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Krueger v. Kissinger

United States District Court, District of Colorado

April 18, 2014




This matter comes before me on Plaintiff’s Objection to Removal to Federal Court and Motion to Remand Case to the Arapahoe County District Court [Doc. # 21]. Defendants filed a response (Doc. # 29), to which Plaintiff replied (Doc. # 30). This motion has been fully briefed and oral argument would not materially aid in its resolution. For the reasons stated below, I grant Plaintiff’s motion.


Plaintiff initially filed this case in Arapahoe County District Court on October 22, 2013 (Doc. # 1 ex. 2), and filed an Amended Complaint on November 8, 2013 (Id. at ex. 6). Plaintiff’s claims arise out of alleged “unwelcome sexual advances . . . including lewd comments and physical contact.” [Id. at 2]. After Defendants’ Motion for Extension of Time to Respond to Complaint (id. at ex. 14) was granted (id. at ex. 16), Defendants filed a Motion to Dismiss on January 9, 2014 (id. at ex. 25). Plaintiff responded on January 30, 2014 (id. at ex. 27). Defendants then moved for removal to this court and replied on February 6, 2014 (Doc. # 1).


For a case to be removable from state court, the federal court must have jurisdiction. See 28 U.S.C. § 1441 (generally identifying removable actions). District courts have “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “[A]ny 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.” 28 U.S.C. § 1441(a). Removal statutes are construed strictly, and any doubts about the correctness of removal are resolved in favor of remand. Fajen v. Found. Reserve Ins. Co., Inc., 683 F.2d 331, 333 (10th Cir. 1982).

A state court defendant is required to file a notice of removal within thirty days after receiving “a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b). However,

[i]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 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 thirty day clock begins to run only after a state court defendant has “clear and unequivocal notice” that the action is removable. Akin v. Ashland Chem. Co., 156 F.3d 1030, 1036 (10th Cir. 1998); Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d 1072, 1078 (10th Cir. 1999) (“If [§ 1446(b)] is going to run, the notice ought to be unequivocal”) (internal quotation and citation omitted). “[T]he plain purpose of the rule is to permit the removal period to begin only after the defendant is able to ascertain intelligently that the requisites of removability are present.” DeBry v. Transamerica Corp., 601 F.2d 480, 489 (10th Cir. 1979) (citations omitted). A removing party is not obligated to “investigate and determine removability where the initial pleading indicates that the right to remove may exist.” Akin, 156 F.3d at 1036 (emphasis in original).


Plaintiff contends that this lawsuit should be remanded to state court because Defendants’ removal was untimely. Specifically, Plaintiff argues that: (1) Plaintiff’s Amended Complaint was sufficient to “inform Defendants that federal claims were being asserted against them” (Doc. # 21, 3); (2) pre-suit correspondence from both Parties also provided adequate notice to Defendants; and (3) as a result, Defendants’ removal to federal court long after the filing of Plaintiff’s Amended Complaint was untimely. Plaintiff points to both her Amended Complaint and several pre-complaint documents, including a Statement of Discrimination Plaintiff filed with the Colorado Civil Rights Division and attorney correspondence from Defendants, to support her contention that Defendants had prior notice that this case was removable. [See Doc. # 21].

Defendants contend that neither Plaintiff’s Complaint, filed October 22, 2013 (Doc. # 1 ex. 2), nor Plaintiff’s Amended Complaint, filed November 8, 2013 (Id. at ex. 6), gave any indication that this lawsuit was removable. Instead, they contend that the removable nature of the lawsuit was not revealed until Plaintiff responded to Defendants’ motion to dismiss on January 30, 2014 (id. at ex. 27), in which Plaintiff, for example, provided that Plaintiff’s Amended Complaint “sets forth a number of claims against the Defendants. Claims Eleven, Twelve, and Thirteen present statutory causes of action under 42 U.S.C. § 2000e-2 et seq and C.R.S. § 24-34-401 et seq.” [Doc. # 1 ex. 27, 3]. Defendants argue that because they filed their Notice of Removal within thirty days of Plaintiff’s Response to Defendants’ Motion to Dismiss, such removal was timely under § 1446(b). Additionally, Defendants contend that pre-complaint “other paper” is not sufficient to put Defendants on notice that this case was removable.

As relevant here, 28 U.S.C. § 1446(b) requires that for removal to be proper a case be “one which is or has become removable, ” not a case that most likely will be removable. See Akin, 156 F.3d at 1036 (rejecting a duty to investigate and determine removability when “the right to remove may exist” and instead requiring “clear and unequivocal notice”); see generally DeBry, 601 F.2d at 480. The thirty day time limitation is mandatory and strictly construed. See McCain v. Cahoj, 794 F.Supp. 1061, 1062 (D. Kan. 1992). The question of whether, and when, the thirty-day period has run is easily and “objectively” computated once “day one” is known. However, as is the issue here, the question of when the thirty day period begins, i.e., what date is “day one, ” can be more difficult to answer. To determine at what point in time a defendant should have been able to ascertain the asserted removability of the case, a court must look at the facts of the particular case. See Zatarain v. WDSU–TV, Inc., No. 93-526, 1993 WL 98681 ...

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