Opinion
No. 1:02-cv-045
June 27, 2002
MEMORANDUM
Plaintiffs Tom Henderson ("Henderson"), Steve Hunsicker ("Hunsicker"), and Freedom Broadcasting of Tennessee, Inc. ("Freedom Broadcasting") d/b/a WTVC News Channel 9 (collectively referred to as "plaintiffs") move pursuant to 28 U.S.C. § 1447(c) to remand this case to the Chancery Court for Hamilton County, Tennessee. [Court File No. 13]. They argue the case has been improperly removed from state court because the federal questions upon which removal is based were not voluntarily introduced into the litigation by them. Rather, the federal questions were introduced into the state court proceedings by intervening plaintiffs who filed a separate but related complaint against defendant City of Chattanooga ("City"). Plaintiffs opposed the motion to intervene and the filing of the intervening complaint.
Plaintiffs contend removal of a civil action from state court based on federal question jurisdiction requires that the federal question be raised by voluntary act of the plaintiffs, and intervenors cannot create removal jurisdiction. It is argued that a complaint filed in state court which is not removable to federal court cannot later be made removable or transformed into a removable case by the unilateral actions of an intervening party or by a state court granting the motion to intervene. Plaintiffs say remand is necessary because this federal district court lacks subject matter jurisdiction over their complaint or petition brought under the Tennessee Open Records Act. In addition, the plaintiffs seek an award of attorney's fees and costs under § 1447(c) as a result of the alleged improper removal.
The City and the intervening plaintiffs oppose the motion to remand. After reviewing the record, the Court concludes the motion to remand [Court File No. 13] is well taken and it will be GRANTED. The plaintiffs' motion for an award of attorney's fees and costs will be DENIED.
I. Facts
Freedom Broadcasting is a Tennessee corporation with its principal place of business in Hamilton County, Tennessee. It operates a television station in Hamilton County known as WTVC Channel 9. Plaintiffs Henderson and Hunsicker are employees of Freedom Broadcasting. Henderson is the Assignment Manager and Hunsicker is the News Director of WTVC News Channel 9.
Plaintiffs filed a petition in the Chancery Court for Hamilton County, Tennessee, against the City under the Tennessee Open Records Act ("TORA"), TENN. CODE ANN. § 10-7-505. In their original petition, the plaintiffs sought access to the personnel files and photographs of all uniformed police officers employed by the City Police Department, with the exception of undercover officers. The petition did not make any federal claims or raise any federal questions arising under the United States Constitution or other federal law. The petition is based solely on the plaintiffs' state law claim that they are entitled to access to the police officers' photographs pursuant to TORA.
The Chancery Court ordered the City to show cause why the TORA petition should not be granted. A motion to intervene was subsequently filed in the Chancery Court by Leigh Noorbergen, James Hostetter, Jeffrey Francis, Edwin McPherson, and Southern States Police Benevolent Association, Inc. (collectively referred to as "intervening plaintiffs"). Noorbergen, Hostetter, Francis, and McPherson are employed as police officers by the City, and they are citizens and residents of Hamilton County, Tennessee. The motion to intervene included a proposed new complaint naming the City as a party defendant.
In their motion to intervene and their complaint, the intervening plaintiffs take the position that they have a right to privacy protected under the United States Constitution and the Tennessee Constitution, and they also have substantive due process rights guaranteed under the Due Process Clause of the Fourteenth Amendment to the United States Constitution as recognized in Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1988). The intervening plaintiffs contended that the only method for them to adequately protect these rights was to intervene in the pending TORA lawsuit filed by plaintiffs Henderson, Hunsicker, and Freedom Broadcasting against the City. The Chancery Court granted the motion to intervene and the intervening plaintiffs were allowed to file their intervening complaint against the City. This created an unusual situation in that the interests of the intervening plaintiffs are directly adverse and inimical to the original plaintiffs' interests. Original plaintiffs Henderson, Hunsicker, and Freedom Broadcasting claim a right of access to the photographs of police officers contained in the City's personnel records under TORA, while the intervening plaintiffs seek an injunction prohibiting the City from disclosing the photographs to the original plaintiffs.
In their intervening complaint, the intervening plaintiffs demand the following injunctive and declaratory relief. The intervening plaintiffs seek a permanent injunction against the City to: (1) prohibit the City from releasing their photographs or any other confidential material from their police personnel file, consistent with Kallstrom, that may place the police officers or their families at a substantial risk of harm or death; and (2) require the City to comply with the Due Process Clause of the Fourteenth Amendment to the United States Constitution by providing the intervening plaintiffs with due process notice and an opportunity to be heard whenever a request is made to the City for information contained in a City police officer's personnel file. In addition, the intervening plaintiffs seek a declaratory judgment declaring TORA to be unconstitutional and void on the ground that it violates the Fourteenth Amendment to the United States Constitution as interpreted in Kallstrom and violates Section 8 of the Tennessee Constitution. After the intervening plaintiffs were permitted by the Chancery Court to file their intervening complaint raising these federal questions and claims under United States Constitution, the City immediately filed a notice of removal in federal district court. In its notice, the City states removal is proper pursuant to 28 U.S.C. § 1441(a) or (c).
II. Standard of Review
The City is the removing party seeking to invoke this Court's subject matter jurisdiction and the City bears the burden of showing removal is proper. Wilson v. Republic Iron Steel Co., 257 U.S. 92, 97-98 (1921); Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999); Alexander v. Electronic Data Systems Corp., 13 F.3d 940, 948 (6th Cir. 1994); Gafford v. General Electric Co., 997 F.2d 150, 155 (6th Cir. 1993); Her Majesty The Queen v. City of Detroit, 874 F.2d 332, 339 (6th Cir. 1989).
A federal court's jurisdiction under the removal statutes constitutes an infringement upon state sovereignty. The federal statutes governing removal are strictly construed in favor of state court jurisdiction. Shamrock Oil Corp. v. Sheets, 313 U.S. 100, 108-109 (1941); Long v. Bando Mfg. of America, Inc., 201 F.3d 754, 757 (6th Cir. 2000); Brierly v. Alusuisse Flexible Pkg., Inc., 184 F.3d 527, 534 (6th Cir. 1999), cert. denied, 528 U.S. 1076 (2000); Alexander, 13 F.3d at 948; Her Majesty The Queen, 874 F.3d at 339; Wilson v. U.S. Dept. of Agriculture, 584 F.2d 137, 142 (6th Cir. 1978). "Due regard for state governments' rightful independence requires federal courts scrupulously to confine their own jurisdiction to precise statutory limits." Ahearn v. Charter Township of Bloomfield, 100 F.3d 451, 454 (6th Cir. 1996). Principles of comity and federalism dictate that federal removal jurisdiction should be exercised only when it is clearly established. Any ambiguity regarding the scope of the removal statutes should be resolved in favor of remand to state court. Brierly, 184 F.3d at 534.
III. Analysis
After reviewing the record, the Court concludes the case has not been properly removed the from state court and this federal district court lacks jurisdiction. The federal statutes cited by the City, 28 U.S.C. § 1441(a) and (c), do not authorize removal of this case. The City has not met its burden of showing that removal is proper. Accordingly, the entire case must be remanded.
This result is fair and should not pose a problem for the intervening plaintiffs. The intervening plaintiffs chose to file their intervening complaint against the City in the Hamilton County Chancery Court and the remand order returns them to that same judicial forum. The intervening plaintiffs have no right of removal under 28 U.S.C. § 1441, 1447 and they cannot be heard to reasonably complain about the case being adjudicated in the Hamilton County Chancery Court since they elected to intervene there. If the intervening plaintiffs do not want to be in the Chancery Court, they should not have filed their complaint there.
Moreover, instead of filing a separate lawsuit in either state or federal court which might be removable by itself, the intervening plaintiffs made a deliberate choice to intervene in the TORA action filed by plaintiffs Henderson, Hunsicker, and Freedom Broadcasting. The intervening plaintiffs did not join in the original plaintiffs' TORA complaint but rather filed a separate intervening complaint adverse to the TORA complaint. Because the TORA complaint is not removable and is being remanded, it should come as no surprise to the intervening plaintiffs that their intervening complaint will likewise be remanded. As intervenors, their fate on the question of removability is inextricably tied to the nonremovable TORA complaint.
A. 28 U.S.C. § 1441(a) and 1446(b)
28 U.S.C. § 1441(a) provides in pertinent part that "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." Generally, a civil case filed in state court may be removed by a defendant to federal district court under § 1441(a) only if the case could have originally been brought in federal court and the federal court would have had original subject matter jurisdiction. Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir. 2000).
The petition filed by plaintiffs Henderson, Hunsicker, and Freedom Broadcasting in the Chancery Court pursuant to TORA is not removable under 28 U.S.C. § 1441(a) because it could not have originally been brought in federal court. This federal district court could not have exercised original subject matter jurisdiction over the TORA complaint. The TORA complaint does not raise any questions of federal law and does not assert any claims predicated on federal law. There is no subject matter jurisdiction pursuant to 28 U.S.C. § 1331 or any other federal statute. There is no diversity jurisdiction under 28 U.S.C. § 1332 because the requisite complete diversity of citizenship between the plaintiffs and the City does not exist.
The City contends that removal of the plaintiffs' TORA complaint is proper under 28 U.S.C. § 1441(a) and there is federal question jurisdiction based on the intervening plaintiffs' complaint against the City. In other words, the City seeks to effect removal of the entire case pursuant to 28 U.S.C. § 1446(b). The second paragraph of § 1446(b) provides that if the case stated in the initial pleading is not removable, a notice of removal may be filed by the defendant within thirty 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 ascertained that the case is one which is or has become removable . . . ." The City filed its notice of removal only after the Chancery Court entered an order granting the motion to intervene and permitting the intervening plaintiffs to file their complaint. The City essentially argues that even though the original plaintiffs' TORA complaint was not removable when it was initially filed, it became removable under 28 U.S.C. § 1446(b) once the state court allowed the intervening plaintiffs to file their intervening complaint against the City.
In analyzing this question under 28 U.S.C. § 1441(a) and 1446(b), the Court is guided by the well-pleaded complaint doctrine and the voluntary-involuntary rule. The presence or absence of federal-question jurisdiction is governed by the well-pleaded complaint doctrine which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. Rivet v. Regions Bank of LA., 522 U.S. 470, 475; Caterpillar Inc. v. Williams, 482 U.S. 386, 392-94 (1987); Louisville Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908); Michigan Southern R.R. Co. v. Branch St. Joseph Counties Rail Users Ass'n, Inc., 287 F.3d 568, 573 (6th Cir. 2002). For purposes of federal question jurisdiction pursuant to 28 U.S.C. § 1331, a case arises under federal law when it is apparent from the face of the plaintiff's complaint either: (1) the plaintiff's cause of action was created by federal law; or (2) if the plaintiff's claim is based on state law, a substantial, disputed question of federal law is a necessary element of the plaintiff's cause of action. Id.; see also Franchise Tax Board of California v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983); Long, 201 F.3d at 759-60.
The well-pleaded complaint doctrine makes plaintiffs Henderson, Hunsicker, and Freedom Broadcasting the masters of their own complaint. They have the right to avoid federal subject matter jurisdiction and preclude removal by relying exclusively on state law in their complaint. Ahearn, 100 F.3d at 456; Alexander, 13 F.3d at 943; Her Majesty The Queen, 874 F.2d at 338-39.
If this Court were to allow the City to remove the TORA petition filed by plaintiffs Henderson, Hunsicker, and Freedom Broadcasting in state court based on the hostile intervening complaint, it would violate the well-pleaded complaint doctrine and the plaintiffs would no longer be the masters of their complaint. The right of the original plaintiffs to relief under TORA is based purely on Tennessee law and does not necessarily depend on the resolution of a substantial, disputed question of federal law. Application of the well-pleaded complaint rule is especially necessary and appropriate in the instant case because the intervening complaint is completely hostile and adverse to the plaintiffs petition for access to the police officers' photographs brought under TORA. This is not a case where the intervening plaintiffs join in, agree with, and support the original plaintiffs' TORA complaint.
This Court's decision to remand is influenced by the voluntary-involuntary rule that applies in removal cases. It is significant that the federal questions and federal law claims were not introduced into this case by the voluntary act of plaintiffs Henderson, Hunsicker, and Freedom Broadcasting. In the state court proceedings, they opposed the intervening plaintiffs being permitted by the Chancery Court to file the intervening complaint. Generally, involuntary changes in a civil action do not create removability if the case, as stated in the plaintiff's initial complaint or pleadings, is not removable. 16 MOORE'S FEDERAL PRACTICE § 107-30[a][ii][C] (3d ed. 2001). A state court case that initially is non-removable cannot subsequently become removable or be transformed into a removable case unless a change occurs that makes it removable as a result of the plaintiff's voluntary act. Great Northern R. Co. v. Alexander, 246 U.S. 276, 281-82 (1918); S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996); People of State of Cal. v. Keating, 986 F.2d 346, 348 (9th Cir. 1993); Poulos v. Naas Foods, Inc., 959 F.2d 69, 71-72 (7th Cir. 1992); Insinga v. LaBella, 845 F.2d 249, 252-53 (11th Cir. 1988); Self v. General Motors Corp., 588 F.2d 655, 657-60 (9th Cir. 1978); Weems v. Louis Dreyfuss Corp., 380 F.2d 545 (5th Cir. 1967); see also White v. Hughes, 409 F. Supp. 1005, 1008 (W.D.Tenn. 1975).
The longstanding voluntary-involuntary rule is consistent with the well-pleaded complaint doctrine. The basic premise is that because a plaintiff is the master of his own complaint, involuntary changes caused by a party other than the plaintiff cannot make a case removable. Great No. Ry. Co. v. Alexander, 246 U.S. 276, 281-82 (1918); Keating, 986 F.2d at 348; Insinga, 845 F.2d at 253; Self, 588 F.2d at 656-59. As the Eleventh Circuit explains in Insinga, 845 F.2d at 253-54, the voluntary-involuntary rule and the well-pleaded complaint doctrine have common origins. The voluntary-involuntary rule was developed, and is followed most often, in diversity cases. See, e.g., Whitcomb v. Smithson, 175 U.S. 635, 638 (1900); Powers v. Chesapeake Ohio Ry., 169 U.S. 92, 99-101 (1898); Poulas, 959 F.2d at 71-72; Self, 588 F.2d at 657-58 (discussing history and collecting cases); Ratcliff v. Fibreboard Corp., 819 F. Supp. 584, 586-87 (W.D.Tex. 1992). However, the voluntary-involuntary rule is also applicable in nondiversity cases where federal subject matter jurisdiction is based on a federal question. Great Northern R. Co., 246 U.S. 276; Keating, 986 F.2d 346; Morsani v. Major League Baseball, 79 F. Supp.2d 1331, 1333 n. 5 (M.D.Fla. 1999) (In both federal question and diversity cases, 28 U.S.C. § 1446(b) restricts defendants from removing most cases when the circumstance potentially allowing removal arises through no consequence of the plaintiff's actions). Furthermore, 28 U.S.C. § 1446(b), as amended, preserves the validity of the voluntary-involuntary rule. Poulas, 959 F.2d at 72; Insinga, 845 F.2d at 252; In re Iowa Mfg. Co. of Cedar Rapids, Iowa, 747 F.2d 462 (8th Cir. 1984); Weems, 380 F.2d at 548-49; Graff v. Qwest Communications Corp., 33 F. Supp.2d 1117, 1119 (D.Minn. 1999); 14A CHARLES ALAN WRIGHT, ARTHUR R. MILLER EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION 3D § 3723 (1998) ("WRIGHT MILLER").
Based on both the well-pleaded complaint doctrine and the voluntary-involuntary rule, this Court concludes that the intervening complaint filed in state court cannot create a valid basis for removal of the TORA complaint filed by original plaintiffs Henderson, Hunsicker, and Freedom Broadcasting. The intervening complaint cannot transform the original plaintiffs' non-removable complaint into one that is removable. Hopkins Erecting Co. v. Briarwood Apartments, 517 F. Supp. 243, 247-50 (E.D.Ky. 1981); Smith v. St. Luke's Hospital, 480 F. Supp. 58, 61 (D.S.D. 1979); Lauf v. Nelson, 246 F. Supp. 307 (D.Mont. 1965); Willingham v. Creswell-Keith, Inc., 160 F. Supp. 741, 744 (D. Ark. 1958). The federal claims asserted in the intervening complaint have not been introduced into this civil action by the voluntary act of the original plaintiffs. On the contrary, the original plaintiffs vigorously opposed the filing of the intervening complaint because it is adverse and hostile to the original plaintiffs' TORA complaint.
One leading treatise makes the following comment:
It has been held that a claim introduced into the action by intervention will not make a nonremovable action removable. Willingham v. Creswell-Keith, Inc., D.C. Ark. 1958, 160 F. Supp. 741. The proposition seems too broad. If an action would have been removable if two plaintiffs had joined their claims originally, it should be equally removable even though the second claim is added, subsequent to commencement of the original action, by intervention.
14C WRIGHT MILLER § 3724 p. 43 n. 63
This Court does not necessarily disagree with WRIGHT MILLER`s comment on the particular point it makes but its rationale is not applicable to the case at bar. In this general comment, WRIGHT MILLER obviously has in mind a significantly different fact situation where an intervening plaintiff makes a new intervening claim that is consistent with and in effect joins in the original plaintiff's complaint. Such is not the fact situation in the present case. The intervening plaintiffs here cannot be said to be in a position to join their federal claims with the adverse claim presented by plaintiffs Henderson, Hunsicker, and Freedom Broadcasting in their original complaint demanding access to police personnel records under TORA.
The intervening plaintiffs, with good reason, chose to file a separate intervening complaint in the state court rather than joining in the plaintiffs' TORA complaint. The intervening complaint is designed to obtain an injunction prohibiting the City from giving plaintiffs Henderson, Hunsicker, and Freedom Broadcasting access to certain police personnel records under TORA and enjoining the City from releasing the photographs of police officers. The intervening complaint and interests of the intervening plaintiffs are diametrically opposed and hostile to the TORA petition filed by plaintiffs Henderson, Hunsicker, and Freedom. Consequently, the WRIGHT MILLER comment quoted supra offers no guidance on how this Court should decide the instant motion to remand. The WRIGHT MILLER comment does not encompass and address the extraordinary situation we are confronted with in this case where the intervening complaint is entirely adverse to the original plaintiffs' TORA complaint.
Accordingly, removal is not proper under 28 U.S.C. § 1441(a) and 1446(b).
B. 28 U.S.C. § 1441(c)
28 U.S.C. § 1441(c) does not authorize removal of this case. Section 1441(c) provides:
Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title [ 28 U.S.C. § 1331] 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.
Section 1441(c) must be narrowly, strictly construed in favor of state court jurisdiction and against removal. When Congress enacted § 1441(c), it intended to restrict rather than expand the scope of removal of cases from state courts. American Fire Casualty Co. v. Finn, 341 U.S. 6, 9-10 (1951); Andrews v. Electric Motor Systems, Inc., 767 F. Supp. 853, 855 (S.D.Ohio 1991). This Court cannot indulge in an expansive interpretation of § 1441(c) beyond its narrow bounds. The intent and purpose of § 1441(c) is to allow removal when a plaintiff or plaintiffs join multiple claims or causes of action together in a complaint, one of which supports removal jurisdiction because it raises a federal question that comes within the ambit of federal question jurisdiction conferred on federal district courts under 28 U.S.C. § 1331. Section 1441(c) applies only to separate and independent claims joined by the plaintiff. Lewis v. Windsor Door Co., 926 F.2d 729, 733 (8th Cir. 1991); Kaye Associates v. Board of Chosen Freeholders, 757 F. Supp. 486, 487-89 (D.N.J. 1991); Luebbe v. Presbyterian Hospital, 526 F. Supp. 1162 (S.D.N.Y. 1981); White v. Hughes, 409 F. Supp. 1005, 1007 (W.D.Tenn. 1975); Lauf, 246 F. Supp. at 311; Cannon v. Goodyear Tire Rubber Co., 241 F. Supp. 23, 25 (E.D. S.C. 1965); Sexton v. Allday, 221 F. Supp. 169, 170-71 (E.D.Ark. 1963); Shaver v. Arkansas-Best Freight System, Inc., 171 F. Supp. 754 (W.D.Ark. 1959); Willingham, 160 F. Supp. 741; Sequoyah Feed and Supply Co., Inc. v. Robinson, 101 F. Supp. 680, 682 (W.D.Ark. 1951). Claims introduced or injected into a pending case by intervention, especially those claims which are antagonistic to the original complaint, do not afford a basis for removal under 28 U.S.C. § 1441(c).
As the Court construes the plain language of Section 1441(c), it can apply where a single plaintiff asserts a separate and independent federal claim in his complaint. Section 1441(c) can also apply where two or more plaintiffs agree to join together to file a common complaint and they voluntarily join their claims, one of which is a separate and independent claim that falls within the federal question jurisdiction conferred by 28 U.S.C. § 1331. See Stokes v. Merrill, Lynch, Pierce, Fenner Smith, 523 F.2d 433 (6th Cir. 1975). But this is not the fact situation in the present case.
In this case, the intervening plaintiffs have not joined their claims or causes of action with the claim asserted by original plaintiffs Henderson, Hunsicker, and Freedom Broadcasting in their TORA complaint. Cf. Thomas v. Shelton, 740 F.2d 478, 486 (7th Cir. 1984). When the intervening plaintiffs filed their separate intervening complaint in Chancery Court, they did not join in the original plaintiffs' complaint seeking relief under TORA. The intervening complaint is entirely adverse and hostile to the TORA complaint brought by the original plaintiffs. Although the intervening plaintiffs and original plaintiffs Henderson, Hunsicker, and Freedom Broadcasting are all nominally aligned against the City as a result of the intervention ordered by the Chancery Court, their legal interests are diametrically opposed.
Under these circumstances, § 1441(c) cannot be expanded and stretched beyond the limits of its plain language to apply where the intervening plaintiffs' federal claims are not joined in the original plaintiffs' complaint through the voluntary act or consent and acquiescence of the original plaintiffs. There is a crucial distinction between the voluntary, consensual joinder of claims or causes of action by one or more plaintiffs in a single complaint for purposes of § 1441(c) and a court-ordered "joinder" of parties by means of intervention. The term "joined" as used in § 1441(c) means the joinder of claims or causes of action by a plaintiff and not the mere joinder of parties. See Jett v. Zink, 362 F.2d 723, 730 (5th Cir. 1966) (It is the joinder of claims, not the joinder of parties that makes § 1441(c) applicable).
The Court follows and applies the well-pleaded complaint doctrine and the voluntary-involuntary rule. Plaintiffs Henderson, Hunsicker, and Freedom Broadcasting are the masters of their complaint. Their original complaint is not removable and it cannot made removable by the filing of the adverse intervening complaint. The original plaintiffs' TORA complaint can only be made removable through a voluntary act of the original plaintiffs. White, 409 F. Supp. at 1008. No such voluntary act has occurred. The intervening complaint was not a voluntary act of the original plaintiffs. Lauf, 246 F. Supp. at 311. Plaintiffs Henderson, Hunsicker, and Freedom Broadcasting actively opposed the filing of the intervening complaint in the state court proceedings and they did not consent, agree, or acquiesce to the intervening complaint being filed. The City argues removal is proper based on the intervening complaint relying, by analogy, on a line of precedent developed in some federal courts which holds that third-party claimants may remove cases pursuant to § 1441(c) where a separate and independent federal claim is stated. The leading case in support of this view is Carl Heck Engineers, Inc. v. Lafourche Parish Police, 622 F.2d 133, 135 (5th Cir. 1980). This position is controversial and open to spirited debate among the federal district courts and circuit courts. See, e.g., Thomas, 740 F.2d 478 (7th Cir. 1984); Brookover Financial Services, Inc. v. Beckley, 56 F. Supp.2d 782, 784 (W.D.Ky. 1999); Garner v. MIC General Ins. Corp., 869 F. Supp. 497 (E.D.Mich. 1994); Andrews, 767 F. Supp. at 855; Sunny Acres Skilled Nursing v. Williams, 731 F. Supp. 1324, 1325-27 (N.D.Ohio. 1990); Wagner v. Burkhart, 716 F. Supp. 304 (N.D.Ohio. 1989). The United States Supreme Court has not directly addressed and ruled on this particular question. The majority of courts hold that a third-party defendant is without statutory to remove a civil action. Lewis, 926 F.2d 729; Thomas, 740 F.2d 478; Rojano v. American Ins. Co., 2001 WL 1579492 (S.D.Ohio Sept. 4, 2001) (collecting cases); 14C WRIGHT MILLER § 3724 at pp. 40-44 and § 3731 at pp. 253-54.
The Court of Appeals for the Sixth Circuit has not rendered a definitive published opinion directly on point about whether a third party can remove a case pursuant to § 1441(c). In Renaissance Center Venture v. Lozovoj, 884 F. Supp. 1132, 1137 (E.D.Mich. 1995), aff'd, 95 F.3d 1153 (Table, text in 1996 WL 483023 (6th Cir. Aug. 23, 1996)) (unpublished), the district court allowed removal of the entire case where it determined that the third-party complaint constituted a separate and independent claim under § 1441(c). The district court in Renaissance Center relied on Carl Heck Engineers. In a very abbreviated unpublished opinion, the Sixth Circuit affirmed without any discussion of the question. It is not clear what issues were considered on appeal.
In the absence of a definitive published opinion from either the Sixth Circuit or the United States Supreme Court, this district court sitting in the Eastern District of Tennessee agrees with and follows Thomas, 740 F.2d 478, and Andrews, 767 F. Supp. at 855. The removal statutes, including 28 U.S.C. § 1441(c), must be construed narrowly with any doubt or ambiguity being resolved in favor of remand to state courts. Section 1441(c) should not be read to permit or authorize third party defendants to remove actions to federal court. This Court respectfully disagrees with and rejects Carl Heck Engineers and its progeny. What this means in the instant case is that the filing of the intervening complaint by the "third parties," i.e., intervening plaintiffs, does not make the case removable by the City under § 1441(c).
C. FDIC v. Otero
In support of its argument that removal is proper under either 28 U.S.C. § 1441(a) or (c), the City cites Federal Deposit Ins. Corp. v. Otero, 598 F.2d 627 (1st Cir. 1979). [Court File No. 29]. The City contends that in Otero an agency of the United States government, the Federal Deposit Insurance Corporation ("FDIC"), was allowed to intervene as a party plaintiff in a civil action in state court. Intervention by the FDIC and the substitution of the FDIC for the original plaintiff created federal question jurisdiction under 28 U.S.C. § 1331 thereby making the case removable from state court.
The City's reliance on Otero is misplaced. Otero does not support the City's argument that removal is proper in the present case. A closer examination of Otero demonstrates it is entirely consistent with this Court's reasoning supra that only a voluntary act committed by original plaintiffs Henderson, Hunsicker, and Freedom Broadcasting can make their complaint removable.
In Otero, 598 F.2d at 629, Banco Economias, a commercial bank organized under the laws of the Commonwealth of Puerto Rico, filed two suits against the defendants/debtors in the Puerto Rico courts to collect on defaulted loans. The defendants asserted counterclaims. While the collection suits were pending, the FDIC purchased the defendants/debtors' obligations from the failing Banco Economias during the course of a bank reorganization plan. FDIC purchased the "bad assets" of the failing Banco Economias while a different bank, Banco Central, assumed by merger the remaining assets and liabilities of Banco Economias. FDIC then stepped into the pending collection lawsuits and was substituted as the party plaintiff replacing original plaintiff Banco Economias. Banco Central assumed the role of the former Banco Economias in answering the defendants' counterclaims. Once the FDIC was substituted as plaintiff, the defendants/debtors removed the two collection suits to federal district court. FDIC and Banco Central moved to remand but their motion was denied by the federal district court. Banco Central took an appeal from the district court's denial of the motion to remand the two collection suits back to state court. The Court of Appeals for the First Circuit affirmed the district court and held that removal was proper. The First Circuit's analysis is instructive. Appellant Banco Central argued on appeal that the mere substitution of the FDIC as a party plaintiff should not transform a case into one arising under the laws of the United States for purposes of establishing federal question jurisdiction pursuant to 28 U.S.C. § 1331. The appellant's main argument was based on the well-pleaded complaint doctrine. The First Circuit rejected this argument stating "it is well established that when the plaintiff by a voluntary act interposes a federal question that did not appear in the complaint as originally filed, the defendant may remove the case to federal court." It cited 28 U.S.C. § 1146(b) and Great Northern Ry. Co. v. Alexander, 246 U.S. 276, 280 (1918). In other words, the First Circuit held removal was proper because the FDIC had been substituted in place of the original plaintiff and the substitution constituted a voluntary act by the plaintiff changing the nature of the plaintiff's initial complaint.
The Otero decision goes on to say the First Circuit did not think a different result should pertain when a federal question arises from the intervention of the FDIC as party plaintiff. It makes sense that federal question jurisdiction pursuant to 28 U.S.C. § 1331 based on civil actions "arising under" federal law should be applicable when the involvement of FDIC may put in issue the federal laws governing the FDIC's rights and liabilities as a creditor. The First Circuit saw no reason to preclude removal and the availability of federal question jurisdiction under 28 U.S.C. § 1331 when the FDIC sues as the assignee of assets of a failing bank simply because the bank had already commenced a debt collection suit in state court prior to the bank's failure. Otero, 598 F.2d at 629. Otero is readily distinguishable from the present case both on the facts and the law.
In Otero, the FDIC was substituted in place of the original plaintiff. FDIC was the assignee of the original plaintiff Banco Economias. Consequently, the FDIC in Otero was in a substantially different position from the intervening plaintiffs in the instant case. In the case at bar, the intervening plaintiffs have not replaced or been substituted for original plaintiffs Henderson, Hunsicker, and Freedom Broadcasting in their petition for relief under TORA. Rather, the intervening plaintiffs here filed a separate intervening complaint in state court that is adverse and in direct opposition to the original plaintiff's complaint for access to police personnel records brought under TORA. Original plaintiffs Henderson, Hunsicker, and Freedom Broadcasting have not committed any voluntary acts to make their TORA petition removable. The original plaintiffs have not amended their TORA petition to raise a federal question thereby giving rise to federal question jurisdiction pursuant to 28 U.S.C. § 1331. Moreover, the original plaintiffs obviously do not adopt or join in the federal law claims asserted by the police officers in the intervening complaint. Unlike the FDIC and Banco Economias in Otero, the intervening plaintiffs in the instant case do not occupy the same legal position and do not stand in the same shoes as original plaintiffs Henderson, Hunsicker, and Freedom Broadcasting.
Accordingly, the plaintiffs' motion to remand will be GRANTED.
D. Costs and Attorney's Fees
Plaintiffs Henderson, Hunsicker, and Freedom Broadcasting move that they be awarded costs and attorney's fees pursuant to 28 U.S.C. § 1447(c) which provides in relevant part: "An order remanding the case may require payment of just costs and any actual expenses, including attorney's fees, incurred as a result of the removal." It is within the district court's sound discretion whether to award costs and attorney's fees under § 1447(c). Morris v. Bridgestone/Firestone, Inc., 985 F.2d 238 (6th Cir. 1993); Bucary v. Rothrock, 883 F.2d 447, 449 (6th Cir. 1989).
The Court is not persuaded that requiring the City to pay the plaintiffs' costs and attorney's fees would be just and appropriate under the particular facts and circumstances in this case. The Court has no doubt that the City removed the case in good faith. The removal was not frivolous, negligent, vexatious, or done in bad faith. The question whether removal by the City is proper as a matter of law is open to reasonable debate among competent attorneys and judges. This case presents an unusual removal question and the City cannot be unduly criticized or penalized for making an objectively reasonable effort to remove the case. Accordingly, the plaintiffs' § 1447(c) motion for costs and attorneys' fees will be DENIED.
E. Other Pending Motions
There are several other pending motions. Plaintiffs Henderson, Hunsicker, and Freedom Broadcasting make a motion under FED. R. CIV. P. 15(a) for leave to amend their petition for access to public records under TORA. [Court File No. 24]. Plaintiffs seek to amend their petition to clarify that they no longer demand access to the photographs of all uniformed police officers employed by the City, and that the plaintiffs are limiting their TORA request to the photographs of six police officers believed to be involved in the Torris Harris incident that occurred on December 26, 2001.
Martin R. Penny, Christopher Smith, and Mark A. Smeltzer move to intervene pursuant to FED. R. CIV. P. 24(a)(2). [Court File No. 20]. The Chattanooga Publishing Company, the Tennessee Press Association, Inc., the Society of Professional Journalists, the Tennessee Associated Press Managing Editors, and the Tennessee Association of Broadcasters each move for leave to intervene pursuant to FED. R. CIV. P. 24. [Court File Nos. 23, 26, 28]. The Attorney General for the State of Tennessee makes a motion to intervene for the purpose of responding to the intervening plaintiffs' challenge to the constitutionality of TORA. [Court File No. 32]. The Court will not consider and rule on these motions because it has determined the case was improperly removed and the Court lacks jurisdiction. All of these remaining motions can be decided by the state court on remand.
A separate order will enter.
ORDER
In accordance with the accompanying memorandum opinion, the motion to remand by plaintiffs Tom Henderson, Steve Hunsicker, and Freedom Broadcasting of Tennessee, Inc. d/b/a WTVC News Channel 9 [Court File No. 13] is GRANTED pursuant to 28 U.S.C. § 1447(c) on the ground of lack of jurisdiction. This entire case is hereby REMANDED to the Chancery Court for Hamilton County, Tennessee. To the extent that said plaintiffs' further move for an award of costs and attorney's fees against defendant City of Chattanooga under 28 U.S.C. § 1447(c), said motion [Court File No. 13] is DENIED.
SO ORDERED.