The opinion of the court was delivered by: Dearie, District Judge.
Plaintiff Benjamin Soto moves to remand this action to the
Supreme Court of New York, Kings County on the ground that the
removal was untimely. Defendants argue that this action was
removed within 30 days from the date on which they discovered it
was removable. For the reasons set forth below, plaintiff's
motion to remand is denied.
In July 1998, plaintiff began this action in state court. He
alleges discriminatory discharge on the basis of his national
origin, Puerto Rican. See Cplt. at ¶ 7. Plaintiff asserts that
he was terminated because he "wished to exhibit a flag of Puerto
Rico as a means of expressing pride in his Puerto Rican
heritage." Id. at ¶ 6. The complaint includes no statutory or
constitutional reference and does not articulate a violation of
any federal or state law. The question presented is whether
removal, in a non-diversity case, is required within 30 days of
receipt of a complaint that makes no specific statutory or other
reference to state or federal law but does allege a claim
cognizable under federal law.
The absence of any jurisdictional assertion drew the attention
of defendants' counsel during discovery. On August 2, 1999 during
plaintiff's deposition, defendants' counsel asked plaintiff's
counsel directly about the statutory basis of plaintiff's claim.
Plaintiff's counsel stated that he would not answer the question
at that time but would instead reply "within days of receiving" a
written request. See Soto Dep. at 85-86.
On the following day, defendants' counsel faxed a letter to
plaintiff's counsel again requesting the statutory basis for the
lawsuit. There was no response. On September 1, 1999, defendants'
counsel sent a second letter. In a letter dated October 5, 1999,
plaintiff's counsel finally replied, informing counsel that
plaintiff alleges a violation of 42 U.S.C. § 1981 and Section 296
of the New York Executive Law. On October 11, 1999, defendants
received plaintiff's letter and removed the case to this Court on
November 9, 1999.
The time requirements for removal are set forth in
28 U.S.C. § 1446(b), which provides:
The notice of removal of a civil action or proceeding
shall 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 or proceeding is
based . . .
If 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 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 . . .
Removability in July 1998
According to 28 U.S.C. § 1441, an action may be removed only if
the case originally could have been filed in federal court. Where
there is no diversity of citizenship, as is the case here,
federal question jurisdiction is required for removal. With a few
exceptions not relevant here, "[t]he presence or absence of
federal question jurisdiction is governed by the well-pleaded
complaint rule." Marcus v. AT&T Corp., 138 F.3d 46, 52 (2d Cir.
1998). "That rule provides that federal question jurisdiction
exists only when the plaintiff's own cause of action is based on
federal law, . . . and only when plaintiff's well-pleaded
complaint raises issues of federal law . . . [T]he plaintiff is
the master of the complaint, free to avoid federal jurisdiction
by pleading only state claims even where a federal claim is also
available." Id. (internal citations omitted). "Thus, even if
both federal and state law provide a remedy to the plaintiff, the
plaintiff can avoid federal jurisdiction by pleading state law —
at the price, of course, of foregoing the federal remedies."
Eastern States Health & Welfare Fund v. Philip Morris, Inc.,
11 F. Supp.2d 384, 389 (S.D.N.Y. 1998) (citing Caterpillar Inc. v.
Williams, 482 U.S. 386, 394-95, 107 S.Ct. 2425, 96 L.Ed.2d 318
The Court concludes that the 30-day removal period did not
begin to run until defendants' receipt of plaintiff's October 11,
1999 letter setting forth the statutory bases for his claim. In
his complaint, plaintiff alleges that he was terminated because
of his Puerto Rican national origin. A claim of discrimination on
the basis of Puerto Rican national origin is cognizable under
both New York and federal law. As master of his complaint,
plaintiff could have sought relief solely under state law to
avoid removal. Instead, plaintiff's vague pleading references no
law, federal or state. However, he maintains that a federal claim
is evident from the face of the complaint. Although the action is
cognizable under federal law, plaintiff ...