Lanier v. American Bd. of Endodontics

Decision Date14 June 1988
Docket NumberNo. 85-1645,85-1645
Citation843 F.2d 901
Parties48 Empl. Prac. Dec. P 38,400 Joan Elena LANIER, Plaintiff-Appellant, v. The AMERICAN BOARD OF ENDODONTICS and the American Association of Endodontists, a corporation, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Michael L. Pitt (argued), Kelman, Loria, Downing, Schneider and Simpson, Detroit, Mich., for plaintiff-appellant.

William D. Snapp (argued), Jenner & Block, Chicago, Ill., for defendants-appellees.

Before KRUPANSKY and RYAN, Circuit Judges, and HULL, * District Judge.

RYAN, Circuit Judge.

This case concerns the application of the Michigan long-arm statute, Mich.Comp. Laws Sec. 600.711 et seq., to a transaction involving a Michigan dentist who sought and was denied certification by the American Board of Endodontics (Board), an Illinois corporation.

The dispositive question is whether, on the facts presented, the federal district court sitting in Michigan acquired limited personal jurisdiction over the defendant Board and its principal, the American Association of Endodontists (Association). The district court held it did not. We disagree, and reverse.

Plaintiff, Doctor Lanier, is licensed to practice dentistry in Michigan and specializes in endodontics, a dental specialty concerned with diseases of tooth pulp. She sought certification by the defendant Board by requesting that the Board send an application to her from its headquarters in Chicago, Illinois. Certification is a three-step process: a written examination, submission of a portfolio of case studies, and finally, an oral examination. Dr. Lanier completed the application and sent it to Chicago with the required fee. She later traveled to Chicago where she successfully passed the written portion of the examination. Her portfolio of case studies was sent to the defendants' Chicago headquarters and was approved. Dr. Lanier then went to Phoenix, Arizona where the oral examination was given. She failed the examination and was notified of that fact by mail.

After paying another application fee, Dr. Lanier went to Chicago where she again took the oral examination and failed.

Dr. Lanier then filed suit against the defendants in the state court in Michigan, alleging that her rejection by the Board was a result of sex discrimination, in violation of the Michigan Elliott-Larsen Civil Rights Act, Mich.Comp. Laws Sec. 37.2101 et seq. The defendants removed the case to the federal district court. Plaintiff challenged the removal petition as untimely and sought remand to the state court because of the diversity of citizenship of the parties. The plaintiff's challenge to the timeliness of the removal petition presents the first issue we are required to address.

I.

28 U.S.C. Sec. 1446(b) (1973) provides:

The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has been filed in court and is not required to be served on the defendant, whichever period is shorter.

Dr. Lanier's complaint, filed in the Michigan state court, was received by the Association in Chicago on September 27, 1984, but valid personal service of process was not completed until October 5. The Association filed its removal petition on November 2, 1984, which is more than "thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based ..." (emphasis added). The district court concluded, correctly we think, that defendants' removal petition was untimely. The court held, however, that Dr. Lanier had waived her right to challenge the untimeliness of the removal petition because she acted affirmatively to submit herself to the jurisdiction of the federal court. The court's waiver ruling derived from the following facts:

On November 15, a day less than two weeks after the defendants' removal petition was filed, counsel for the parties entered into an agreement by which the defendant Board would be permitted an extension of time in which to file a motion to dismiss and a memorandum in support thereof, and would supply answers to certain interrogatories submitted by the plaintiff concerning the question of personal jurisdiction.

On November 20, plaintiff's counsel filed with the district court a "notice to produce," demanding that defendants produce certain named documents, and a set of forty-two interrogatories directed to the defendant. Plaintiff's counsel attached a letter to the defendants' copy of the interrogatories which stated:

In researching the case on personal jurisdiction, ... I discovered that your removal petition was filed untimely ... I am in the process of preparing our motion to remand which should be filed in the next day or two.

On November 27, plaintiff filed a second lawsuit against the defendants, this time in the United States District Court, alleging essentially the same cause of action as was pleaded in the first case. However, in a letter dated November 30, plaintiff's counsel advised defendants' counsel that the second lawsuit was filed "by mistake" and was intended to be an amendment to the original cause of action. Subsequently, on the defendants' motion, uncontested by plaintiff, the cases were consolidated. On the same day, November 30, plaintiff filed her motion to remand the case to the state court. Plaintiff contends on appeal that the district court erred in holding that she had waived her right to challenge the defendant's removal petition as untimely.

It is settled that when a party undertakes affirmative action in the federal district court, she has acquiesced in the federal court's jurisdiction and waived objection to the removal. See In re Moore, 209 U.S. 490, 28 S.Ct. 706, 52 L.Ed. 904 (1908); Harris v. Edward Hyman Co., 664 F.2d 943 (5th Cir.1981). Dr. Lanier agrees that the district court has discretion to determine whether she has waived any right to object to removal. She contends, however, that she did not unduly delay her motion for remand, pointing out that she moved for remand a mere eleven days after having taken any affirmative action in the federal court. She argues that the activity she undertook in the federal court was defensive until after such time as she advised defendant that she intended to move to remand.

It is likewise settled that the district court has broad discretion in deciding whether a plaintiff has waived a right to object to procedural irregularities in removal proceedings. See Charles D. Bonanno Linen Service, Inc. v. McCarthy, 708 F.2d 1, 6 (1st Cir.1983), cert. denied, 464 U.S. 936, 104 S.Ct. 346, 78 L.Ed.2d 312 (1983); Godman v. Sears, Roebuck & Co., 588 F.Supp. 121, 124 n. 3 (E.D.Mich.1984).

Here, before filing her motion to remand to the state court, plaintiff entered into stipulations, filed requests for discovery, sought to amend her complaint, filed a new lawsuit against the defendant in the federal court, demanded trial by jury, and proceeded with discovery. We are satisfied the district court did not abuse its broad discretion in determining that, by reason of her affirmative activity in the district court, the plaintiff waived any objection she may have had to the untimeliness of the defendants' removal petition.

II.

We next address the dispositive question whether the district court erred in determining that it had no personal jurisdiction over the defendants. Plaintiff argues that the court acquired personal jurisdiction over the defendant under any of three provisions of Michigan's long-arm statute: (1) general jurisdiction, under Mich.Comp. Laws Sec. 600.711; (2) limited personal jurisdiction of a corporation "transacting any business within the state," under Mich.Comp. Laws Sec. 600.715(1); and (3) limited personal jurisdiction over a corporation which has caused "any act to be done, or consequence to occur, in the state resulting in an action for tort," under Mich.Comp. Laws Sec. 600.715(2).

Because we conclude that the district court acquired limited personal jurisdiction under Mich.Comp. Laws Sec. 600.715(1), the second of the three bases asserted by plaintiff, we need not determine whether general jurisdiction under Sec. 600.711 or limited personal jurisdiction under Sec. 600.715(2) exists.

Mich.Comp. Laws Sec. 600.715(1) provides:

The existence of any of the following relationships between a corporation or its agent and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise limited personal jurisdiction over such corporation and to enable such courts to render personal judgment against such corporation arising out of the act or acts which create any of the following relationships:

(1) The transaction of any business within the state.

Defendants argue that the Board's limited activities in the state of Michigan do not constitute a transaction of business. They also argue that even if its negligible contacts with Dr. Lanier in Michigan do constitute the transaction of "any business within the state," Dr. Lanier's cause of action did not arise out of those activities.

We disagree, and we do so as a result of a two-step analysis. First, we think the pleadings, affidavits, and related material considered by the trial court demonstrate that the Board must be said to have transacted some slight amount of business with Dr. Lanier in Michigan. Second, we are satisfied that the alleged act of sex discrimination of which she complains--failing her on the oral examination because she is a woman--arose out of the business transacted in...

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