IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

WILLIAM STRATTON )

)

Plaintiff, )

)

vs. ) Case No. 11-cv-8011

)

MERRILL LYNCH PIERCE FENNER & ) Judge Charles R. Norgle, Sr.

SMITH, INC. )

)

Defendant. )

PLAINTIFF’S MOTION TO REMAND ACTION TO STATE COURT

The Plaintiff, William Stratton, through his attorneys, hereby moves this Court to remand

this case back to the Circuit Court of Cook County, Illinois because the federal courts do not

have subject-matter jurisdiction over the action. Subject-matter jurisdiction is lacking because the

amount in controversy does not exceed $75,000, nor does the claim involve a federal question. In

support of this motion to remand, the Plaintiff states as follows:

1. The Plaintiff brought this action in the Circuit Court of Cook County, Illinois

alleging the Defendant violated his civil rights when it wrongfully inquired into his arrest record

and used such a record as a basis for terminating his employment in violation of Section 2-103 of

the Illinois Human Rights Act, 775 ILCS § 5/2-103. That civil rights violation brought pursuant

to Illinois law is the only claim alleged in the Complaint.

2. For relief, the Plaintiff specifically requested damages in the amount of $20,000

for lost wages and $50,000 for compensatory damages. [Dkt # 1, Notice of Removal, Complaint

p. 5, Request for Relief, ¶¶ a and b]

3. The Defendant filed a Notice of Removal on November 10, 2011, removing the

Plaintiff’s state law claim to this federal court on the grounds that this Court had jurisdiction

Case: 1:11-cv-08011 Document #: 9 Filed: 11/22/11 Page 1 of 7 PageID #:27
-2-

under the provisions of 28 U.S.C. § 1332. It claimed there was complete diversity between the

Plaintiff and Merrill Lynch and the amount in controversy exceeds $75,000.

4. While the Plaintiff does not dispute that complete diversity exists between the

parties, the face of the Complaint demonstrates that the amount in controversy does not exceeds

$75,000. To the contrary, the Complaint specifically requests an amount less than $75,000 in its

prayer for relief. 

5. Notwithstanding that the Complaint requests less than $75,000, the Defendant

nevertheless suggests that a plausible, good faith estimate is all that is required to establish the

amount in controversy. [Dkt # 1, Notice of Removal, ¶ 7] Defendant’s estimate, however, is

unwarranted because the Complaint actually pleads the specific amount sought from the

Defendant and the tendering of an amount less than $75,000 will end the litigation. See,

Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955, 958-59 (7 Cir. 1998)(If the defendant th

can extinguish the plaintiff’s entire claim by tendering $75,000 or less at the outset, then the

amount “in controversy” does not exceed $75,000.)

6. Nor can the Defendant meet the jurisdictional minimum amount by resting on the

Plaintiff’s request for attorneys’ fees. While there is no doubt that continuing litigation will

propel the fees past the jurisdictional threshold, particularly if Defendant continues to file

pleadings with little or no merit, the amount in controversy is established at the time the

Complaint is filed, not subsequent events. See, Hart v. Schering-Plough Corp., 253 F.3d 272,

273 (7th Cir. 2001), citing, Gardynski-Leschuck v. Ford Motor Co., 142 F.3d at 958-59. Thus,

the Defendant must show that the attorney’s fees incurred prior to the filing of the lawsuit

exceeded $5,001.00 in order to push the amount claimed past the jurisdictional minimum set

Case: 1:11-cv-08011 Document #: 9 Filed: 11/22/11 Page 2 of 7 PageID #:28
-3-

forth in 28 U.S.C. § 1332. Defendant has not even attempted to make such a showing in its

Notice of Removal, nor can it.

7. Accordingly, except for broad, conclusory statements, the Defendant has failed to

meet its burden of showing that the amount “in controversy” exceeded $75,000 at the time the

Complaint was filed. Diversity jurisdiction, therefore, cannot be invoked pursuant to 28 U.S.C. §

1332 to support removal of the action from the Circuit Court of Cook County.

8. Alternatively, the Defendant states, without any legal support or argument, that

this Court has original jurisdiction pursuant to 42 USC § 1331 because the controversy involves

a federal question to the extent that Plaintiff’s state law claims are pre-empted by Section 19 of

the Federal Deposit Insurance Act. [Dkt # 1 Notice of Removal, ¶ 8]

9. Federal question jurisdiction requires that the case arise “under the Constitution,

laws, or treaties of the United States.” 28 U.S.C. § 1331. As a general matter, a cause of action

only arises under the laws of the United States if a federal question is presented on the face of the

plaintiff’s properly pleaded complaint. This well-pleaded complaint rule “makes the plaintiff the

master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.”

Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 96 L. Ed. 2d 318, 107 S. Ct. 2425 (1987).

10. Plaintiff’s claim set forth in the Complaint does not present a federal question

because it is based entirely on Section 2-103 of the Illinois Human Right Act. 775 ILCS § 5/2-

103. Accordingly, no federal question appears on the face of the Complaint to justify removal.

11. The Defendant, however, attempts to interject a federal question into Plaintiff’s

state law claim by arguing it is pre-empted by Section 19 of the Federal Deposit Insurance Act. 

Case: 1:11-cv-08011 Document #: 9 Filed: 11/22/11 Page 3 of 7 PageID #:29
-4-

12. Since federal preemption is most commonly raised as a defense to a Plaintiff’s

state law claims, the federal issue does not appear on the face of the Plaintiff’s complaint where

this defense is raised. Therefore, a preemption defense ordinarily cannot be the basis for federal

question jurisdiction to support removal to federal court. Metropolitan Life Ins. Co v. Taylor, 481

U.S. 58, 63 (1987). Indeed, in Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987), the Supreme

Court disallowed removal of a case stating “a case may not be removed to federal court on the

basis of a federal defense, including a defense of preemption, even if the defense is anticipated in

the Plaintiff's complaint, and even if both parties concede that the federal defense is the only

question truly at issue.” Id. at 386.

13. Only under very narrow circumstances where Congress has completely preempted a given area of state law is a defendant allowed to recharacterize a plaintiff’s state law

claim to a federal claim so that removal is proper. Metropolitan Life Ins. Co., 481 U.S. at 66. 

14. The Defendant cites absolutely no authority to suggest that the Federal Deposit

Insurance Act was intended to completely preempt state law. Section 19, which is the only

provision cited by the Defendant, states in relevant part:

(A) any person who has been convicted of any criminal offense involving

dishonesty or a breach of trust or money laundering, or has agreed to enter into a

pretrial diversion or similar program in connection with a prosecution for such

offense, may not–

 (i) become, or continue as, an institution-affiliated

party with respect to any insured depository

institution

15. Plaintiff’s state law claim, on the other hand, is based on Defendant using his

arrest record in making employment decisions in violation of Section 2-103 of the Illinois

Case: 1:11-cv-08011 Document #: 9 Filed: 11/22/11 Page 4 of 7 PageID #:30
-5-

Human Rights Act. Section 2-103 of the Act states:

Arrest Record. (A) Unless otherwise authorized by law, it is a civil rights

violation for any employer... to inquire into or to use the fact of an arrest... as a

basis to refuse to hire,... discharge, discipline, tenure or terms, privileges or

conditions of employment....[Emphasis added]

16. The doctrine of “complete preemption” is clearly inapplicable to the Plaintiff’s

claim because Section 2-103 of the Illinois Human Rights Act expressly limits its scope with the

language “Unless otherwise authorized by law” Therefore, by its very terms, the Illinois Human

Rights Act cannot be inconsistent with federal law because it expressly recognizes that another

law, including federal law, may be a defense to the civil rights violation alleged. 

17. Moreover, Section 19 is irrelevant to the Plaintiff’s claims because it is expressly

based on convictions while the Illinois Act is based on arrests. The two statutes, therefore, do not

even involve the same subject-matter. 

18. The Defendant’s Notice of Removal is, therefore, improper because the

Complaint does not seek damages in excess of $75,000 to satisfy the amount in controversy

under 28 U.S.C. § 1332 nor is a federal question present to support jurisdiction under 28 U.S.C. §

1331. Accordingly, the case must be remanded back to the state court because this Court lacks

subject-matter jurisdiction.

Wherefore, the Plaintiff, William Stratton, hereby requests that this Court remand the

case to the Circuit Court of Cook County, Illinois because the federal courts lacks subject-matter

jurisdiction over the claim. Plaintiff further requests that this Court grant him such further relief

it deems just and proper, including awarding him his reasonable costs and attorney’s fees

incurred in connection with the improper removal of this case to federal court.

Case: 1:11-cv-08011 Document #: 9 Filed: 11/22/11 Page 5 of 7 PageID #:31
-6-

WILLIAM STRATTON

By: /s/ Marshall J. Burt 

One of her attorney

Marshall J. Burt, Esq. 

Andrew J. Cohen, Esq.

77 West Washington Street

Suite 1900

Chicago, IL 60602

(312) 419-1999 - telephone

(312) 456-0237 - facsimile

Case: 1:11-cv-08011 Document #: 9 Filed: 11/22/11 Page 6 of 7 PageID #:32
-7-

CERTIFICATE OF SERVICE

I, the undersigned attorney for the Plaintiff, do hereby certify that on November 22, 2011, I

caused a copy of the foregoing Motion to Remand Action to State Court to be electronically filed

with the Clerk of the Northern District of Illinois of the United States District Court using the

CM/ECF which will electronically serve the following attorneys of record.

Jack D. Rowe, jrowe@lathropgage.com

Angela M. Tsevis, atsevcis@lathropgage.com

Lathrop & Gage, LLP

2345 Grand Boulevard, Suite 2200

Kansas City, Missouri 64108-2684

Bryan Clark

bclark@lathropgage.com

Lathrop & Gage

100 North Riverside Plaza, Suite 2200

Chicago, Illinois 60606

/s/ Marshall J. Burt 

Case: 1:11-cv-08011 Document #: 9 Filed: 11/22/11 Page 7 of 7 PageID #:33