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Booker v. State

United States District Court, D. Nebraska

August 4, 2014

DIANNE BOOKER, Plaintiff,
v.
THE STATE OF NEBRASKA, and STEVE UROSEVICH, Individually and in his official capacity; Defendants.

FINDINGS AND RECOMMENDATION

CHERYL R. ZWART, Magistrate Judge.

Pending before me is the plaintiff's motion for remand. (Filing No. 4). For the reasons discussed below, this case should be remanded to the District Court of Lancaster County, Nebraska, but plaintiff's related request for costs and attorney fees incurred in moving for remand should be denied.

STATEMENT OF FACTS

The plaintiff filed a complaint against the defendants in the District Court of Lancaster County, Nebraska on February 3, 2012. The complaint alleged the defendants violated Plaintiff's rights guaranteed under the Family Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §2615, and her civil rights guaranteed under Neb. Rev. Stat. § 20-148. (Filing No. 5-3). As to the civil rights claim, the complaint alleged the defendants violated the plaintiff's First Amendment rights; that "Plaintiff has been deprived of rights and privileges under the United States Constitution which is a civil rights violation under Neb. Rev. Stat. § 20-148." (Filing No. 5-3, at CM/ECF pp. 6-7).

The complaint was promptly served on the defendants, (Filing No. 5-5), and they answered the complaint on March 7, 2012. (Filing No. 5-6). The defendants served written discovery on April 30, 2012, (Filing No. 5-7), and defendant Urosevich's deposition was noticed and scheduled to be held on November 7, 2012. (Filing No. 5-8).

The plaintiff filed for Chapter 13 bankruptcy protection on September 21, 2012, and a suggestion of bankruptcy was filed in the state court on September 28, 2012. (Filing No. 5-9). The case was stayed until Plaintiff's counsel was specially appointed by the bankruptcy court to litigate Plaintiff's claims. (Filing No. 5-10). On June 21, 2013, the plaintiff filed a notice of relief from the bankruptcy stay. (Filing No. 5-10).

Discovery progressed in the state case. The plaintiff served discovery requests on the defendants on August 19, 2013, (Filing No. 5-11), and the defendants responded on September 12, 2013, (Filing No. 5-12), with supplemental responses served on October 10, 2013. (Filing No. 5-13). The defendants noticed the plaintiff's deposition to be held on December 5, 2013. (Filing No. 5-14).

On February 27, 2014, the plaintiff moved to set the case for trial. (Filing No. 5-15). The defendants moved for summary judgment on March 7, 2014. (Filing No. 5-16). The summary judgment motion was scheduled for hearing on April 24, 2014. (Filing No. 5-17).

The plaintiff moved to file an amended complaint on May 7, 2014. (Filing No. 5-18). Unlike the original complaint, the amended complaint specifically identifies 42 U.S.C. § 1983 as a basis for recovery and adds a First Amendment retaliation claim. (Filing No. 5-18, at CM/ECF p. 3).

The defendants filed a notice removing the case to federal court on May 29, 2014, (Filing No. 1), and filed an answer to the amended complaint on June 9, 2014. (Filing No. 2).

LEGAL ANALYSIS

The plaintiff moved to remand on June 12, 2014, arguing the removal was procedurally defective because the defendants failed to include "a copy of all process, pleadings, and orders served upon such defendant or defendants in such action, " and they failed to timely remove the case. The defendants argue that "Plaintiff's amended complaint, as filed in the Lancaster County District Court, pled a new federal cause of action under 42 U.S.C. § 1983; thus removal was proper." (Filing No. 6).

Under 28 U.S.C. § 1446(b)(3), "a notice of removal may be filed within 30 days after receipt by the defendant... of a copy of an amended pleading... from which it may first be ascertained that the case is one which is or has become removable." See also Reece v. Bank of New York Mellon, 2014 WL 3714782, 2 (8th Cir. July 23, 2014).

The purpose of the 30-day limitation is twofold: to deprive the defendant of the undeserved tactical advantage that he would have if he could wait and see how he was faring in state court before deciding whether to remove the case to another court system; and to prevent the delay and waste of resources involved in starting a case over in a second court after ...

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