McNerny v. Nebraska Public Power Dist., 4:03 CV 3387.

Citation309 F.Supp.2d 1109
Decision Date05 January 2004
Docket NumberNo. 4:03 CV 3387.,4:03 CV 3387.
PartiesJoel D. McNERNY, Plaintiff, v. NEBRASKA PUBLIC POWER DISTRICT, Defendant.
CourtUnited States District Courts. 8th Circuit. United States District Court of Nebraska

Corey L. Stull, Joshua J. Schauer, Perry, Guthery Law Firm, Lincoln, NE, for Plaintiff.

Beth E. Kirschbaum, Cline, David R. Buntain, Cline, Williams Law Firm, Lincoln, NE, for Defendant.

MEMORANDUM AND ORDER

PIESTER, United States Magistrate Judge.

The plaintiff, Joel D. McNerny ("McNerny") filed suit against the Nebraska Public Power District ("NPPD") in the District Court of Nemaha County, Nebraska on October 1, 2003. NPPD was served with a summons and complaint on October 14, 2003 and timely filed its notice of removal on October 31, 2003. Filing 1. The plaintiff has moved to remand the case, citing a defect in the defendant's notice of removal deprives this court of jurisdiction of the plaintiff's state law claims. Filing 7. NPPD moved to amend the removal notice to cite the court's supplemental jurisdiction over the state law claims, (filing 3), but the plaintiff argues this motion is untimely and must be denied. Filing 9.

For the reasons discussed herein, I conclude plaintiff's motion to remand should be denied and NPPD's motion to amend the removal notice should be granted.

STATEMENT OF FACTS

The parties' respective arguments are based solely on the filings in this case and the allegations of plaintiff's complaint. No additional evidence was submitted for the court's determination of subject matter jurisdiction. The factual statements in plaintiff's complaint, as more fully discussed hereafter, are considered undisputed for the purpose of determining this motion for remand.

McNerny was employed by NPPD at the Cooper Nuclear Station ("CNS") from June 3, 1996 until June 30, 2003. Filing 1, Exhibit A, Amended Complaint ¶ 3. Sometime in 2002 he and other NPPD employees at CNS were told CNS would likely be closed on September 21, 2004. Filing 1, Exhibit A, Amended Complaint ¶ 5.

On July 8, 2002 McNerny entered into an Employee Retention Agreement with NPPD wherein McNerny agreed to continue working for NPPD until September 21, 2004 in exchange for NPPD agreeing to provide the following benefits to plaintiff upon CNS' closure: 1) a "stay benefit" of twenty-six weeks of base salary on September 21, 2004 or when CNS ceased operation, whichever occurred first; 2) protection against loss of value to plaintiff's primary residence; and 3) relocation assistance benefits in the event of relocation. Filing 1, Exhibit A, Amended Complaint ¶ 6.

On June 5, 2003 plaintiff was placed on administrative leave until "further notice" for allegedly incurring excessive and unauthorized expenses for work-related business trips. Prior to being placed on leave, he was questioned about the expenses on two separate occasions but NPPD never requested reimbursement. NcNerny asked to speak to an attorney during the questioning, but this request was denied. On June 17, 2003, NPPD terminated McNerny's paid administrative leave and he was placed on suspension without pay. Filing 1, Exhibit A, Amended Complaint ¶ 7.

Because of the allegedly hostile work environment and retaliatory conduct plaintiff experienced at CNS, and in an attempt to avoid the damages resulting from the possibility of being fired, McNerny submitted a formal resignation on June 9, 2003 which was to be effective on July 1, 2003. The resignation was not formally accepted. Instead, NPPD acknowledged its submission and modified its terms to eliminate plaintiff's entitlement to financial and medical benefits. Filing 1, Exhibit A, Amended Complaint ¶ 9. In response, the plaintiff withdrew his resignation on June 27, 2003. Filing 1, Exhibit A, Amended Complaint ¶ 10.

The plaintiff alleges NPPD violated his rights under the Due Process Clause. He alleges NPPD failed to comply with its Human Resources Policies when it refused to provide the plaintiff with details and documentation of NPPD's allegations, suspended him without pay, and denied his right to use the Employee Concerns Program, pursue a formal grievance procedure, and review his personnel record. Filing 1, Exhibit A, Amended Complaint ¶ 11.

The plaintiff claims his employment was constructively terminated by NPPD; the process of doing so violated his rights under NPPD's Employee Handbook and Human Resources Policies; and the effect of the termination was to deny his entitlement to benefits under the Employee Retention Agreement. He seeks compensation and specific performance for violation of his due process rights under 42 U.S.C. § 1983, and asserts a right to relief under the state law theories of breach of contract, promissory estoppel, and wrongful termination. Filing 1, Exhibit A, Amended Complaint ¶¶ 12-28.

NPPD removed this case to federal court and in its notice of removal states "[t]his Court has original jurisdiction over this action under the provisions of 28 U.S.C. § 1331 in that this action arises under 42 U.S.C. § 1983." Filing 1, Notice of Removal ¶ 4. NPPD also filed an answer and counterclaim. NPPD's counterclaim seeks reimbursement for the alleged unauthorized business expenses incurred by the plaintiff which formed the basis of NPPD's decision to terminate plaintiff's employment. Filing 5.

ANALYSIS

Plaintiff's motion to remand claims this court should not exercise subject matter jurisdiction over plaintiff's case. The propriety of removal depends on whether the case originally could have been filed in federal court. City of Chicago v. International College of Surgeons, 522 U.S. 156, 163, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997)(alleging a violation of the Due Process and Equal Protection Clauses). As the party opposing remand, NPPD has the burden of establishing federal subject matter jurisdiction. Green v. Ameritrade, Inc., 279 F.3d 590 (8th Cir.2002). Under 28 U.S.C. § 1441(a), the defendant may remove a civil action filed in state court to the federal court of the forum state if the federal court could have exercised original jurisdiction over the case. When a federal court has original jurisdiction over a federal question raised in a removed case, pursuant to 28 U.S.C. § 1367, it has supplemental jurisdiction (formerly known as pendent and ancillary jurisdiction) over any alleged state law claims arising from the same core of operative facts. City of Chicago, 522 U.S. at 164, 118 S.Ct. 523.

NPPD's notice of removal states that under 28 U.S.C. § 1331, federal subject matter jurisdiction exists over plaintiff's suit because the plaintiff has alleged a right to relief under 42 U.S.C. § 1983. "Federal question jurisdiction exists if the `well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.'" Williams v. Ragnone, 147 F.3d 700, 702 (8th Cir.1998)(quoting Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). A complaint which asserts claims under 42 U.S.C. § 1983 for alleged violations of federal constitutional rights raises a federal question within the original jurisdiction of the federal courts. Williams, 147 F.3d at 702. "`[T]he presence of even one federal claim gives the defendant the right to remove the entire case to federal court.'" Id. (quoting Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536, 542 (8th Cir.1996)).

The plaintiff is not arguing that federal question jurisdiction is lacking. The plaintiff claims:

Defendant failed to assert any jurisdictional grounds for the other four state law causes of action brought by Plaintiff within the 30 days allowed under 28 U.S.C. § 1446 and, thus, removal of those claims was not perfected. Consequently, Plaintiff's claims are now pending in two different courts and, as such, constitute an inefficient use of judicial resources. Because all but one of Plaintiff's claims are grounded in state law, it is clear that state law predominates and this Court should remand the § 1983 claim back to state court. Furthermore, Defendant has filed an Answer which asserts a state law based counter-claim which is an additional reason for remanding the instant case back to the District Court of Nemaha County.

Filing 8, Plaintiff's brief in support of remand at p. 1-2.

The plaintiff's motion advances the following arguments in support of remand: 1) NPPD's removal was defective and the plaintiff's state claims remain pending in state court because the removal notice does not specifically cite to the court's supplemental jurisdiction under 28 U.S.C. § 1367; 2) the defendant's motion to amend its removal notice to repair the defect is untimely and must be denied; 3) the court has discretion to decline jurisdiction and remand the case because plaintiff has asserted predominantly state law claims; and 4) remand is appropriate because the defendant has filed a state law counterclaim.

The plaintiff claims that absent a specific statement in NPPD's removal notice identifying the court's supplemental jurisdiction, the removal notice is defective, the state law claims are not removed, and remand of the entire case is required. The plaintiff also claims NPPD's motion to amend the notice of removal and cite to the court's supplemental jurisdiction, (filing 3), must be denied because NPPD "failed to plead federal jurisdiction with care in its original Notice of Removal and cannot now, more than thirty days after Plaintiff filed his state court complaint, correct its mistake and provide a new jurisdictional ground." Filing 9, plaintiff's brief at p. 4.

A notice of removal may be amended freely by the defendant prior to the expiration of the thirty-day period for seeking removal. Northern Ill. Gas Co. v. Airco Indus. Gases, 676 F.2d 270, 273 (7th Cir.1982). After that thirty-day period the notice may be amended to add specific...

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