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.