United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
J. BOYLE UNITED STATES DISTRICT JUDGE.
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.
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 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.
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
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
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).
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.
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.
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.
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)).
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.
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.). 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.
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.
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,