United States District Court, Southern District of New York
November 7, 1990
REGINALD F. LEWIS, PLAINTIFF,
THE TRAVELERS INSURANCE COMPANY, THE TRAVELERS INDEMNITY COMPANY AND ROBERT LEWIS HERMANN, DEFENDANTS.
The opinion of the court was delivered by: Lasker, District Judge.
Reginald Lewis ("Lewis") moves to remand this case to the
Supreme Court of the State of New York, and for costs and legal
fees incurred in making this motion. The motion to remand is
granted, but the motion for costs and fees is denied.
Lewis filed this action alleging libel, slander, and
intentional infliction of emotional distress in New York state
court against Travelers and defendant Robert Hermann
("Hermann"). Lewis' complaint alleges that Hermann falsely and
maliciously told Travelers officials that Lewis had engaged in
certain deceptive or fraudulent practices while Lewis
controlled TLC Pattern, Inc. ("TLC"), and that roughly one year
later Travelers made similar allegations against Lewis in a
suit Travelers filed against Lewis alleging securities fraud in
connection with TLC.*fn1 Lewis' complaint does not
specifically state that Travelers "republished" Hermann's
earlier statement, nor does it specifically allege that
statement caused Travelers' later complaint.
Travelers removed the libel action against it to this court;
Lewis now moves for a remand.
28 U.S.C. § 1447(c) provides:
If at any time before final judgment it appears
that the case was removed improvidently and
without jurisdiction, the district court shall
remand the case, and may order the payment of just
costs. . . .
In turn, the availability of removal is governed by 28 U.S.C. § 1441(c),
Whenever a separate and independent claim or cause
of action, which would be removable if sued upon
alone, 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 not otherwise
within its original jurisdiction.
The seminal case interpreting Section 1441(c) is American
Fire & Casualty Co. v. Finn, 341 U.S. 6
, 71 S.Ct. 534, 95 L.Ed.
702 (1951). There the Supreme Court noted that an "important
purpose of Section 1441(c) was to limit removal from state
court." 341 U.S. at 9-10, 71 S.Ct. at 537-538. The court went
on to hold, "[W]e conclude that where 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(c)." 341 U.S.
at 14, 71 S.Ct. at 540. Finn and its progeny establish that
Section 1441(c) should be read narrowly. See, e.g., Illinois v.
Kerr-McGee Chemical Corp., 677 F.2d 571
(7th Cir.), cert.
denied 459 U.S. 1049
, 103 S.Ct. 469, 74 L.Ed.2d 618 (1982);
Mercy Hospital Ass'n v. Miccio, 604 F. Supp. 1177 (E.D.N Y
The parties agree that Finn is the controlling precedent.
They disagree whether Hermann's and Travelers' allegedly
libelous statements in fact give rise to "separate and
independent" claims. Each side cites district court decisions
from outside the Second Circuit which involve libel and
republication and which support its position. See, e.g., Gay v.
Williams, 486 F. Supp. 12 (D.Alaska 1979) (newspaper's
republication of wire service story is separate and independent
claim from original publication by wire service); but see,
e.g., Toanone v. Williams, 405 F. Supp. 36 (E.D.Pa. 1975)
(videotaped statement and its subsequent rebroadcast not
separate and independent claims).
Travelers argues that at least three considerations indicate
that Lewis' claims against it are separate and independent from
his claims against Hermann. First, it notes that Lewis'
complaint does not allege any causal connection between
Hermann's alleged statements and Travelers' subsequent similar
statements. Second, it contends that under New York law an
original defamatory statement and its republication constitute
separate causes of action. Third, it suggests that Lewis
alleges separate harms because his complaint demands different
compensation from each defendant and asserts intentional
infliction of emotional distress claims as well as libel and
slander claims against the defendants.
Lewis responds that he asserts identical injury as a result
of Hermann's and Travelers' actions, that is, an injury to his
reputation in connection with his operation of TLC. He argues
further that a fair reading of his complaint establishes that
the two statements are closely related and not readily
Although Lewis contends that his complaint clearly alleges
identical claims against both defendants, his position
oversimplifies the matter. The complaint is somewhat opaque
because the different counts specify actions by different
defendants, although it is true that the demands for judgment
appear to make identical claims against both defendants.
Some courts have treated a defamatory statement and its
republication as giving rise to separate and independent claims
under Section 1441(c). However, such a result here would be an
restrictive reading of that section and of Lewis' complaint.
When taken in the context of Travelers' separate suit pending
against Lewis and given the allegations made in the complaint,
Lewis' complaint suggests that the two allegedly defamatory
statements are related. The subject matter of the two
statements is fundamentally identical, the harm is essentially
the same, and there is at least an inferable causal connection
between the two which may be developed as the litigation
progresses. Because the removal statute is intended to be read
narrowly and because the two cases involve such closely related
facts, the claims are not separate and independent within the
meaning of 28 U.S.C. § 1441(c). Accordingly, the order to
remand is granted.
Under Section 1447(c), award of costs is within the district
court's discretion. Travelers' removal of this claim does not
appear to have been frivolous and is plausibly supported by
some existing case law. For that reason, the motion for costs
and fees is denied.
It is so ordered.