Elizabeth Swirka v. Liberty Mutual Insurance Co.

2018 DNH 215

• Court: District Court, D. New Hampshire
• Decided: November 2, 2018
• Docket: 18-cv-854-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Elizabeth Swirka

v. Civil No. 18-cv-854-JD Opinion No. 2018 DNH 215 Liberty Mutual Insurance Co.

O R D E R

Liberty Mutual removed this case from state court.

Elizabeth Swirka moves to remand the case to state court,

arguing that the removal was untimely. Liberty Mutual objects

to the motion to remand.

Background

Swirka filed charges of discrimination against her former

employer, Liberty Mutual, with the New Hampshire Commission on

Human Rights.1 On April 9, 2018, the Commission issued findings

of probable cause on Swirka’s charges. The Commission sent

“Orders of Notice” to Swirka and Liberty Mutual by certified

mail on June 1, 2018.

The Orders of Notice also enclosed copies of the

investigator’s report to the Commissioner on Swirka’s charges,

the charges, and the Commissioner’s findings. The Notice set a

1 The charges were “dual filed” with the Equal Employment Opportunity Commission. date and time for submission of the parties’ conciliation

proposals and a prehearing and conciliation conference. The

Notice also scheduled a public hearing in December of 2018.

Liberty Mutual filed a petition of removal, pursuant to RSA

354-A:21-a, I, in Strafford County Superior Court on September

14, 2018. The petition was docketed as “Complaint-Civil” by the

superior court. Counsel for Liberty Mutual filed her appearance

the same day. Liberty Mutual filed a notice of removal in this

court on September 25, 2018. The notice of removal was filed in

the superior court on October 5.

Discussion

Swirka moves to remand the case to the superior court,

arguing that the notice of removal was untimely under 28 U.S.C.

§ 1446(b)(1). In support, Swirka contends that the thirty-day

time limit imposed by § 1446(b)(1) was triggered by either

service of the Orders of Notice during the first week of June or

the Commission’s probable cause findings in April and that

removal in late September was far beyond that deadline. Liberty

Mutual argues that the thirty-day period has not yet been

triggered because it has not received a clear statement of

damages from Swirka and that the Commission is not sufficiently

“court like” to have its actions trigger the time for removal.

2 This case focuses on an imperfect fit between the unusual

state law procedure that allows a defendant to remove a

proceeding from the Commission on Human Rights to superior court

and the federal removal statutes. Under RSA 354-A:21-a, I,

“[a]ny party alleged to have committed any practice made

unlawful under this chapter may, in any case in which a

determination of probable cause has been made by the

investigating commissioner, remove said complaint to superior

court for trial.” Removal is accomplished when the defendant

files a petition of removal in superior court, which “removes

said complaint to superior court for trial.” Id. In this case,

the petition of removal was docketed by the superior court as

the civil complaint. As such, the defendant initiated the

action in state court by removal.

Under federal law, a defendant may remove “any civil action

brought in a State court of which the district courts of the

United States have original jurisdiction.” 28 U.S.C. § 1441(a).

Pertinent to the present motion, a notice of removal to federal

court must be filed within thirty days after a defendant

receives a copy of the “initial pleading” or is served with a

summons. § 1446(b)(1). The dispute raised here is what

constitutes the initial pleading in this case and whether the

time for removal has been triggered.

3 A. Initial Pleading

Swirka contends that either the Orders of Notice issued by

the Commission on June 1, 2018, or the probable cause finding

issued by the Commission on April 9, 2018, constitutes the

“initial pleading” for purposes of § 1446(b)(1). Because both

of those documents were issued more than thirty days before

Liberty Mutual filed its notice of removal, Swirka contends that

the removal is untimely and that the case must be remanded.

Liberty Mutual contends that those documents, issued by the

Commission, cannot be the initial pleadings for purposes of

removal because the proceeding could not be removed directly

from the Commission, which is not sufficiently court-like to

meet the requirements of § 1441(a).

It is not necessary here to examine the functional nature

of the Commission to determine whether it is or is not “court

like.” See, e.g., Whelchel v. Regus Mgmt. Gr., LLC, 914 F.

Supp. 2d 83, 86-88 (D. Mass. 2012). Instead, RSA 354-A:21-a, I

provides that the defendant can remove the complaint from the

Commission to superior court, which is what happened here. In

this case, the complaint was removed by the defendant’s petition

that was then docketed as the civil complaint. For purposes of

this case, the civil complaint is the “initial pleading” in the

superior court.

4 The removal petition was docketed as the civil complaint on

September 14, 2018. Liberty Mutual removed that action to this

court on September 25, 2018, well within the thirty days allowed

under § 1446(b)(1). Therefore, the removal was timely.

B. Damages

Liberty Mutual argues, based on cases which address the

specific jurisdictional requirements imposed by the Class Action

Fairness Act, that the time for removal has not yet been

triggered because it has not been served with a sufficient

demand for damages. See Romulus v. CVS Pharm., Inc., 770 F.3d

67, 69 (1st Cir. 2014). Liberty Mutual’s theory does not apply

to the circumstances of this case or the motion to remand. This

is not a class action, and Swirka has not raised a

jurisdictional issue about the amount in controversy.

Even if the jurisdictional amount had been challenged, it

would not be dispositive. Liberty Mutual represented to the

court in the first line of its notice of removal that it was

removing the action “pursuant to 28 U.S.C. § 1331” that provides

federal question jurisdiction. There is no jurisdictional

amount requirement for federal question jurisdiction.

5 Conclusion

For the foregoing reasons, the plaintiff’s motion to remand

(document no. 5) is denied.

SO ORDERED

______________________________ Joseph A. DiClerico, Jr. United States District Judge

November 2, 2018

cc: Nancy Richards-Stower, Esquire Daniel Y. Vanderzanden, Esquire.