exist in this case. Accordingly, the court declines to exercise supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(c)(3).
The next issue is to determine what should happen to those state law claims. Packard seeks an order dismissing those claims, while Teta seeks an order remanding the case and those remaining claims to state court. The court begins by pointing out to Packard that Gibbs is not the appropriate case. That case was originally filed in federal court, and the Supreme Court thus had no occasion to discuss the option of a remand. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351, 98 L. Ed. 2d 720, 108 S. Ct. 614 (1988). The rule in removal cases is once the federal claims drop out prior to trial and the court declines to exercise supplemental jurisdiction over the remaining state law claims, the court may either remand the case to state court or dismiss the state law claims, although the latter definitely is not the preferred course of action. See id. at 351-52; Decatur Mem'l Hosp. v. Connecticut Gen. Life Ins. Co., 990 F.2d 925, 928 (7th Cir. 1993). Because the statute of limitations for Teta's state law claims has most likely expired, dismissal is not the appropriate course of action. Carnegie-Mellon Univ., 484 U.S. at 351-52. Rather, this case should be remanded to state court pursuant to 28 U.S.C. § 1447(c) so that Teta's state law claims can be adjudicated.
This leaves one loose end-- Teta's request for attorney fees and costs pursuant to 28 U.S.C. § 1447(c). Fees and costs under section 1447(c) are discretionary, and the court looks to both the complexity of the case and whether the defendant presented a substantial jurisdictional question in evaluating the propriety of removal. See Castellanos v. U.S. Long Distance Corp., 928 F. Supp. 753, 756-57 (N.D. Ill. 1996); Katonah v. USAir, Inc., 876 F. Supp. 984, 990 (N.D. Ill. 1995). Teta contends that Packard removed this action to federal court based on federal jurisdiction only to claim that the court lacked subject matter jurisdiction over this case and to seek a dismissal on that basis. Teta contends that this was improper and that Packard should bear Teta's costs relating to the removal.
The court finds Teta's argument to be both flawed and disingenuous. When Packard removed this case to federal court, Teta's complaint clearly attempted to allege a federal cause of action, albeit deficiently. Teta has persisted in attempting to set forth a federal cause of action, even going so far as to replead claims that the court has previously determined to be without legal merit. Teta's other federal claims have been dismissed on their merits, and the court has declined to exercise jurisdiction over the remaining state law claims. This adjudication, the court might add, required a considerable expenditure of the court's resources. Thus, the present lack of subject matter jurisdiction is not the result of the original complaint not setting forth a federal claim; rather, it is Teta's inability to prove a federal claim as alleged in the original complaint (and subsequent amended complaint) and the court's refusal to exercise supplemental jurisdiction. In short, this is not a case of an improper removal for which the defendant should bear the cost. It is a case of a plaintiff stubbornly advancing federal claims and losing. If anyone should bear this cost, it is Teta. Teta should consider himself fortunate-- he is returning to state court for adjudication of his state law claims and he is leaving this court without having Rule 11 sanctions imposed for disregarding its admonitions at the Rule 16 conference. The court, in its discretion, denies Teta's request for fees and costs under 28 U.S.C. § 1447(c).
For the foregoing reasons, Packard's motion for summary judgment on Counts I, II and III is granted. The court declines to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3) over the state law claims in Counts IV-VII and remands this case to the circuit court of DeKalb County, Illinois pursuant to 28 U.S.C. § 1447(c). Teta's request for attorney fees and costs is denied.
PHILIP G. REINHARD, JUDGE
UNITED STATES DISTRICT COURT
DATED: February 26, 1997