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CONWAY v. MEDICAL STAFFING NETWORK INC.

April 8, 2004.

MAUREEN CONWAY, Plaintiff,
v.
MEDICAL STAFFING NETWORK INC., Defendant



The opinion of the court was delivered by: CHARLES NORGLE, District Judge

OPINION AND ORDER

Before the court is Plaintiff's Motion to Remand. For the following reasons, Plaintiff's motion is granted in part and denied in part.

I. BACKGROUND

  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 court,
II. DISCUSSION
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 ...


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