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Zawatsky v. Jeddo Stars Athletic Association

United States District Court, M.D. Pennsylvania

October 23, 2017

JOSEPH ZAWATSKY and JOHN TATE, Plaintiffs,
v.
JEDDO STARS ATHLETIC ASSOCIATION and BERNARD GABRIELLE, Defendants.

          MEMORANDUM

          A. Richard Caputo, United States District Judge

         Presently before me is the Motion to Strike Untimely and Defective Notice of Removal, or, in the Alternative, Motion to Remand (Doc. 2) filed by Plaintiffs Joseph Zawatsky (“Zawatsky”) and John Tate (“Tate”) (collectively, “Plaintiffs”). Defendant Bernard Gabrielle (“Gabrielle”) previously removed the action to this Court on federal question jurisdiction grounds. Upon motion by Plaintiffs, the Honorable Malachy E. Mannion remanded the matter to state court, finding that the face of Plaintiffs' properly pleaded complaint did not assert a federal question. After the action was remanded, Tate was deposed, at which time he testified that he believed his constitutional rights were violated and that he was pursuing a First Amendment claim in this litigation. On this testimony, Defendant Jeddo Stars Athletic Association (“Jeddo Stars”) removed the action. Jeddo Stars argues that the deposition testimony constitutes “other paper” for purposes of 28 U.S.C. § 1446(b)(3) which “triggered anew” its ability to remove this case based on a purported federal question. The action will be remanded to state court because under the well-pleaded complaint rule, federal question jurisdiction has not been established since the face of Plaintiff's Fourth Amended Complaint, which was also the operative complaint when the matter was before Judge Mannion, is devoid of a federal question and Tate's deposition testimony did not clarify any claims set forth therein. Further, because it was objectively unreasonable for Jeddo Stars to remove the action under the circumstances, it will be required, upon proper submission by Plaintiffs, to pay just costs and actual expenses incurred by Plaintiffs as a result of the removal.

         I. Background

         Plaintiffs commenced this action on January 15, 2016 in the Luzerne County Court of Common Pleas against Jeddo Stars seeking damages for their alleged wrongful “ouster” from membership in Jeddo Stars. (See Doc. 1-3, generally). On March 14, 2016, plaintiffs filed an amended complaint against Jeddo Stars. (See Doc. 1-4, generally). Plaintiffs subsequently filed a second amended complaint against Jeddo Stars. (See Doc. 1-5, generally). On March 19, 2016, Plaintiff filed a third amended complaint against Jeddo Stars. (See Doc. 1-6, generally). On June 15, 2016, Plaintiff filed the Fourth Amended Complaint against Jeddo Stars and Gabrielle. (See Doc. 1-7, generally).

         Gabrielle subsequently removed the action to this Court, arguing that jurisdiction over the case was proper pursuant to 28 U.S.C. § 1331 since Plaintiffs alleged a claim for “Whistleblower Act/Violation of Free Speech.” See Zawatsky v. Jeddo Stars Athletic Assoc., No. 16-1725, 2016 WL 4990493, at *4 (M.D. Pa. Sept. 19, 2016). Plaintiffs moved to remand the action, contending that the Fourth Amended Complaint did not raise a constitutional cause of action and no state actors were named as defendants as required to state a claim under 42 U.S.C. § 1983. See id. at *1. Plaintiffs' motion was granted, and the action was remanded to the Luzerne County Court of Common Pleas.

         See id. In remanding the case, Judge Mannion explained:

The court finds that plaintiffs' stated complaint does not assert a federal constitutional violation against the two defendants. In fact, there is no mention whatsoever in this pleading of any alleged violations of plaintiffs' federal or U.S. constitutional rights. Nor does this pleading indicate that it was filed as a federal civil rights action pursuant to 42 U.S.C. § 1983. Indeed, the first three pleadings plaintiffs filed contained only state law claims, including Count I “Whistleblower Act/Violation of Free Speech” claim, and Jeddo did not seek to remove the case. This fact also indicates that plaintiffs intended to keep their claims under state law when they filed their fourth amended complaint and merely added Gabrielle as a defendant.
Count I does not arise under federal law since “some substantial, disputed question of federal law is [not] a necessary element of [the Whistleblower Law claim]”, and this claim is not “really one of federal law.” Thus, the court finds that there is no basis for the fourth amended complaint to be removed to this federal court and this court lacks original jurisdiction over this case. Plaintiffs' counsel is a frequent litigator in federal court, and undoubtedly if she wanted to include federal constitutional claims in the complaint under § 1983, she would have done so. Rather, the pleading was specifically drafted to assert only state law claims. Thus, the court finds under the well-pleaded complaint rule that federal question jurisdiction has not been established in the present case since the face of plaintiffs' properly pleaded complaint does not assert a federal question. The court finds that under 28 U.S.C. § 1447(c) remand of this case back to Luzerne County Court is authorized since subject matter jurisdiction over plaintiffs' state law claims is lacking.

Id. at *5 (alterations in original) (internal citation omitted).

         After the action was remanded to state court, the parties engaged in discovery. (See, e.g., Doc. 1-8, generally). Tate was deposed, during which he testified that he believed his First Amendment rights were violated. (See id. at 86:7-9). Tate further answered “yes” in response to the following question: “in your complaint, you allege that your First Amendment U.S. Constitutional rights were violated, correct?” (Id. at 148:11-14).

         On the basis of that testimony, Jeddo Stars removed the action to this Court on April 7, 2017, arguing that “the case is removable due to the violation of [Tate's] federal right to free speech claim, which establishes a federal cause of action and therefore federal jurisdiction.” (Doc. 1, ¶ 29). Plaintiffs timely filed their motion to strike notice of removal or, in the alternative, to remand the action to state court. (See Doc. 2, generally). Plaintiffs argue, inter alia, that “there is no federal jurisdiction over the Fourth Amended Complaint because Plaintiffs have not asserted a federal claim since to have a claim [for] First Amendment Retaliation Defendants must be state actors, which Jeddo Stars is not.” (Doc. 3, 5-7). In opposition, Jeddo Stars asserts that the “question as to whether this Honorable Court's ‘federal question' jurisdiction has been implicated is apparent based on the deposition testimony of Plaintiff Tate, not the four corners of the Complaint, as Plaintiffs contend.” (Doc. 9, 6). Plaintiffs in reply dispute Jeddo Star's characterization of the law, emphasizing that the face of the Fourth Amended Complaint governs whether federal question jurisdiction exists over the action. (See Doc. 15, 3-4). Plaintiffs also request reimbursement of costs incurred in resisting the second removal of this action. (See Doc. 3, 7; Doc. 15, 4-5). Plaintiffs' motion to strike notice of removal or, in the alternative, to remand to state court is fully briefed and ripe for disposition.

         II. Discussion

         Pursuant to 28 U.S.C. § 1441(a), “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.” 28 U.S.C. § 1441(a). The procedure for removal of a civil action from state court is governed by 28 U.S.C. § 1446. Subsection (b) of § 1446 provides, in part:

if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ...

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