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Strikes for Kids v. National Football League

United States District Court, N.D. Texas, Dallas Division

May 24, 2017




         Before the Court is Plaintiff's Motion to Remand. Doc. 5. At issue is whether Defendant's removal of this case from state court was timely within the 30-day removal window of 28 U.S.C. § 1446(b). Plaintiff maintains that the removal, which occurred more than 30 days after the filing of the state court petition, was untimely and moves for remand. Defendant counters that the removal was timely under § 1446(b)(3)'s “other paper” provision. The Court agrees with Defendant and, for the reasons that follow, DENIES Plaintiff's Motion.



         Plaintiff Strikes for Kids filed this lawsuit in Texas state court on May 31, 2016, alleging a claim of fraud against Defendant National Football League (NFL). Doc. 1, Notice of Removal. Plaintiff's fraud claim was based on alleged statements Defendant and its representatives made regarding a charity bowling event. Doc. 2-1, App. in Supp. of Def.'s Notice of Removal, Ex. 1, Pl.'s Orig. Pet. ¶¶ 19-20 [hereinafter Pl.'s Orig. Pet.]. Plaintiff planned to hold an event at the “Strike Zone, a bowling alley that is a part of the larger Sunset Station Hotel & Casino complex” in Las Vegas, Nevada. Id. ¶ 11. But before the event, Defendant allegedly told Plaintiff that it would be in violation of the NFL Gambling Policy[2] for NFL players to attend, so Plaintiff “needed to change the venue of the charity event.” Id. ¶ 14. In response, Plaintiff moved the event to a different venue approved by Defendant. Id. ¶ 15. Plaintiff alleges that this change in venue caused it to suffer lost revenue and prevented it from fulfilling other obligations. Id.

         Plaintiff's theory of why Defendant's statement-that NFL players' attendance at Strike Zone would violate the NFL Gambling Policy-was fraudulent or false has shifted throughout the litigation. In Plaintiff's Original Petition, it simply stated that Defendant's representation was “false” with no further explanation. See Doc. 2-1, Pl.'s Orig. Pet. ¶ 20. In Defendant's Notice of Removal, by contrast, it asserted that the Original Petition implied that Plaintiff's claim of falsity hinged on a disagreement over whether the Strike Zone was a “casino or gambling-related establishment.” Doc. 1, Notice of Removal ¶ 4. If the Strike Zone was not a “casino” as defined by the Gambling Policy, then NFL players' attendance would not have violated the Gambling Policy, and Defendant's assertion to the contrary would have been false. Defendant argued that this theory was later confirmed through Plaintiff's subsequent pleadings and discovery responses. Doc. 1, Notice of Removal ¶ 4.

         Defendant asserts that Plaintiff's theory shifted at a December 7, 2016, discovery hearing in state court. Id. ¶ 5. At the hearing, Defendant argues, Plaintiff offered a new fraud theory for the first time: The NFL's alleged statement was false because the NFL lacked authority under the Collective Bargaining Agreement (CBA) with the Players' Union to promulgate or enforce any part of the Gambling Policy. Doc. 8, Def.'s Resp. 7. Therefore, Defendant's statement that players' attendance would violate the Gambling Policy was false because Defendant had no authority to enforce any rule at all under the Gambling Policy.

         Plaintiff appears to agree that its fraud claim is based on the theory that the NFL lacks authority to enforce the Gambling Policy. See, e.g., Doc. 5, Pl.'s Mot. to Remand 2. From the pleadings, though, it does not appear that this theory supplants the original fraud theory. Instead, it appears that the “new fraud theory” is, in fact, an alternative fraud theory. So, the Court construes Plaintiff's argument as alleging Defendant's statements to be false because: (1) Defendant didn't have the authority to promulgate the Gambling Policy at all (the New Fraud Theory); and (2) if it did have the authority, then the Strike Zone was falsely characterized as a “casino” (the Old Fraud Theory).[3]

         Defendant filed its Notice of Removal with this Court on January 3, 2017. Doc. 1, Notice of Removal ¶ 4. Defendant removed the case to this Court based federal question jurisdiction. Id. ¶ 8. Defendant reasoned that Plaintiff's New Fraud Theory required an interpretation of the NFL's authority under its CBA with the Players' Union, so Plaintiff's claims would be completely preempted by Section 301 of the Labor Management Relations Act (LMRA). Id. ¶¶ 6, 8.

         On January 5, 2017, Plaintiff filed its Motion to Remand arguing that Defendant's Notice of Removal was untimely because the New Fraud Theory-requiring an interpretation of the CBA-was present from the time the case was filed in May 2016, and therefore Defendant's 30-day removal window had passed long before January 2017. Doc. 5, Pl.'s Mot. to Remand 1. Defendant responded and argued that it timely removed the case within 30 days of learning that Plaintiff's state-law claims were completely preempted by federal law. Doc. 8, Def.'s Resp. And Plaintiff has replied. Doc. 10, Pl.'s Reply. Thus, Plaintiff's Motion is ripe for the Court's review.



         Any action in state court “of which the district courts of the United States have original jurisdiction, may be removed by the defendant . . . to the district court.” 28 U.S.C. § 1441(a). Defendant removed this case from state court based on federal question jurisdiction under 28 U.S.C. § 1331. District courts “have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. This, however, raises “significant federalism concerns” because removal effectively “deprive[s] the state court of an action properly before it.” Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007) (quoting Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365 (5th Cir. 1995)). As a result, the removal statute must be strictly construed, and “any doubt about the propriety of removal must be resolved in favor of remand.” Id. at 281-82; see also Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). When considering a motion to remand, “[t]he removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.” Manguno, 276 F.3d at 723.

         “Removal based on federal question jurisdiction is determined by reference to the well- pleaded complaint.” Eggert v. Britton, 223 F. App'x 394, 397 (5th Cir. 2007) (citing Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998) (“The presence or absence of [federal-question] jurisdiction is governed by the well-pleaded complaint rule, under which federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.”) (internal quotations omitted)).

         In certain instances, however, “complete preemption” operates as a kind of exception to the well-pleaded complaint rule because a “plaintiff's claim may be one that is exclusively governed by federal law, so that the plaintiff necessarily is stating a federal cause of action, whether he chooses to articulate it that way or not.” Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 366-67, 367 n.2 (5th Cir. 1995) (quoting 14A Wright & Miller, Federal Practice and Procedure § 3722 (2d ed.)). Here, Defendant argues not that a federal question is present on the face of Plaintiff's Original Petition, but rather that Plaintiff's claims are completely preempted by § 301 of the LMRA.

         To timely remove a case, a defendant must file a notice of removal within 30 days after the receipt of the initial pleading. 28 U.S.C. § 1446(b)(1). But if a case is not removable based on the initial pleading, a defendant may still remove a case within 30 days after receiving “a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” Id. § 1446(b)(3) (emphasis added). The Fifth Circuit has indicated that removal based upon receipt of “other paper”requires a voluntary act by the plaintiff- as opposed to actions of the defendant or the court. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996) (citing Gaitor v. Peninsular & Occidental S.S. Co., 287 F.2d 252, 254 (5th Cir. 1961)). “The federal courts have given the reference to ‘other paper' an expansive construction and have included a wide array of documents within its scope.” 14C Wright & Miller, Federal Practice and Procedure § 3731 (4th ed.).[4] Here, Defendant argues that removability was triggered by its receipt of “other paper”-specifically, Plaintiff's counsel's statements at a hearing on December 7, 2016-when Defendant first learned that Plaintiff's state-law claim was preempted by the LMRA.

         “In most cases, when courts look to ‘other paper' to ascertain removability, courts are clarifying that diversity jurisdiction has been established, ” not federal question jurisdiction. Eggert, 223 F. App'x at 397. The Fifth Circuit in Eggert, however, has acknowledged that “[u]nder limited circumstances, courts have looked to ‘other paper' to establish federal question jurisdiction, such as to clarify that a plaintiff's state law claim is one that would be preempted by federal law.” Id. In other words, for removal based on “other paper” to be proper and consistent with the well-pleaded complaint rule, the “other paper” cannot be used to interject a new federal claim, but instead must be used to clarify that the plaintiff's existing claims are federal in nature. See Id. at 397-98. As Defendant's argument hinges on “other paper” establishing federal question jurisdiction based on complete preemption, the standard set forth in Eggert applies.[5]



         In its Motion to Remand, Plaintiff argues that removal was untimely because the New Fraud Theory has been present since the suit's inception, and stated in various briefings, depositions, and hearings throughout the case; therefore, ...

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