
    Edward SHAW, Plaintiff, v. RING POWER CORPORATION, Defendant.
    Case No. 4:13cv20-RH/CAS.
    United States District Court, N.D. Florida, Tallahassee Division.
    Jan. 22, 2013.
    
      Edward Shaw, pro se.
    Kevin Willoughby Cox, Holland & Knight LLP, Tallahassee, FL, for Defendant.
   ORDER ON JURISDICTION

ROBERT L. HINKLE, District Judge.

This is an employment-discrimination case. The plaintiff asserts he was fired in violation of the Family and Medical Leave Act and in retaliation for filing a worker’s-compensation claim. The plaintiff filed the case in state court. The defendant removed the case to this court. The removal of the worker’s-compensation-retaliation claim raises a jurisdictional issue. See 28 U.S.C. § 1445(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.”).

In Reed v. Heil Co., 206 F.3d 1055 (11th Cir.2000), the Eleventh Circuit held nonremovable a retaliation claim under the Alabama worker’s-compensation statute:

Because we conclude that [removed] claims brought pursuant to Alabama’s statute barring retaliation for the filing of workers’ compensation claims do arise under that state’s workers’ compensation laws, the district court lacked jurisdiction to entertain Reed’s retaliatory discharge claim.

Id. at 1057.

As an original matter, one might well question this result. The ban on removal was intended, first and foremost, to keep federal courts out of the business of administering a state’s worker’s-compensation proceedings, not to prevent federal courts from hearing ordinary employment lawsuits like this one. And the ban was certainly not intended to split an ordinary lawsuit like this one into two separate lawsuits, one litigated in state court, one in federal court. But Reed is the binding law of the circuit.

Florida district courts, including this one, have applied Reed to retaliation claims under the Florida worker’s-compensation statute. See Bender v. Tropic Star Seafood, Inc., No. 4:07-CV-438-SPM-WCS, 2008 WL 4621073 (N.D.Fla. Oct. 16, 2008); Keaton v. L & W Supply Corp., No. 4:08cv72-RH/WCS, 2008 WL 846114 (N.D.Fla. Mar. 26, 2008); Perdue v. Westpoint Home, Inc., No. 5:07CV192-RS-AK, 2007 WL 3202455 (N.D.Fla. Oct. 26, 2007); Quitto v. Bay Colony Golf Club, Inc., No. 2:06-CV-286-FTM-29DNF, 2006 WL 2598705 (M.D.Fla. Sept. 11, 2006).

Procedural defects in removal are waived if not raised within 30 days. With one exception, every circuit that has addressed the issue has held that the failure to make a timely objection waives a § 1445(c) objection to removal. See In re Norfolk S. Ry. Co., 592 F.3d 907, 911-12 (8th Cir.2010); Vasquez v. N. Cnty. Transit Dist., 292 F.3d 1049, 1062 (9th Cir.2002); Wiley v. United Parcel Serv., Inc., 11 Fed.Appx. 176, 177-78 (4th Cir.2001); Feichko v. Denver & Rio Grande W. R.R. Co., 213 F.3d 586, 589 (10th Cir.2000) (construing § 1445(a)); Williams v. AC Spark Plugs Div. of Gen. Motors Corp., 985 F.2d 788, 786-88 (5th Cir.1993); Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116, 117 (5th Cir.1987) (construing § 1445(a)). Nearly all district courts that have addressed the issue have agreed. See, e.g., Dooley v. United Indus. Corp., No. 10-cv-37-JPG, 2010 WL 3522807, at *5 n. 4 (S.D.Ill. Sept. 2, 2010); Daly v. Norfolk S. R.R. Co., No. 09-4609(WJM), 2010 WL 572116, at *1 (D.N.J. Feb. 17, 2010) (construing § 1445(a)); Hackworth v. Guyan Heavy Equip., Inc., 613 F.Supp.2d 908, 913 (E.D.Ky.2009); Spellman v. United Parcel Serv., Inc., 540 F.Supp.2d 237, 241 n. 10 (D.Me.2008); Sandlass v. Sears, Roebuck & Co., 462 F.Supp.2d 701, 705 (D.Md.2006); Barber v. Pepsi-Cola Pers., Inc., 78 F.Supp.2d 683, 694-95 (W.D.Mich.1999); Nielsen v. Weeks Marine Inc., 910 F.Supp. 84, 87 (E.D.N.Y.1995) (construing § 1445(a)); Ayers v. ARA Health Servs., Inc., 918 F.Supp. 143, 146-47 (D.Md.1995); Bearden v. PNS Stores, Inc., 894 F.Supp. 1418, 1424 (D.Nev.1995).

The one circuit decision to the contrary is an unpublished — and thus nonbinding — Eleventh Circuit decision. In Alansari v. Tropic Star Seafood Inc., 388 Fed.Appx. 902 (11th Cir.2010) (per curiam), the Eleventh Circuit held nonwaivable an objection to the removal of a worker’s-eompensation-retaliation claim. The court based its holding on a prior Eleventh Circuit case in which the plaintiff moved to remand and thus did not waive any objection to removal. Id. at 905 (citing Reed v. Heil, 206 F.3d 1055 (11th Cir.2000)); see also New v. Sports & Recreation, Inc., 114 F.3d 1092, 1096 n. 5 & 1097 n. 7 (11th Cir.1997). Thus Alansari read Reed as establishing a nonwaiver rule that Reed did not address. But Reed and New did articulate their holdings as based on lack of “jurisdiction,” as did an old Fifth Circuit case that remains binding. See Gamble v. Cent. of Ga. Ry. Co., 486 F.2d 781, 785 (5th Cir.1973) (construing § 1445(a)). A defect that is truly “jurisdictional” is usually nonwaivable.

In sum, Alansari is out of step with every other circuit that has addressed the issue. And it is nonpublished and thus nonbinding. Still, it is a recent Eleventh Circuit decision squarely on point. District courts have disagreed on whether Alansari accurately sets out the law of the circuit. Compare Lamar v. Home Depot, 907 F.Supp.2d 1311, 1313 n. 4, No. 12-0552-WS-C, 2012 WL 6026272, at *1 n. 4 (S.D.Ala. Dec. 3, 2012) (persuasively suggesting that Alansari has it wrong), with Formosa v. Lowe’s Home Ctrs., Inc., 806 F.Supp.2d 1181, 1185-86 (N.D.Ala.2011) (concluding that Alansari sets out the settled law of the circuit).

Another development also affects the analysis. Congress recently adopted a statute that, at least at first blush, seems to make a § 1445(c) objection nonwaivable. Before the new legislation, 28 U.S.C. § 1441(c) allowed the removal of a case that included both a claim arising under federal law and an otherwise nonremovable claim that was “separate and independent” from the federal claim. The statute allowed the court to remand the otherwisenonremovable claim. The statute did not apply to cases like this one, because here the removable claim and the otherwisenonremovable worker’s-compensation-retaliation claim arise from the same set of facts and thus are not “separate and independent” within the meaning of old § 1441(c). The new § 1441(c) applies more broadly to a case that includes both a claim that arises under federal law and either a claim that is not within a district court’s original or supplemental jurisdiction “or a claim that has been made nonremovable by statute.” Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub.L. No. 112-63, § 103(a)(4), 125 Stat. 758, 759 (2011) (codified at 28 U.S.C. § 1441(c)(1)). The new statute provides that, upon removal of such a case, the district court “shall sever” the otherwisenonremovable claims “and shall remand the severed claims” to state court. § 103(a)(4), 125 Stat. at 759 (codified at 28 U.S.C. § 1441(c)(2)).

The bottom line is this. Without the new statute, the law in the rest of the country was that a § 1445(c) objection was waivable. But the law in this circuit might have been to the contrary. A party trying to sustain federal jurisdiction over the worker’s-compensation-retaliation claim in this case will face substantial headwinds: Reed held such a claim nonremovable; Gamble and Reed used jurisdictional language in enforcing § 1445; Alansari squarely held a § 1445(c) objection nonwaivable; and Congress now has said that, going forward, a district court “shall” remand a claim made nonremovable by statute. One might question whose interest it serves to have two lawsuits in this situation rather than one, but the question seems to have had little effect in Alansari.

In any event, if both sides truly wish to litigate in a single forum and can agree on whether to do it in state or federal court, they apparently can bring about the desired result, either by having the plaintiff file a new case in federal court asserting all the claims, or by having the plaintiff file a new case in state court that the defendant does not remove. In short, they can start over. But they can’t get there from here, at least on Alansari’s view of Reed.

For these reasons,

IT IS ORDERED:

A party who objects to remand of the worker’s-compensation-retaliation claim— and retention of the remainder of the case — must file a memorandum on jurisdiction by February 12, 2013. If no party files a memorandum, the worker’s-compensation-claim will be remanded, and the remainder of the case will stay here.  