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Defendants Microsystems Software, Inc. ("MSI"), The Learning Company, Inc.   ("TLC"), Richard Gorgens, Debra Gorgens and Larry Mason (collectively, "defendants") submit this memorandum in opposition to plaintiff William Silverstein's ("Silverstein") "Motion for Remand of Improperly Removed Case and For Just Costs and Expenses, Including Attorney's Fees, Incurred Due to the Improper Removal," dated November 18, 1998.

As set forth more fully below, defendants properly removed this case, pursuant to 28 U.S.C. 1441, based on the presence of a federal question - Silverstein's claim in Count IV of his Amended Complaint that defendants violated the federal Family and Medical Leave Act, 29 U.S.C. 2601 et seq. - as well as the Court's supplemental jurisdiction over Silverstein's state-law claims, pursuant to 28 U.S.C. 1367. Defendants submit that the Court's supplemental jurisdiction is not, contrary to plaintiff's assertion, negated by 28 U.S.C. 1445(c).

The Amended Complaint(1)

Silverstein' s lengthy (162-paragraph) Amended Complaint contains eight separate counts alleging violations of federal and Massachusetts statutory and common law by some or all of the five named defendants, all related to Silverstein's employment by defendant MSI and the termination of that employment for taking an allegedly protected leave of absence in September, 1996.(2) The particular counts are as follows:

Count I: Defendants violated M.G.L. c. 152, 75B,(3) both in discharging and in refusing to rehire Silverstein, based on his "assertion of his rights to reasonable accommodation" allegedly protected by the Massachusetts worker's compensation law. Amended Complaint, 108-110.

Silverstein does not allege in Count I that he was discriminated against for filing or pursuing a claim for worker's compensation benefits.

Count II: Defendants violated M.G.L. c. 152, 75A, in denying Silverstein a preference in hiring following his termination by MSI.

Count III: Defendants violated M. G. L. c. 15lB, by denying Silverstein reasonable accommodation of his alleged handicap, terminating his employment on the basis of that handicap; and retaliating against him based on his exercise of rights under Chapter 15lB.

Count IV: Defendants violated the Family and Medical Leave Act (FMLA), 29 U.S.C. 2601 et seq., by denying and/or interfering with Silverstein's right to leave protected by that statute, and by discriminating against Silverstein for asserting his rights under that statute.

Count V: The individual defendants intentionally interfered with plaintiff's employment with MSI and/or TLC.

Count VI: MSI and/or TLC are liable for conversion of Silverstein's equity stake in MSI.

Count VII: MSI and/or TLC breached a contract with Silverstein.

Count VIII: TLC is liable for negligent or intentional infliction of emotional distress, to the extent that TLC and MSI are not regarded as a single entity.

See Amended Complaint, Exhibit A.


I. This Matter Properly Was Removed, Notwithstanding 28 U.S.C.   1445(c).

This matter presents a question which, to defendants' knowledge, has not been addressed by the United States Court of Appeals for the First Circuit or by this Court. At issue is whether an action containing a so-called "non-removable" claim under 28 U.S.C. 1445(4) nevertheless may be removed based on the invocation of federal question jurisdiction, pursuant to 28 U.S.C. 1331 and 1441(a), and supplemental jurisdiction over the state-law claim, pursuant to 28 U.S.C. 1367.(5) Defendants submit that it may.

In support of remand, plaintiff relies largely on section 1445(c), arguing that this provision renders unremovable any action which includes a claim brought under a state worker's compensation law, except perhaps in the instance of complete federal-law   preemption. Defendants submit that this reading of the federal removal statutes goes too far, rendering meaningless the language of the supplemental jurisdiction statute, 28 U.S.C. 1367.

Section 1367(a), enacted in 1990, provides for the exercise of supplemental jurisdiction over state-law claims in federal question cases, "[e]xcept as provided in subsections (b)(6) and (c) or as expressly provided by Federal statute . . ." It effectively "gives federal courts supplemental jurisdiction to the limits Article III of the Constitution permits." Wright, Miller & Cooper, Federal Practice and Procedure, 3567.3 at 35 (Supp. 1991). If a district court has supplemental jurisdiction over a claim, then the court must exercise such jurisdiction unless one of the four categorical exceptions in section 1367(c) is satisfied.(7) See, e.g., Executive Software North America, Inc. v. United States District Court, 24 F.3d 1545, 1556 (9th Cir. 1994) ("unless a court properly invokes a section 1367(c) category in exercising its discretion to decline to entertain pendent claims, supplemental jurisdiction must be asserted").

Section 1445(c) does not trump the broad jurisdictional grant in section 1367 to hear state-law claims where a federal question exists. Indeed, one prominent commentator has reached this conclusion, stating that section 1445(c) "does not prevent a district court from exercising supplemental jurisdiction over an employee's retaliatory termination claim (even if  it is not otherwise removable) after proper removal of civil rights claims with which the workers' compensation claim is joined." 16 Moore's Federal Practice, 107.17[4][c] at 107-144 (Matthew Bender 3d ed. 1998) (emphasis added). See also Cedillo v. Valcar Enterprises &darling Delaware Co., Inc., 773 F. Supp. 932 (N.D. Tex. 1991) (section 1445(c) is a procedural - rather than jurisdictional - statute and therefore does not withdraw subject matter jurisdiction over civil actions that arise under state workers' compensation laws, because objections based on section 1445(c) are waivable if not timely asserted).(8)

Plaintiff's reliance on the First Circuit's decision in Armistead v. C & M Transport, Inc., 49 F.3d 43 (lst Cir. 1995), is misplaced for two reasons. Armistead involved removal to federal court of a state superior court action to enforce a worker's compensation benefits award, which the First Circuit found to be an integral part of the worker's compensation administrative enforcement scheme. Id. at 45.(9) Second, Armistead was removed based on diversity jurisdiction. Id. Thus, the court simply did not address the issue present here.

Moreover, plaintiff mischaracterizes the decision by another judge in this Court in Lydon v. Boston Sand & Gravel Co., 15 F. Supp.2d 150 (D. Mass. 1998) (Harrington, J.). Contrary to plaintiff's assertion (plaintiff's Motion, p. 7 n.7), Lydon did not recognize that if an employee's worker's compensation retaliation claim was not preempted, it would have been non-removable per se under section 1445(c). Instead, the Court in Lydon held only that where state-law worker's compensation retaliation claims were completely preempted by Section 301 of the Labor Management Relations Act, they were removable,(10) Id. at 154. Indeed, some of the reasoning employed by the Court in Lydon in reaching its decision is equally persuasive here. The Court noted that "Congress enacted Section 1445(c) in 1958 pursuant to a trend to restrict diversity jurisdiction, minimize the caseload of federal courts, and encourage the prosecution of workers' compensation cases in state courts, where persons claiming benefits under the workers' compensation laws were granted a completely adequate remedy." Id. The Court concluded that the claims were removable "[b]ased on the congressional concerns regarding diversity jurisdiction underpinning Section 1445(c) and the competing federal labor policy concerns." Id. This case, of course, was removed based on federal question jurisdiction over plaintiff's FMLA claim; the concerns regarding unwanted removal of worker's compensation claims based on diversity jurisdiction therefore are not present.

II. The Court Should Not Decline to Exercise Supplemental Jurisdiction.

Defendants submit that none of the discretionary bases for remanding some or all of plaintiff's claims listed in section 1367(c) are present here.(11)

First, plaintiff's worker's compensation retaliation and hiring preference claims do not raise novel or complex issues of Massachusetts law. 28 U.S.C. 1367(c)(1). Indeed, as  noted above, Count I, in which plaintiff asserts that he was discriminated against for seeking accommodation of a handicap, more closely resembles a garden-variety discrimination claim than it does a claim requiring application of the nuances of the Massachusetts worker's compensation scheme. None of plaintiff's other state-law claims are particularly novel or complex. Second, no state-law claim substantially predominates over plaintiff's FMLA claim.

28 U.S.C. 1367(c)(2). Instead, it is the FMLA claim - that Silverstein was wrongfully denied a leave of absence to which he allegedly was entitled under the FMLA and then fired for taking that absence - that is at the center of this lawsuit. Third, because plaintiff's FMLA claim is still part of this case, section 1367(c)(3) does not apply. Finally, this is not an exceptional circumstance in which there are compelling reasons for declining jurisdiction. 28 U.S.C. 1367(c)(4). This case is not unlike the many other cases brought in or removed to federal court in which the plaintiff has asserted a number of claims under both federal and state law.

III. Should the Court Decide to Remand this Case, Fees and Costs Should Not be Awarded.

In the event that this Court concludes that plaintiff is entitled to remand, defendants submit that plaintiff should not be awarded attorneys' fees and/or costs. In light of the unsettled status of the issue presented, and given that defendants, as set forth above, present a good faith basis for removal, an award of fees and costs is unwarranted. See Wright, Miller & Cooper, 3739 at 488 ("costs and fees will be denied by the district court when there are reasons to believe that the removability of the case was plausible").


For the foregoing reasons, defendants request that plaintiff's Motion for Remand be denied.

Respectfully submitted,

By their attorneys,

Michael L. Rosen, BBO# 559954
Tracey E. Spruce, BBO# 638124
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, MA 02109
(617) 832-1000

Dated: December 4, 1998

1. Silverstein amended his original Complaint as of right prior to serving it on defendants.

2. The individual defendants, Richard Gorgens, Debra Gorgens and Larry Mason were, at times pertinent to Silverstein's claims, employed as officers and/or managers of MSI. Defendant TLC is alleged to have acquired MSI after Silverstein's termination. See Amended Complaint, attached hereto as Exhibit A, 13-18.

3. M.G.L. c. 152, 75B provides, in pertinent part, that no employer shall discriminate against an employee "because the employee has exercised a right afforded by . . . " the Massachusetts worker's compensation law.

4. 28 U.S.C. 1445(c) states, "[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."

5. See Lydon v. Boston Sand & Gravel Co., 15 F. Supp.2d 150, 152 (D. Mass. 1998) (Harrington, J.) ("There is little case law on the scope of Section 1445(c) in the Court of Appeals of the First Circuit.").

6. Section 1367(b), which precludes the exercise of supplemental jurisdiction in actions in which jurisdiction is founded solely on diversity of citizenship, has no application here.

7. These exceptions are:

(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed ali claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

8. The Fifth Circuit, in Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1118 (5th Cir. 1998), recently disagreed with Cedillo's holding, but did not address any of the bases for the CediIlo court's holding that a federal court has jurisdiction under section 1367 to hear a worker's compensation claim appended to a federal-law claim. Defendants urge this Court to reject Sherrod.

9. Here, in contrast, plaintiff states in his Amended Complaint that he obtained a lumpsum settlement of his worker's compensation claim, but alleges that he was discriminated against for seeking accommodation of a handicap. Amended Complaint, 80, 108-110.

10. In Lydon, the plaintiff did not assert any federal-law claim, and defendant removed the case based on a defense of complete preemption under the LMRA. As such, the Court was not presented with the issue raised here.

11. Plaintiff concedes that his state-law claims are sufficiently related to his FMLA claim to justify application of supplemental jurisdiction in the absence of his overly broad reading of section 1445(c). See plaintiff's Motion, pp. 3-4.