Holland v. World Omni Leasing, Inc.Holland v. World Omni Leasing, Inc.
MEMORANDUM OPINION
Thе court has for consideration the motion of Joe Alexander Holland and Marcia C. Holland, plaintiffs in the above-entitled case, to remand the case to the Circuit Court of Etowah County, Alabama, from whence it was removed. The original complaint cоntained, and still contains, three counts or theories of liability. Count One charges “fraud and misrepresentation”, invoking state law. Count Two charges “breach of contract”, invoking state law. Count Three invokes the Racketeer Influence and Corrupt Organization Act (RICO),
On May 2, 1991, this court ordered plaintiffs either to eliminate their RICO claim or to notify the court of their intention not to do so. An election to forego the RICO thеory would have made it a simple matter for the court to grant plaintiffs’ motion to remand. On May 7, 1991, plaintiffs refused to make this court’s decision an easy one, electing to proceed with their RICO claim. Plaintiffs simultaneously amended their motion for remand to suggest the altеrnative solution of retaining the RICO count while sending back to the state court the two counts based on state law.
During oral argument on рlaintiffs’ motion to remand prior to its amendment, the court brought to the parties’ attention something they obviously were unaware of, nаmely, that
Subsequent to this court’s decision in
Martin,
at least two other courts have surprised the parties in removal cases by revealing to them the existence of the December 1, 1990, amendment to
Section 1441(c) has recently been amended by § 312 of the Judicial Improvements Act of 1990, P.L. 101-650, Dec. 1, 1990, as follows:
Section 1441(c) of Title 28, United States Code, is amended-
(1) by striking out “, whiсh would be removable if sued upon alone” and inserting in lieu thereof “within the jurisdiction conferred by section 1331 of this title”; and
(2) by striking out “remand all mаtters not otherwise within its original jurisdiction” and inserting in lieu thereof “may remand all matters in which State law predominates.”
104 Stat. 5089, 5114. As amended, that stаtute now reads as follows:
Whenever a separate and independent claim or cause of action within the jurisdiction cоnferred by section 1331 of this title, is joined with one of more otherwise non-removable claims or causes of action, the entire сase may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law prеdominates.
The plain language of this amendment makes clear that Congress has again intended to restrict somewhat the federаl *1444 courts' removal jurisdiction [citations omitted], that is, the first part of the amendment mandates that the separate and independеnt claim must be a federal question under 28 U.s.c. § 1331-if the court only has diversity jurisdiction of a separate and independent claim,28 U.S.C. § 1441(c) will no longеr support removal of the entire case. The second part of the amendment gives the federal court discretionary аuthority, where before it had none, to remand the entire ease to state court if state law predominates.
According to Judge Kelly, even if there is a federal question identified in plaintiff’s well-pleaded complaint, as is true in the instant case,
The other case decided subsequent to
Martin
was decided on April 17, 1991, by Judge Jay Waldman of the Eastern District of Pennsylvania. In
Krauss v. Hayden Woods, Ind.,
Plaintiff contends thаt the court does not have jurisdiction over the case because there is no separate and independent claim fоr purposes of28 U.S.C. § 1441(c) . Defendants contend that removal under§ 1441(c) was appropriate because the claims asserted in counts two and three are separate and independent from the claim asserted in count one. The burden is on the defendants to prove that removal is proper.
•js sfs ♦
We conclude that where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, therе is no separate and independent cause of action under§ 1441(c) .
Apparently unnoticed by counsel, Congress has amended§ 1441(c) to eliminate removal jurisdiction over separate аnd independent claims based on diversity of citizenship.
* * * * # *
It is clear that the claims alleged to be separate and independеnt do not involve a federal question. There is no removal jurisdiction under§ 1441(c) in the present ease.
As demonstrated, not only have other courts agreed with
Martin
without citing it, but the “Commentary on 1990 Revision” by David D. Siegel, found at 1991 Cummulative Annuаl Pocket Part, United States Code Annotated under Title 28
Note that the word used by the statute is still “matters”. The federal court can remand all “matters” in which state law predominates. If “matters” is construed to include all “claims”, then a combination of claims in which a federal claim is one but in which state law is found to “predominate” may justify a remand of the whole case, with the federal claim included.
(emphasis supplied).
Although Mr. Siegel, the commentator, readily admits to being unsure of the full Congressional intent, this court is now satisfied that it was correct in Martin and no longer hаs any hesitancy in finding in the instant case that “state law predominates”. Therefore, by separate order the court will remand the еntire “matter” to the Circuit Court of Etowah County, Alabama.
In an apparent attempt to eliminate the predominance of thе interlocking state
*1445
law claims, defendants have filed a motion for partial summary judgment challenging the state law claims. A federal сourt must be careful not to purport to determine the merits of a controversy while dealing with a jurisdictional question in the context of a removal.
Farmers’ Bank & Trust Co. v. Atchison, T. & S.F. Ry. Co.,
The order of remand will render moot the pending motion to consolidate this case with Lloyd Valentine v. World Omni Leasing, Inc., et al., CV 91-L-0844-S, and will have the effect of sending the other pending motions to the state court along with the case.