Moubry v. Kreb, Civ. No. 98-2246 (JRT/RLE).

• Decision Date: 10 June 1999
• Docket Number: Civ. No. 98-2246 (JRT/RLE).
• Citation: 58 F.Supp.2d 1041
• Parties: Joseph MOUBRY, Plaintiff, v. Roberta KREB, in her official capacity as Initial Hearing Officer, Elizabeth Thompson, in her official capacity as Hearing Review Officer, Robert Wedl, in his Official Capacity as Commissioner, State of Minnesota, Minnesota Department of Children, Families, and Learning, and Independent School District Number 696, Defendants. Joseph Moubry, Plaintiff, v. Independent School District Number 696, Defendant.
• Court: U.S. District Court — District of Minnesota

Page 1041

58 F.Supp.2d 1041

Joseph MOUBRY, Plaintiff, v. Roberta KREB, in her official capacity as Initial Hearing Officer, Elizabeth Thompson, in her official capacity as Hearing Review Officer, Robert Wedl, in his Official Capacity as Commissioner, State of Minnesota, Minnesota Department of Children, Families, and Learning, and Independent School District Number 696, Defendants.

Joseph Moubry, Plaintiff, v. Independent School District Number 696, Defendant.

Civ. No. 98-2246 (JRT/RLE).

United States District Court, D. Minnesota.

June 10, 1999.

Peter James Nickitas, Nickitas Law Office, Superior, WI, for plaintiff.

Martha Jean Casserly, MN Attorney General, St Paul, MN, Susan E Torgerson, Knutson Flynn Deans & Olsen, Mendota Heights, MN, Charles E Long, Knutson Flynn Deans & Olsen, Mendota Heights, MN, for defendants.

TUNHEIM, District Judge.

Based upon the Report and Recommendation of United States Magistrate Judge Raymond L. Erickson, and after an independent review of the files, records and proceedings in the above-titled matter, it is —

ORDERED:

1. That the Plaintiff's Motions to Remand [Docket No. 17, Civ. No. 98-2246 (JRT/RLE); and Docket No. 3, Civ. No. 98-2336 (JRT/RLE)] is denied.

2. That the State Defendants' Motion to Dismiss [Docket No. 23, Civ. No. 98-2246 (JRT/RLE)] is granted.

REPORT AND RECOMMENDATION

ERICKSON, United States Magistrate Judge.

At Duluth, in the District of Minnesota, this 14th day of May, 1999.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(A) and (B), upon the Motion to Dismiss of the Defendants Roberta Kreb ("Kreb"), Elizabeth Thompson ("Thompson"), and Robert Wedl ("Commissioner") in Civ. No. 2246 (JRT/RLE) ("Civ. No. 2246"), and upon the Motion of the Plaintiff to Remand both Civ. No. 2246, and Civ. No. 2336 (JRT/RLE) ("Civ. No. 2336"), to the State Court from which the actions were removed.¹

A Hearing on the Motions was conducted on January 21, 1999, at which time the Plaintiff appeared by Peter J. Nickitas, Esq.; Kreb, Thompson, and the Commissioner (the "State Defendants") appeared by Martha J. Casserly, Esq.; and the Defendant Independent School District No. 696 ("ISD 696") appeared by Susan E. Torgerson, Esq.

For reasons which follow, we recommend that the Plaintiff's Motions to Remand be denied, and that the State Defendants' Motion to Dismiss be granted.

II. Procedural and Factual Background

Each of the two actions arise out of the Plaintiff's attempt, under the Individuals with Disabilities Education Act ("IDEA"), to establish, via the administrative process provided by ISD 696, an Individual Education Plan ("IEP") as required under the Minnesota and Federal IDEAs. Civ. No. 2336 was originally commenced by the Plaintiff, in the Minnesota Court of Appeals, by filing a Petition for Writ of Certiorari [Appellate File No. C5-98-1888]. This Petition named ISD 696 as the sole Respondent, and sought redress for what the Plaintiff considers to be errors by of the Level II Hearing Review Officer ("HRO"), when she ruled that ISD 696 had provided him with a "free and appropriate education" in his reading and physical therapy programs. ISD 696's Notice of Removal; Plaintiff's Petition for Writ of Certiorari to the Minnesota Court of Appeals [case no. C5-98-1888]. Thereafter, on October 28, 1998, ISD 696 removed that proceeding to this Court, pursuant to Title 28 U.S.C. § 1441(a).

In Civ. No. 2246, the Plaintiff challenges the impartiality of the administrative proceedings which addressed whether he was entitled to a due process Hearing concerning the educational services that were provided to him by ISD 696. Specifically, the Plaintiff contends that the Level I Initial Hearing Officer ("ISO") — Kreb — was biased in favor of ISD 696, and the Minnesota Department of Children, Families and Learning, because of her refusal to recuse herself as the ISO, and that the HRO — Thompson — erred in her affirmance of Kreb's decision to dismiss the Plaintiff's demand for a due process Hearing.

On October 2, 1998, the Plaintiff filed separate Writs of Certiorari, and Prohibition, in the Minnesota Court of Appeals, each of which were assigned separate case numbers — C1-98-1807 (Writ of Certiorari), and C3-98-1808 (Writ of Prohibition). In these petitions, the Plaintiff named both ISD 696, and the State Defendants, as Respondents. On October 12, 1998, the State Defendants moved the Court for an Order dismissing them as parties to each of these appellate proceedings. On the following day — October 13, 1998 — ISD 696 removed the proceedings to this Court, pursuant to Title 28 U.S.C. § 1441(a). On October 26, 1998, the Minnesota Court of Appeals issued an Order advising that the State Defendants were not denominated as Respondents in the captions which were assigned by the Clerk of Appellate Courts, and that, therefore, the State Defendants' Motion to Dismiss was moot. The Court also expressly acknowledged that these matters had been removed to Federal Court, and that, therefore, the Minnesota Court of Appeals lacked jurisdiction to proceed. As noted, the State Defendants now seek to be dismissed from Civ. No. 2246, and the Plaintiff seeks to have each of these proceedings remanded to the Minnesota Court of Appeals.

II. Discussion

A. The Plaintiff's Motions to Remand the Actions to the State Courts.

1. Standard of Review. As here pertinent, the Statute which governs the removal of causes to the Federal Courts, Title 28 U.S.C. § 1441(a), provides as follows:

Except as otherwise expressly provided by Act of Congress, any civil action brought in a 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.

Thus, "[r]emoval of a state court action without regard to the citizenship of the parties is appropriate if the suit could have been brought in federal district court, as `founded on a claim or right arising under the Constitution, treaties or laws of the United States.'" Blair v. Source One Mortg. Services Corp., 925 F.Supp. 617, 620 (D.Minn.1996), quoting M. Nahas & Co. v. First Nat'l Bank of Hot Springs, 930 F.2d 608, 611 (8th Cir.1991), in turn citing Title 28 U.S.C. § 1441(b). "A federal question is raised in `those cases in which a 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." Peters v. Union Pacific R. Co., 80 F.3d 257, 260 (8th Cir.1996), 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); see also, In re Otter Tail Power Co., 116 F.3d 1207, 1213 (8th Cir.1997). The fact that a Complaint mentions, or even incorporates a Federal law, is not determinative of whether it "arises under" the Constitution, laws or treaties of the United States. See, e.g., Goepel v. National Postal Mail Handlers Union, 36 F.3d 306, 310 (3rd Cir.1994), cert. denied, 514 U.S. 1063, 115 S.Ct. 1691, 131 L.Ed.2d 555 (1995); Shannon v. MTA Metro-North R.R., 952 F.Supp. 177, 178 (S.D.N.Y.1997); Collins v. Baxter Healthcare Corp., 949 F.Supp. 1143, 1147 (D.N.J. 1996). "The propriety of removal to federal court depends on whether the claim comes within the scope of the federal court's subject matter jurisdiction." Baker Electric v. Otter Tail Power Co., 116 F.3d 1207, 1213 (8th Cir.1997), quoting Peters v. Union Pacific R.R. Co., 80 F.3d 257, 260 (8th Cir.1996).

"As a general rule, a plaintiff can avoid removal to federal court by alleging only state law claims." Gaming Corp. of America v. Dorsey & Whitney, 88 F.3d 536, 542 (8th Cir.1996), citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Otherwise stated, "[u]nder the well-pleaded complaint doctrine, the plaintiff is master of his claim and may avoid federal removal jurisdiction by exclusive reliance on state law." Blair v. Source One Mortg. Services Corp., supra at 620, quoting M. Nahas & Co. v. First Nat'l Bank of Hot Springs, supra at 611. Therefore, when the plaintiff's case is properly brought under State law, a defendant is not entitled to remove the action simply because federal law, or principles of federal preemption, will provide a defense — even a complete defense — to the plaintiff's state law claims. Caterpillar Inc. v. Williams, supra at 393, 107 S.Ct. 2425.

Nevertheless, "[a] plaintiff's characterization of a claim as based solely on state law is not dispositive of whether federal question jurisdiction exists." Peters v. Union Pacific R. Co., supra at 260. As a result, "a plaintiff cannot thwart the removal of a case by inadvertently, mistakenly or fraudulently concealing the federal question that would necessarily have appeared if the complaint had been well pleaded." Blair v. Source One Mortg. Services Corp., supra at 620, quoting M. Nahas & Co. v. First Nat'l. Bank of Hot Springs, supra at 612.

When the Plaintiff has no State claim at all, the "artful pleading doctrine" recognizes that the characterization of a Federal claim as a State claim will not prohibit removal. See, Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 n. 2, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981) (artful pleading doctrine permits Courts to examine whether a plaintiff has "attempted to avoid removal jurisdiction by `artful[ly]' casting [her] `essentially federal law claims' as state law claims."). The doctrine "does not convert legitimate state claims into federal ones, but rather reveals the suit's necessary federal character." Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 367 (5th Cir.1995). In practical effect, the...