United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER OF REMAND
A. ROSS, UNITED STATES DISTRICT JUDGE
matter is before the Court upon the notice of removal filed
by plaintiff Charles Pointer, seeking to remove an
adjudicated state court appellate action to this Court. This
action will be remanded.
case at bar, plaintiff cites his state court appellate case
as Case No.ED 105007, a case that was adjudicated in the
Missouri Court of Appeals Eastern District.
of the casefile submitted by plaintiff shows that from
approximately December of 2007 until May of 2016, plaintiff
worked for Allied Barton Security. His employment was
terminated on or about May 29, 2016. Plaintiff thereafter
filed for unemployment benefits with the Missouri Department
of Labor and Industrial Relations, Division of Employment
Security. Allied stated that plaintiff had been terminated
"for cause, " and that he wasn't entitled to
unemployment benefits, and plaintiff requested a finding from
a deputy hearing officer. On July 1, 2016, a hearing officer
determined plaintiff had been fired "for cause" and
notified plaintiff of his decision not to award benefits.
Plaintiff was also notified of his right to appeal the
decision by contacting the Appeals Tribunal no later than
August 1, 2016.
appealed the denial by the deputy hearing officer in a timely
fashion, and the Appeals Tribunal reviewed plaintiffs case. A
telephone hearing was held in plaintiffs case on August 9,
2016, and again, the hearing officer found for plaintiffs
employer, Allied Barton. Plaintiff was told that if he
disagreed with the findings of the Tribunal, he could appeal
by filing an application for review to the Labor and
Industrial Relations Commission within thirty (30) days.
Plaintiff did so. The Commission affirmed the decision of
the Tribunal on September 27, 2016. Plaintiff was informed
that he could appeal the decision of the Commission to the
Missouri Court of Appeals, pursuant to Missouri Revised
Statute § 288.210. The letter from the Commission stated
that plaintiffs notice of appeal would be due to the Missouri
Court of Appeals within twenty (20) days after the
Commission's decision became final. See Mo.Rev.Stat.
§ 288.210. The Commission's decision became final,
as noted in the determination, ten days after the date of
mailing on September 27, 2016. Accordingly, plaintiffs notice
of appeal was due to the Court of Appeals on October 27,
filed his notice of appeal with the Missouri Court of Appeals
on November 2, 2016. The Court of Appeals show caused
plaintiff as to why his appeal should not be dismissed as
untimely, noting that because it was a statutory proceeding,
there was no provision for late notices of appeal. See
Dunlap v. Division of Employment Sec, 353 S.W.3d 710,
711 (Mo.App.E.D. 2011). Plaintiff argued for cause but was
denied, as was his motion for reconsideration. Plaintiffs
appeal was dismissed on January 23, 2017. Plaintiffs request
for rehearing or transfer to the Supreme Court was denied on
February 16, 2017.
now seeks to "remove" his closed Missouri Appellate
Court case to this Court, alleging that the Missouri State
Court rules failing to allow statutory cases, like appeals in
unemployment actions, to file late notices of appeal, are
discriminatory. He believes he should be able to file a
removal of his action to this Court because his case is a
"civil one" that "arises under "an Act of
Congress regulating interstate commerce."
the aforementioned conclusory claims, plaintiff has not
identified a statutory basis for removal in this Court. In
fact, plaintiff cannot do so, because 28 U.S.C. § 1445
specifically sets forth specific types of civil actions that
are non-removable. Workmen's Compensation claims are one
of the claims mentioned in the statute.
§ 1445 Non Removable Actions
(c) 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.
it clearly appears on the face of the notice and any exhibits
annexed thereto that removal should not be permitted, the
court shall make an order for summary remand." 28 U.S.C.
§ 1455(b)(4). For the reasons provided above, removal is
not permitted in this case. See also Missouri's
Workers' Compensation Law provides the exclusive remedy
for injuries "arising out ...