Standards Act, 29 U.S.C. § 219 (1970) [hereinafter FLSA] as a removal prohibition and thus held FCRA cases nonremovable.
Analysis of FLSA cases does not compel such a conclusion, for courts are divided on whether Congress intended a removal prohibition in the FLSA.
Moreover, although the FSLA and the FCRA are similar in that both allow suit in state or federal court, the language of the two statutes is not identical. The FLSA permits a plaintiff to "maintain" an action in any other court of competent jurisdiction, whereas the FCRA provides that suit "may be brought" in any other court of competent jurisdiction. This slight change in language produces more than a slight change in meaning. The word "maintain" arguably carries the connotation that an action may not only be commenced but also carried on to conclusion.
Thus, one may argue that permitting a plaintiff to "maintain" his FLSA suit in a state court is logically inconsistent with permitting the defendant to remove the action to federal court under § 1441(a). Therefore, when Congress used the word "maintain", it intended to create an express exception to the removal statute.
The FLSA language presents a close question as to whether a removal prohibition was actually intended, but to hold that the FCRA language "may be brought . . . in any other court of competent jurisdiction" produces the same logical inconsistency with § 1441(a) would require a strained interpretation of the FCRA language. Permitting a suit to be "brought" in a particular court allows the plaintiff to commence an action in that court, but it does not connote an assurance that he will be able to keep it there.
We believe Congress intended the word "brought" to mean no more than its usual connotation of "commenced" when it provided in § 1441(a) for removal of cases "brought in a State court", and the FCRA contains no indication in its language or in its legislative history that Congress intended the word to carry any other significance there. The only purpose of the language in question is to permit concurrent jurisdiction, and the mere provision of concurrent jurisdiction does not effect a guarantee against removal. (See, e.g., Section 77v of the Securities Exchange Act of 1933, supra, in which Congress provided for concurrent jurisdiction but, to create a bar to removal, deemed it necessary to also include specific language prohibiting removal. The FCRA is void of such express language.)
The Court is not unaware of the policy issue presented here. Some courts have noted in FLSA cases that the amount in controversy may be small and some plaintiffs in rural areas may be "removed" out of a suit if they are forced to suffer the expense and inconvenience of maintaining their suit in a federal court many miles away. Therefore, they contend that Congress intended the FLSA to provide not only a broad basis for relief, but also a broad enforcement jurisdiction in a court of plaintiff's choosing, protected from a defendant's veto of forum.
The FCRA also provides a broad right of relief and enforcement jurisdiction, cases may involve small amounts, and removal may create inconveniences and additional expenses for some plaintiffs. But these considerations are not so unique to FCRA cases that they require a strained inference from language creating concurrent jurisdiction that Congress intended to give FCRA plaintiffs special protection from removal, especially when Congress has been so explicit in creating exceptions in other situations. If Congress were concerned about a particular danger of removal frustrating the ability of plaintiffs to successfully recover under the FCRA because of the peculiar nature of FCRA cases, it could easily have provided express protections. (See 28 U.S.C. § 1445(b), supra.)
Since we conclude that the FCRA contains no express removal prohibition, we must now turn to Plaintiff's alternative contention that Defendant waived his right to remove by answering in state court before filing his removal petition. It has been stated that any litigation of the merits of the case or other indication of submission to state court jurisdiction, by answer or otherwise, constitutes a waiver of the right to remove. See Vendetti v. Schuster, 242 F. Supp. 746, 754 (W.D.Pa. 1965); General Phoenix Corp. v. Malyon, 88 F. Supp. 502, 503 (S.D.N.Y. 1949). Careful reading of the cases, however, suggests that such a statement is overbroad. Courts have found a waiver of the right to remove when a defendant attempts to experiment with the merits of his case in state court and then use removal to get a second chance or "alternative appeal" route in federal court, Rosenthal v. Coates, 148 U.S. 142, 37 L. Ed. 399, 13 S. Ct. 576 (1893); In re 73rd Precinct Station House in Borough of Brooklyn, City of New York, 329 F. Supp. 1175, 1178 (E.D.N.Y. 1971); Daugherty v. Sharp, 171 F. 466 (6th Cir. 1908), or when the defendant's conduct clearly manifests an intent to submit to state court jurisdiction and have the case tried there. See Sood v. Advanced Computer Techniques Corp., 308 F. Supp. 239 (E.D.Va. 1969) (filing a permissive counterclaim in state court); Briggs v. Miami Window Corp., 158 F. Supp. 229 (M.D.Ga. 1956) (filing a permissive cross-action in state court). The majority of courts seem to have held that preliminary conduct by a defendant short of his actual litigation of the merits or his voluntary invocation of state court jurisdiction for his own purposes does not constitute a waiver of his right to remove. See Malave v. Sun Life Assurance Co. of Canada, 392 F. Supp. 51 (D.P.R. 1975) (motion to extend time to answer in state court is not a waiver); Genie Machine Products, Inc. v. Midwestern Machinery Co., 367 F. Supp. 897 (W.D.Mo. 1974) (general appearance and filing a bond to discharge attachment is not a waiver); Champion Brick Co. of Baltimore County v. Signode Corp., 37 F.R.D. 2 (D.Md. 1965) (filing an answer is not a waiver); Parkhill Produce Co. v. Pecos Valley Southern Ry., 196 F. Supp. 404 (S.D.Tex. 1961) (filing a compulsive counterclaim is not a waiver); Markantonatos v. Maryland Drydock Co., 110 F. Supp. 862 (S.D.N.Y.1953) (general appearance, filing answer, and serving notice to examine plaintiff is not a waiver).
These cases are consistent with the removal procedure set forth by Congress. The purpose of § 1446(b) is to provide a uniform and definite time for a defendant to remove an action. Although waiver is possible within the 30-day time limit proscribed in § 1446(b), only conduct clearly and unequivocally inconsistent with removal should be interpreted as an intent to waive the right to remove. Genie Machine Products, Inc. v. Midwestern Machinery Co., supra; Champion Brick Co. of Baltimore County v. Signode Corp., supra; Hildreth v. General Instrument, Inc., 258 F. Supp. 29 (D.S.C. 1966); Davila v. Hilton Hotels Intern., 97 F. Supp. 32 (D.P.R. 1951). By merely filing an answer in state court a defendant has not acted so clearly inconsistent with his right to remove. Champion Brick Co. of Baltimore County v. Signode Corp., supra; Markantonatos v. Maryland Drydock Co., supra. Filing an answer carries no inference about the defendant's intent to remove, nor does it constitute a litigation of the merits of the case such that removal would afford the defendant a second chance in federal court. Plaintiff is also hard pressed to show any other kind of prejudice caused by the defendant's answer in the state court before removing the case to federal court within the 30-day time limit established in § 1446(b).
On the other hand, it has been noted that treating a defendant's answer as a waiver of removal would create hardships for the defendant. If a defendant failed to answer in state court to preserve his right to remove, and his attempt to remove failed in federal court for some reason, he may face a default in state court. To protect himself, then, he might have to answer in state court and simultaneously file a removal petition or qualify his answer by stating his intent to remove. In either case, the defendant would have to decide to remove or not within the time to answer under state law. This result is contrary to the purpose of § 1446(b) which was enacted to provide defendants a definite and uniform time for removal, irrespective of the time for answering under state law.
Champion Brick Co. of Baltimore County v. Signode Corp., supra.
Finally, the Federal Rules of Civil Procedure contemplate an answer in state court before removal to federal court. Rule 81(c) provides that in actions removed to federal court:
"[repleading] is not necessary unless the court so orders. In a removed action in which the defendant has not answered, he shall answer . . . within 20 days . . . . If at the time of removal all necessary pleadings have been served, a party entitled to trial by jury under Rule 38 shall be accorded it . . . . A party who, prior to removal, has made an express demand for trial by jury in accordance with state law, need not make a demand after removal."
The Court therefore holds that a defendant does not waive his right to remove when he answers in state court and then files a petition for removal timely under § 1446(b).
This action is properly removed to this Court, and Plaintiff's Motion to Remand is denied.
An appropriate Order will be entered.
Daniel J. Snyder, Jr. / UNITED STATES DISTRICT JUDGE