Opinion
00-CV-7664(JG)
June 19, 2001
MATHEW B. TULLY, Brooklyn, NY, for Plaintiff Pro Se.
TARIK FOUAD AJAMI, ESQ., Levy, Ratner Behroozi, P.C., New York, NY, and MARTIN R. COHEN, ESQ., American Federation of Government Employees Bala Cynwyd, PA, for Defendant.
MEMORANDUM AND ORDER
Plaintiff Mathew Tully, proceeding pro se has moved pursuant to 28 U.S.C. § 1447(c) to remand an action that he claims defendants improperly removed. Defendants oppose the motion, arguing that removal was proper and that remand would be futile. For the reasons set forth below, the motion to remand is granted.
BACKGROUND
Plaintiff, a federal corrections officer, is a member of the American Federation of Government Employees Local 3148 ("Local 3148"). In March of 2000, Local 3148 filed nine grievances on plaintiff's behalf against his employer, the Federal Bureau of Prisons. All nine grievances were denied. Thereafter, Local 3148 informed plaintiff that his grievances did not have sufficient merit to be taken to the next step of formal arbitration.
On October 13, 2000, plaintiff commenced this action in New York State Supreme Court, Kings County, alleging that defendants (1) violated his rights under New York State Military Law § 252; (2) breached their duty to fairly represent him in his disputes with his employer; and (3) breached their duty to protect his employment interests.
On November 3, 2000, defendants moved to dismiss the complaint, arguing that (1) the state court lacked jurisdiction over the breach of contract claims, and (2) plaintiff failed to state a claim under New York State Military Law § 252. Plaintiff then filed an amended complaint dated November 10, 2000. The amended complaint repeats the facts alleged in the original complaint, omits the New York State Military Law claims, and restates the breach of contract claims. Specifically, plaintiff now alleges only that defendants "breached [the union's] contract with the plaintiff to protect his interests with respect to his employment." (Am. Compl. at ¶ 38.) Defendants filed a notice of removal on December 29, 2000, asserting that the claim alleged in the amended complaint arises under federal law.
DISCUSSION
A. The Timeliness of the Removal
An action may be removed from state court to federal court only if a federal district court would have original jurisdiction over the matter. 28 U.S.C. § 1441(a). Claims "arising under the Constitution, laws, or treaties of the United States" are within district courts' original jurisdiction see 28 U.S.C. § 1331, and therefore, are removable to federal court. See 28 U.S.C. § 1441(b).
Section 1441(b) provides, in relevant part, that "[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 shall be removable without regard to the citizenship or residence of the parties." 28 U.S.C. § 1441(b).
A petition for removal must be filed "within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action is based. . . ." 28 U.S.C. § 1446(b). The thirty-day filing period is a statutory requirement that must be strictly adhered to. See Nicola Products Corp. v. Showart Kitchens, Inc., 682 F. Supp. 171, 172 (E.D.N.Y. 1988). Failure to do so will typically defeat a defendant's removal petition. Id.
The statute provides for a thirty-day supplementary period for filing a notice of removal that is available only in limited circumstances, which are not present here. Under § 1446(b), "[i]f 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 the 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).
Here, both the initial complaint and the amended complaint allege the same breach of contract claim that defendants rely on as the basis for federal question jurisdiction. Thus, the amended complaint did not transform a previously unremovable case into a removable one; rather, the initial complaint was removable at the time it was filed to the same extent as the amended complaint.
In the instant case, the initial complaint was served on October 13, 2000, setting forth the breach of contract claim that defendants now rely on as the basis for their removal petition. Defendants, however, waited until December 29, 2000, to file their removal petition. Because the removal petition was filed more than thirty days after defendants received through service the initial pleading, they lost the right to remove the case upon the expiration of that thirty-day period.
B. The Exception to the 30-Day Limit
Courts have read an exception into the thirty-day filing period for removal petitions that applies to certain cases that are removable at the time they are initially filed. Under this exception, a lapsed right to remove an initially removable case within the thirty days is restored when the complaint is amended so substantially as to alter the character of the action and constitute essentially a new lawsuit. See 14 Wright, Miller Cooper, 14C Federal Practice and Procedure: Jurisdiction 3d § 3732, at 321 (1998) (If an "amendment provides a new basis for removal or changes the character to the litigation so as to make it substantially a new suit," then the thirty-day removal period is revived) (collecting cases); see also Johnson v. Heublein Inc., 227 F.3d 236, 241-42 (5th Cir. 2000) (acknowledging the revival exception to § 1446(b)); Wilson v. Intercollegiate (Big Ten) Conference Athletic Association, 668 F.2d 962, 965 (7th Cir.) (if defendant fails to file a removal petition within the prescribed thirty-day time period, the complaint is not removable except "where the plaintiff files an amended complaint that so changes the nature of his action as to constitute `substantially a new suit begun that day'") (quoting Fletcher v. Hamlet, 116 U.S. 408, 410 (1886)), cert. denied, 459 U.S. 831 (1982); Gerety v. Inland Newspaper Representatives, Inc., 152 F. Supp. 31, 32 (S.D.N.Y. 1957) ("The rule is well settled that where an amendment makes a substantially new complaint, the time to remove dates from the time of the filing of the amendment.") (citations omitted). This exception to the statutory time period is appropriate "since a willingness on the part of the defendant to remain in a state court to litigate a particular claim should not be interpreted as a willingness on his part to remain in a state court to adjudicate a completely different claim." 14 Wright, Miller Cooper, 14C Federal Practice and Procedure: Jurisdiction 3d § 3732, at 321 (1998). Thus, where an amendment provides a new basis for removal so as to make a substantially new complaint, the time to remove runs from the time of the filing of the amended complaint. See Gerety, 152 F. Supp.at 32.
The judge-made exception to the 30-day filing period differs from the statutory exception previously discussed in footnote 2, in that the latter applies only when a case that was not originally removable becomes removable because of changes after commencement of the action, e.g., dismissal of all non-diverse defendants or amendment of the complaint to state a federal cause of action. In contrast, the judge-made exception applies when a defendant, who chose not to remove an originally removable case, decides after the thirty-day filing period has expired that she is no longer willing to litigate the case in state court due to an amendment to the complaint (or some other action), which fundamentally changes the nature of the case and gives rise to a new desire for seeking removal.
Even assuming that defendants removed the action within thirty days of being served with the amended complaint, there is nothing in the amended complaint that justifies reviving the thirty-day period for filing a notice of removal. Defendants cannot and, in fact, have not argued that they first learned of the claims arising under federal law as of the filing of the amended complaint. The basic legal theory of plaintiff's action — that the defendants failed to adequately represent him in various grievances with his employer — remains unchanged. Indeed, the amendments to the complaint did not add any new claims at all; rather, they removed a preexisting state law claim. Thus, the revival exception does not rescue defendants' untimely removal petition, as the amendments to the complaint neither provide a new basis of removal nor so change the character of the litigation as to make it a substantially new suit.
Plaintiff claims that defendants were served with the amended complaint on November 10, 2000, and thus the petition for removal dated December 29, 2000, was untimely even if the amended complaint revived the 30-day period. Defendants contend that they first received a copy of the amended complaint on November 30, 2000. For the reasons set forth in the text, I need not resolve this dispute.
C. The Futility Exception to the Remand Requirement
Defendants contend that remanding the case to state court would be futile because the state court lacks subject matter jurisdiction and, therefore, would be required to dismiss the complaint. Specifically, they argue that under Karahalios v. National Federation of Federal Employees Local 1263, 489 U.S. 527 (1989), federal employees have no private right of action to enforce a union's duty of fair representation; rather, the Federal Labor Relations Authority ("FLRA") exercises exclusive jurisdiction over claims by federal employees that their unions failed to properly represent them.
The removal statute provides that "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c) (emphasis added). Under the futility exception to the removal statute, a district court may decide not to remand a case where "anticipated barriers to suit in state court [are] sufficiently certain to render a remand futile." International Primate Protection League v. Administrators of Tulane Educ. Fund, 500 U.S. 72, 88 (1991).
In International Primate Protection League, the Supreme Court refused to apply the futility exception, concluding that "uncertainties in the case before us preclude a finding that remand would be futile." 500 U.S. at 88.
In Mignogna v. Sair Aviation, Inc., 937 F.2d 37 (2d Cir. 1991), the Second Circuit indicated a willingness to entertain the futility exception. In that case, the court considered a claim that implicated the Federal Tort Claims Act, and noted that "remand might be improper if it would be futile, as it would be if the state court could not exercise jurisdiction over [the] claim." Id. at 41 (citing International Primate Protection League, 500 U.S. at 787-88); see also Bell v. City of Kellogg, 922 F.2d 1418, 1424-25 (9th Cir. 1991) (invoking the futility exception to affirm a district court decision to dismiss, rather than remand, a removed case). The court avoided applying the exception, however, by concluding that it could not be determined with certainty that the federal statute upon which the plaintiff's claim was based would act as a bar to state court jurisdiction in case of a remand. Id. at 43. More recently, however, the Second Circuit has suggested that it may be less receptive to the futility exception, stating that "[a]lthough we have indicated that we might be willing to entertain the futility exception, it should be noted that the Supreme Court, in commenting upon the possibility of such an exception, took `note . . . of the literal words of § 1447(c), which, on their face, give . . . no discretion to dismiss rather than remand an action.'" Barbara v. New York Stock Exchange, Inc., 99 F.3d 49, 56 n. 4 (2d Cir. 1996) (quoting International Primate, 500 U.S. at 89 (citations omitted)).
I decline to apply the futility exception to the case at hand. It is well-established that pro se complaints are to be liberally construed.See Haines v. Kerner, 404 U.S. 519, 520 (1972). With that in mind, I cannot conclude with certainty that plaintiff will be unable to assert a common law claim against defendants over which the state court could exercise jurisdiction. Plaintiff styles his amended complaint as a breach of contract claim. Defendants read it to allege solely a claim for breach of duty of fair representation. While defendants' interpretation may be accurate, a pro se plaintiff should be afforded the opportunity to argue that his complaint alleges a breach of contract claim over which the state court has jurisdiction, or to amend his complaint to assert a viable claim for relief. Indeed, at oral argument, plaintiff conceded that his breach of the duty of fair representation claim was not cognizable in state court, but claimed that he had intended to allege various other breaches of contract as well. Defendants are understandably skeptical, but their argument that plaintiff has no viable state law claims must be addressed to the state court.
In addition, even if I were to conclude that the FLRA was vested with exclusive jurisdiction over the entirety of plaintiff's breach of contract claim, I would still be constrained to remand the case. As the Second Circuit has noted, "if the [district] court never could have exercised original jurisdiction over the case, remand is required even after entry of final judgment." Mignogna, 937 F.2d at 40 (citing American Fire Casualty Co. v. Finn, 341 U.S. 6, 18 (1951)). If defendants' understanding of the amended complaint is correct, then this court has no jurisdiction over the case and must remand as directed under § 1447(c). While it may be unlikely that plaintiff will be able to persuade a state court to exercise jurisdiction, I agree with the First Circuit that "the fact that we believe a certain legal result unlikely, as a matter of state law, is not sufficient ground for reading an exception into the absolute statutory words [of § 1447(c) `shall be remanded.'" Maine Ass'n of Interdependent Neighborhoods v. Commissioner, Maine Dep't of Human Servs., 876 F.2d 1051, 1055 (1st Cir. 1989) (cited with approval in International Primate and Mignoana).
Admittedly, if defendants' understanding of plaintiff's claim is correct, the state court also lacks jurisdiction to consider the merits of the case. However, given the uncertainty as to whether plaintiff can assert a viable breach of contract claim and the literal language of § 1447(c) directing remand whenever a district court discovers it is without subject matter jurisdiction, I decline to dismiss the case under the futility exception rather than remand it to state court.
CONCLUSION
For the reasons stated above, plaintiff's motion to remand is granted.
So Ordered.