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HAMMOND v. CITY OF NAPERVILLE
March 16, 2004.
JOHN HAMMOND, Plaintiff,
CITY OF NAPERVILLE, Defendant
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
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
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
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,
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)).
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