removal procedure" or when the "district court lacks subject matter jurisdiction." The amendment also added a thirty day limitations period for motions to remand based on procedural defects, while motions alleging lack of jurisdiction can be brought until the final judgment of the case under the new statute.
As a preliminary matter, the plaintiff does not question the court's jurisdiction over the subject matter of the complaint. Indeed, the defendant properly points out that this court has subject matter jurisdiction based on diversity of citizenship and because the claims arise under federal law, namely the ADA. Def.'s Mem. at 4.
While the plaintiff does not rely on "lack of subject matter jurisdiction for remand," Stevo presents two other arguments for remand. First, the plaintiff suggests that the case was improperly removed because the state courts have concurrent jurisdiction over the ADA and therefore this court should remand the action. Second, the plaintiff argues that because the parties are currently litigating similar causes of action in state court, this court should abstain from judgment and remand based on the Colorado River doctrine. We address each of the plaintiff's arguments below.
A. Concurrent Jurisdiction
The plaintiff first argues that the removal to federal court was somehow invalid because the state courts have concurrent jurisdiction over the ADA. Pl.'s Mot. at 2,6. Clearly, in a majority of jurisdictions, absent a specific statutory language to the contrary, concurrent jurisdiction does not bar removal. See, e.g., Warren v. United States, 932 F.2d 582 (6th Cir. 1991); Pueblo Intern., Inc. v. De Cardona, 725 F.2d 823 (1st Cir. 1984); 14A Federal Practice and Procedure, 3729 at 495. The plaintiff also cites to Rairigh v. Erlbeck, 488 F. Supp. 865 (D. Md. 1980), ostensibly in support of remand based on concurrent jurisdiction. In that case, however, the presence of concurrent jurisdiction was not the determinative factor. Rather, the court considered whether a state tort claim was preempted by the Death on the High Seas Act. Id. Since preemption is not at issue in the case at bar, Rairigh does not support the plaintiff's misguided contention. Consequently, the court finds no reason to remand based on concurrent jurisdiction.
B. The Colorado River Doctrine
In his second argument, plaintiff claims that, according to the Colorado River doctrine as applied in Jones v. Illinois Central Railroad Co., 859 F. Supp. 1144 (N.D. Ill. 1994), this court should abstain from ruling to avoid duplicative litigation of the plaintiff's FELA claim currently pending in state court. The defendant questions the use of this doctrine as a justification for remand. Def.'s Mem. at 2. This court must engage in a two-step analysis to determine whether the plaintiff properly relies on the Colorado River doctrine. The first step is to determine whether a court can justify remand based on grounds that are not provided within 1447(c). The second, assuming that courts are not limited to the statutory bases, is to consider whether the Colorado River doctrine was properly invoked in this situation.
1) Non-statutory Justifications for Remand
The defendant argues that the court should construe 1447(c) narrowly and only remand based on specific statutory grounds. Def.'s Mem. at 2. Prior to the 1988 amendment to the statute there were several cases which mandated such a strict construction. See, e.g., Thermtron Products, 423 U.S. at 345 (holding that "the district court exceeded its authority in remanding on grounds not permitted by the controlling Statute"); Cook v. Weber, 698 F.2d 907, 909 (7th Cir. 1983) (holding that "the basis for remanding a removed case must be grounded on federal statutory authority"); Ryan v. State Bd. of Elections of the St. of Ill., 661 F.2d 1130, 1134 (7th Cir. 1981) (holding that remand based on abstention doctrine was improper because it was justified on "a ground not specified in section 1447(c)").
Since the eve of the 1988 amendment to 1447(c) courts have recognized that there may be non-statutory justifications for granting a remand. See. e.g., Carnegie-Mellon University v. Cohill, 484 U.S. 343, 98 L. Ed. 2d 720, 108 S. Ct. 614 (1988) (remanding a case to state court after the plaintiff had dropped all federal claims and only pendent state claims remained); Rothner v. City of Chicago, 879 F.2d 1402, 1406 (7th Cir. 1989) (recognizing that " 1447(c) does not contain all of the permissible grounds for remand"); Roberts & Schaefer Co. v. Merit Contracting, Inc., 901 F. Supp. 1349, 1351 (N.D. Ill. 1995) (holding that remand is justified for "non-statutory, common law reasons"). While the Seventh Circuit decisions have shed little insight into what non-statutory justifications are acceptable, other circuits have accepted non-statutory, discretionary justifications for remand, and several have held specifically that remand based on an abstention doctrine is proper. See, e.g., Foster v. Chesapeake Ins. Co., 933 F.2d 1207 (3rd Cir. 1991) (holding that remand based on forum selection clause in re-insurance agreement, though not statutorily derived, is grounds for remand); Corcoran v. Ardra Ins. Co., 842 F.2d 31, 36 (2d Cir. 1988) (holding that "if a district court has the power to dismiss an action on grounds of abstention it has the power to remand to the state court on those grounds"); Melahn v. Pennock Ins., Inc., 965 F.2d 1497, 1501-02 (8th Cir. 1992) (concluding that "the district court had the authority to remand this case to state court based on abstention, a reason not expressly articulated in 1447(c)"). In a similar vein, we conclude that because the Seventh Circuit has recognized non-statutory justifications for remand, this court can properly remand based on abstention doctrine in the appropriate circumstances.
2) Applicability of the Colorado River doctrine
Having found that a court may remand based on the Colorado River doctrine, we must determine whether that doctrine should be applied in this case. The federal courts have a "virtually unflagging obligation... to exercise the jurisdiction given them." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976). While abstention should only occur in exceptional circumstances in order to avoid "shirking the solemn responsibility of the federal courts to 'guard, enforce, and protect every right granted or secured by the constitution of the United States.'" Kusper v. Pontikes, 414 U.S. 51, 55, 38 L. Ed. 2d 260, 94 S. Ct. 303 (1976) (citations omitted), the Supreme Court recognized an exception in Colorado River. In that case the Court abstained in order to comport with "considerations of 'wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation'" and "to avoid duplicative litigation." 424 U.S. at 817.
In the present case the plaintiff relies Jones, 859 F. Supp. at 1147, where Judge Shadur relied on the Colorado River doctrine to dismiss a railroad worker's ADA claim against an employer. Id. In that case, as in ours, the plaintiff railroad worker filed a FELA claim in state court alleging that his employer's negligence caused him injury. Id. at 1144. However, unlike our case, the Jones plaintiff simultaneously filed an ADA action in federal court alleging that his employer discriminated against him due to the same injury that was the basis of the FELA claim. Id. Judge Shadur dismissed the complaint because the plaintiff's ADA and FELA claims were "closely linked" through the potential damages the plaintiff could collect. Id. at 1146. Specifically, the court stated that:
the existence of Jones' claimed disability--the inability to return to his former job--means that the future loss of income will necessary bulk very large in Jones' FELA claim for damages in the Circuit Court... An employer's willingness (or its forced decision) to put the employee back to work in a comparably compensated position [as might occur as a result of the ADA claim] would cut off those future damages [collected under FELA]."
Id. While Judge Shadur recognizes a logistical difficulty when confronting such a situation, this court believes that there are significant differences between the situation in Jones and the present case. Moreover, this court does not believe that the plaintiff's ADA and FELA claims are sufficiently "parallel" as required by the caselaw. These insufficiencies bar an application of the Colorado River doctrine.
Stevo, unlike the plaintiff in Jones, is in federal court, at least in part, based on diversity of citizenship. Generally, courts should exercise caution when:
employing abstention doctrine to remand a case properly removed to federal court on the basis of diversity jurisdiction... The possibility of prejudice to out-of-state litigants, which provides whatever diminishing justification for federal diversity jurisdiction remains, suggests that courts should be wary of using judicially crafted abstention doctrines to deny out-of-state litigants a federal forum that they prefer.