Gatlin v. Jewel Food Stores

675 F. Supp. 445, 1987 U.S. Dist. LEXIS 11899, 45 Fair Empl. Prac. Cas. (BNA) 1079, 1987 WL 26331

• Court: District Court, N.D. Illinois
• Decided: December 23, 1987
• Docket: No. 87 C 10692
• Status: Published

Opinion

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

On December 18, 1987 Jewel Food Stores Division of Jewel Companies, Inc. (“Jewel”) filed its Petition pursuant to 28 U.S.C. § 1441,¹ removing this action by ex-Jewel employee Terrence Gatlin (“Gatlin”) from the Circuit Court of Cook County. Because Gatlin’s Complaint demonstrates on its face “that the case was removed improvidently and without jurisdiction” (Section 1447(c)), this Court sua sponte orders the case remanded to the state court from which it came.²

With the limited exception provided by the “artful pleader” doctrine, it is black-letter law that a plaintiff is the master of his, her or its own destiny in terms of federal jurisdiction. As The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913) put it:

Of course, the party who brings a suit is master to decide what law he will rely upon, and therefore does determine whether he will bring a “suit arising under” [any] law of the United States by his declaration or bill.³

If a plaintiff is content to rely on state claims (even though one or more of them may parallel claims that could have invoked federal rights), no defendant can force the action into the federal system by reshaping plaintiff’s causes of action to implicate federal questions.

Here Gatlin asserts more than one theory under which his allegedly racially-discriminatory firing by Jewel was actionably wrong:

1. It “constituted a deprivation of his rights, privileges and immunities secured by the Constitution and the laws of the State of Illinois” (Complaint 116).

2. It was “in direct violation of the Civil Rights Act of 1971 [sic — should be 1871], USCS 1983 [obviously a reference to 42 U.S.C. § 1983, ‘Section 1983’]” (Complaint II6).

3. It “constitutes a violation of the laws of the State of Illinois against discrimination, including, but not limited to, the Illinois Revised Statutes, chapter 68, Section 1-101 et. seq.” (Complaint II7).

Complaint Count II adds a defamation charge to the wrongful discharge claims.

All Gatlin’s theories except the second one as to his firing are clearly state-law claims over which this Court has no “original jurisdiction” (Section 1441(b)).⁴ That leaves only the purported reliance on Section 1983 by Gatlin and his counsel. But that must be viewed as a total nullity. Section 1983 applies only to state actors, and except under extraordinary circumstances (see Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 435-36 (7th Cir.1986)) that description does not fit Jewel. This Court lacks jurisdiction over the clearly nonexistent Section 1983 claim, and it is neither for this Court nor for Jewel to seek to manufacture federal jurisdiction by calling into play potential claims Gatlin has not chosen to assert.⁵

In the language of Section 1447(c), it is unquestionable that this action “was removed improvidently and without jurisdiction.” It is ordered remanded to the Circuit Court of Cook County, and the certified copy of the remand order shall be mailed forthwith.⁶

1 . All further references to Title 28's provisions will simply take the form "Section — .” Although the same form is later also used for one section (Section 1983) in Title 42, the substantial difference in the numbers involved avoids possible confusion.

2 . See Wisconsin Knife Works v. National Metal Crafters, 781 F.2d 1280, 1282 (7th Cir.1986):

The first thing a federal judge should do when a complaint is filed is check to see that federal jurisdiction is properly alleged.

3 .[Footnote by this Court] In the era when The Fair was decided, what is now called a complaint was termed a declaration (in an action at law) or bill (in an action in equity).

4 . Neither the Complaint nor Jewel’s removal Petition reflects diversity of citizenship. Nor could they: Complaint ¶ 1 alleges Gatlin’s Illinois residence (and presumptively his citizenship here) as well as Jewel’s Illinois incorporation.

5 . Gatlin might, for example, have pursued his administrative and then his legal remedies under Title VII. Or Gatlin might have sued under 42 U.S.C. § 1981. But he did neither, and he has the right to stand on what he has done, not on what he has not. To imply a claim he has not asserted in place of the claims he has advanced would subvert the teaching of The Fair and undercut the principle of strict construction of the removal statutes.

6 .No reason appears for the 14-day delay in remand authorized under this District Court’s General Rule 30(b).