Therrien v. Hamilton, Civ. A. No. 94-30175MAP.

• Decision Date: 24 March 1995
• Docket Number: Civ. A. No. 94-30175MAP.
• Parties: Arthur J. THERRIEN, Plaintiff, v. William A. HAMILTON, Warren J. Johnson, Robert Wagner and City of Holyoke, Defendants.
• Court: U.S. District Court — District of Massachusetts

881 F. Supp. 76

Arthur J. THERRIEN, Plaintiff, v. William A. HAMILTON, Warren J. Johnson, Robert Wagner and City of Holyoke, Defendants.

Civ. A. No. 94-30175MAP.

United States District Court, D. Massachusetts.

March 24, 1995.

Gary T. Gentile, Warwick, RI, for Arthur J. Therrien.

Lisa Brodeur-McGan, Brooks, Mulcahy, Sanborn & Williams, Springfield, MA, for William A. Hamilton, Robert Wagner, Warren J. Johnson, and City of Holyoke.

ORDER REGARDING PLAINTIFF'S MOTION TO REMAND

(Docket No. 17)

PONSOR, District Judge.

On March 6, 1995 Magistrate Judge Kenneth P. Neiman recommended that the Motion to Remand be denied. No objection having been filed to this Report and Recommendation, it is hereby adopted and the motion is DENIED.

It is So Ordered.

REPORT AND RECOMMENDATION REGARDING PLAINTIFF'S MOTION TO REMAND

NEIMAN, United States Magistrate Judge.

Plaintiff Arthur J. Therrien has moved to remand this action to the Massachusetts Superior Court of Hampden County pursuant to 28 U.S.C. 1447(c). Plaintiff is a police officer in the City of Holyoke and has been the president of the local police officer's union, Local 388 International Brotherhood of Police Officers, since 1977. Plaintiff brought this suit alleging that the Defendants William A. Hamilton (the Mayor of Holyoke), Warren J. Johnson (the City of Holyoke's attorney), Robert Wagner (Chief of Police of the City of Holyoke), and the City of Holyoke infringed on his right to petition the government for redress of grievances and his right to speak freely. Plaintiff's motion has been referred to the Court for a report and recommendation pursuant to Rule 3 of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts. 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, the Court recommends denying Plaintiff's Motion to Remand.

I. FACTUAL BACKGROUND

Plaintiff initially filed his complaint in the Superior Court, Hampden County, on July 8, 1994. Plaintiff asserted causes of action under the following statutes: (1) 42 U.S.C. § 1983, (2) 42 U.S.C. § 1985, (3) M.G.L. ch. 12, § 11I (the Massachusetts Civil Rights Act), and (4) M.G.L. ch. 212, § 4. On July 15, 1994, Plaintiff amended his complaint to contain only the following causes of action: (1) M.G.L. ch. 12, § 11I, (2) state common law civil conspiracy, and (3) state common law intentional infliction of emotional distress. Defendants removed the action to this Court on July 21, 1994, pursuant to 28 U.S.C. § 1441(b) and (c). Plaintiff is now seeking to remand the matter to the Massachusetts Superior Court pursuant to 28 U.S.C. § 1447(c).

The case before the Court is markedly similar to an earlier case Plaintiff Therrien pursued against the mayor of the City of Holyoke, William A. Hamilton, in Hampden Superior Court on January 24, 1992, alleging violations of 42 U.S.C. § 1983, 42 U.S.C. § 1985, and M.G.L. ch. 12, § 11I. Civil Action No. 92-160. But for the additional defendants, the instant complaint, in its original form, is identical to Plaintiff's previous complaint. Defendant Hamilton also removed this previous complaint to this Court pursuant to 28 U.S.C. § 1441(b) and (c). Civil Action No. 92-30046-F. Plaintiff then moved to amend the Complaint to add three defendants — the City of Holyoke, Warren J. Johnson, and Robert Wagner. The Court, Ponsor, J., denied Plaintiff's Motion to Amend and, on April 19, 1994, granted Defendant Hamilton's Motion for Summary Judgment on all counts. See Therrien v. Hamilton, 849 F.Supp. 110 (D.Mass.1994).¹

II. DISCUSSION

28 U.S.C. § 1441(b) allows a defendant to remove a civil action presenting "a claim or right arising under the Constitution, treaties or laws of the United States." The federal courts have interpreted this statutory grant of power narrowly. Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 807-808, 106 S.Ct. 3229, 3231-3232, 92 L.Ed.2d 650 (1986). Thus, upon a motion to remand, the burden is upon the removing party to show that federal subject matter jurisdiction exists, that removal was timely, and that removal was proper. Hunter v. Greenwood Trust, 856 F.Supp. 207, 211 (D.N.J.1992). See also Bally v. National Collegiate Athletic Association, 707 F.Supp. 57, 58 (D.Mass.1988). Removal statutes should be strictly construed against removal and doubts resolved in favor of remand. Hunter, supra.

The Supreme Court has made clear that, when determining if a case has been properly removed, a court must inquire "whether the plaintiff's claim to relief rests upon a federal right, and the court is to look only to plaintiff's complaint to find the answer". Hernandez-Agosto v. Romero-Barcelo, 748 F.2d 1, 2 (1st Cir.1984) (emphasis in original), citing Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936), Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) and Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 724-725, 58 L.Ed. 1218 (1914). See also Fitzgerald v. Codex Corp., 882 F.2d 586, 587 (1st Cir.1989). The rule has been stated by the Supreme Court as follows:

Whether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute ... must be determined from what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.

Franchise Tax Bd. v. Laborers Vacation Trust, supra 463 U.S. at 10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983), quoting Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 724-725, 58 L.Ed. 1218 (1914). Thus, not only must the federal controversy "be disclosed on the face of the complaint, unaided by the answer or by the petition for removal," but the complaint itself cannot provide a basis for jurisdiction "insofar as it goes beyond a statement of the plaintiff's cause of action and anticipates or replies to a probable defense." Gully, supra 299 U.S. at 113, 57 S.Ct. at 98. Accordingly, this Circuit has required that the "elements of the federal claim appear on the face of the state court complaint, without reference to other documents." Charles D. Bonanno Linen Service, Inc. v. McCarthy, 708 F.2d 1, 3 (1st Cir. 1983), cert. denied, 464 U.S. 936, 104 S.Ct. 346, 78 L.Ed.2d 312 (1983).

Were this Court faced with Plaintiff's complaint as originally filed in state court, there would be no question that a federal claim was involved. Thus, as originally drafted, Plaintiff's complaint specifically asserted claims arising under 42 U.S.C. §§ 1983 and 1985, in addition to claims arising under Massachusetts Civil Rights Act (M.G.L. ch. 12 § 11I), civil conspiracy and intentional infliction of emotional distress. However, prior to Defendants' removal of the case to this Court, Plaintiff amended his complaint, eliminating his causes of action under 42 U.S.C. §§ 1983 and 1985.

An amendment to a complaint after removal designed to eliminate the federal claim will not defeat jurisdiction. Ching v. Mitre Corp., 921 F.2d 11, 13 (1st Cir.1990). See also Boelens v. Redman Homes, Inc. 759 F.2d 504, 509 (5th Cir.1985); Westmoreland Hospital Ass'n v. Blue Cross etc., 605 F.2d 119, 123 (3rd Cir.1979); and Brown v. Eastern States Corp., 181 F.2d 26 (4th Cir.1950), cert. denied 340 U.S. 864, 71 S.Ct. 88, 95 L.Ed. 631 (1950). In the present action, however, plaintiff specifically amended his complaint before removal, although still with the facially obvious intent of eliminating federal jurisdiction. Plaintiff argues that he can affirmatively choose not to assert an available federal right and may rely instead on state law. "Ultimately," Plaintiff asserts, "he is the master of his own claim." Hunter v. Greenwood Trust, 856 F.Supp. at 213. This Court must, accordingly, view the nature of Plaintiff's claims from the face of the complaint "as it stood at the time the petition for removal was filed." Ching, supra at 13.

Despite his efforts, Plaintiff's amended complaint did not eliminate any and all reference to federal law. First, paragraphs 16, 17, 19 and 20 specifically refer to protected conduct under the First Amendment to the United States Constitution. Second, Plaintiff's first cause of action, relying on the Massachusetts Civil Rights Act, M.G.L. ch. 12, § 11I, claims that Defendants interfered with the exercise of rights "secured by the Constitution or laws of the United States or of rights secured by the constitution or laws of the commonwealth." At a minimum, such references necessarily keep alive the question of whether Plaintiff's complaint, even as amended, is specifically founded on a claim or right arising under the Constitution or laws of the United States. If it is, this Court has original jurisdiction and the case is therefore properly removable under 28 U.S.C. § 1441(b).²

As was the case in Korb v. Raytheon Company, 707 F.Supp. 63, 66 (D.Mass.1989), the definition of the original federal question jurisdiction of the federal courts under 28 U.S.C. § 1441(b) is "at the center of the inquiry in this case". As the court indicated,³ Woodlock, J., there is

no "single, precise definition" of that concept; rather, "the phrase `arising under' masks a welter of issues regarding the interrelation of federal and state authority and the proper management of the federal judicial system."

The application of 28 U.S.C. 1441(b) to a particular cases, Judge Woodlock also noted,

has accurately been described as "the most difficult single problem in determining whether federal jurisdiction exists — that of deciding when the relation of federal law to a case is such that the action may be said to be one `arising under' that law." 13B C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3562, at 17-18 (2d ed. 1984).

In the instant matter, the Court finds that a federal question...