federal law.").
In addition, it is axiomatic that a defendant that wishes to remove part of a case must have grounds to remove the entire case; it is not permissible to remove some of the claims to federal court while leaving the remaining claims pending in state court. Dillon v. State of Mississippi Military Dep't, 23 F.3d 915, 918 (5th Cir. 1994).
In this case, it is undisputed that the only potential basis for removal is 28 U.S.C. § 1441 (c). It is further undisputed that the Plaintiffs' complaint in this case raises only state law claims, and the Plaintiffs seek compensation solely pursuant to state law. No federal question has been presented. Accordingly, based on the plain language of Section 1441(c) and the above-cited authorities, the court finds that Section 1441(c) does not apply, this court does not possess subject matter jurisdiction to adjudicate the Plaintiffs' claims, and this cause must be remanded to state court.
A separate order in accordance with this opinion shall issue this day.
ORDER GRANTING MOTION TO REMAND
Pursuant to an opinion issued this day, it is hereby ORDERED that
(1) the Plaintiffs' motion to remand (docket entry 3) is GRANTED; and
(2) this cause is hereby REMANDED to the Circuit Court of Itawamba County, Mississippi.