United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE MARVIN E. ASPEN UNITED STATES DISTRICT JUDGE.
30, 2019, Defendants Barrington Community Unit School
District 220, Kenneth Hyllberg, Sara Mays, Callen Migacz,
Lydia Brinkmeier, Natalie Pollock, and Heather Rimstidt
(“Defendants”), by and through its attorney,
Emily Bothfeld, filed a notice of removal from the Circuit
Court of Cook County, case number 19 L 5104. (Notice of
Removal (Dkt. No. 3).) Presently before us is Plaintiff
M.S.'s (“MS”) Petition to Remand to the
Circuit Court of Cook County. (Pet. to Remand (Dkt. No. 11).)
For the reasons stated below, we remand this action to the
Circuit Court of Cook County.
defendant may remove “any civil action brought in a
State court of which the district courts of the United States
have original jurisdiction.” 28 U.S.C. § 1441.
Pursuant to 28 U.S.C. § 1446(a), defendants desiring to
remove a case from state court to federal court must file
“a notice of removal signed pursuant to Rule 11 of the
Federal Rules of Civil Procedure and containing a short and
plain statement of the grounds for removal, together with a
copy of all process, pleadings, and orders served upon such
defendant or defendants in such action.” 28 U.S.C.
considering a motion for remand, the court must examine the
plaintiff's complaint at the time of the defendant's
removal and assume the truth of all factual allegations
contained within the original complaint.”
Compassionate Pain Mgmt., LLC v. Frontier Payments,
LLC, No. 17 C 5568, 2017 WL 4423409, at *3 (N.D. Ill.
Oct. 4, 2017) (citation omitted). The party seeking removal
bears the burden of establishing jurisdiction in the federal
court. See In re Brand Name Prescription Drugs Antitrust
Litig., 123 F.3d 599, 607 (7th Cir. 1997).
“[F]ederal courts should interpret the removal statute
narrowly, resolving any doubt in favor of the plaintiff's
choice of forum in state court.” Schur v. L.A.
Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir.
defendant may remove an action to federal court if the court
has original subject-matter jurisdiction over the action. 28
U.S.C. § 1441(a). Federal jurisdiction arises under
§ 1331 when the complaint arises under federal law. 28
U.S.C. § 1331. Federal question jurisdiction is
appropriate where it appears from the face of the complaint
that the right to relief depends upon the construction or
application of a substantial issue of federal law. See
Grable & Sons Metal Prod., Inc. v. Darue Eng'g &
Mfg., 545 U.S. 308, 313, 125 S.Ct. 2363, 2367 (2005)
(citing Smith v. Kansas City Title & Trust Co.,
255 U.S. 180, 199, 41 S.Ct. 243, 245 (1921)). A substantial
federal issue must indicate a serious federal interest in
claiming the advantages of a federal forum. Grable,
545 U.S. at 313, 125 S.Ct. at 2367 (citing Chi. v.
Int'l College of Surgeons, 522 U.S. 156, 164, 118
S.Ct. 523, 529 (1997)). Even then, a federal forum is only
appropriate where it will not upset the state-federal balance
Congress has established. Id. at 314, 125 S.Ct. at
2367-68. A complaint purporting to rest on state law . . .
can be recharacterized as one ‘arising under'
federal law if the law governing the complaint is exclusively
federal.” Vaden v. Discover Bank, 556 U.S. 49,
61, 129 S.Ct. 1262, 1273 (2009).
misstates the application of the IDEA to this case and thus
fails to show prove the IDEA provides the requisite federal
hook for this case. “The IDEA governs provision of a
fair adequate public education (“FAPE”). Fry
v. Napoleon Cmty. Sch., ___U.S. ___, 137 S.Ct. 743, 752
(2017). The relief the plaintiff actually
seeks is central, not “whether the suit
‘could have sought' relief available under the
IDEA.” Id. at 755. Thus, contrary to
Defendant's assertion that Plaintiff's choice to seek
monetary damages through a state tort claim is irrelevant to
the existence of a federal question, the Court has explicitly
said the IDEA “treats the plaintiff as ‘the
master of the claim': She identifies its remedial
basis.” Id. In addition, suits that are
related to school, but do not claim failure to provide
in-kind educational services or a FAPE, do not necessarily
fall within the scope of the IDEA. Id. at 758. In
Fry, the Court pointed to whether the claim would
only concern students with disabilities as one of
the hallmarks of an IDEA pleading in disguise. Id.
solely seeks damages under state tort law under a theory that
would apply beyond students with disabilities or in-kind
educational programming. Plaintiffs are correct this is not a
claim that concerns only or even
principally treatment of students with disabilities.
(Compl. (Dkt. No. 3-1) ¶¶ 88-91.) Plaintiff points
out the complaint would apply to any student who the school
willfully and wantonly failed to protect under its
anti-bullying policy (Compl. ¶ 90(c), (f), (g).) The
question of the duty of care owed will come from the
application of state law to the Defendants' anti-bullying
policy, not the IDEA, the Rehabilitation Act, the Americans
with Disabilities Act, or the Due Process Clause. (Compl.
¶ 88-90; Pl. Resp. to Reply to Mot. to Remand (Dkt. No.
18) at 3.) This is not “artful pleading, ” but
instead a choice to forego a specific claim that narrows the
legal question to Defendants' treatment of students with
disabilities; this is precisely the kind of “mastery of
one's fate” the Court endorsed in Fry.
(See Compl. ¶ 90 (referencing failure to develop
general anti-bullying policies, which proximately lead to
MS's injury).) Finally, the Complaint seeks no relief
“in kind, ” but instead seeks redress for
violations of tort law. (Id.) Whether the Plaintiff
is ultimately correct that a state tort law action lies here
is a question for the state courts, not this Court.
have not met their burden of establishing federal question
jurisdiction. Accordingly, we remand this case forthwith to
the Circuit Court of Cook County.