Hinks v. Associated Press

• Decision Date: 13 October 1988
• Docket Number: Civ. A. No. 3:88-2013-15.
• Citation: 704 F. Supp. 638
• Court: U.S. District Court — District of South Carolina
• Parties: John W. HINKS, Plaintiff, v. The ASSOCIATED PRESS and Cosmos Broadcasting Corporation, d/b/a WIS-TV, Defendants.

704 F. Supp. 638

John W. HINKS, Plaintiff, v. The ASSOCIATED PRESS and Cosmos Broadcasting Corporation, d/b/a WIS-TV, Defendants.

Civ. A. No. 3:88-2013-15.

United States District Court, D. South Carolina, Columbia Division.

October 13, 1988.

William O. Sweeny, III, Nelson, Mullins, Riley & Scarborough, Columbia, S.C., for plaintiff.

Jay Bender, Belser, Baker, Barwick, Ravenel, Toal & Bender, Columbia, S.C., Rogers & Wells, New York City, for the Associated Press.

William L. Pope, Robinson, McFadden & Moore, Columbia, S.C., for Cosmos Broadcasting Corp., d/b/a WIS-TV.

ORDER

HAMILTON, District Judge.

The instant action was originally brought in the Court of Common Pleas for Richland County and was subsequently removed to this court under 28 U.S.C. § 1441(c) by defendant Associated Press (AP) on August 2, 1988.¹ Plaintiff, John Hinks, filed a motion to remand on September 2, 1988. For the reasons set forth below, the motion to remand is granted.

This case arises out of an allegedly defamatory broadcast about plaintiff aired by defendants Cosmos Broadcasting Corporation (Cosmos or WIS-TV) and AP on or about April 8, 1988. Plaintiff's complaint asserts a defamation cause of action against AP and Cosmos. Paragraph 5 of the complaint provides in pertinent part:

That on or about April 8, 1988, the defendants published, circulated or distributed, or caused to be published, circulated or distributed to the general public news broadcasts....

Plaintiff contends that remand of this case is appropriate because the complaint does not state a separate and independent claim against AP and because the plaintiff and Cosmos are citizens of the State of South Carolina. Defendants oppose the motion to remand, arguing that each defendant separately published the allegedly libelous material independent of the other and, therefore, that the claim against AP is separate and independent of the claim against Cosmos. Consequently, defendants argue that the case is properly removable under 28 U.S.C. § 1441(c).

The statutory right of removal from state court "exists only in certain enumerated classes of actions, and in order to exercise the right of removal, it is essential that the case be shown to be one within one of those classes." Voors v. National Women's Health Organization, Inc., 611 F.Supp. 203, 205 (N.D.Ind.1985); Chesapeake & Ohio Railway Co. v. Cockrell, 232 U.S. 146, 151, 34 S.Ct. 278, 279, 58 L.Ed. 544 (1914). When a party removes an action to federal court on the basis of diversity of citizenship, the burden falls squarely upon the removing party to establish its right to a federal forum. American Buildings Co. v. Varicon, Inc., 616 F.Supp. 641, 643 (D.Mass.1985); Voors, 611 F.Supp. at 205. Significantly, Congress intended to restrict the right of removal in passing § 1441(c), and thus this court is constrained to effectuate this congressional intent. Able v. Upjohn Co., Inc., 829 F.2d 1330, 1332 (4th Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 1229, 99 L.Ed.2d 429 (1988); McKay v. Boyd Construction Co., Inc., 769 F.2d 1084, 1087 (5th Cir.1985); Lewis v. Time, Inc., 83 F.R.D. 455, 458 (E.D.Cal.1979); Voors, 611 F.Supp. at 205. Courts have interpreted this congressional mandate as requiring "that doubts about the propriety of removal be resolved in favor of retained state court jurisdiction." Able, 829 F.2d at 1332; Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir.1976); Greenshields v. Warren Petroleum Corp., 248 F.2d 61, 65 (10th Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957). See generally 14A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3739, at 584-86 (1985). Part of the rationale for this policy was explained by the Supreme Court in Shamrock Oil & Gas Corporation v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941):

the policy of the successive acts of Congress regulating the jurisdiction of federal courts is one calling for the strict construction of such legislation. The power reserved to the states under the Constitution to provide for the determination of controversies in their courts, may be restricted only by the action of Congress in conformity to the Judiciary Articles of the Constitution. `Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined.'

Id. at 108-09, 61 S.Ct. at 872 (quoting Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248 (1934)).² Accordingly, the right of removal under § 1441(c) must be strictly confined to cases which fall within its provisions, and not used as a vehicle to deprive state courts of wholly state law matters properly coming within their jurisdiction.

Defendants have premised removal of the present case to this court on 28 U.S.C. § 1441, which provides in pertinent part:

(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise nonremovable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise falling within its original discretion.

It is well settled that removal is determined solely by reference to plaintiff's pleading, at least absent concealment of a federal question or fraudulent joinder of a party. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 14, 71 S.Ct. 534, 540, 95 L.Ed. 702 (1951); Her Majesty Industries, Inc. v. Liberty Mutual Insurance Co., 379 F.Supp. 658, 662 (D.S.C.1974); Toanone v. Williams, 405 F.Supp. 36, 38 (E.D.Pa.1975). Specifically, the determination should be made "on the basis of the pleadings at the time removal is sought, and on the basis of what plaintiff has actually alleged, `not by what he could have asserted had he so chosen.'" Toanone, 405 F.Supp. at 38 (citations omitted) (quoting Greenshields, 248 F.2d at 65); Lewis, 83 F.R.D. at 459 ("fact that plaintiff could have alleged multiple publications or several causes of action is irrelevant") (emphasis in original). Moreover, "`all doubts arising from defective, ambiguous and inartful pleadings should be resolved in favor of retention of state court jurisdiction.'" 405 F.Supp. at 38 (quoting 248 F.2d at 65). Most important, the court must refrain from determining the merits of a claim upon a motion for remand. 29 Federal Procedure, Lawyers Edition § 69:115, at 589 (1984). Consequently, the court must determine the removability of the present case on the basis of plaintiff's actual course of pleading, and not on what plaintiff could have asserted in his complaint.

While several courts apparently have allowed removal of state court defamation actions under § 1441(c) based on state law characterizations of such claims, the Supreme Court has indicated that removability is a question of federal rather than state law. According to the Court:

the removal statutes and decisions of this Court are intended to have uniform nationwide application. `Hence the Act of Congress must be construed as setting up its own criteria, irrespective of local law, for determining in what instances suits are to be removed from the state to the federal courts.'

Grubbs v. General Electric Credit Corporation, 405 U.S. 699, 706, 92 S.Ct. 1344, 1349, 31 L.Ed.2d 612 (1972) (quoting Shamrock Oil Corp., 313 U.S. at 104, 61 S.Ct. at 870); Able, 829 F.2d at 1333 n. 2. Nevertheless, state law does play a part in the § 1441(c) determination. The interplay of federal and state law is best described as follows:

both federal and state law play a part in determining the removability of a case under Section 1441(c). Federal law supplies the test as to what is a separate and independent claim or cause of action. State law, on the other hand, is relevant in diversity cases in determining the nature of the claims to which the federal test is applied. Accordingly, state law determines the character of plaintiff's claim, and federal law determines whether that claim meets the standard of Section 1441(c).

C. Wright, A. Miller, & E. Cooper, supra, § 3724, at 396-97 (footnotes omitted); Bailey v. Scholler, 630 F.Supp. 337, 338 (D.Mont.1986).³ Thus, state law characterizations of defamation claims or causes of action are helpful, but not controlling, to a determination under § 1441(c). See, e.g., Toanone, 405 F.Supp. at 38; Lewis, 83 F.R.D. at 459.⁴ Indeed, separate causes of action are not always necessarily "independent" for purposes of § 1441(c). See, e.g., U.S. Industries, Inc. v. Gregg, 348 F.Supp. 1004, 1011 (D.Del.1972), rev'd on other grounds, 540 F.2d 142 (3d Cir.1976), cert. denied, 433 U.S. 908, 97 S.Ct. 2972, 53 L.Ed.2d 1091 (1977).

The Supreme Court narrowly construed the scope of § 1441(c) removal in American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951). In that case, plaintiff asserted alternative theories of liability for a fire loss against two diverse corporations individually and against the corporations and a nondiverse individual jointly and severally. The diverse defendants removed the action on the basis that plaintiff had asserted claims against them that were separate and independent from the claim or cause of action asserted against the resident defendant. After the jury returned a verdict against the plaintiff, plaintiff moved the court to vacate the judgment on the ground that the case had been improperly removed from state court. The court denied the motion and the ruling was affirmed by the court of appeals. The Supreme Court, however, reversed the judgment, directing the district court to vacate the judgment and remand the case to state court. Id. at 18-19, 71 S.Ct. at 542-43.

In support of its holding, the Court found that Congress had intended to restrict the availability of removal through passage of § 1441(c)....