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Mcgirr v. Continental Casualty Co et al

June 20, 2012

MCGIRR
v.
CONTINENTAL CASUALTY CO ET AL



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Amy J. St. Eve than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

The Court grants Plaintiff's motion to remand [35] and remands this case to the Circuit Court of Cook County, Illinois, County Department, Law Division. All pending dates and deadlines are stricken and all other pending motions are stricken without prejudice.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

On April 19, 2012, Plaintiff Marilou McGirr filed a six-count Second Amended Complaint in the Circuit Court of Cook County, Illinois, County Department, Law Division against her former employer Defendant Continental Casualty Company and individual Defendants Shelly Liapes, Diahanna Foster, Margaret Spradau, and Ryan Kelly alleging defamation, negligent infliction of emotional distress, and tortious interference with prospective economic advantage. On May 7, 2012, the four individual Defendants removed this case pursuant to the civil rights removal statute 28 U.S.C. § 1443(1) arguing that Plaintiff's prosecution of her tortious interference claims against them in state court violates their civil rights as protected by 42 U.S.C. § 1981.*fn1 Before the Court is Plaintiff's motion to remand. Because the individual Defendants have failed in their burden of establishing that removal is proper pursuant to Section 1443(1), the Court grants Plaintiff's motion and remands this matter to the Circuit Court of Cook County.

Courtroom Deputy KF

Initials:

BACKGROUND

In response to Plaintiff's motion to remand, Defendants assert that "the Notice of Removal maintains that Plaintiff retaliated against the individual defendants because they advocated on behalf of an employee of the Indian race. In simple terms, they witnessed discrimination, and as Section 1981 contemplates, they opposed it. Plaintiff, in response, retaliated by suing them on her 'state law' tortious interference claims." (R. 46, Indiv. Defs.' Resp., at 3.) Also, in the individual Defendants' Answers and Counterclaims, each individual Defendant alleges an affirmative defense based on 42 U.S.C. § 1981, as well as a Section 1981 retaliation counterclaim.

LEGAL STANDARD

"Section 1443(1) provides for removal of any state proceeding in which the defendant 'is denied or cannot enforce ... a right under any law providing for the equal civil rights of citizens of the United States.'" Indiana v. Haws, 131 F.3d 1205, 1209 (7th Cir. 1997) (citation omitted). For removal to be proper under 28 U.S.C. § 1443(1), a defendant must show that (1) the right denied arises under federal law providing for specific civil rights stated in terms of racial equality, and (2) the state courts will deny or not enforce those specified federal rights. See Johnson v. Mississippi, 421 U.S. 213, 219, 95 S.Ct. 1591, 44 L.Ed.2d 121 (1975). "In upholding the constitutionality of the removal statute, the Supreme Court made it clear that that act was merely one legitimate way for Congress to ensure the effectiveness of the substantive provisions of the civil rights laws." Rachel v. Georgia, 342 F.2d 336, 342 (5th Cir. 1965) (citing Strauder v. West Virginia, 100 U.S. 303, 310-12, 25 L.Ed. 664 (1880)).

In general, the "existence of a federal defense to a claim arising under state law does not permit a party to remove the litigation." Hickey v. Duffy, 827 F.2d 234, 239 (7th Cir. 1987) (citations omitted); see also Federal Deposit Ins. Corp. v. Elefant, 790 F.2d 661, 667 (7th Cir. 1986) ("the filing of a counterclaim based on federal law, does not make the suit removable"). Nevertheless, "28 U.S.C. § 1443 permits removal on account of some civil rights defenses, [but] the entitlement to remove exists only when the state forum is unable or unwilling to resolve the federal defense." Bethune Plaza, Inc. v. Lumpkin, 863 F.2d 525, 528 (7th Cir. 1988). In other words, proper removal under Section 1443(1) requires "the petitioner [to] show that he cannot enforce the federal right due to some formal expression of ...


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