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SOTO v. APPLE TOWING

August 28, 2000

BENJAMIN SOTO, PLAINTIFF,
V.
APPLE TOWING, JOHN STEWART, DEFENDANTS.



The opinion of the court was delivered by: Dearie, District Judge.

MEMORANDUM & ORDER

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.

Background

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.

Discussion

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 . . .

Plaintiff argues that defendants' removal was untimely. Relying on the second paragraph of 28 U.S.C. § 1446(b), defendants assert that they removed the case as soon as they were able to ascertain removability. Defendants received written notice that plaintiff is claiming a violation of federal law on October 11, 1999 and removed the case within 30 days. In response, plaintiff maintains that the second paragraph of § 1446(b) applies only when the complaint clearly demonstrates that it is not removable. According to plaintiff, the 30-day time limit was triggered in July 1998 because a federal cause of action is manifestly evident from the face of the complaint. The threshold issue is whether the case was removable in July 1998 when the defendants first received the complaint.

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 (1987)).

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 ...


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