Morsani v. Major League Baseball

• Decision Date: 13 December 1999
• Docket Number: No. 99-1078-CIV-T-23E.,99-1078-CIV-T-23E.
• Parties: Frank L. MORSANI, et al., Plaintiffs, v. MAJOR LEAGUE BASEBALL, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

79 F.Supp.2d 1331

Frank L. MORSANI, et al., Plaintiffs, v. MAJOR LEAGUE BASEBALL, et al., Defendants.

No. 99-1078-CIV-T-23E.

United States District Court, M.D. Florida, Tampa Division.

December 13, 1999.

Anthony W. Cunningham, Cunningham, Clark & Greiwe, P.A., Tampa, FL, for Plaintiffs.

John W. Foster, Sr., Baker & Hostetler, Orlando, FL, Robert Earl Banker, Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, FL, for Defendants.

ORDER

MERRYDAY, District Judge.

This action was filed in state court in 1992. Plaintiffs Frank L. Morsani and the Tampa Bay Baseball Group, Inc. sued approximately 60 defendants, including the American League of Professional Baseball Clubs, Inc., the National League of Professional Baseball Clubs, Inc., an entity dubiously described as "Major League Baseball,"¹ a number of major league baseball teams, and a number of individuals associated with particular teams, the leagues, and the Office of the Commissioner of Baseball. The plaintiffs' original four-count complaint comprises three alleged causes of action for tortious interference with business relations and an alleged cause of action for violation of Florida's antitrust laws. The plaintiffs' claims arise from three separate efforts to obtain a major league baseball franchise in Tampa, Florida. The plaintiffs refer to these efforts respectively as the "Twins Deal" (involving an attempt to purchase and relocate the Minnesota Twins franchise), the "Rangers Deal" (a similar effort with respect to the Texas Rangers), and the "Expansion" (involving the award of a new franchise to the original owners of the Florida Marlins). Plaintiffs' Motion to Remand (Doc. 8) at pp. 2-5.

THE DEFENDANTS' FIRST REMOVAL

The defendants initially removed this action in 1993. However, Judge Elizabeth A. Kovachevich remanded the case upon finding that the defendants failed to file their notice of removal within thirty days after the first receipt by one of the defendants of a copy of the complaint. See March 9, 1993 Order in Case No. 93-11-CIV-T-15C; 28 U.S.C. § 1446(b). This thirty-day "receipt rule" prevailed in the Eleventh Circuit and in several other circuits² until the Supreme Court's rejection of the rule in Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999). After remand and from 1993 until 1999, the case advanced in state court.³

THE DEFENDANTS' SECOND REMOVAL

On May 5, 1999, the defendants again filed a notice of removal, relying on the second paragraph of 28 U.S.C. § 1446(b):

[A] notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

The defendants contend that Murphy Brothers is an "order or other paper" within the meaning of Section 1446(b) and, therefore, that the appearance of Murphy Brothers is an event triggering a renewed right of removal. Consistent with that assumption, the defendants filed their notice of removal within thirty days after publication of Murphy Brothers.

DISCUSSION

I.

Many courts have examined and rejected the defendants' argument that an order entered in another case may constitute an "order or other paper" pursuant to Section 1446(b).⁴ These courts interpret Section 1446(b) to refer only to "an amended pleading, motion, order or other paper" that arises within the case for which removal is sought. The plain language of the statute, referring to the "receipt by the defendant, through service or otherwise," implies the occurrence of an event within the proceeding itself; defendants do not in the ordinary sense "receive" decisions entered in unrelated cases. Accordingly, the courts consistently hold that publication of an order on a subject that might affect the ability to remove an unrelated state court suit does not qualify as an "order or other paper" for the purposes of Section 1446(b).⁵

The two published decisions cited by the defendants that are contrary to this body of law are anomalous and unpersuasive.⁶ Further, the defendants' reliance on Doe v. American Red Cross, 14 F.3d 196 (3d Cir.1993); Torres v. Ortega, 1993 WL 62998 (N.D.Ill. Mar. 3, 1993); and McCool v. American Red Cross, 1992 WL 396805 (E.D.Pa. Dec.22, 1992) is ill-founded. In each of these cases, the courts interpret the "order or other paper" language of Section 1446(b) in light of Supreme Court authority enabling the American Red Cross to remove tainted blood-products cases. American National Red Cross v. S.G., 505 U.S. 247, 112 S.Ct. 2465, 120 L.Ed.2d 201 (1992).⁷ As the Third Circuit explained in Doe, the Supreme Court's S.G. decision was "not simply an order emanating from an unrelated action but rather ... an unequivocal order directed to a party to the pending litigation, explicitly authorizing it to remove any cases it is defending." Doe, 14 F.3d at 202. Notably, the Third Circuit expressly distinguished its "extremely confined [and] narrow" ruling from the line of cases cited in footnote 4 of this order. Doe, 14 F.3d at 202.⁸

For the foregoing reasons, the defendants' argument that Murphy Brothers constitutes an "order or other paper" allowing removal of this action to federal court is rejected. Murphy Brothers neither revives a long-deceased removal right nor creates a new one.⁹

II.

Of the four counts alleged in the plaintiffs' initial complaint, the plaintiffs and the defendants agree that federal question jurisdiction attaches, if at all, only as a result of the allegations in count IV, the plaintiffs' state law antitrust claim. Relying on the "antitrust exemption" professional baseball has long enjoyed,¹⁰ the defendants argue that this Court should exercise jurisdiction over count IV because "federal law has entirely preempted state antitrust law with regard to the business of baseball." Defendants' Opposition to Plaintiffs' Motion to Remand (Doc. 15) at p. 12. (The remaining counts of the complaint are state law tortious interference claims, which the defendants urge the Court to accept in an exercise of supplemental jurisdiction.)

In their memoranda, the parties do not address whether Murphy Brothers applies retroactively — that is, entitles a disappointed removing party to an opportunity to procure a reassessment of past law (and decisions rightly rendered in accord with it) in light of present law. The Supreme Court in Murphy Brothers did not address whether its decision applies retroactively or only prospectively, and other Supreme Court decisions dealing with retroactivity provide little guidance.¹¹ However, the retroactivity question in this case is effectively obscured or mooted by the fact that the plaintiffs' claims differ in a critical respect from the plaintiffs' claims at the time this case was first removed. Specifically, the state trial court awarded summary judgment to the defendants on count IV, the plaintiffs' antitrust claim. For this reason, even if Murphy Brothers applies retroactively, and even if Judge Kovachevich for this reason could be said to have ruled "wrongly," and even if the notice of removal in 1993 was somehow rendered timely, the Court would still remand this case for lack of subject matter jurisdiction.

This Court is bound to follow precedent favoring the broad exemption from antitrust liability afforded the business of professional baseball.¹² However, the plaintiffs' claims as now arrayed present no attack on baseball's antitrust exemption. After the defendants obtained summary judgment on count IV of the complaint, the plaintiffs chose not to appeal the trial court's decision.¹³ Accordingly, the plaintiffs no longer threaten the defendants with liability on the only count that provides the defendants' asserted basis for removal. If the purpose of baseball's broad antitrust exemption is to protect the enterprise of baseball from the threat of antitrust liability, that purpose is currently unobstructed by the presence of the remaining tortious interference claims in state court.

Rule 9.110(k), Florida Rules of Appellate Procedure, although not specifically cited in the memoranda of either party, provides the plaintiffs an opportunity to appeal the summary judgment concerning count IV either (1) promptly upon rendition of the partial final judgment or (2) on appeal from the final judgment "in the entire case." However, the defendants argue wrongly that "[s]ummary judgment against the plaintiffs on Count IV was ... not immediately appealable," and therefore "the plaintiffs' antitrust claim is very much `in existence'." Defendants' Opposition to Plaintiffs' Motion to Remand (Doc. 15) at p. 10.¹⁴ The plaintiffs counter that this argument is illusory, because their failure to appeal their antitrust claim before Florida's Second District Court of Appeal "estops" them from appealing the summary judgment on count IV in the future.¹⁵ However, the plaintiffs' assertion is entirely speculative and dependent on principles of state law that Florida's courts have not yet applied in this case.

CONCLUSION

The plaintiffs' complaint, as it stands before this Court, presents no federal question. Nothing suggests that in 1993 Judge Kovachevich wrongly remanded this action as the law was then or that any different result attaches in 1999 as the law is now. Accordingly, the defendants' removal of this action was in 1993 distinctively tardy but is in 1999, at best, decidedly premature.

For these reasons, the plaintiffs' motion to remand (Doc. 8) is GRANTED. The Clerk is directed to (1) close the file and (2) terminate all pending motions.

1. The plaintiffs allege that "Major League Baseball" is "a unique incorporated or unincorporated association, organization, alter ego, or the like," consisting of the American League, the National League, and the Office of the Commissioner of Baseball. Plaintiffs' Third Amended Complaint at...