United States District Court, S.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on the notice of removal (Doc. 1), plaintiff’s motion to remand (Doc. 7), defendant Peterson’s opposition to the remand motion (Doc. 10), and the Rule 26(f) Report filed by the parties on June 1, 2015 (Doc. 11). Upon consideration of the foregoing pleadings, it is determined that plaintiff’s motion to remand should be GRANTED.
In the complaint (Doc. 1-2, COMPLAINT), filed in the Circuit Court of Marengo County, Alabama on March 16, 2015, plaintiff, Daymon Burton by his mother Mary Ann Carter, asserts three claims against Lepolean Peterson, in his individual and professional capacities, and a number of unidentified fictitious parties-for intentional infliction of emotional distress and negligent and wanton behavior (see Id. at 3-6). All of plaintiff’s claims arise out of an incident “involving a female student” that occurred on the campus of A. L. Johnson High School during February 2015. It is alleged because of this incident “Plaintiff was grilled extensively by Defendant Lepolean Peterson, … and referred … to the Juvenile Court of Marengo County without full knowledge of what had taken place.” The Juvenile Judge required the plaintiff to report for counseling sessions but the plaintiff chose to return to school instead. The defendant refused plaintiff entry to the school and after the police were called, plaintiff left campus to avoid arrest. (Doc. 1-2, COMPLAINT, at ¶¶ 7-10.)
Plaintiff’s first claim, a state law claim, is labeled “INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS” and seeks punitive damages, interests and costs. (Id., at ¶¶ 11-14 (“On or about February 2015, the Plaintiff was accused of misconduct with a female student by Defendants who had no proof of his innocence or guilt, but took adverse action against him, first sending him to Juvenile Court as well as calling the police to have him arrested when he returned to school. … Defendants imposed harsh disciplinary actions upon the Plaintiff without cause, treating him like a common criminal. … As a result of this action, Plaintiff suffered severe emotional distress and humiliation as well as violation of his rights.”).)
Plaintiff’s second claim arises under state law as well and is labeled “NEGLIGENT & WANTON BEHAVOIR.” Plaintiff alleges that the defendants “acted negligently when they failed to respect [his] rights … and imposed harsh disciplinary actions upon him without due process or knowledge of his guilt or innocence.” The wanton conduct occurred when Mr. Peterson referred the plaintiff to Juvenile Court without conducting a complete investigation and then denying him entry to the school as well as calling the police to have plaintiff arrested. (Id., at ¶¶ 15-19.) Again, plaintiff asks for an award of punitive damages, interests and costs.
Plaintiff’s third claim is labeled “INTENTIONAL INFLICTING OF EMOTIONAL DISTRESS & NEGLIGENT & WANTON BEHAVOIR.” This third claim appears to be an attempt to combine the first two claims and plead them against a number of fictitious party defendants. Regardless of plaintiff’s intent, Count III does not raise issues not presented in Counts I and II.
Peterson was served with the summons and complaint on March 17, 2015 (Doc. 1, at 1) and filed the notice of removal on April 15, 2015 (id.). Therein, he contends that this Court has “original jurisdiction under the provisions of 28 U.S.C. § 1331 and 28 U.S.C. § 1367, and [this action] is one which may be removed … pursuant to the provisions of 28 U.S.C. §1441, in that it is a civil action that arises under the Constitution, laws, or treaties of the United States.” (Id., at 2.) Since plaintiff did not expressly identify any claim as arising under the Constitution or any particular federal statute, defendant argues that the original jurisdiction of this Court has been invoked by the language in plaintiff’s incorporated statement of facts, i.e., “Marengo County Board of Education Members, Superintendents, Administrators, Principals, Staff and others, with the assistance of law enforcement, Court employees and politicians and others have systematically threatened students, over the past several years, in a manner that was unfair, bias, in violation of their civil rights and criminal, as well as contrary to the U.S. Constitution, without due process…” (Doc. 1-2, ¶ 6; Doc. 1, ¶ 3a.)
Plaintiff filed his motion to remand on April 28, 2015 (Doc. 7) and a brief in support of his motion on May 6, 2015 (Doc. 9). Peterson’s response in opposition was filed on May 11, 2015 (Doc. 10). Based upon the contents of the removal petition (Doc. 1) and the response in opposition (Doc. 10), the undersigned appreciates Peterson’s sole argument to be that removal is proper because the plaintiff has pled a claim arising under the United States Constitution. (See Docs. 1 and 10.)
A. Magistrate Judge Jurisdiction.
This case, filed April 15, 2015, has been proceeding before the undersigned United States Magistrate Judge with the implicit consent of the plaintiff and the defendant. (See Doc. 4, notice of assignment to Magistrate Judge for all purposes, including trial, entered April 17, 2015.) Since the time the parties received notice that this case was referred to the undersigned, neither has requested reassignment to a district judge. The undersigned has entered a preliminary scheduling order, and orders relating to the pending motions to remand and to dismiss. The motion to remand is now ripe and there does not appear to be any reason not to enter an order resolving the jurisdictional issue on consent of the parties. Up to this point in the litigation, it is fair to infer that the plaintiff and the defendant have “continual[ly] participat[ed] in pretrial proceedings [for an extended period of time to] justif[y] the inference of consent from [ ] litigant[s] aware of the need to consent.” Chambless v. Louisiana-Pacific Corp., 481 F.3d 1345, 1350-51 (11th Cir. 2007); see also Roell v. Withrow, 538 U.S. 580, 590 (2003) (Inferring consent “where, as here, the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate Judge . . . checks the risk of gamesmanship by depriving parties of the luxury of waiting for the outcome before denying the magistrate judge’s authority. Judicial efficiency is served; the Article III right is substantially honored.”).
B. Removal Jurisdiction in General.
There can be no doubt but that “[f]ederal courts are courts of limited jurisdiction, and there is a presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand.” Russell Corp. v. American Home Assurance Co., 264 F.3d 1040, 1050 (11th Cir. 2001) (citation omitted); see also Allen v. Christenberry, 327 F.3d 1290, 1293 (11th Cir.) (“[R]emoval statutes should be construed narrowly, with doubts resolved against removal.”), cert. denied, 540 U.S. 877, 124 S.Ct. 277, 157 L.Ed.2d 140 (2003); University of South Alabama v. American Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999) (“Because removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly. . . . Indeed, all doubts about jurisdiction should be resolved in favor of remand to state court.”); see Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994) (“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree[.]” (internal citations omitted)). Moreover, the removing defendant must bear “the burden of demonstrating federal jurisdiction.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 n.4 (11th Cir. 1998) (citation omitted); see also McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002) (“[T]he party invoking the court’s jurisdiction bears the burden of proving, by a preponderance of ...