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January 25, 1999


On October 2, 1998, William Silverstein brought this Complaint in Middlesex Superior Court against his former employer, its officers, its parent corporation, and his supervisor, alleging collective violations of the Workers' Compensation Statute, G. L. c. 152,   75A and 75B, in the form of retaliation for his demands for job accommodations and rehiring preference. Silverstein alleges a violation of Chapter 151B, intentional interference with an advantageous relationship, conversion, breach of contract, negligent or intentional infliction of emotional distress, and a violation of the federal Family and Medical Leave Act (FMLA).

Silverstein, in the text of his Complaint, acknowledged the federal claim, but maintained that the nonremovability of a workers' compensation claim, pursuant to 28 U.S.C.  1445(c), required that his case be litigated in state court.(1) On October 30, 1998, defendants nonetheless removed the case to the federal district court.(2) On November 18, 1998, Silverstein filed a motion for remand and costs.

Silverstein argues that by operation of 28 U.S.C.  1445(c), there is no right of removal under 28 U.S.C.  1441, unless the removable cause of action is "separate and independent" of the nonremovable claim. Silverstein argues that because all of the counts of his Complaint, including the FMLA claim, constitute a single cause of action, the case must be remanded. Defendants contend that because the Complaint contains a federal claim, they have the right to remove the entire case to federal court.

Section 1441 states, in relevant, part that:

(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States . . . .;

(c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, at its discretion, may remand all matters in which State law predominates.

While  1441(a) authorizes the removal of any case that could have originally been brought in federal court,  1441(c) restricts (albeit in the negative) this right to those cases containing nonremovable claims joined with a "separate and independent" removable claim.(3) This distinction is consistent with the language of  1441(a) granting to defendants the right to remove a case "[e]xcept as otherwise expressly provided by Act of Congress."

Defendants admit in their notice of removal that Silverstein's state law claims "are so related to his federal claim that they form part of the same case or controversy." A reading of the Complaint confirms this view. Because Silverstein's federal claim is not "separate and independent" and is "joined with one or more otherwise nonremovable claims," removal is not authorized under  1441.(4)

Silverstein also seeks his costs of bringing this motion. Silverstein argues that because he presented his jurisdictional argument in the text of his Complaint, defendants were on notice that removal was improper. Given the complexity of the statutory interplay, however, defendants' attempt to invoke  1441(a) does not seem frivolous or ill intended.


For the foregoing reasons, the motion to remand is ALLOWED. The motion for costs is DENIED.



Richard G. Stearns

1. Section 1445(c) states that "[a] civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States."

2. Defendants asserted federal question jurisdiction, pursuant to 28 U.S.C.  1331, over the FMLA claim and removed the case under 28 U.S.C.  1441(a). Defendants request that the court exercise its supplemental jurisdiction, granted under 28 U.S.C.  1367, over the state law claims, including those claims brought under the Workers' Compensation Statute.

3. The wisdom of this statute is apparent, as a plaintiff should not be able to restrict a defendant's ability to have an independent federal claim heard in federal court by simply alleging the federal claim along with an unrelated nonremovable claim. Where the nonremovable and removable claims are intertwined, however, there is a legitimate conflict between the forums. In that instance, Congress has determined that the issue should be resolved by operation of  1441(c).

4. The case would arguably be different if Silverstein's workers' compensation claims were preempted by federal law, as would be the case if it arose in the context of a collective bargaining agreement. See Lydon v. Boston Sand & Gravel Co., 15 F.Supp.2d 150, 153-154 (D.Mass. 1998). Section 2651 of the FMLA states:

(a) Federal and State antidiscrimination laws
Nothing in this Act or any amendment made by this Act shall be construed to modify or affect any Federal or State law prohibiting discrimination on the basis of race, religion, color, national origin, sex, age, or disability.

(b) State and local laws
Nothing in this Act or any amendment made by this Act shall be construed to supersede any provision of any State or local law that provides greater family or medical leave rights than the rights established under this Act or any amendment made by this Act.

29 U.S.C.  2651.