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November 21, 2000


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 this court.


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 because

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 ...

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