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Simpson v. Energy Petroleum Co.

United States District Court, E.D. Missouri, Eastern Division

October 31, 2017

ROBERT SIMPSON, Plaintiff,
v.
ENERGY PETROLEUM CO. and STEVEN J. MADRAS, Defendants.

          MEMORANDUM AND ORDER OF REMAND

          CHARLES A. SHAW UNITED STATES DISTRICT JUDGE

         This 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.

         I. Background

         Plaintiff 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.

         On 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).

         On 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.

         Defendants 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.

         Plaintiff 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.[1] 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.

         II. Discussion

         A. Plaintiff's Dismissal of Count III in State Court was Effective

         Plaintiff 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 incorrect.

         Removal 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).

         In 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.

         Anthony 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[2][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 ...


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