Kenro, Inc. v. Fax Daily, Inc., No. IP 95-1077 C B/S.

CourtUnited States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
Writing for the CourtIrwin B. Levin, Cohen & Malad, Indianapolis, IN, for Plaintiff
Citation904 F. Supp. 912
Decision Date08 November 1995
Docket NumberNo. IP 95-1077 C B/S.
PartiesKENRO, INC., On Behalf of Itself and All others Similarly Situated, Plaintiff, v. FAX DAILY, INC., and Huntington National Bank of Indiana d/b/a Huntington Banks, On Behalf of Itself and All Others Similarly Situated, Defendants.

904 F. Supp. 912

KENRO, INC., On Behalf of Itself and All others Similarly Situated, Plaintiff,
v.
FAX DAILY, INC., and Huntington National Bank of Indiana d/b/a Huntington Banks, On Behalf of Itself and All Others Similarly Situated, Defendants.

No. IP 95-1077 C B/S.

United States District Court, S.D. Indiana, Indianapolis Division.

November 8, 1995.


Irwin B. Levin, Cohen & Malad, Indianapolis, IN, for Plaintiff.

Adam Arceneaux, Ice Miller Donadio & Ryan, Indianapolis, IN, Russell L. Jones, Carmel, IN, for Defendant.

ENTRY

BARKER, Chief Judge.

This is before the Court on plaintiff Kenro Inc.'s ("Kenro") Motion to Remand. For the reasons discussed below, the Motion to Remand is DENIED.

I. Background

On July 14, 1995, Kenro filed a Class Action Complaint in the Marion Superior Court alleging that Defendants Fax Daily, Inc. ("Fax Daily") and Huntington National Bank of Indiana d/b/a/ Huntington Banks ("Huntington") violated the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227. On August 14, 1995, Huntington, with the consent of Fax Daily, removed this action to this Court pursuant to 28 U.S.C. § 1441(a), claiming that the action is within the original jurisdiction of this Court because it presents a federal question pursuant to 28

904 F. Supp. 913
U.S.C. § 1331. Plaintiff now requests that we remand the case back to the Marion Superior Court, arguing that this court lacks subject matter jurisdiction because the language of the TCPA provides for exclusive jurisdiction in state courts

II. Analysis

A. Standard for Removal/Remand

A case originally filed in state court may be removed to federal court pursuant to 28 U.S.C. § 1441, which provides in relevant part:

Except as otherwise expressly provided by Act of Congress, any civil action brought in State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending....

28 U.S.C. § 1441(a). Under the removal statute, "it is generally true that if a case could not originally be brought in federal court it may not be removed there." McCarty v. Amoco Pipeline Co., 595 F.2d 389, 393 (7th Cir.1979), citing 1 JAMES W. MOORE, ET AL., MOORE'S FEDERAL PRACTICE ¶ 0.911 at 845-46 n. 10 (1st ed. 1978). Thus, once removed, a federal court may entertain the case only if the court has subject matter jurisdiction over the removed case. Furthermore, the burden is on the party seeking to remove, and the case should be remanded if there is doubt as to the right of removal. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993). See also, Casey v. Hinckley & Schmitt, Inc., 815 F.Supp. 266, 267 (N.D.Ill.1993).

A concise description of removal jurisdiction was provided by the Seventh Circuit in Allied-Signal:

A federal court may remove to its jurisdiction a civil suit filed in state court so long as the district court has original jurisdiction. Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum. Any doubt regarding jurisdiction should be resolved in favor of the states, and the burden of establishing federal jurisdiction falls on the party seeking removal. One measure of the limited scope of the removal power is the well-established doctrine that a case may not be heard in district court when the only federal question posed is raised by a defense argument, even if the plaintiff anticipated the defense argument and even if both parties concede the federal question is the only real issue in the case.... Courts usually determine jurisdiction based on a well-pleaded complaint.

985 F.2d at 911 (citations omitted). Plainly, the first step in the court's analysis of a remand question must be to look at the face of the complaint to determine whether it states a claim cognizable under federal law.1 If so, the case was properly removed and remand should be denied.

B. Federal Question Jurisdiction

Whether federal question jurisdiction exists over an action is governed by the "well-pleaded complaint rule", "which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." GNB Battery Technologies, Inc. v. Gould, Inc., 65 F.3d 615, 619 (7th Cir.1995), quoting, Burda v. M. Ecker Co., 954 F.2d 434, 438 (7th Cir.1992). Under the well-pleaded complaint rule, for federal question jurisdiction to exist over an action,...

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  • International Science & Technology Institute, Inc. v. Inacom Communications, Inc., No. 96-1142
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 11, 1997
    ...other court to address the issue before us found federal jurisdiction by ignoring that principle. See Kenro, Inc. v. Fax Daily, Inc., 904 F.Supp. 912 International Science also argues, based on a misreading of Merrell Dow, that "federal courts [whether the district courts or other federal c......
  • Chair King, Inc. v. Houston Cellular Corp., No. 96-20100
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 15, 1997
    ...conferred subject matter jurisdiction of private actions upon both the state and federal courts. See Kenro, Inc. v. Fax Daily, Inc., 904 F.Supp. 912 (S.D.Ind.1995) ("Kenro I"), 962 F.Supp. 1162 (S.D.Ind.1997) ("Kenro II"). We agree with the Fourth Circuit and hold that federal courts lack s......
  • The Chair King v. Gte Mobilnet of Houston, No. 04-0570.
    • United States
    • Supreme Court of Texas
    • February 3, 2006
    ...of Augusta, Inc., 136 F.3d 1287, 1289 (11th Cir.1998), modified by 140 F.3d 898 (11th Cir.1998); contra Kenro, Inc. v. Fax Daily, Inc., 904 F.Supp. 912, 915 (S.D.Ind.1995), Kenro, Inc. v. Fax Daily, Inc., 962 F.Supp. 1162, 1164 (S.D.Ind.1997). The parties do not dispute that determination, ......
  • Kenro, Inc. v. Fax Daily, Inc., No. IP 95-1077-C-B/S.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • April 10, 1997
    ...motions in the above-referenced action: 1) Kenro's request that the Court reconsider its decision in Kenro, Inc. v. Fax Daily, Inc., 904 F.Supp. 912 (S.D.Ind.1995), in which we held that federal courts have federal question subject matter jurisdiction over actions brought under the TCPA; 2)......
  • Request a trial to view additional results
15 cases
  • International Science & Technology Institute, Inc. v. Inacom Communications, Inc., No. 96-1142
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 11, 1997
    ...other court to address the issue before us found federal jurisdiction by ignoring that principle. See Kenro, Inc. v. Fax Daily, Inc., 904 F.Supp. 912 International Science also argues, based on a misreading of Merrell Dow, that "federal courts [whether the district courts or other federal c......
  • Chair King, Inc. v. Houston Cellular Corp., No. 96-20100
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 15, 1997
    ...conferred subject matter jurisdiction of private actions upon both the state and federal courts. See Kenro, Inc. v. Fax Daily, Inc., 904 F.Supp. 912 (S.D.Ind.1995) ("Kenro I"), 962 F.Supp. 1162 (S.D.Ind.1997) ("Kenro II"). We agree with the Fourth Circuit and hold that federal courts lack s......
  • The Chair King v. Gte Mobilnet of Houston, No. 04-0570.
    • United States
    • Supreme Court of Texas
    • February 3, 2006
    ...of Augusta, Inc., 136 F.3d 1287, 1289 (11th Cir.1998), modified by 140 F.3d 898 (11th Cir.1998); contra Kenro, Inc. v. Fax Daily, Inc., 904 F.Supp. 912, 915 (S.D.Ind.1995), Kenro, Inc. v. Fax Daily, Inc., 962 F.Supp. 1162, 1164 (S.D.Ind.1997). The parties do not dispute that determination, ......
  • Kenro, Inc. v. Fax Daily, Inc., No. IP 95-1077-C-B/S.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • April 10, 1997
    ...motions in the above-referenced action: 1) Kenro's request that the Court reconsider its decision in Kenro, Inc. v. Fax Daily, Inc., 904 F.Supp. 912 (S.D.Ind.1995), in which we held that federal courts have federal question subject matter jurisdiction over actions brought under the TCPA; 2)......
  • Request a trial to view additional results

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