Chapter 3 – Removal of Employment Cases to Federal Court

Henry H. Perritt, Jr.

[excerpted from 2004 Employment Law Update (Henry H. Perritt, Jr., ed.)

5.1           Introduction

The recent Supreme Court case of Breuer v. Jim’s Concrete[1] invites attention to removal to federal court of employment cases filed in state court.  While Breuer itself was a relatively simple case, leading to the straightforward conclusion that FLSA cases are removable, it provides the opportunity to consider a broader range of often-confusing and inherently-confused doctrines relating to removal. The chapter helps employment-law counsel understand whether parts of a case can be removed or only an entire case, whether particular claims can be severed and remanded to state court or whether the entire case must be retained in federal court or remanded, the appeal ability of orders remanding cases or part thereof, the relationship between removal jurisdiction and supplemental jurisdiction, and the breadth of removal jurisdiction for cases in which no federal claim is asserted expressly in the state complaint, but in which federal issues such as preemption or federal policy are necessarily involved in deciding the claim as filed.

5.2           Removal basics

[A] Policy justifying removal

The possibility of removing a case from state to federal court has been a feature of American civil procedure since enactment of the Judiciary Act of 1789.[2] The core policy justifications for removal are to protect out-of-state defendants from possible judicial prejudice when a plaintiff sues in the courts of her home state, and to entitle defendants in cases premised on federal law to a federal forum.

Limitations on removal jurisdiction of federal courts promote comity between two independent judicial systems and respect for the sovereignty of the state courts.[3]

[B]Federal court jurisdiction

Section 1441 of title 28 United States Code reads as follows:

[quoted language from §1441 omitted]

Other statutes make specific types of cases removable.[4]

Some actions are nonremovable by statute.[5] By federal common law, domestic relations and decedents-estate cases also are not removable. The theory is that domestic relations cases were cognizable in eclisiastical courts; not at common law, and thus are outside the judicial power under Article III,[6] and that decedents estate cases such as a petition to probate a will are in rem and thus not “cases or controversies” under Article III.[7]

Cases may be removed only from state courts; not from state administrative agencies,[8] although authority on this question is mixed.

Subsection 1441 (f)[9] abrogates the “derivative jurisdiction” doctrine, which made removal jurisdiction dependent on the existence of state court jurisdiction. Defective venue in state court, for example, does not defeat federal court jurisdiction over a case once it is removed.[10]

The interaction of Subsections 1441 (a) and (b) and (c) mandate the removal of an entire case rather than removal of only certain claims.  The conceptual structure of removal relies on the remand process to separate those claims that should be tried in federal court from those claims that should be tried in state court.  The rationale against piecemeal removal, while allowing piecemeal remand, is that a federal court should decide which claims should be tried in federal court and which claims should be tried in state court.  To allow or require piecemeal removal, would allocate this responsibility to the parties or to a state judge.

[C]The “well pleaded complaint” rule

“The well-pleaded complaint rule limits federal courts' original jurisdiction to those cases in which the plaintiff's complaint states a cause of action arising under federal law;  a federal defense will not do.  Since 1887 it has been settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case.”[11]

The “Insubstantiality” Doctrine deprives federal courts of jurisdiction over “claims otherwise within their jurisdiction if they are so attenuated and insubstantial as to be absolutely devoid of merit.”[12]  The Fourth Circuit found the Insubstantiality Doctrine applicable in Dixon v. Coburg Dairy, Inc.[13]  The plaintiff was fired for refusing to remove confederate flag stickers from his toolbox after an African American fellow employee complained that the stickers constituted racial harassment.  The fired employee filed a claim in state court alleging violation of his constitutional rights and public policy tort for wrongful dismissal[14] under South Carolina law.  The employer removed the case to federal court, which denied a motion to remand and then granted summary judgment to the employer.  Acknowledging that the Insubstantiality Doctrine is a disfavored rule, the Court of Appeals reasoned that the plaintiff’s constitutional claims were entirely devoid of merit because they failed to allege a state actor.  “Accordingly, the claim does not present us with a controversy that we might even attempt to resolve.”[15]  It affirmed dismissal of that count of the plaintiff’s complaint without prejudice, for lack of jurisdiction.[16]  It held, however, that several of the state-law counts were within removal jurisdiction because they required construction of federal law as an essential element of the state claim.  This aspect of the case is considered in § 5.6[E] of this chapter.


The possibility of federal preemption of a state law claim ordinarily is not a basis for federal jurisdiction, permitting removal.[17]  Ordinary preemption is a defense that must be asserted in state court.  The well pleaded complaint rule only recognizes federal jurisdiction over affirmative claims; not defenses. But under the doctrine of “complete preemption,” state-court actions premised on state law that is completely preempted by federal law may be removed to federal court.  Claims for employee benefits and for violations of duties created by collective bargaining agreements regularly produce arguments over complete preemption.

Preemption is the power of federal law to displace state law substantively. The federal preemptive power may be complete, providing a basis for jurisdiction in the federal courts, or it may be what has been called "ordinary [or “conflict”] preemption," providing a substantive defense to a state law action on the basis of federal law.  More specifically, ordinary preemption may be invoked in both state and federal court as an affirmative defense to the allegations in a plaintiff's complaint.  Such a defense asserts that the state claims have been substantively displaced by federal law.  Complete preemption, on the other hand, is a doctrine distinct from ordinary preemption.  Rather than constituting a defense, it is a narrowly drawn jurisdictional rule for assessing federal removal jurisdiction when a complaint purports to raise only state law claims.  It looks beyond the complaint to determine if the suit is, in reality, purely a creature of federal law, even if state law would provide a cause of action in the absence of the federal law, thus creating the federal question jurisdiction requisite to removal to federal courts.”[18]

The Doctrine of Complete Preemption is “extremely limited, and has been found by the Supreme Court to exist in only two substantive contexts, one of these is Section 502 of ERISA.”[19]  The other is Section 301 of the Labor Management Relations Act.[20] 

[E] Procedure for removal

Section 1446 of title 28, United States Code, specifies the procedure for removal:

[quoted language from §1446 omitted]

The second paragraph of subsection (b) allows a defendant to remove a case even though the initial pleadings do not suggest removability when “an amended pleading, motion, order or other paper”[21] subsequently reveals a basis for removal. In Peters v. Lincoln Electric Co.,[22] the Sixth Circuit joined the Tenth and Fifth Circuits in holding that a deposition transcript constitutes an “other paper” within the meaning of the statute and allowed removal based on complete preemption under ERISA of a case pleading only simple breach of contract:

“In Plaintiff's deposition, Lincoln asked a series of questions aimed at discovering the precise nature of the unspecified "broken promises" for which Peters sought redress in his Complaint.   Peters testified that he was suing Lincoln, in part, because the company breached a promise to continue his participation in its Supplemental Executive Retirement Plan ("SERP").   At his deposition, Peters testified as follows:

“Q. Were you ultimately taken out of the SER program or told that you would likely be taken out of it?

“A.  I was initially told I was going to be out of the program.

“Q. And so part of why you're suing is over the company's decision not to let you participate in the SER program?

“A.  Very much so.

“ While his statement at the deposition is not itself a "civil action" seeking to recover benefits under SERP, the District Court reasoned that the statement clarifies his Complaint allegations of unspecified "broken promises."   The court rejected Plaintiff's argument that he is only seeking damages incidental to his wrongful separation from the company.   The court further reasoned that because it must read the SERP plan, judge the validity of Plaintiff's claims, and resolve any issues concerning the interpretation of the plan, this ultimately constituted more than a mere determination of incidental damages.

“ We agree with the District Court.   Peters' testimony clearly showed that he was claiming Defendant wrongfully denied him continued participation in SERP in "breach of its promises and representations."”[23]

The SERP was an ERISA plan, supporting complete preemption and therefore removal.

Section 1447 provides:

[quoted language from §1447 omitted]

When the state-court claim involves multiple defendants, all must join in the removal.[24]

Fed.R.Civ.P. 81(c) makes the Federal Rules of Civil Procedure applicable to removed actions, although the plaintiff ordinarily need not replead matters pleaded under state procedure before removal.

Section 1447 (c) mandates a remand rather than a dismissal whenever a District Court finds subject matter jurisdiction lacking over a removed case.[25] 

Joan Steinman has suggested that federal courts should not “divide” removed cases.[26]  When a state-filed case includes claims outside of both original jurisdiction and supplemental jurisdiction, she suggests it is not appropriate to remove only the federal claims while leaving behind the others.  Similarly, if a District Court determines to remand claims, she suggests that the entire case should be remanded.[27] Section 1447 (c) “may well preclude the remand of individual claims that were part of a larger action; it requires the remand of ‘cases’ when the District Court lacks subject matter jurisdiction.”[28] She has not persuaded every court, however.

In Wisconsin Department of Corrections v. Schacht,[29] the Supreme Court held that cases including claims that may be barred by the Eleventh Amendment are nevertheless removable and that federal courts can decide the claims not covered by the Eleventh Amendment.[30] Moreover, Schact rejects the argument that if subject matter jurisdiction is lacking over one claim in a multi-claim case, the entire case must be remanded, under § 1447(c).[31] 

The Fifth Circuit expressly rejected the argument, embraced by some commentators, that § 1441(c) contemplates remand of an entire case, and not just individual claims.[32]

Some District Courts have found in § 1441(c) authority to remand an entire case, including federal question claims.[33]

It is important on remand that any federal pleadings and orders be filed with the clerk of the state court.  In Ansalve v. State Farm Mutual Automobile Insurance Co.,[34] the state appeals court held that a state trial court hearing a case on remand may not render a judgment or ruling based on pleadings or supporting evidence filed in federal court before remand and not formally made part of the record in the state court.[35]  It held, however, that the state court may give effect to federal pleadings and rulings, including issue preclusive effect, as long as those rulings and the reasons therefore are formally part of the state record, and the criteria for issue preclusion otherwise satisfied.[36]

[F]  Appellate review [omitted]

5.3           Removal Jurisdiction and Supplemental Jurisdiction

United States District Courts have “supplemental jurisdiction” over claims sharing a common nucleus of operative fact[37] with claims over which the District Courts have original jurisdiction.[38]  Supplemental jurisdiction extends to cases that are in federal court by virtue of the removal statute.  “That provision [Section 1367 (a)] applies with equal force to cases removed to federal court as to cases initially filed there; a removed case is necessarily one ‘of which the District Courts …have original jurisdiction.’”[39]

Supplemental jurisdiction means, for example, that a plaintiff with a Title VII claim for race discrimination who also asserts a common law public policy tort claim premised on the race discrimination, and asserting the same factual conduct as the basis for both claims, may have both claims decided in federal court.  A defendant enjoys the same power: even if such a plaintiff files in state court, the defendant may remove the entire case to federal court. The Title VII claim would be removable because it presents a federal question.  The public policy tort claim is so closely tied to the Title VII claim that it would be within supplemental jurisdiction of the federal court.

Of course, Section 1441 itself grants a kind of supplemental jurisdiction in Subsection (c):  “Whenever a separate and independent claim or cause of action within the jurisdiction conferred by Section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the District Court may determine all issues therein, or, in its discretion, may remand all matters in which state law predominates.”[40]  The power of discretionary remand for “all matters in which state law predominates,”[41] is narrower than the power to remand under Section 1367, which allows remand if: 

“(1) The claim raises a novel or complex issue of state law,

(2) The claim substantially predominates over the claim or claims over which the District Court has original jurisdiction,

(3) The District Court has dismissed all claims over which it has original jurisdiction, or

(4) In exceptional circumstances, there are other compelling reasons for declining jurisdiction.”[42]

Predominance of  state law – the remand grounds of § 1441(c) is only one of the several enumerated grounds for remand under § 1367.

The interaction between Section 1367 and the removal provisions of Title 28 has created much confusion.  Because Section 1367 (a) extends supplemental jurisdiction to the limits permitted by Article III of the United States Constitution, some commentators have concluded that Section 1441 (c) apparently empowering the federal courts to adjudicate “separate and independent claims or causes of action” is either unconstitutional or redundant of the supplemental jurisdiction power conferred by Section 1367.[43]  Professor Edward Harnett, in an excellent law review article painstakingly reviewing the history of federal removal jurisdiction,[44] explains that there is constitutional scope for the independent operation of Section 1441 (c).  One aspect of section 1441(c)’s application is to override specific statutory bars for removal, as in the case of Federal Employer’s Liability Act (“FELA”) claims.[45]  More generally, Professor Hartnett explains that Congress elected to deal with the constitutional difficulties by initially allowing removal of an entire case, potentially including claims outside supplemental jurisdiction because they are unrelated to the removable claim, and then to rely on the federal court to remand those claims outside federal jurisdiction.[46]

Professor Hartnett offers the following useful rules of thumb for interpreting the interaction of supplemental jurisdiction, removal jurisdiction, and the remand power:

  1. “Where a plaintiff joins an unrelated state claim to a federal claim that would be removable if sued on alone, § 1441 (c) permits removal despite the joinder of the unrelated claim.  Upon removal, the unrelated state claim should be remanded.[47]
  2. “Even if the state claim predominates, a court should not remand the whole case.”[48]
  3. “Where a plaintiff joins both a related state claim and an unrelated state claim to a federal claim that would be removable if sued on alone, § 1441 (c) again permits removal despite the joinder of the unrelated claim.  As in the previous example, the unrelated state claim should be remanded.  In deciding whether to remand the federal claim and the related state claim, the court should consider whether the related state claim predominates over the federal claim.”[49]
  4. “Finally, where a plaintiff joins a related state claim to a federal claim that would be removable if sued on alone, the action is removable under § 1441 (a), not § 1441 (c).[50]

The prospect of cases being filed in state court that include “separate and independent claims or causes of action” outside the scope of Section 1367’s supplemental jurisdiction arises because of increasingly liberal state claim joinder rules, many modeled on Fed. R. Civ. P. 18, which permits joinder of any claim without requiring any transactional relationship to other claims.[51]

Suppose an employee is fired after an altercation with his foreman.  His foreman, not satisfied with the firing, vandalizes the employee’s automobile two days after the termination.  The employee sues the former employer for age discrimination under the ADEA, for wrongful dismissal for violation of public policy based on federal policy against age discrimination, for breach of implied contract, and for trespass to chattel.  The ADEA claim clearly is removable under § 1441 (a) because is presents a federal question.  The public policy tort and implied contract claims are part of the same case because they have a common nucleus of operative fact and therefore satisfy the requirements for supplemental jurisdiction under Section 1367.  On the other hand, the claim arising out of the vandalizing of the automobile is entirely distinct, not only in legal theory, but also with respect to its operative facts.  That claim is outside supplemental jurisdiction, but nevertheless may be removed under Section 1441 (c). 

The entire case, including all four claims, may be removed by the employer to federal court, but the District Court should remand the trespass to chattel claim.[52]

5.4           Preclusion and removal

Doctrines of preclusion require an adjudicatory body such as a court to decide a case the same way another adjudicatory body decided the same case. Two types of judicial preclusion, traditionally knows as res judicata,[53]  exist:  claim preclusion and issue preclusion.  Claim preclusion, sometimes loosely referred as res judicata, forecloses relitigation of a claim that actually was litigated or could have been litigated in an earlier action.  Paradigmatically, claim preclusion is intended to prevent a plaintiff from splitting her claims.  It would, for example, prevent a plaintiff from suing once on an sex discrimination claim, and then suing separately on a race discrimination claim arising from the same employment termination.  Although the scope of claim preclusion has been subject to some confusion because of debates over what constitutes the “same cause of action,” the prevailing test is whether the second claim arises from the same transaction—essentially the same test as that for supplemental jurisdiction:  whether the two claims arise from the same nucleus of operative fact.  Claim preclusion does not depend on complete litigation of the possibly precluded claim, but it does require that the first judgment be “on the merits,” as opposed to being based on a threshold issue such as lack of personal jurisdiction or incorrect venue.

Issue preclusion applies, not to entire claims, but to specific factual or legal issues that have been fully or fairly litigated.  For example, a Title VII sex discrimination suit and a Title VII retaliation suit well may arise from separate transactions sufficient to avoid claim preclusion.  But, in the sex discrimination litigation, a court may determine the factual question whether an employee received notice of unsatisfactory performance.  That factual determination likely would be entitled to issue preclusive effect in a separate and subsequent suit for retaliation.

The interesting preclusion questions in the removal context involve determinations made by a federal court incident to deciding a motion for remand.  Ruhrgasag, discussed later in this section, illustrates one possibility:  a federal District Court may decide certain questions in order to decide its subject matter jurisdiction, which then will be entitled to issue preclusive effect in the state court on remand.

In Health Cost Controls v. Washington,[54] Health Cost Controls sued Valerie Washington to recoup health benefits paid to her by her employee health plan.  Earlier, Ms. Washington had brought suit in state court for a declaratory judgment that she was entitled to keep the money.  Health Cost removed that first suit to federal district court, basing jurisdiction on ERISA.[55]  The district judge, rejecting the ERISA argument, remanded.[56]  Health Cost brought a new suit in federal court, and the state court dismissed the remanded case without prejudice because of the pendency of Health Cost’s parallel federal case.[57]

Ms. Washington claimed preclusion based on the finding of the first federal judge that he lacked jurisdiction over her claim.  The Court of Appeals accepted the proposition that in general, a ruling by a court that it lacks jurisdiction is res judicata on the issue of that court’s jurisdiction. It then observed, however, that, “an unappealable ruling, however, is not res judicata.”[58]  The district court’s remand order was unappealable under 28 U.S.C. § 1447(d)[59] because the ground was lack of subject matter jurisdiction.  “So the order doesn’t conclude the issue whether the district court has jurisdiction over Health Cost’s new and materially identical suit.”[60]

In Ruhrgasag v. Marathon Oil Co.,[61] defendants removed a non employment case to federal court and then challenged both personal and subject matter jurisdiction. Ruhrgasag moved to dismiss the complaint for lack of personal jurisdiction.  Marathon moved to remand the case to state court for lack of federal subject matter jurisdiction.  The District Court dismissed the case for lack of personal jurisdiction.  The en banc Court of Appeals reversed, holding that in removed cases, district courts must decide issues of subject matter jurisdiction first, reaching issues of personal jurisdiction only if subject matter jurisdiction exists. The Supreme Court considered the question, “whether a federal District Court is absolutely barred in all circumstances from dismissing a removed case for lack of personal jurisdiction without first deciding its subject matter jurisdiction.”[62]

The Supreme Court observed that a subject matter jurisdiction determination may have issue preclusive effect in subsequent state-court litigation.  It hypothesized a defendant who removes on diversity grounds a state-court suit seeking $50,000 in compensatory and $1 million in punitive damages for breach of contract.  “If the District Court determines that state law does not allow punitive damages for breach of contract and therefore remands the removed action for failure to satisfy the amount in controversy, the federal court’s conclusion will travel back with the case.  Assuming a fair airing of the issue in federal court, that court’s ruling on permissible state-law damages may bind the parties in state court, although it will set no precedent otherwise governing state-court adjudications.”[63]  The Court concluded that, in most instances, subject-matter jurisdiction should be disposed of first.  “Where, as here, however, a district court has before it a straightforward personal jurisdiction issue presenting no complex question of state law, and the alleged defect in subject-matter jurisdiction raises a difficult and novel question, the court does not abuse its discretion by turning directly to personal jurisdiction.”[64]

  Judge Posner’s opinion in Health Cost identifies an important limitation on claim preclusion:  that a remand based on a determination of lack of subject matter jurisdiction is not entitled to claim preclusive effect because it is not appealable.

That narrows preclusion inquiries to the preclusive effect of District Court decisions incident to remand under § 1441 (c) or remands under 1367.[65]  If a district court remands state claims under either statute based on a conclusion that the remanded claims are separate and independent[66] or outside supplemental jurisdiction because they are not part of the same constitutional “case,” such conclusions should avoid the possibility of claim preclusion because the determination of separateness breaks the linkage necessary for claim preclusion. Such conclusions of separateness are themselves entitled to issue preclusive effect on remand. 

Suppose a dismissed employee files an action in state court for disability discrimination and breach of an implied contract. The District Court remands the contract action based on a conclusion that it arises from a separate transaction and/or is a separate and independent claim, and then goes on to decide that no disability discrimination occurred and therefore finds no ADA violation. The state court may not then decide on remand that the contract action is precluded because it was part of the same cause of as action as the ADA claim.  The District Court’s determination of separateness must be given issue preclusive effect, thus blocking a claim preclusion determination. 

On the other hand, a factual determination in federal litigation of the ADA claim that the dismissal occurred, not because of the plaintiff’s disability, but because of the plaintiff’s misconduct, is entitled to issue preclusive effect to the extent that it is material in state-court litigation of the contract claim on remand.

When state-court cases are removed on the grounds of complete preemption, and a district court remands based on a determination that only conflict preemption[67] exists, the Health Cost reasoning deprives the no-complete-preemption determination of preclusive effect because it is not appealable.  Of course, if the state court on remand agrees with the District Court that no complete preemption exists, it still may proceed to consider conflict preemption arguments, which were outside the federal court’s jurisdiction to decide.

When removed cases are unsupported by personal jurisdiction, for example, for failure to make service, a dismissal or remand for those reasons is not entitled to claim preclusive effect because such a dismissal is not on the merits. Factual or legal determinations necessary to the personal jurisdiction decision, however, are entitled to issue- preclusive effect, for example, whether a particular defendant was served on a particular date. Such issues cannot be relitigated in state court.

Once a federal court determines that it lacks subject matter jurisdiction, any further decisions by that court lack preclusive effect. In Ansalve v. State Farm Mutual Automobile Insurance Co.,[68] the plaintiff filed several claims based on state law for cancellation of an automobile insurance policy.  The defendant removed on diversity grounds, and the plaintiff moved to remand because the jurisdictional amounts for diversity jurisdiction were not satisfied.  The District Court remanded for lack of subject matter jurisdiction.

On remand, the defendant asserted res judicata based on the federal court’s dismissal of some of the claims.  The plaintiffs argued that the state court could not “adopt” any of the federal rulings because of differences between federal and state civil procedure, and because the federal court lacked subject matter jurisdiction.  It argued that all rulings by the federal court prior to remand are valid because the court had jurisdiction until that time.  The state appeals court rejected these contentions:

“Contrary to State Farm’s position on this question, it is well settled that a remand for lack of subject matter jurisdiction operates retroactively and nullifies any prior orders or judgments of the federal District Court …the federal court’s rulings prior to remand are without effect because it was not a court of competent jurisdiction.”[69]

Often the possibility of preclusion influences decisions on appealbility. The United States Court of Appeals for the Fourth Circuit considered the preclusive effect of federal jurisdictional findings in determining that it could not review a remand order because of 28 U.S.C. § 1441 (d).  The plaintiff had filed a claim in state court for discrimination based on receipt of workers compensation benefits.  The defendant removed on the ground that the state law claims were completely preempted by ERISA and LMRA.  The federal District Court concluded that the claim was not preempted and remanded. 

The defendant sought appellate review, arguing that the District Court’s preemption findings were severable and thus reviewable because they affected its substantive rights:

“Specifically, [the defendant] contends that the District Court’s determination that ERISA and the LMRA do not preempt Nutter’s state law claim prevents it from raising preemption as a defense upon remand to state court.  We disagree.  The District Court’s findings regarding preemption will only prevent Monongahela Power from raising preemption as a defense if principles of issue preclusion, or collateral estoppel, foreclose relitigation of Monongahela Power’s ERISA and LMRA preemption defenses.  Because we conclude that the District Court’s preemption findings have no preclusive effect, we also conclude that the preemption findings do not affect Monongahela Power’s substantive rights.”[70] 

The court, like the Health Cost court, reasoned that unavailability of appellate review normally forecloses preclusive effect of trial court findings.  “[W]e do not believe the District Court’s jurisdictional findings incident to remand should preclude relitigation of the same issues in state court.  Accordingly, we hold that the District Court’s jurisdictional findings regarding complete preemption have no preclusive effect.  Under our holding, any issues that the District Court decided incident to remand may be relitigated in state court.”[71]  The Court of Appeals apparently combined the general, but not absolute, rule against preclusion for unappeable findings with a policy determination of its own. 

It identified cases from four other circuits adopting the same approach.[72]

5.5           Analysis of Breuer v. Jim’s Concrete [omitted]

5.6           Removability of other types of employment cases where state courts have concurrent jurisdiction

[A] Title VII

Title VII cases are removable.[73]


Americana with Disabilities Act cases are removable.[74]


Age Discrimination in Employment Act cases are removable.[75]


The Courts of Appeals generally assume that FMLA cases filed in state court are removable.[76] In Ladner v. Alexander & Alexander, Inc.,[77] the District Court, finding little direct authority, noted that the language of the FMLA—“may be maintained …in any federal or state court of competent jurisdiction” is the same language found in the Fair Labor Standards Act.[78]  It denied remand of the FMLA claim because the quoted language was not an express provision barring removal.  This holding, combined with the nearly identical reasoning of the Supreme Court in the Breuer case, provides compelling authority for the proposition that FMLA cases are removable. 

In Eastus v. Blue Bell Creameries, LP,[79] the Court of Appeals reversed remand as to one state law claim, and affirmed remand as to another, in a case removed from state court,  in which the state law claims were joined with an FMLA claim.  The Court of Appeals held that the FMLA claim and an intentional infliction of emotional distress claim were not “separate and independent claims or causes of action” under § 1441 (c).  Because that section does not authorize the remand of state law claims unless they are separate and independent from the removed federal question claim it held that the District Court abused its discretion by remanding the intentional infliction claim.[80]  On the other hand, it found that an interference with prospective contractual relations claim bore little relationship to the FMLA claim, because it depended on conduct after the employment termination in controversy, different proof from the FMLA count. The intentional interference count would not involve substantially the same facts.  Accordingly, it affirmed remand of that claim.[81]  The court also rejected the argument that the requirement that state law predominate as a justification for remand is properly applied to a particular claim and not to the entire case.[82]

In Bellido-Sullivan v. American International Group, Inc.,[83] the plaintiff filed a claim in state court that she was terminated from her employment because she took two leaves of absence for medical and personal reasons.  The employer, reasoning that New York law allows no cause of action for wrongful termination based on an employee taking personal leave, and that only the FMLA would prohibit such conduct, removed to federal court.  The Court of Appeals rejected the argument that the FMLA preempts state law or that it was “a central and necessary component of Sullivan’s state law claim.”[84]  Finding that the plaintiff had pleaded no federal claims, the District Court granted the plaintiff’s motion to remand the matter to state court.[85]

In Danfelt v. Board of County Commissioners,[86] the District Court strictly construed removal jurisdiction, and held that “where a complaint alleges multiple state law-based theories of relief for the same essential claim each of the theories supporting the claim must independently provide a sufficiently substantial federal question to support the jurisdiction under Section 1331 needed for removal under § 1441 (a).[87]  It found that a Maryland wrongful discharge claim based on a FMLA violation was insufficient to support removal jurisdiction. [88]   An accompanying ADA claim did not support removal either because it was not timely filed. 

5.7           Removability of employment cases based on “complete preemption” [omitted]

5.8           Strategic considerations

Removal allows a defendant to override a plaintiff’s choice of forum. A variety of reasons exist that may cause plaintiff and defendant preferences for a state and federal forum to conflict in employment cases. 

Whether the plaintiff in an employment case should file initially in state court instead of federal court and seek to avoid removal, and whether a defendant should seek removal to federal court depends on their assessment of:

How these factors influence plaintiff and defense counsel preferences for a state or federal forum differs widely in particular cases and for particular counsel.  For example, it is not necessarily true that plaintiff counsel will be more experienced in state court, while defense counsel is more experienced in federal court; sometimes the opposite will be true.  Also, the relative attractiveness of alternative dispute resolution procedures influences forum preference, not only depending on the practices and local rules of particular courts, but also on the nature of claims in particular cases

If the plaintiff in an employment case wishes to avoid removal to federal court, or, if the defendant seeks removal, to have a strong position supporting remand to state court, the plaintiff should:

5.9           Forms

[A] [Notice of Removal]

Section 1446 (a) provides that a case may be removed by filing with the United States District Court a “notice of removal,” containing “a short and plain statement of the grounds for removal, together with a copy of the process, pleadings, and orders served upon such defendant or defendants in such action.”  The language, “short and plain statement,” is the same language used in Fed. R. Civ. P. 8 with respect to pleadings.[89]  Accordingly, the same style used for federal complaints is appropriate for notices of removal. 

After the notice of removal is filed in the federal court, the removing party must serve the clerk of the state court, and other parties to the action.[90]

United States District Court

for the Northern District of Illinois

Butzer B. Bergmann



Notice of Removal

1.      The captioned civil action was filed in the Circuit Court of Cook County, Illinois on 1 August 2003. 

2.      Defendant was served on 5 August, 2003. 

3.      Count 2 of the complaint asserts a claim for national origin discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 e-2

4.      Such claim is within the original jurisdiction of the United States District Court under 28 U.S.C. § 1331

5.      Defendant is entitled to remove this action under 28 U.S.C. § 1441 (a)

[B][Motion to remand]

United States District Court

for the Northern District of Illinois

Butzer B. Bergmann



Motion to Remand

1.      This civil action was filed in the Circuit Court of Cook County Illinois on 1 August 2003

2.      The defendant was served on 5 August 2003

3.      The defendant filed a notice of removal with this court on 15 August 2003, pursuant to which the case was removed to this court

4.      Counts 2-4 of the complaint assert claims under state law separate and independent from the federal claim asserted in Count 1

5.      The claims in Counts 2-4 do not arise out of the same nucleus of operative fact supporting the claim in Count 1

6.      Both plaintiff and defendant are citizens of the same state, to wit Illinois

7.      This court lacks subject matter jurisdiction over the claims asserted in Counts 2-4

8.      Wherefore, plaintiff moves that this court remand claims 2-4 to the Circuit Court of Cook County Illinois

The motion should be accompanied by a memorandum of law supporting the basis for remand, with citation of legal authority as provided in this chapter.  Counsel should be attentive to local rules respecting motion practice, including the possibility that advance notice of the motion may be required.  The sample motion is simple, and the basis for remand that it asserts is straightforward.  Accordingly, the supporting memorandum need not be elaborate.

[1] 123 S.Ct. 1882 (2003).

[2] Edward Hartnett, A New Trick from and Old an Abused Dog:  Section 1441 (c) lives and now permits the remand of federal question cases, 63 Fordham L. Rev. 1099, 1109 (1995) (citing section 12 of Judiciary Act of 1789, Ch. 20, 1 Stat. 73 (codified as amended in scattered sections of 28 U.S.C.).)

[3] Joan Steinman,  The Newest Frontier of Judicial Activism: Removal Under the All Writs Act, 80 B.U. L. Rev. 773, 815-816 (2000) (opposing removal under All Writs Act) “[C]onsiderations of comity, requiring courts of one jurisdiction to forbear from interfering with courts of another jurisdiction, and of federalism, premised on the notion that federal courts must respect the independent sovereignty of state courts, dictate that the federal courts should not loosely  interpret the All Writs Act to permit removal of actions from state court.” [footnotes omitted]

[4]  See 28 U.S.C. § 1442 (authorizing removal of state actions against federal officers; 28 U.S.C. § 1442a (authorizing removal of state actions against members of the armed forces for acts done under color of military authority); 28 U.S.C. § 2679(d) (authorizing removal of state actions against federal employees for injurys causes by operation of a motor vehicle within scope of employee’s employment); 28 U.S.C. § 1444 (authorizing removal of actions involving property on which United States has lien); 28 U.S.C. § 1443 (state actions in which defendant cannot secure civil rights in state court)..

[5]  See 28 U.S.C. § 688 (Jones Act); 28 U.S.C. § 1445(a) (Federal Employers’ Liability Act); 28 U.S.C. § 1445(b) (actions to recover for losses associated with interstate shipment by railroad, motor carrier, or by freight forwarded); 28 U.S.C. § 1445(c) (state workers compensation laws); 28 U.S.C. § 1445(d) (violence against women).

[6]  See Matter of Marriage of Smith, 549 F. Supp. 761, 764 (1982), citing Barber v. Barber, 62 U.S. (21 How.) 582, 584 (1859); In re Burrus, 136 U.S. 586, 593-94 (1890); Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383 (1930).

[7] See Gallion Iron Works & Mfg. Co. v. Russell, 167 F. Supp. 304 (W.D. Ark. 1958).

[8] Oregon Bureau of Labor and Industries v. U. S. West Communications, Inc., 288 F.3d 414, 417-418 (9th Cir. 2003) (reversing refusal of remand; section 1441(a) plainly only permits removal from a state court; state administrative agency is not court; distinguishing cases from First and Seventh Circuits treating adjudicatory agencies as courts under section 1441).

[9] This subjection was added in 1986 as subsection (e).

[10] Hollis v. Florida State University, 259 F.3d 1295, 1298 (11th Cir. 2003), citing  Lambert Run Coal Co. v. Baltimore & O.R. Co., 258 U.S. 377, 382 (1922), as providing good summary of derivative jurisdiction doctrine.

[11] Roark v. Humana, Inc., 307 F.3d 298, 304 (5th Cir. 2003) [internal quotations and citations omitted], citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9-10 (1983) (citing Louisville & Nashville R.R. v. Mottley, (1908)).

[12] Dixon v. Coburg Dairy, Inc., 330 F.3d 250, 255-256 (4th Cir. 2003).

[13] 330 F.3d 250 (4th Cir. 2003).

[14] See § 5.6[E]; Henry H. Perritt, Jr., Employee Dismissal Law and Practice ch. 7 (4th ed. 1997) (explaining public policy tort as a claim for wrongful dismissal).

[15] 330 F.3d at 257.

[16] 330 F.3d at 265.

[17] Cite.

[18]   Stern v. IBM, 326 F.3d 1367, 1371 (11th Cir. 2003), quoting Geddes v. American Airlines, Inc.,  321 F.3d 1349, 1352-53 (11th Cir.2003) (internal punctuation and citations omitted), and citing Behlen v. Merrill Lynch, 311 F.3d 1087, 1090 (11th Cir.2002) ("Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law."); Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207, 1211-12 (11th Cir.1999) (describing the doctrine of "complete" or "super preemption"); Whitt, 147 F.3d at 1329-30 (same)..

[19] Stern, 326 F.3d at 1371. Section 5.6[E] considers ERISA preemption and removability

[20] 29 U.S.C. § 185. Section 5.7[B] considers preemption and removability under the LMRA.

[21] 28 U.S.C. § 1446(b).

[22]   285 F.3d 456 (6th Cir. 2003).

[23]  285 F.3d at 466-467 [internal citations to deposition transcript omitted].

[24]  See Thorn v. ATU, 305 F.3d 826, 833-834 (8th Cir. 2003) (stating general rule, but affirming denial of remand because union was only a “nominal party,” not required to join in removal).

[25] Parker v. Dellarocco, 252 F.3d 663, 666 (2d Cir. 2001), citing International Primate Protection League v. Administrators of Tulane Educational Fund, 500 U.S. 72, 87 (1991).

[26] 74 Ind. L. J. at 86-88.

[27] Id. (admitting that Supreme Court in Chicago v. International College of Surgeons suggests the contrary).

[28] Joan Steinman, Cross Currents:  Supplemental Jurisdiction, Removal, and the AOI Revision Project, 74 Ind. L. J. 75, 85 (1998).

[29] 524 U.S. 381 (1998).

[30] 524 U.S. at 388-389 (distinguishing diversity cases in which complete diversity does not exist).

[31] 524 U.S. at 391-392 (identifying but not choosing between two interpretations of § 1447(c): it applies only to cases in which the entire case (not just certain claims) are outside subject matter jurisdiction, or remand of “case” means remand of “claim”).

[32] Eastus v. Blue Bell Creameries, LP, 97 F.3d 100, 106-107 (5th Cir. 1996).

[33] John B. Oakley, Prospectus for the American Law Institute’s Federal Judicial Code Revision Project, 31 U.C. Davis L. Rev. 855, 984-987 (1998) (criticizing District Court-created confusion over Section 1441 (c), citing Moore v. DeBaise, 776 F. Supp. 1311, 1319-21 (D. N.J. 1991), Holland v. World Omni Leasing, Inc., 764 F. Supp. 1442, 1443-45 (N.D. Ala. 1991), but suggesting that Borough of West Mifflin v. Lancaster, 45 F.3d 780, 787 (3d. Cir. 1995), repudiates more reasoning.

[34] 669 So.2d 1328 (La. Ct. App. 1996).

[35] 669 So.2d at 1334.

[36] 669 So.2d at 1334.

[37] Gibbs v. United Mine Workers.

[38] 28 U.S.C. § 1367:  “In any civil action of which the District Court’s have original jurisdiction, the District Court shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.  Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.”  28 U.S.C. § 1367 (a).

[39] City of Chicago v. International College of Surgeons, 522 U.S. 156, 165 (1997) (reversing Seventh Circuit and holding that District Court had removal jurisdiction over federal constitutional challenges to state historic preservation statute and therefore had supplemental jurisdiction over state action to review administrative agency decision not to grant building permit).

[40] 28 U.S.C. § 1441 (c).

[41] 28 U.S.C. § 1441 (c).

[42] 28 U.S.C. § 1367 (c). The last paragraph of section 1367(c) limits the conclusion of Thermtron Products v. Hermsdorfer, 423 U.S. 336, 344-345 (1976) (district court may not remand case because of docket congestion; may remand only for reasons set forth in § 1447(c)).

[43] See Edward Hartnett, A New Trick from and Old an Abused Dog:  Section 1441 (c) lives and now permits the remand of federal question cases, 63 Fordham L. Rev. 1099, 1149, 1100 n. 7 (1995) (listing commentators)).

[44] Edward Hartnett, A New Trick from and Old an Abused Dog:  Section 1441 (c) lives and now permits the remand of federal question cases, 63 Fordham L. Rev. 1099, 1995) [hereinafter “Hartnett”].

[45] Hartnett at 1150.

[46] Hartnett at 1150-1152.

[47] Hartnett at 1181.

[48] Id. at 1181.

[49] Id. at 1181.

[50] Id. at 1181.

[51] Fed. R. Civ. P. 18 (a).

[52] § 1441 (c)—“In its discretion, may remand all matters in which state law predominates.  Section 1447 (c) does not apply to this hypothetical because subject matter jurisdiction does exist with respect to “the case,” and that subsection contemplates remand of the entire case, rather than severance and remand of only those parts outside of subject matter jurisdiction.

[53] Res judicata sometimes refers only to claim preclusion, while collateral estoppel refers to issue preclusion.

[54] 187 F.3d 703 (7th Cir. 1999) (Posner, J.).

[55] See § 5.6[E], discussing complete preemption under ERISA as a basis for removal.

[56] Washington v. Humana Health Plan, Inc., 883 F. Supp. 264 (N.D. Ill. 1995).

[57] 187 F.3d at 706 (describing procedural history).

[58] 187 F.3d at 708.

[59] See § 5.2[F] discussing appealability of remand orders.

[60] 187 F.3d at 708-709 (finding Health Cost to be an ERISA fiduciary).

[61] 526 U.S. 574 (1999).

[62] 526 U.S. at 578.

[63] 526 U.S. at 585-586 [citations omitted].

[64] 526 U.S. at 588.

[65] A dismissal without prejudice is, by definition, not entitled to preclusive effect.

[66] Under § 1441 (c).

[67] See § 5.2[D] for an explanation of the difference between conflict preemption and complete preemption.

[68] 669 So.2d 1328 (La. Ct. App. 1996).

[69] 669 So.2d at 1332-1333, citing American Fire & Casualty Co. v. Finn, 341 U.S. 6, 18 (1951).

[70] Nutter v. Monongahela Power Co., 4 F.3d 319, 321 (4th Cir. 1993).

[71] 4 F.3d at 322.

[72] 4 F.3d at 322, citing Baldridge v. Kentucky-Ohio Transportation, Inc., 983 F.2d 1341, 1347-50 (6th Cir. 1993; solely, 923 F.2d at 409 (5th Cir.); Witman v. Raley’s, Inc., 886 F.2d 1177, 1181 (9th Cir. 1989); Glasser v. Amalgamated Workers Union Local 88, 806 F.2d 1539, 1540-41 (11th Cir. 1986) (per curiam).  It suggested that only the Eighth Circuit had clear reached the opposite conclusion.  Id., citing in re Life Insurance Co. of North America, 857 F.2d 1190, 1193 (8th Cir. 1988).

[73] See Yellow Freight Sys, Inc. v. Donnelly, 494 U.S. 820, 823  (1990)  (holding that state and federal courts have concurrent jurisdiction over Title VII cases; assuming removal jurisdiction in case removed from state court); Utler v. Varian Associates, Inc., 811 F.2d 1279, 1283 n.2 (9th Cir. 1987) (state claim based on violation of federal law not removable; claim explicitly alleging Title VII violation distinguished); Perkins v. Halex Co., 744 F. Supp. 169, 176 (N.D. Ohio 1990) (exercising discretion to remand entire case; Title VII claim would have been removable if sued on alone instead of being joined with state claims involving different parties).

[74] Lindsey v. Dillards, Inc., 306 F.3d 596, 598 (8th Cir. 2002).  (district court had removal jurisdiction over removed case until plaintiff voluntarily dismissed ADA claim; affirming remand of state claims under § 1367(c)).

[75] Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350-351 (1988).  (district court had removal jurisdiction over ADEA claim joined with closely related state claim, but district court had discretion to remand state claims after ADEA claim dropped out of case)

[76] See Skrjanc v. Great Lakes Power Service Co., 272 F.3d 309 (6th Cir. 2001) (affirming summary judgment on the merits for former employer); Bailey v. Southwest Gas Co., 275 F.3d 1181 (9th Cir. 2002) (affirming summary judgment for employer on merits); Kohls v. Beverly Enterprises Wisconsin, Inc., 259 F.3d 799 (7th Cir. 2001) (affirming summary judgment for employer on merits); Keeler v. Putnam Fiduciary Trust Co., 238 F.3d 5 (1st Cir. 2001) (affirming summary judgment for employer on merits); Bocal Bos v. National Western Life Insurance Co., 162 F.3d 379 (5th Cir. 1998) (reversing judgment for employee on FMLA claim on merits).  Because the remove ability of a case filed in state court implicates the subject matter jurisdiction of a federal court, federal courts at all levels are obligated to consider the remove ability question sua sponte.  The fact that none of these courts did so supports the inference that they concluded that FMLA cases are removable.

[77] 879 F. Supp. 598 (W.D. La. 1995).

[78] 879 F. Supp. at 599.

[79] 97 F.3d 100 (5th Cir. 1996).

[80] 97 F.3d at 107.

[81] 97 F.3d at 105-106.

[82] 97 F.3d at 106.

[83] 123 F. Supp.2d 161 (S.D. N.Y. 2000).

[84] 123 F. Supp.2d at 165.

[85] 123 F. Supp.2d at 169.

[86] 998 F. Supp. 606 (D. M.D. 1998).

[87] 998 F. Supp. at 609-610.

[88] 998 F. Supp. at 610.

[89] Fed. R. Civ. P. 8 (a) [check].

[90] 28 U.S.C. § 1446 (___):[Put this earlier, in the sample removal notice section]

28 U.S.C. § 1446 (d) “promptly after the filing of such notice the defendant or defendants shall given written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such state court, which shall effect removal and the state court shall proceed no further unless and until the case is remanded ….”  Id.