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STEVO v. CSX TRANSP.

July 25, 1996

ALLAN J. STEVO, Plaintiff,
v.
CSX TRANSPORTATION, INC., Defendant.



The opinion of the court was delivered by: DUFF

 Litigation began between these two parties in 1991 when the plaintiff, Allan Stevo ("Stevo"), filed a claim in state court under the Federal Employer's Liability Act, 45 U.S.C. 51-60 ("FELA"), which alleged that CSX Transportation's negligence caused his back injury. *fn1" Several years later, in November, 1995, the plaintiff filed a two count complaint against his employer, also in state court. Count I of the complaint in the Circuit Court of Cook County alleged that CSX Transportation violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101, et seq., when it restricted the plaintiff's access to information regarding job openings after his release to return to work. Def.'s Ex. A. Count II alleged retaliatory discharge in response to the plaintiff's pending FELA claim. Id. On December 19, 1995, the defendant removed the plaintiff's ADA complaint pursuant to 28 U.S.C. 1446(a) *fn2" on two grounds: 1) diversity of citizenship, and 2) federal question jurisdiction. Def.'s Notice of Removal at 2, 7 - 8. The plaintiff wishes to remand the case to the state court pursuant to 28 U.S.C. 1447(c). *fn3" For the reasons listed below, this court denies the plaintiff's motion to remand.

 I. Standard of Review

 In cases where a party wishes to remand a case which has been removed, the burden rests on the party seeking to uphold the removal. Wilson v. Republic Iron & Steel, 257 U.S. 92, 66 L. Ed. 144, 42 S. Ct. 35 (1921). "The case should be remanded if there is doubt as to the right of removal in the first instance." Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976); 14A Charles Alan Wright et. al., Federal Practice and Procedure, 3739 at 574. Accordingly, in this case the defendant carries the burden.

 II. Analysis

 Prior to the 1988 amendment of 1447(c), a party could only move for remand when removal was "improvident" or when the court lacked subject matter jurisdiction. See. e.g., Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 344, 46 L. Ed. 2d 542, 96 S. Ct. 584 (1976). The 1988 amendment changed the statute's language such that a party may remand based on a "defect in the 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, ...


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