Wilson v. Intercollegiate (Big Ten) Conference Athletic Ass'n

• Decision Date: 26 January 1982
• Docket Number: No. 81-2154,81-2154
• Citation: 668 F.2d 962
• Parties: David C. WILSON, Plaintiff-Appellant, v. INTERCOLLEGIATE (BIG TEN) CONFERENCE ATHLETIC ASSOCIATION, an Unincorporated Association, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 962

668 F.2d 962

David C. WILSON, Plaintiff-Appellant, v. INTERCOLLEGIATE (BIG TEN) CONFERENCE ATHLETIC ASSOCIATION an Unincorporated Association, et al., Defendants-Appellees.

No. 81-2154.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 5, 1982.

Decided Jan. 26, 1982.

Robert I. Auler, Urbana, Ill., for plaintiff-appellant.

Charles L. Palmer, George V. Eighmey, Champaign, Ill., Byron L. Gregory, McDermott, Will & Emery, Chicago, Ill., for defendants-appellees.

Before BAUER, Circuit Judge, MARKEY, Chief Judge, ^* and POSNER, Circuit Judge.

POSNER, Circuit Judge.

This case, on the view we take of it, turns on the following question under 28 U.S.C. § 1446(b): if a case initially filed in state court is removable to federal court but the defendant waives his right to remove, under what circumstances will that right revive if the plaintiff subsequently amends his complaint to add new federal claims?

The plaintiff, David C. Wilson, today a quarterback for the New Orleans Saints, was in 1980 a transfer student at the University of Illinois from a junior college in California. The principal defendants are the Intercollegiate (Big Ten) Conference of Faculty Representatives, an association of ten midwestern universities, and those universities. The rules of the Conference, so far as relevant here, (1) limit a Big Ten student to four seasons of playing college football, and (2) declare him ineligible in any season if he has failed to accumulate a specified minimum number of course credits (the number depends on what year of college he is in). When Wilson entered the University of Illinois in February 1980, he was in his third year of college and therefore ineligible to play beyond the (fall) 1980 season; and because the University refused to give him full credit for all the courses he had taken at his junior college, he was ineligible to play even in 1980 for want of the requisite accumulated credits. He sought a waiver of both rules, but after various interim decisions unnecessary to detail here the Conference refused to waive either one.

In August 1980, shortly before the beginning of the 1980 college football season, Wilson brought this suit in an Illinois state court. His complaint alleged that the Conference's refusal to waive its rules denied him equal protection of the laws and due process of law, in violation of both the United States and Illinois Constitutions. The complaint sought injunctive relief and damages. The defendants did not attempt to remove the case to federal court. The state court, Judge Clem, issued a preliminary injunction in Wilson's favor on September 5, 1980, holding that he had established a likelihood of prevailing on the merits of his constitutional claims. Judge Clem later dissolved the preliminary injunction when the defendants presented new evidence bearing on Wilson's academic progress (or rather lack thereof), but the Illinois Appellate Court reinstated the preliminary injunction on September 19 and the Illinois Supreme Court refused to review the appellate court's action. Because of the injunction, Wilson was able to play the whole 1980 football season.

We come to the critical stage of the proceedings. In March 1981 Wilson amended his complaint by adding several additional counts (and also by quantifying for the first time the damages he was seeking). The amended complaint maintained the focus of the original complaint on the Conference's refusal to waive its rules in Wilson's favor, but this refusal was now alleged to violate not only the equal protection and due process clauses of the U. S. and Illinois Constitutions but also several federal civil rights statutes (42 U.S.C. §§ 1981, 1983, and 1985); Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. (which deals with sex discrimination); the First Amendment to, and the full faith and credit clause of, the U. S. Constitution; and the Illinois Antitrust Act, Ill.Rev.Stat., ch. 38, § 60-3. The defendants promptly filed a new petition to remove the case to federal district court. After denying Wilson's motion to remand the case to the state court, the district court granted summary judgment for the defendants on all counts and dismissed the complaint. Wilson appeals both from the order denying his motion to remand the case to state court and from the dismissal of the complaint.

If the only interests at stake in this litigation were the private interests of the parties, we might agree with the district judge that the case was properly removed to federal court. The original complaint was removable, notwithstanding the presence of a state claim in the complaint. The state claim was so closely related to the federal claim that if Wilson had brought the case in federal court the court would have had pendent jurisdiction over the state claim. Therefore the entire complaint was within the original jurisdiction of the federal courts and hence removable under 28 U.S.C. § 1441(a). See, e.g., Hazel Bishop, Inc. v. Perfemme, Inc., 314 F.2d 399, 402-03 (2d Cir. 1963).

The defendants chose not to remove. They must have regretted this decision as they saw the case progress through the state-court system favorably to Wilson. Then Wilson (or rather his attorney) made what must have seemed to the defendants a colossal tactical blunder: amending the complaint to add a scattershot of new federal claims that no doubt struck the defendants (as they struck the district court) as insubstantial, and thereby reviving their right to remove and giving them a chance to escape from what had turned out to be an unfavorable state forum. Wilson was hoist with his own petard-and there we would leave him were it not for the presence in this case of policy concerns, jurisdictional in nature and hence not waivable, relating to the power of the federal courts to divest state courts of jurisdiction over cases properly submitted to them.

Section 1446(b) of the Judicial Code provides that if a case filed in a state court, though removable to federal court, is not removed by petition filed within 30 days of the receipt of the complaint, it is not removable thereafter. The courts, however, have read into the statute an exception for the case where the plaintiff files an amended complaint that so changes the nature of his action as to constitute "substantially a new suit begun that day." Fletcher v. Hamlet, 116 U.S. 408, 410, 6 S.Ct. 426, 29 L.Ed. 679 (1886); see 14 Wright, Miller & Cooper, Federal Practice and Procedure § 3732, at 727-29 (1976), and cases cited therein. It is idle to pretend that the Fletcher test or any of the alternative formulations that the courts sometimes use (e.g., "an entirely new and different suit," Cliett v. Scott, 233 F.2d 269, 271 (5th Cir. 1956)) are self-defining. The right to revive must be determined in each case with reference to its purposes and those of the 30-day limitation on removal to which it is an exception, and against a background of general considerations relating to the proper allocation of decision-making responsibilities between state and federal courts.

The purpose of the 30-day limitation is twofold: to deprive the defendant of the undeserved tactical advantage that he would have if he could wait and see how he was faring in state court before deciding whether to remove the case to another court system; and to prevent the delay and waste of resources involved in starting a case over in a second court after significant proceedings, extending over months or even years, may have taken place in the first court. These considerations might be overborne in a case where a plaintiff, seeking to mislead the defendant about the true nature of his suit and thereby dissuade him from removing it, included in his initial complaint filed in state court an inconsequential but removable federal...