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:
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
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
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 did not actually assert a
federal claim. A federal claim is not well-pleaded, and plaintiff
cannot now rely on his obviously flawed pleading to insist that
defendants' removal was untimely.
"Whether a case is removable according to the initial pleading
depends on whether the initial pleading enables the defendant to
`intelligently ascertain' removability from the face of such
pleading, so that in its petition for removal defendant can make
a short and plain statement of the facts which entitle it to
remove as required in 28 U.S.C. § 1446(a)." Richstone v. Chubb
Colonial Life Ins., 988 F. Supp. 401, 402-403 (S.D.N.Y. 1997).
Defendants could not have ascertained removability from the face
of the complaint. Although plaintiff could have alleged national
origin discrimination in violation of federal law, for whatever
reason plaintiff did not. And since removal statutes are
construed in favor of remand, it was not unreasonable for
defendants to refrain from filing a removal notice upon receipt
of such an ambiguous complaint.
The facts of Messick v. Toyota Motor Manufacturing,
45 F. Supp.2d 578 (E.D.Ky. 1999), are analogous to the present case.
In Messick, the plaintiff alleged, inter alia, sexual
harassment in her original complaint, without any statutory
reference. Plaintiff later amended her complaint to include the
Kentucky Civil Rights Act and Title VII, 42 U.S.C. § 2000e, and
defendants then filed a notice of removal. Plaintiff moved to
remand on the basis of untimely removal, arguing that the
original complaint gave defendants notice that the action was
removable. In concluding that the period for removal was
triggered by the amended complaint instead of the original
complaint, the Messick court first noted that plaintiff is the
master of her
complaint and may avoid federal question jurisdiction by relying
exclusively on state law. Then the court emphasized that "removal
statutes must be strictly construed with all doubts cast against
removal . . . and the removing party bears the burden of showing
that removal is proper." Id. at 580 (citations omitted). In
denying the motion to remand, the Messick court stated:
Based on these principles, it is clear that had
defendants attempted to remove this action when the
original complaint was filed, they would not have
survived a motion to remand. On its face, the
original complaint only alleges sexual harassment in
a generic sense and equally supports a state law
claim alone as well as a federal cause of action.
Thus, as master of her complaint, plaintiff may have
intended to seek relief solely under state law to
avoid removal. If defendants opted to remove at that
time, they surely would not have met their burden.
While the Court need not determine whether a motion to remand
would necessarily have been granted if defendants had removed
immediately, the Court concludes that in this case the 30-day
removal period did not begin to run upon defendants' receipt of
the complaint. Any other resolution of this question is
undesirable. To require defendants to remove cases within 30 days
of receiving a complaint similar to plaintiff's pleading would
"give rise to cases of unwarranted removal, resulting in
unnecessary, wasteful litigation and expense in  federal
court." E.W. Howell Co. v. Underwriters Lab., Inc., 596 F. Supp. 1517,
1520 (E.D.N.Y. 1984) (internal quotes omitted).
Duty to Investigate
In support of its motion to remand, plaintiff cites to district
court cases involving federal diversity jurisdiction, which hold
that if a complaint fails to disclose clearly that the case is
not removable, a defendant is under a duty to investigate and
remove within the initial 30-day period. See, e.g., Kaneshiro v.
North American Co. for Life & Health Ins., 496 F. Supp. 452, 462
(D.Hawai'i 1980) ("Where the initial pleading is indeterminate,
absent fraud by the plaintiff or pleadings that provide `no clue'
that the case is not `not removable,' the burden is on the
defendant desiring removal to scrutinize the case and to remove
it in a timely fashion.").
The Second Circuit has not addressed this issue. Other district
courts and two circuit courts of appeal have refused to impose
such a duty when assessing the timeliness of removal. In Fisher
v. United Airlines, 218 F. Supp. 223 (S.D.N.Y. 1963), defendant,
a Delaware corporation, removed a two-year old case within 20
days of discovering that plaintiff was a citizen of New Jersey.
The court rejected plaintiff's argument that defendants were
under a duty to investigate the facts more promptly and noted
that "[t]here is no requirement in [§ 1446(b)] that a defendant
exercise any such diligence." Id. at 225. See also Smith v.
Bally's Holiday, 843 F. Supp. 1451, 1453 n. 5 (N.D.Ga. 1994)
(rejecting argument that defendants had a duty to investigate
whether amount in controversy was satisfied). But see DiMeglio
v. Italia Crociere Internazionale, 502 F. Supp. 316 (S.D.N Y
1980) (in disagreeing with Fisher, the court held that
plaintiff did not have to allege citizenship in the complaint to
trigger the 30-day limit for removal).
In declining to impose a duty to investigate, district courts
have held that the time to remove a case does not begin to run
until the facts warranting removability are explicit. See, e.g.,
Riggs v. Continental Baking Co., 678 F. Supp. 236, 238 (N.D.Cal.
1988) ("The elements of removability must be specifically
indicated in official papers before the statutory period begins
to run."); Gilardi v. Atchison, Topeka & Santa Fe Railway Co.,
189 F. Supp. 82 (N.D.Ill. 1960) (where initial pleading failed to
state facts indicating whether case was removable, court held
defendant was entitled to remove after receipt of paper from
which removability was first ascertained); Morschauser v. The
American News Company, 158 F. Supp. 517, 520 (S.D.N.Y. 1958) (in
diversity jurisdiction case, "[s]ince neither initial pleading
nor any subsequent paper, until amended complaint, disclosed
where any plaintiff lived . . ., the case was not removable until
. . . amended complaint was received").
The Fifth and Ten Circuits have refused to impose a duty to
investigate on a removing defendant. In Leffall v. Dallas
Independent School District, 28 F.3d 521, 524-25 (5th Cir.
1994), plaintiff filed a lawsuit after her son was killed during
a school dance. Without referring to any statutes, plaintiff
alleged that the school knew that students often carried weapons
but failed to take adequate precautions. Plaintiff then amended
her complaint to include a claim pursuant to 42 U.S.C. § 1983 and
defendants removed. The district court denied plaintiff's motion
to remand on the basis of untimely removal. In affirming the
lower court, the Fifth Circuit rejected plaintiff's argument that
the 30-day clock "should begin to run when a plaintiff files a
pleading that is indeterminate as to removability if the
defendant would know in the exercise of due diligence that the
case is removable." Id. at 525 (citation omitted). The court
announced that the removal clock began to run only when the
defendants received a pleading that "revealed on its face that
[the plaintiff] was asserting a cause of action based on federal
In Akin v. Ashland Chemical Company, 156 F.3d 1030 (10th Cir.
1998), cert. denied, 526 U.S. 1112, 119 S.Ct. 1756, 143 L.Ed.2d
788 (1999), plaintiffs filed a toxic tort case for alleged
injuries sustained while working at an Air Force base. Defendants
removed after receipt of answers to interrogatories beyond the
initial 30-day period. In denying plaintiff's motion to remand on
the basis of untimely removal, the district court ruled that the
complaint was ambiguous because "while working at" could serve
either as a geographical or durational modifier. In affirming the
lower court, the Tenth Circuit expressed its disagreement with
"other jurisdictions which impose a duty to investigate and
determine removability where the initial pleading indicates that
the right to remove may exist," and instead announced that it
"requires clear and unequivocal notice from the pleading itself,
or a subsequent `other paper' . . ." Id. at 1036. See also
MOORE'S FEDERAL PRACTICE 3D § 107.30[f] ("The removal statute
makes clear that the basis for removability must be ascertainable
from the pleading or other paper. Until the defendant has fair
notice that the case is removable, there should be no formal duty
This Court also declines to impose a duty to investigate upon
the defendants. Whether a case is removable depends on whether
the complaint enables a defendant to intelligently ascertain
removability. See Richstone, 988 F. Supp. at 402-403. The Court
agrees with the Tenth Circuit that "`ascertained' as used in
section 1446(b) means a statement that should not be ambiguous or
one which requires an extensive investigation to determine the
truth." Akin, 156 F.3d at 1035 (citation and internal quotes
omitted). As noted in Fisher, there is no requirement in
28 U.S.C. § 1446(b) that a defendant exercise a duty to investigate,
and this Court will not read into the statute such a condition.
To do so would invite wasteful litigation as parties spar over
the issues of diligence and ascertainability. There is a
wholesale difference between the need to ensure subject matter
jurisdiction of the court and an attorney's duty to pick his
adversary's brain to discover the precise nature of an
Because this Court denies plaintiff's motion to remand,
plaintiff is not entitled to any attorney's fees incurred in
making this motion.
For all of the foregoing reasons, the Court denies plaintiff's
motion to remand this case to the New York State Supreme Court,
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