The opinion of the court was delivered by: CHARLES NORGLE, District Judge
Before the court is Plaintiff's Motion to Remand. For the following
reasons, Plaintiff's motion is granted in part and denied in part.
Defendant Medical Staffing Network ("MSN") supplies nurses to various
clients, including hospitals, Plaintiff Maureen Conway is a registered
nurse who was employed by MSN as a branch manager from December 2001
through November 2002, Compl. ¶ 1. Conway's duties included the
management and supervision of all operations within her branch, including
the responsibility of providing nurse staffing services to MSN's clients.
Compl. ¶ 7.
On November 1, 2002, a representative of Provina St, Joseph's, a site
staffed by MSN, notified Conway to discuss the investigation of a
narcotics theft by one of MSN's nurses. Compl. ¶ 8. Shortly thereafter,
Conway informed her immediate supervisor at MSN, Pat Graff, that she
intended to notify the Illinois Department of Professional Regulation
("IDPR") of the suspected narcotic theft Compl. ¶¶ 9, 10, Conway alleges
that she is required to do so under Illinois law, 225 ILCS 65/28.*fn1 Compl. ¶ 9, Graff then informed Conway that she should
"think long and hard" before reporting the incident to IDPR because it
may jeopardize MSN's relationship with Provina St. Joseph's. Compl, ¶
11. On November 6, 2002, Conway reported the incident to IDPR, Id.
On November 7, 2002, a representative from Provina St. Joseph's
informed Conway of its intention to terminate its staffing contract with
MSN. Compl, ¶ 12. Conway then related this information to Graff.
Compl. ¶ 13. On November 11, 2002, Graff instructed Conway to prepare
an incident report about the suspected narcotic theft investigation.
Compl, ¶ 16. Upon Graff's insistence, Conway submitted the report
indicating that she reported the incident to IDPR. Compl. ¶¶ 17, 18,
Several hours later, Graff terminated Conway's employment. Compl ¶
19. Ultimately, Conway alleges that she was terminated because she
reported the suspected narcotic theft to IDPR, as she claims she is
required to do under the law. Compl, ¶ 22.
On May 14, 2003, Conway filed this action in the Circuit Court of Cook
County, Illinois. The sole count in her Complaint alleges a state law
claim of retaliatory discharge. Conway's Complaint seeks compensatory
damages in an amount "in excess of $50,000," which is the minimum
jurisdictional requirement for pleading in the Law Division in the
Circuit Court of Cook County, Illinois, and any "other relief the Court
deems appropriate." Defs Notice of Removal, Ex. A,
On July 24, 2003, MSN answered Conway's Complaint in the state court.
On August 1, 2003, MSN sought, by way of interrogatory, a specific damage
award, including the amount and manner of calculation. On October 3,
2003, Conway responded by indicating that she is seeking "actual
compensatory [sic] to compensate the Plaintiff for lost wages of
approximately $60,000, damages to her reputation in the industry, and punitive damages to punish
and prevent the Defendant from wrongfully terminating employees in the
future." Def.'s Resp, to Pl's Mot. to Remand, Ex, D. When asked to
clarify this response with more specificity, Conway's counsel indicated
that Plaintiff would seek "compensatory" damages below $75,000. See id.
On November 26, 2003, MSN's counsel once again requested clarification of
the amount of damages sought by Plaintiff, however they were unsuccessful
in obtaining a satisfactory answer. On January 29, 2004, MSN advised
Conway's counsel that it was planning to remove the case to federal court
unless, by January 30, 2004, Conway represented that the total damages
sought in the case are below the $75,000 jurisdictional limit. See id.,
Ex. J. On February 13, 2004, without receiving any response to its
January 29, 2004 inquiry, MSN filed its Notice of Removal.
On February 20, 2004, Conway filed her Motion to Remand. In her
motion, Conway asserts the following two arguments in support of her
position that the removal was improper: (1) the court lacks subject matter
jurisdiction under 28 U.S.C. § 1332, and (2) the removal was untimely.
Additionally, Conway requests attorney fees and costs pursuant to
28 U.S.C. § 1447(c). Conway's motion is fully briefed and now before the
A. Motions to Remand
The district court's authority to remand a case to state court is
determined by the terms of the removal statute and the limits of the
court's subject matter jurisdiction. Sec In re Continental Casualty Co.,
29 F.3d 292, 293-95 (7th Cir. 1994); Buchner v. F.D.I.C., 981 F.2d 816,
819-20 (5th Cir. 1993): Commonwealth Edison Co. v. International Broth,
of Elec. Workers. 961 F. Supp. 1154, 1164-65 (N.D. Ill, 1996); Casey v.
Hinckley & Schmitt. Inc., 815 F. Supp. 266, 267 (N.D. Ill. 1993); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 3d
§ 3739, pg. 467 (West 1998). In other words, the court does not have
authority to remand a case that is within its jurisdiction, unless the
removal statute permits the court to do so. See In re Continental
Casualty Co., 29 F.3d at 293-95; Buchner, 981 F.2d at 819-20;
Commonwealth Edison Co., 961 F. Supp., at 1164-65. Generally, the removal
statute is strictly construed, with an eye towards limiting federal
jurisdiction. See, e.g., Murphy Bros., Inc, v. Michetti Pipe Stringing,
Inc., 526 U.S. 344, 357 (1999) (Rehnquist, J. dissenting); Getty Oil
Corp. v. Insurance Company of North America. 841 F.2d 1254, 1263 n.13
(5th Cir. 1988). At the same time, however, the court does not have the
authority to act outside the bounds of the removal statute, so as to
relinquish its properly invoked jurisdiction. See In re Continental
Casualty Co., 29 F.3d at 293-95; Buchner v. F.D.I.C., 981 F.2d 816,
819-20 (5th Cir. 1993); Commonwealth Edison Co., 961 F. Supp., at
1164-65; Casey, 815 F. Supp., at 267; Wright, Miller & Cooper, Federal
Practice and Procedure: Jurisdiction 3d § 3739, pg. 467, With these
principles in mind, the court addresses Conway's motion,
B. Subject atter Jurisdiction
Conway argues that the court lacks subject matter jurisdiction over
this matter, and therefore, she asserts that the removal was improper.
The Seventh Circuit has recently reiterated the need for litigants to
meticulously review the limits of federal jurisdiction to prevent the
waste of federal judicial resources. See Belleville Catering Co. v.
Champaign Market Place. L.L.C., 350 F.3d 691 (7th Cir. 2003); see also
Hart v. Terminex International, 336 F.3d 541, 541-42 (7th Cir. 2003). The
federal courts are "always obliged to inquire sua sponte whenever a doubt
arises as to the existence of federal jurisdiction." Tylka v. Gerber
Prods. Co., 211 F.3d 445, 447-48 (7th Cir. 2000) (quotation and internal
marks omitted). "The first thing a federal judge should do when a
complaint is filed is check to see that federal jurisdiction is properly alleged," Wisconsin
Knife Works v. National Metal Crafters, 781 F.2d 1280, 1282 (7th Cir.
1986), In Market Street Assocs. Ltd. Partnership v. Frey, the Seventh
Circuit stated: "We remind the bench and bar of this circuit that it is
their nondelegable duty to police the limits of federal jurisdiction with
meticulous care. . . ." Market: Street Assocs Ltd Partnership.
941 F.2d 588, 590 (7th Cir. 1991). The district court must therefore
jealously guard its limited jurisdiction. See In re Shell Oil Co.,
966 F.2d 1130, 1133 (7th Cir. 1992); see also Douglas v. E.G. Baldwin &
Associates. Inc., 150 F.3d 604, 606 (6th Cir. 1998),
Where a party seeks remand by citing defects in the removal procedure,
the burden is on the party attempting to invoke federal jurisdiction to
demonstrate that the removal was proper. See Del Veechio v. Conseco,
Inc., 230 F.3d 974, 979 (7th Cir. 2000) (citing McNutt v. General Motors
Acceptance Corp., 298 U.S. 178, 189 (1936)), Thus, in a removal case in
which federal jurisdiction is based solely upon diversity of
citizenship, the defendant bears the burden of establishing that the
parties arc of diverse citizenship and that the amount in controversy
satisfies the jurisdictional requirement. See 28 U.S.C. § 1332; see also
Del Vecchio, 230 F.3d at 979.
In this case, MSN asserts that the court has subject matter
jurisdiction under § 1332. Based on the pleadings before the court, there
is complete diversity between the parties, Conway is a citizen of
Illinois. MSN is a citizen of both Delaware and Florida. Therefore, the
parties are of diverse citizenship.
However, with respect to the amount in controversy, it is unclear as to
whether the jurisdictional limit of $75,000 is satisfied. Subject matter
jurisdiction is determined at time of the removal See Johnson v.
Wattenbarger, F.3d , No. 02-3707, 2004 U.S, App. LEXIS 5338, at * 4-5
(7th Cir. March 22, 2004) (noting that subject matter jurisdiction under
§ 1332 is determined at the time the complaint is filed in the district court), Where punitive
damages are necessary to satisfy the jurisdictional amount, the court
considers the complaint and any discovery responses tendered to it. See
Anthony v. Security Pacific Financial Services. Inc., 75 F.3d 311, 316
(7th Cir. 1996). In making this inquiry, the court must ask two
questions: "The first question is whether punitive damages are
recoverable as a matter of state law. If the answer is yes, the court has
subject matter jurisdiction unless it is clear beyond a legal certainty
that the plaintiff would under no circumstances be entitled to recover
the jurisdictional amount." Cadek v. Great Lakes Dragaway, Inc.,
58 F.3d 1209, 1211-12 (7th Cir. 1992) (quoting Risse v. Woodard,
491 F.2d 1170, 1173 (7th Cir. 1974)). In other words, a complaint will be
dismissed if it appears to a legal ...