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HAMMOND v. CITY OF NAPERVILLE

United States District Court, N.D. Illinois


March 16, 2004.

JOHN HAMMOND, Plaintiff,
v.
CITY OF NAPERVILLE, Defendant

The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge

MEMORANDUM ORDER

City of Naperville ("Naperville") has filed a Notice of Removal ("Notice") to bring this action from its place of origin, the Circuit Court for the Eighteenth Judicial Circuit, DuPage County, Illinois, to this District Court under the claimed auspices of the federal COBRA statute. Because "it appears that the district court lacks subject matter jurisdiction" within the meaning of 28 U.S.C. § 1447(c)("Section 1447(c)"), this Court sua sponte orders an immediate remand to the Circuit Court.

It is clear from the Complaint for Injunction/Temporary Restraining Order filed against Naperville by its firefighter/paramedic John Hammond ("Hammond") that Hammond does not seek COBRA relief. To the contrary, the gravamen of his claim is that Naperville owes him an ongoing obligation to continue to furnish him the insurance coverage that it has been providing to him as a regular Naperville employee: Complaint ¶ 5 charges that Naperville and its Firefighters' Pension Fund and Board of Trustees have improperly delayed in addressing his Page 2 long-pending application for a disability pension, so that Naperville now seeks to terminate his regular insurance coverage because he has not been working 40 hours a week (Complaint ¶ 6).

  It is rather Naperville that points to COBRA as an alternative source of coverage. It urges that Hammond must look to COBRA for any ongoing insurance benefits (Complaint ¶ 7).

  More than nine decades have elapsed since Justice Holmes authored for the Supreme Court his famous aphorism in The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913):

Of course the party who brings a suit is master to decide what law he will rely upon and therefore does determine whether he will bring a "suit arising under" . . . [any] law of the United States by his declaration or bill. That question cannot depend upon the answer, and accordingly jurisdiction cannot be conferred by the defense even when anticipated and replied to in the bill.
It remains just as true today as it was then that federal jurisdiction is not conferred by a defendant's assertion of a defense that may implicate a federal question. Simply put, that is what Naperville seeks to do here, and it is wrong in so doing.

  Accordingly the earlier-quoted language of Section 1447(c) is brought directly into play, and that the same subsection mandates a remand to the state court where federal subject matter jurisdiction is lacking. This Court so orders. Because it is in both litigants' interests that this case should go forward expeditiously in accordance with the Temporary Restraining Order that has been ordered, and the contemplated March 29, 2004 Page 3 preliminary injunction hearing that has been set, by Circuit Court Judge Bonnie Wheaton, the Clerk of this Court is ordered to mail the certified copy of the remand order forthwith (in that respect, see this District Court's LR 81.2(b)). Page 1

20040316

© 1992-2004 VersusLaw Inc.



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