The opinion of the court was delivered by: Robert L. Carter, District Judge
Plaintiff Marie Bellido-Sullivan moves to remand her lawsuit to New
York state court pursuant to 28 U.S.C. § 1447. She also seeks,
pursuant to 28 U.S.C. § 1447 (c), to recover her costs and actual
expenses, including attorneys fees, incurred as a result of the alleged
improper removal. Defendant American International Group, Inc., opposes
plaintiff's motion to remand and to recover fees and expenses.
Plaintiff, Marie Bellido-Sullivan, ("Sullivan") originally filed a
lawsuit against American International Group, Inc. ("AIG") in the Supreme
Court of the State of New York, County of New York, on August 7, 2000.
(Compl. p. 1) . Plaintiff's complaint contains five causes of action. The
first four causes of action allege various types of employment
discrimination. The fifth cause of action alleges a breach of the
employment manual by AIG.
On August 25, 2000, AIG removed this case to federal court based upon
the third cause of action, where the plaintiff argues that she was
terminated from her employment in part because she took two leaves of
absence for medical and personal reasons. (Notice of Removal pp. 1-2) .
AIG contends that there is no New York cause of action for wrongful
termination based upon an employee taking personal leave and that only
the Federal Family and Medical Leave Act (FMLA), 29 U.S.C. § 2615,
would prohibit such conduct. (Notice of Removal ¶ 2) . The defendant
further argues that since this cause of action exists only under the
federal statute, the lawsuit involves a federal question over which the
federal courts would have jurisdiction. Id. This is the only ground upon
which the defendant alleges federal jurisdiction warranting removal to
As a preliminary matter, "[o]n a motion to remand, the party seeking to
sustain the removal, not the party seeking remand, bears the burden of
demonstrating that removal was proper." Hodges v. Demchuk,
866 F. Supp. 730, 732 (S.D.N.Y. 1994) (Sotomayor, J.). See also R.G.
Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir. 1979) .
Unless that burden is met, the case must be remanded back to state
court. At this stage, therefore, the party seeking remand is presumed to
be entitled to it unless the removing party can demonstrate otherwise.
Absent diversity jurisdiction, removal is normally improper unless a
federal question appears on the face of plaintiff's well-pleaded
complaint. See Franchise Tax Bd. of the State of California v.
Construction Laborers Vacation Trust for Southern California, et. al.,
463 U.S. 1, 9-10 (1983). The removal jurisdiction of the federal courts
is limited and should be "scrupulously confined."
Shamrock Oil & Gas Corporation v. Sheets, et. al., 313 U.S. 100,
109 (1941). Where there is a choice of either federal or state
remedies, the plaintiff is free to choose his law and his forum.
See, e.g., Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)
(holding that a plaintiff, "may avoid federal jurisdiction by
exclusive reliance on state law") Hernandez v. Conriv Realty
Associates, 116 F.3d 35, 38 (2d Cir. 1997); Travelers Indemnity
Company v. Sarkisian, 794 F.2d 754, 758 (2d Cir. 1986) (noting that
"`[w]here plaintiff's claim involves both a federal ground and a state
ground, the plaintiff is free to ignore the federal question and pitch
his claim on the state ground' to defeat removal") (quoting 1A J. Moore &
B. Ringle, Moore's Federal Practice ¶ 0.160, at 185 (2d ed. 1979)).
AIG correctly notes, however, that a plaintiff's choice in pleading his
complaint is not absolute. A defendant also has an interest in litigating
the matter in an appropriate forum. As a result, it is well settled that
a federal claim may not be brought in state court, disguised in the
clothing of a state claim, merely for purposes of bringing it in that
forum. See Avco Corp. v. Aero Lodge No. 735, Int'l Assn. of Machinists,
390 U.S. 557 (1968) This basic tenet is referred to as the artful
pleading doctrine. If a claim is artfully pleaded, the defendant may
remove the lawsuit to federal court pursuant to 28 U.S.C. § 1447.
Nevertheless, given the general deference to the plaintiff's
construction of the lawsuit, there appear to be only two circumstances in
which artful pleading will justify removal.*fn1 The first situation is
where the federal law completely preempts state law in the field. The
second situation is where an issue of federal law is a necessary element
of the plaintiff's state law claim and is so central to that claim that
it justifies removal.*fn2
Analyzing the first situation, the United States Supreme Court outlined
the doctrine of complete preemption in Avco Corp. v. Aero Lodge No. 735,
390 U.S. 557. In Avco, the Court determined that a lawsuit brought in
state court alleging violations by employees of a collective bargaining
agreement was properly removable to federal court. The Court determined
that § 301 of the Labor Management Relations Act (LMRA),
29 U.S.C. § 185, preempted state
law in this field. The United States Supreme Court examined the
Avco decision in its subsequent opinion in Franchise Tax Board,
463 U.S. 1. In Franchise Tax Board, the Court explained that
even though the plaintiff in Avco brought a claim exclusively
under state contract law, the claim was nevertheless removable
the preemptive force of § 301 [of the LMRA] is so
powerful as to displace entirely any state cause of
action "for violation of contracts between an employer
and a labor organization." Any such suit is purely a
creature of federal law, notwithstanding the fact that
state law would provide a cause of action in the absence
of § 301.
Id. at 23. The number of statutes that completely preempt their
respective fields is limited. See Marcus v. AT&T Corp., 138 F.3d 46, 54
(2d Cir. 1998) (noting that "[t]he limited applicability of the complete
preemption doctrine is evidenced by the fact that the [United States
Supreme] Court has only approved its use in three areas:" the LMRA, the
Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et
seq., and certain Indian land grant rights)
As for the second situation where federal law is necessary and central
to the plaintiff's state law claims, courts will generally only allow
removal where a determination of the meaning or application of federal
law is required to resolve a claim created by state law.*fn3 See
Franchise Tax Board, 463 U.S. at 9 (noting that "a case `arose under'
federal law where the vindication of a right under state law necessarily
turned on some construction of federal law"); Smith v. Kansas City Title
& Trust Co., 255 U.S. 180, 199 (1921) . The relevant question seems to be
whether the state claim may be decided without addressing the federal
issue. See Franchise Tax Board, 463 U.S. at 9. If the state claim can be
decided without reference to the federal question, then there will not be
grounds for removal. Along these lines, courts ...