
    Jamie HUGHES, Plaintiff, v. THE MAY DEPARTMENT STORES CO., d/b/a Lord & Taylor, Defendant.
    No. 04CV74800DT.
    United States District Court, E.D. Michigan, Southern Division.
    April 29, 2005.
    
      Thomas E. Marshall, Rochester Hills, MI, for Plaintiff.
    Mark D. Willmarth, Detroit, MI, for Defendant.
   OPINION AND ORDER TO REMAND

ROSEN, District Judge.

I. INTRODUCTION

The above-captioned action is presently before the Court on Plaintiffs Motion to Remand. Defendant has responded, to Plaintiffs Motion. Having reviewed and considered the parties’ respective briefs and supporting documents, the Court has concluded that oral argument is not necessary. Therefore, pursuant to L.R. 7.1(e)(2) this matter will be decided on the briefs. This Opinion and Order sets forth the Court’s ruling.

II. BACKGROUND FACTS

Plaintiff Jamie Hughes is a resident of Westland, Michigan. Plaintiff incurred a debt to Defendant May Department Stores Co. as a result of purchases made at Defendant’s Dearborn, Michigan Lord & Taylor Department Store. The amount of indebtedness was approximately $1,500.00.

In April 2004, Defendant began to collect Plaintiffs debt. Plaintiff alleges that Defendant made harassing phone calls to her at her place of employment. Plaintiff also claims that Defendant called Mr. Bezil Taylor and discussed with Mr. Taylor Plaintiffs debt. Plaintiff further alleges that Defendant threatened to tell Plaintiffs current employer about Plaintiffs debt. Plaintiff also claims, that Defendant continued to contact her and Mr. Taylor even though Plaintiff informed Defendant she was represented by counsel.

On September 24, 2004 Plaintiff filed a one-count complaint against Defendant May Department Stores in this Court alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq., and seeking judgment in the amount of $10,000.00. See Hughes v. The May Department Stores Co., No. 04-73752 (E.D. Michigan Filed Sept. 24, 2004). (“Hughes I”)

On October 21, 2004 Defendant answered Plaintiffs complaint and set forth a number of affirmative defenses. On November 4, 2004 Plaintiff improperly (and unsuccessfully) attempted to amend her complaint by adding a count alleging that Defendant’s actions constituted intentional infliction of emotional distress. (Plaintiffs First Amended Complaint, ¶ 14) Plaintiff also attempted to increase the amount sought for judgment from $10,000.00 to $75,000.00.

Six days later, on November 10, 2004, Plaintiff instituted another action against Defendant, this time in Wayne County Circuit Court. Plaintiffs Wayhe County Complaint was given case number 04-434885 and assigned to Judge Giovan. Plaintiffs Wayne County Complaint alleged the same facts as Hughes I, however, unlike Hughes I, Plaintiffs Wayne County Complaint did not allege violations of the Fair Debt Collection Practices Act but rather, used language closely aligned with the elements of a claim of intentional infliction of emotional distress. Plaintiffs Wayne County Complaint stated: “Defendant’s actions, which include lies, threats, and intimidation, are so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.” (Plaintiffs Wayne County Complaint, ¶ 10) The stated amount of damages sought was $25,000. (Plaintiffs Wayne County Complaint, ¶ 11)

On December 9, 2004 Defendant removed Plaintiffs Wayne County Complaint to this Court. The removed case was assigned case number 04-74800. (“Hughes II ”) Defendant’s stated basis for removal of Hughes II was “that it is a civil action arising under the laws of the United States, to wit, the Fair Debt Collection Practices Act....” (Defendant’s Notice of Removal, ¶ 2) Although, unlike Hughes I, no federal question appears on the face of the Hughes II Complaint, Defendant claimed removal on the basis of federal question jurisdiction was proper because Hughes II alleged the same facts as Hughes I. (Defendant’s Notice of Removal, ¶ 3).

On December 28, 2004 Plaintiff moved to remand Hughes II back to Wayne County Circuit Court. Plaintiff argued that her Wayne County Complaint did not assert a claim under the Fair Debt Collection Practices Act, and, therefore, federal question jurisdiction did not exist.

On January 12, 2005 Defendant responded to Plaintiffs Motion For Remand. Relying on Federated Department Stores v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981) Defendant argued that because Hughes I and Hughes II share a common set of facts and occurrences, and because Hughes I was a federal claim, Hughes II is also “federal in nature.” (Defendant’s Response and Brief In Opposition to Plaintiffs Motion For Remand, p. 6)

On January 14, 2005 this Court issued an Order to Show Cause instructing the Defendant to show cause as to why Hughes II should not be remanded back to Wayne County Circuit Court for lack of federal subject matter jurisdiction. On January 24, 2005 Defendant responded to the Court’s Show Cause Order, essentially restating the same arguments made in its response to Plaintiffs Motion to Remand. The issue is now ripe for adjudication.

III. ANALYSIS

The Court’s obligation in addressing challenges to the removal of an action is to determine whether the factual allegations in the pleadings demonstrate that, plaintiffs protestations notwithstanding the action could have been brought originally in federal court — i.e., whether either “diversity” or “federal question” jurisdiction can be established. See 28 U.S.C. § 1441(a); Caterpillar v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987).

Defendant maintains federal question jurisdiction can be established. Defendant relies on Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981) in support of its position that Hughes II should not be remanded to Wayne County Circuit Court. The pertinent facts of Moitie are as follows:

In 1976 the United States Government brought an action against Federated Department Stores and others alleging violations of the Sherman Act, 15 U.S.C. § 1. Seven parallel actions were subsequently filed by private plaintiffs against Federated and others, including an action by Marilyn Moitie in California State Court (Moitie I) and an action by another individual, Floyd Brown, in the U.S. District Court for the Northern District of California (Brown I). Each of these seven complaints tracked almost verbatim the allegations of the Government’s Sherman Act complaint. Moitie I only referred to state law, but was removed to federal court on the basis of diversity and federal question jurisdiction. All seven complaints were consolidated and assigned to a single federal judge and then dismissed on the grounds that the plaintiffs had not alleged injuries to their business. Five of the plaintiffs appealed their dismissals to the Court of Appeals for the Ninth Circuit. Ms. Moitie and Mr. Brown chose to refile their cases in state court, creating Moitie II and Brown II. Both Moitie II and Brown II raised only state law claims, although they made allegations similar to those in Moitie I and Brown I.

Federated Stores removed Moitie II and Brown II to federal court and then moved to have both cases dismissed on the grounds of res judicata. The District Court first denied Moitie and Brown’s motion to remand, reasoning that because Moitie II and Brown II were in many respects identical to Moitie I and Brown I, even though Moitie II and Brown II only raised state law claims, they were properly removed because the court found they were essentially “federal in nature.” Moitie, at 397, n. 2, 101 S.Ct. 2424. The District Court then dismissed Moitie II and Brown II on the grounds of res judicata stating Moitie II and Brown II involved the same parties, alleged the same offenses, and arose in the same time period as Moitie I and Brown I. This time, Moitie and Brown appealed.

While the Moitie II and Brown II appeal was pending, the Supreme Court decided Reiter v. Sonotone Corp., 442 U.S. 330, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979). Reiter held retail purchasers can suffer injuries to business or property as those terms are used in Section 4 of the Clayton Act. Relying on Reiter the Court of Appeals for the Ninth Circuit reversed and remanded the five cases that had been consolidated and decided along with Moitie I and Brown I.

The Court of Appeals for the Ninth Circuit subsequently decided Moitie II and Brown II. The Ninth Circuit reversed the District Court’s dismissal and carved out an exception to the doctrine of res judicata for non-appealing parties allowing them to “benefit from a reversal when their position is closely interwoven with that of appealing parties.” Moitie v. Federated Department Stores Inc., 611 F.2d 1267, 1269 (9th Cir.1980). The Ninth Circuit concluded “because the instant dismissal rested on a case that had been effectively overruled, the doctrine of res judicata must give way to ‘public policy’ and ‘simple justice’.” Id. at 1269.

The Supreme Court granted certiorari to review the validity of the exception to the doctrine of res judicata created by the Ninth Circuit. Justice Rehnquist, in the very first sentence of the Supreme Court’s Moitie opinion, stated: “The only question presented in this case [Moitie] is whether the Court of Appeals for the Ninth Circuit validly created an exception to the doctrine of res judicata.” Moitie, 452 U.S. at 395, 101 S.Ct. 2424 (emphasis added). The Supreme Court reversed the Ninth Circuit, stating: “Res judicata consequences of a final, unappealed judgment on the merits are not altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case.” Id. at 398, 101 S.Ct. 2424.

In a footnote in the Moitie opinion, the Supreme Court commented on the removal of the state law claims of Moitie II and Brown II to federal district court:

The Court of Appeals also affirmed the District Court’s conclusion that Brown II was properly removed to federal court, reasoning that the claims presented were “federal in nature.” We agree that at least some of the claims had a sufficient federal character to support removal. As one treatise puts it, courts “will not permit plaintiff to use artful pleading to close off defendant’s right to a' federal forum ... [and] occasionally the removal court will seek to determine whether the real nature of the claim is federal, regardless of plaintiffs characterization.” 14 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3722, pp. 564-566 (1976) (citing cases) (footnote omitted). The District Court applied that settled principle to the facts of this case. After “an extensive review and analysis of the origins and substance of’ the two Brown complaints, it found, and the Court of Appeals expressly agreed, that respondents had attempted to avoid removal jurisdiction-by “artful [ly]” casting their “essentially federal law claims” as state-law claims. We will not question here that factual finding. See Prospect Dairy, Inc. v. Dellwood Dairy Co., 237 F.Supp. 176 (N.D.N.Y.1964); In re Wiring Device Antitrust Litigation, 498 F.Supp. 79 (E.D.N.Y.1980); Three J Farms, Inc. v. Alton Box Board Co., 1979-1 Trade Cases ¶ 62,423, 1978 WL 1459 (SC 1978), rev’d on other grounds, 609 F.2d 112 (C.A.4 1979), cert. denied, 445 U.S. 911, 100 S.Ct. 1090, 63 L.Ed.2d 327 (1980).

Moitie, at 397, n. 2, 101 S.Ct. 2424.

Defendant, relying on this footnote, asserts this Court has original jurisdiction over Hughes II because a federal question has been presented, even though “Plaintiff has artfully plead her essentially federal cause of action as a state claim in an effort to avoid federal jurisdiction.” (Defendant’s Reply to the Court’s Order to Show Cause, p. 1) As authority for its position, Defendant cites what one court refers to as “Moitie’s enigmatic footnote.” See Rivet v. Regions Bank of Louisiana, 108 F.3d 576, 584 (5th Cir.1997). Defendant contends “Moitie recognizes that this Court may look at the origins and substance of both Plaintiffs complaints in determining if the state complaint is simply an artful attempt to avoid federal jurisdiction.” (Defendant’s Reply to the Court’s Order to Show Cause, p. 3) This simply is not the case.

In Her Majesty The Queen in Right of the Province of Ontario v. The City of Detroit, 874 F.2d 332 (6th Cir.1989), the Sixth Circuit stated: “Courts applying Moitie have made it quite clear that it [Moitie’s second footnote] applies only to the removal of state claims barred by a prior federal judgment.” Her Majesty, at 343. In the case at bar, Hughes I was a federal Fair Debt Collection Practices Act claim. Hughes II is a state law intentional infliction of emotional distress claim and is in no way barred by the resolution of Hughes I. The only similarity between Hughes I and Hughes II is both claims arise out of the same alleged facts and transactions. As the Second Circuit recognized in Travelers Indemnity v. Sarkisian, 794 F.2d 754, 761 n. 10. (2nd Cir.1986), “the holding in Moitie cannot be read as requiring a plaintiffs state law claim be recharaterized as a federal claim whenever it arises out of the same transaction as a prior federal claim.” Id. at 761, n. 10.

To the extent that the Moitie footnote is still good law (which as shown below is doubtful), applying the standard set forth in Her Majesty, Hughes II could be removed if it were barred by a previous judgment. This is not the case. Hughes I was dismissed long after the attempted removal of Hughes II. Defendant is partially correct in its statement: “The state court complaint [Hughes II] should only be remanded if she [Plaintiff] abandons all of her federal claims [Hughes I], therefore removing any federal component to them.” (Defendant’s Reply to the Court’s Order to Show Cause, p. 5) Plaintiffs federal claims have been “abandoned,’’ .albeit not willingly, and her state court claim (Hughes II), as Defendant notes, properly belongs back in state court.

Furthermore, two years after its decision in Moitie, the Supreme Court effectively repudiated the Moitie footnote in Franchise Tax Board of The State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). In Franchise Tax Board the Court emphasized:

Under our interpretations, Congress has given the lower federal courts jurisdiction to hear, originally or by removal from a state court, only those cases in which a well-pleaded complaint established either that federal law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law.

Id. at 27, 103 S.Ct. 2841 (emphasis added).

Justice Brennan, who authored the majority opinion, in Franchise Tax Board, dissented in Moitie on grounds that Moitie II and Brown II were not removable, stating “... respondents’ complaints were not based on any claim of a federal right or immunity, and were not, therefore, removable.” Moitie, at 410, 101 S.Ct. 2424.

In Hughes II, Plaintiffs intentional infliction of emotional distress claim is not based on federal law nor is Plaintiffs right to relief dependant on a substantial question of federal law. Plaintiffs intentional infliction of emotional distress allegation is a state tort claim, the resolution of which is dependant upon the elements of the alleged claim and not upon any substantial question of federal law. Furthermore, as Justice Brennan stated in Franchise Tax Board: “For better or for worse, under the present statutory scheme as it has existed since 1887, a defendant may not remove a case to federal court unless the 'plaintiffs complaint establishes that the case ‘arises under’ federal law.” Id. at 10. Plaintiffs intentional infliction of emotional distress claim here simply does not arise under federal law.

More recently, the Supreme Court made clear Moitie is no longer good law. In Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998), the Court stated: “The Moitie footnote, however, was a marginal comment and will not bear the heavy weight lower courts have placed on it.” Id. at 477, 118 S.Ct. 921. The Court further stated: “We therefore clarify today that Moitie did not create a preclusion exception to the rule, fundamental under current governing legislation, that a defendant cannot remove on the basis of a federal defense.” Id. at 478, 118 S.Ct. 921. Although Defendant here is not asserting a federal defense to Hughes II makes removal proper, the Rivet case illustrates the limited scope of Moitie’s second footnote. For this reason, the Court will not allow Defendant to use Moi-tie’s second footnote as authority to remove Plaintiffs state law intentional infliction of emotional distress claim to federal court on the basis that “all of the claims arise out of the same exact set of facts and occurrences.” (Defendant’s Reply to the Court’s Order to Show Cause, pg. 4).

Other courts in this jurisdiction have also followed the trend to limit the use of Moitie’s second footnote. In Magic Chef, Inc. v. International Molders & Allied Workers Union, 581 F.Supp. 772 (D.C.Tenn.1983) the District Court for the Eastern District of Tennessee, Northern Division stated in a footnote of their own:

In brief, the [Supreme] Court’s only intention in its footnote may have been a narrow one: to tip the balance in favor of defendant’s right to a federal forum and against plaintiffs right to be master of his claim in antitrust actions when the plaintiff already had availed himself of a federal forum and when his state claims as removed would be res judica-ta from the earlier federal decisions. The Court’s holding in the case, which affirmed a broad and strict standard for res judicata, seems to lend weight to this view. Whatever the import of Moitie on removal jurisdiction may have been, the Court is of the opinion that Franchise Tax Board supersedes it as the most recent Supreme Court authority on the issue. In fact, the opinion in Franchise Tax Board, written by Justice Brennan, who dissented from the jurisdiction holding in Moitie, does not cite the Moi-tie case at all.

Magic Chef, at 776, n. 4 (citation omitted and emphasis added).

Other circuits have ruled similarly. In Redwood Theatres, Inc. v. Festival Enterprises, Inc., 908 F.2d 477, 481 (9th Cir.1990), the Ninth Circuit stated: “In subsequent cases this court has emphasized that it will construe the holding in Moitie and Salveson [Salveson v. Western States Bankcard Ass’n, 731 F.2d 1423 (9th Cir.1984)] narrowly, out of respect for the purpose underlying the removal statute and plaintiffs prerogatives to choose the forum and legal principles governing their complaints.”

In Patriot Cinemas, Inc. v. General Cinema Corp., 834 F.2d 208 (1987), the First Circuit noted:

The district court also may have relied, as do the defendants, on footnote 2 of Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 397 n. 2, 101 S.Ct. 2424, 2427 n. 2, 69 L.Ed.2d 103 (1981). This footnote does have language about claims which are “federal in nature” or which have a “sufficient federal character to support removal.” Id. Professor Wright calls this footnote “mystifying,” C. Wright, The Law of Federal Courts § 38, at 212 n. 19 (1983). Whether it was meant to work a revolution in the law of federal removal jurisdiction must, in this circuit, await another case. Even if that were its intent, this radical change may have been overruled sub silentio in Franchise Tax Board, which so strongly reaffirmed the well-pleaded complaint rule. Franchise Tax Board, 463 U.S. at 7, 103 S.Ct. at 2845 (noting that the law of removal jurisdiction “has remained basically unchanged for the past century”).

Patriot Cinemas, at 218, n. 4.

The foregoing demonstrates Moitie’s footnote 2 is no longer good authority upon which removal may be based. As numerous courts have noted, to the extent Moi-tie’s footnote 2 was ever intended to expand federal court jurisdiction, it has been effectively overruled by Franchise Tax Board.

IV. CONCLUSION

For all of the foregoing reasons,

IT IS HEREBY ORDERED Plaintiffs Motion to Remand is GRANTED. Accordingly,

IT IS FURTHER ORDERED this case shall be REMANDED to Wayne County Circuit Court.

SO ORDERED. 
      
      . Although not relevant to this action, Plaintiff was employed by Defendant at Defendant's Dearborn, Michigan location. Plaintiff no longer works for Defendant. Plaintiff's current employer has not been disclosed.
     
      
      . Mr. Taylor is allegedly Plaintiff's boyfriend. Mr. Taylor and Plaintiff reside together. See Bezil Taylor v. The May Department Store, No. 04-73754 (E.D. Michigan filed Sept. 24, 2004)
     
      
      . Plaintiff failed to seek leave of the Court or written consent of the Defendant to amend her complaint as required per Fed. R. Civ. Pro. .15(a). Therefore, her proposed amended complaint was not accepted.
     
      
      . Hughes I was dismissed on March 8, 2005, i.e., nearly four months after Hughes II was removed.
     