UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION
NO. 98-12219-RGS

WILLIAM SILVERSTEIN, Plaintiff
v.
MICROSYSTEMS SOFTWARE, INC., THE LEARNING COMPANY, INC.,
RICHARD GORGENS,DEBRA GORGENS, and LARRY MASON,
Defendants

PLAINTIFF'S MOTION FOR REMAND OF IMPROPERLY REMOVED CASE
AND FOR JUST COSTS AND EXPENSES, INCLUDING ATTORNEY'S FEES,
INCURRED DUE TO THE IMPROPER REMOVAL

Oral Argument Requested

William Silverstein, the plaintiff herein, hereby moves within 30 days of removal, pursuant to § 1447(c) of Title 28 of the United States Code, for an order of this Court directing:

(1) that this case be remanded in full to Middlesex Superior Court, as its removal is expressly barred by § 1445(c) and § 1441 of Title 28, and

(2) that the defendants pay the plaintiff his just costs, and expenses, including attorneys fees, incurred as a result of the improper removal of this case.⁽¹⁾

The Impropriety of the Removal

This case arises out of violations by all of the defendants of the plaintiff's rights under the Massachusetts Workers' Compensation Law, chapter 152 of the General Laws of Massachusetts, due to a work-related injury caused by his keyboard use as a computer programmer.

Claims are asserted in Counts I and II for both discrimination and retaliation against the plaintiff for asserting rights guaranteed to him under § 75B of chapter 152 (Count I),⁽²⁾ and for refusing him the preference in rehiring that § 75A of chapter 152 provides to individuals seeking to return to work after a job-related injury (Count II).

Claims under state Workers Compensation laws are specifically protected against removal to federal court, by § 1445(c) of Title 28 of the United States Code:

§ 1445. Nonremovable actions⁽³⁾

(c) A civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States.

[subsections (a), (b), and (d) omitted]

Other claims - all part of the same cause of action - were joined, including for handicap discrimination under Massachusetts General Laws chapter 151B (Count III), for intentional interference with advantageous relationship against the parties who engaged in those acts to the extent they might not be viewed as his employers (Count V), for conversion of the plaintiff's property rights (Count VI) and breach of contract (Count VII) resulting from the plaintiff's discharge, and for intentional infliction of emotional distress against defendant TLC (Count VIII) to the extent it is held not to be the same entity as MSI, for its retaliation against him for his having asserted legally-protected rights.

One count was asserted under federal law, as part of the same cause of action: Count IV, under the Family and Medical Leave Act. The plaintiff went so far as to have Count IV explicitly explain, in its text, that due to the nonremovability of Counts I and II, and the case's constituting a single cause of action, the case is not removable, under the rules against claim-splitting. (See paragraphs 151 to 154 of the Amended Complaint, attached as an exhibit to the Notice of Removal.)

Nonetheless, upon service of this action, the defendants, by their counsel, Michael Rosen, Esq. of Foley Hoag and Eliot, LLP, removed the action to this Court.

To justify removing, the defendants pointed to the presence of the federal claim, asserting federal question jurisdiction under § 1331 and removal jurisdiction under § 1441, and asserted supplemental jurisdiction over the other counts under § 1367, agreeing with the plaintiff that "those claims are so related to the federal claim that they form part of the same case or controversy" (see paragraph 4 of the Notice of Removal).

However, while this Court would have had jurisdiction under § 1331 and § 1367 on the basis asserted by the defendants if the case had been filed here by the plaintiff, the clear language of § 1441⁽⁴⁾ and § 1445, and decisions of this Circuit, the United States Supreme Court, and other Circuits, make it clear that the United States Congress' clearly-expressed intention to allow a plaintiff to file a case like this one in state court - and to keep it there - must be honored by this Court.

That intention is expressed in several places.

First of all, § 1445(c), as noted above, expressly bars the removal of any claim arising under state Workers Compensation laws.

Secondly, § 1441(a) provides that there is not always removal jurisdiction of cases simply because they could have initially been filed in federal court, by noting that removal jurisdiction is subject to being "otherwise expressly provided by Act of Congress" - such as the various prohibitions under § 1445, including § 1445(c).

Finally, § 1441(c) provides that when an otherwise removable claim (such as the FMLA claim here) is joined with a nonremovable claim or cause of action the case may be removed if, and only if, the removable claim or cause of action is "separate and independent" from the nonremovable claims or causes of action.⁽⁵⁾

The U.S. Supreme Court has made it clear, in American Fire Casualty v. Finn, 342 U.S. 6 (1951), that the effect of § 1441(c) is that where an otherwise-removable claim is part of the same cause of action as a nonremovable claim, § 1441(c) bars removal even of the otherwise-removable claim, and requires remand.⁽⁶⁾

The First Circuit has followed Finn in Charles Dowd Box Company, Inc., et al. v. Fireman's Fund Insurance Company et al., 303 F.2d 57 (1st Cir. 1962) and New England Concrete Pipe Corporation v. D/C Systems of New England, Inc., et al., 658 F.2d 867 (1st Cir. 1981) (which noted, at 658 F.2d 870, that § 1441(c) applies to claims removable on the basis of federal question jurisdiction as well as diversity jurisdiction).

There is one instance in which an action arising under a state Worker's Compensation law may be removed - where that claim is preempted by federal law and thus construed, under the "well-pleaded complaint" rule, as a federal claim instead. This may occur where the employee's claim requires reference to and construction of the terms of a collective bargaining agreement, transforming the action into one under the federal labor laws.

Such a case was very recently decided by this Court, in Joseph Lydon v. Boston Sand & Gravel Company, 15 F. Supp. 2d 150 (1998). (The Supreme Court has made it clear, in Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399 (1988) that not all claims by unionized workers under Worker's Compensation laws are pre-empted - only those that involve the union contract.)⁽⁷⁾

No such escape hatch exists here for the defendants, as the plaintiff's job was not unionized, and as the federal statute involved in this case does not pre-empt state Worker's Compensation law claims.⁽⁸⁾

Massachusetts's Worker's Compensation law, M.G.L. c. 152, survives under both parts of this provision, as it both (a) prohibits discrimination on the basis of a job-related disability and on the basis of the exercise of rights protected by that chapter, and (b) provides medical leave rights greater in some respects than the FMLA, as the FMLA's right to leave is unpaid, and the right to reinstatement is qualified, while c. 152 provides both for the payment to an injured worker of a portion of the worker's salary and for preference in hiring when the injured worker seeks re-employment.

As the defendants have, by their Notice of Removal, stipulated that all of the counts in this lawsuit constitute a single cause of action, as 28 U.S.C. § 1445(c) bars removal of Counts I and II, brought under the Massachusetts Workers' Compensation Law, and as the rules against claim splitting - here enforced by 28 U.S.C. § 1441(c) - prohibit removing this case in this situation, this case was removed without jurisdiction to do so and must be remanded in its entirety to Massachusetts' Middlesex Superior Court, from which it was removed.

In addition, (1) as the defendants were on explicit notice - in the text of the count upon which they based their asserted right to remove - that this case was not removable due to the presence of non-removable claims under the Massachusetts Worker's Compensation Law and its status as a single cause of action, and (2) as the defendants necessitated this motion by refusing to agree to a remand, the plaintiff requests that this Court direct the defendants to pay the plaintiff, through his counsel, his just costs and expenses occasioned by the removal, including one week's time spent on researching and writing this motion (35 hours) plus whatever time is entailed in presenting it motion to the court (anticipated at 2 to 3 hours, including preparation, travel, and waiting time at court), at the plaintiff's counsel's normal hourly rate of $150 per hour.

REQUEST FOR ORAL ARGUMENT

The plaintiff hereby requests, pursuant to Local Rule 7.1(D), that this Court hold oral argument on this motion.

Respectfully submitted,

WILLIAM SILVERSTEIN

By his attorney,

Philip R. Olenick

BBO No. 378605

101 Tremont Street -- Suite 801

Boston, Massachusetts 02108

(617) 357-5660

November 18, 1998

1. Under Local Rule 7.1(A)(2), plaintiff's counsel sought consent to remand this action in a conversation with the defendants' counsel, Michael Rosen, Esq., of Foley, Hoag, and Eliot, LLP, on November 3, 1998. The undersigned explained the basis for this motion, but Mr. Rosen did not agree to a remand.

2. Ranging from (1) pre-firing harassment and (2) interference with assistance from the employer's worker's compensation carrier's ergonomist to (3) refusal to allow him time off for medical treatment to (4) dismissal when he took the time off after delaying it repeatedly to accommodate the employer to (5) discrimination against him when he sought, on various occasions, reinstatement or to be hired for another position.

3. The First Circuit has enforced this provision in Armistead v. C & M Transport, Inc., et al., 49 F.3d 43 (1995).

The Fifth and Eighth Circuits have also done so in, Jones v. Roadway Express, Inc., 931 F.2d 1086 (5th Cir. 1991) and Humphrey v. Sequentia, Inc., 58 F.3d 1238 (8th Cir. 1995), which involved the anti-retaliation provisions of Workers Compensation statutes. The Seventh Circuit, in Spearman v. EXXON Coal USA, Inc., 16 F.3d 722 (7th Cir. 1994), refused to remand an action under Illinois' common law tort of retaliation, as that tort was not part of the Workers Compensation statute - a distinction noted by the First Circuit in Armistead, in remanding an action brought under Massachusetts' Workers Compensation statute.

4. § 1441. Actions removable generally

(a) Except as otherwise expressly provided by Act of Congress, 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. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.

(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

(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 nonremovable 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.

[subsections (d) and (e) omitted]

5. The prohibition, in the second sentence of § 1441(b), quoted above, against removal of diversity cases if any of the defendants is a citizen of the forum state stands on a different footing from § 1445 nonremovability, as it is the party, not the claim, that is non-removable: See Charles D. Bonanno Linen Service, Inc., et al. v. William J. McCarthy, et al., (1st Cir. 1983), in which the presence of resident defendants against whom only state law claims were asserted (referred to as "the pendent parties") resulted in remanding just those defendants to state court - a result that may best be understood in light of the immunity from suit over union activities that Congress gave union members. That partial remand had the effect of severing the cases, protecting the members from the risk of prejudice from being sued together with the union in the same trial.

6. To see the interaction of § 1441(c) and § 1445, see Gonsalves v. Amoco Shipping Company, 733 F.2d 1020 (2nd Cir. 1984), vacating a jury verdict for the defendant in a case with a claim under the Jones Act - protected from removal under § 1445(a) - as the removable claims were part of the same cause of action with the Jones Act claim, making § 1441(c) bar removal of the case, requiring complete remand. A recent case, Sherrod v. American Airlines, Inc., 132 F.3d 1112 (5th Cir. 1998), could have provided an example on all fours with the present case. Unfortunately, it's clear from the opinion there that no one in that confused litigation - which involved a plaintiff who filed three parallel lawsuits and even filed her successful motion to remand the Workers Compensation law claim under § 1445(c) in the wrong lawsuit - ever noticed the applicability of § 1441(c) to force remand of all claims. Instead, the opinion in Sherrod focused on whether supplemental jurisdiction to a federal claim could support removal of a Worker's Compensation law claim to federal court, concluding that § 1445(c) was too explicit to allow that. (As no one had argued for remand of the whole case under § 1441(c), the federal claims were allowed to remain.)

7. Lydon recognized, before pre-empting the employee's Workers Compensation retaliation claim - brought under one of the same provisions here sued upon - that if that claim was not pre-empted it would have been non-removable under § 1445(c).

8. The Family and Medical Leave Act contains this important provision at 29 U.S.C. § 2651:

§ 2651. Effect on other laws

(a) Federal and State antidiscrimination laws. Nothing in this Act or any amendment made by this Act shall be construed to modify or affect any Federal or State law prohibiting discrimination on the basis of race, religion, color, national origin, sex, age, or disability.

(b) State and local laws. Nothing in this Act or any amendment made by this Act shall be construed to supersede any provision of any State or local law that provides greater family or medical leave rights than the rights established under this Act or any amendment made by this Act.