United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER OF REMAND
CHARLES A. SHAW UNITED STATES DISTRICT JUDGE
removed matter is before the Court on plaintiff Robert
Simpson's Motion to Remand. Defendants Energy Petroleum
Co. and Steven J. Madras (collectively
“defendants”) oppose the motion and it is fully
briefed. For the following reasons, the Court concludes it
lacks subject matter jurisdiction over this case and
therefore must remand the case to the state court from which
it was removed.
filed suit in the Circuit Court of St. Louis County, State of
Missouri, on August 10, 2016, asserting a single claim of age
discrimination in violation of the Missouri Human Rights Act.
The parties litigated the case in state court for over a
year. On September 27, 2017, plaintiff filed a Third Amended
Petition to add Count II, a state wage and hour claim, and
Count III, a federal wage and hour claim.
September 29, 2017, defendants removed the action to this
Court pursuant to 28 U.S.C. §§ 1331 and 1441,
asserting that plaintiff's federal wage and hour claims
in Count III arise under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 210, et seq.,
and therefore federal question jurisdiction is present.
Defendants' Notice of Removal states that it is
“accompanied by written Notice to Plaintiff, and a
written Notice to Clerk of Removal filed with the Clerk of
the Circuit Court of St. Louis County, Missouri, on this
date, all as required by 28 U.S.C. § 1446(d).”
Notice of Removal at 3, ¶ 8. Defendants' Notice to
Plaintiff of Removal was filed on September 29, 2017 (Doc.
2). Defendants' Notice to Clerk of Removal was filed
October 5, 2017, and bears an acknowledgment showing it was
received by the Circuit Court of St. Louis County on October
5, 2017 (Doc. 13 at 1).
October 2, 2017, plaintiff obtained an order from the Circuit
Court of St. Louis County dismissing the FLSA claim, Count
III. See Ex. B to Mot. to Remand (Doc. 11-2).
Plaintiff then filed the instant motion to remand, asserting
that the case must be remanded because “[w]ithout Count
III there is no federal question in this case.” Mot. to
Remand at 1.
oppose the motion to remand, asserting that (1) Count III
remains pending, as the state court lost jurisdiction of this
matter upon the filing of defendants' Notice of Removal
on September 29, 2017, and (2) Count II of the Third Amended
Petition, plaintiff's state wage and hour claim under
Missouri Revised Statutes § 290.505 (2010), confers
federal question jurisdiction because it implicates federal
issues. Defendants contend that plaintiff must dismiss both
Counts II and III to remove all federal issues from the case.
then filed a voluntary dismissal of Count III of his Third
Amended Petition in this Court on October 11, 2017, pursuant
to Federal Rule of Civil Procedure 41. Plaintiff asserts
in his Reply memorandum that no claim invoking a federal
question remains pending and this matter should be remanded
to state court. Subsequently, on October 26, 2017, plaintiff
filed a motion to convert his voluntary dismiss to a motion
to amend the petition/complaint pursuant to Rule 15(a) or in
the alternative for leave to amend to eliminate Count III.
Plaintiff's Dismissal of Count III in State Court was
obtained a state court order dismissing the FLSA claim, Count
III, after defendants filed a Notice of Removal in this Court
but prior to the state court's receipt of defendants'
Notice to Clerk of Removal. Defendants contend that
plaintiff's dismissal of Count III is void because the
state court lost jurisdiction upon the filing of the Notice
of Removal in federal court. Defendants' argument is
is effected by a three-step process that requires (1) filing
of a notice of removal, (2) written notice of the filing to
all adverse parties, and (3) filing of a copy of the notice
of removal with the state court where the case was originally
filed. 28 U.S.C. § 1446(d). As to the final step, the
statute expressly states: “[The defendant] shall file a
copy of the notice with the clerk of such State court,
which shall effect the removal and the State court
shall proceed no further unless and until the case is
remanded.” 28 U.S.C. § 1446(d) (emphasis added).
The Eighth Circuit has held that the “only rule that
logically follows from 28 U.S.C. § 1446(d) is that
removal is effected when the notice of removal is filed with
the state court and at no other time.” Anthony v.
Runyon, 76 F.3d 210, 214 (8th Cir. 1996).
Anthony, Eighth Circuit addressed whether a district
court should consider an amended petition that was filed in
state court after the defendant filed a notice of removal in
federal court, but before the defendant filed a copy of the
notice of removal with the state court. Id. at 213.
The Eighth Circuit held that the district court should have
considered the amended petition, which was valid because
“removal is effected when the notice of removal is
filed with the state court[.]” Id. at 214.
controls here. Under its holding, the Circuit Court of St.
Louis County retained jurisdiction of the case and removal
was not effected until the notice of removal was filed in
state court. Orders entered by the state court in the interim
between filing the notice of removal and filing the notice
with the clerk in state court are valid. 16 Moore's
Federal Practice § 107.140[b]; see
Anthony, 76 F.3d at 214; see also Rural Media Group,
Inc. v. Performance One Media, LLC, 2010 WL 273979, at
*2 (D. Neb. Jan. 13, 2010) (temporary restraining order
issued by state court was valid where it was entered after
notice of removal was filed in federal court but before
notice of removal was filed in state court). “Once the
notice of removal has been effectively filed in both
courts, the federal court takes the case in the ...