IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

MOARINE FICK, )

)

Plaintiff, )

)

vs. ) NO. 3:14-CV-307

)

LAPORTE COUNTY SHERIFF’s )

DEPARTMENT, et al. )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court sua sponte on the Notice of

Removal, filed by Defendants LaPorte County Sheriff’s Department,

Mike Mollenhauer, Captain Scott Bell, and Sergeant S. Vance, on

February 14, 2014. (DE #2.) For the reasons set forth below, this

Court ORDERS Defendants to submit a brief including citations to

relevant law stating with precision why federal question

jurisdiction exists. The brief shall be filed no later than June

6, 2014. Failure to file the required brief may result in the

Court sua sponte remanding this case to the LaPorte Superior Court

for lack of subject matter jurisdiction. 

BACKGROUND

On February 4, 2014, Moarine Fick (“Fick”) filed a complaint

in the LaPorte Superior Court (46D03-1402-PL-183). (DE #1.) The

complaint alleges that Fick was wrongfully terminated for speaking
out against an incident where she witnessed a colleague use

excessive force. She also alleges that she was required to arrive

for her shift 15 minutes early but was not paid for either that

time or her 15 minutes breaks, in violation of the LaPorte County

Handbook. The “legal claims” section of the complaint alleges only

that:

The challenged actions of the defendants

violate Indiana Tort Claims Act, I.C. § 34-13-

3, et seq., resulting in the withholding of

wages and wrongful termination of the

plaintiff, Moraine Fick.

(DE #1 at 4). The only reference to federal law or any federal

statute in Fick’s complaint is a prayer for relief requesting

“cost, including a reasonable attorney fee, pursuant to 42 U.S.C.

§ 1988."

On February 14, 2014, a Notice of Removal was filed by

Defendants. (DE #2). In that Notice, Defendants assert that

removal is proper based on federal question jurisdiction, 28 U.S.C.

§ 1331. More specifically, Defendants state that:

4. Though Plaintiff does not specify the

cause(s) of action or legal bases for her

claims, she does indicate that she is seeking

attorney’s fees under 42 U.S.C. § 1988, the

federal statute authorizing attorney’s fees

for the “prevailing party” in actions brought

under 42 U.S.C. § 1983 for alleged violations

of constitutional rights, among others. 

5. Because claims under 42 U.S.C. § 1983 for

constitutional violations are inherently

claims pursuant to federal law, Defendants are

entitled to file this Notice of Removal. 

(DE #2 at 2).

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DISCUSSION

A case may be removed from state court to federal court if it

is based on statutorily permissible grounds and if it is timely.

Boyd v. Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir. 2004). 

See 28 U.S.C. § 1441; 28 U.S.C. § 1446. The Seventh Circuit has

directed that, “[c]ourts should interpret the removal statute

narrowly and presume that the plaintiff may choose his or her

forum. Any doubt regarding jurisdiction should be resolved in

favor of the states, and the burden of establishing federal

jurisdiction falls on the party seeking removal.” Doe v.

Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993) (citations

omitted). The party seeking removal must demonstrate that removal

is proper. Boyd, 366 at 529. “[I]t is not enough to file a

pleading and leave it to the court or the adverse party to negate

jurisdiction.” Brill v. Countrywide Home Loans, Inc., 427 F.3d

446, 447 (7th Cir. 2005) (citing Lujan v. Defenders of Wildlife,

504 U.S. 555, 561 (1992)). When challenged, the party seeking

federal jurisdiction bears the burden of proving by a preponderance

of the evidence that a case belongs in federal court. Meridian

Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 540-43 (7th Cir. 2006). 

Even where not challenged by a party, “federal courts are always

obliged to inquire sua sponte whenever a doubt arises as to the

existence of federal jurisdiction.” Tylka v. Gerber Products Co.,

211 F.3d 445, 447 (7th Cir. 2000) (quotation marks and citation

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omitted). See also Smith v. American General Life and Acc. Ins.

Co., Inc., 337 F.3d 888, 892 (7th Cir. 2003) (A court has an

“independent obligation” to ensure that federal subject matter

jurisdiction exists.)

Subject-matter Jurisdiction

Defendants removed this case from state court based on federal

question jurisdiction. 28 U.S.C. § 1331. For federal question

jurisdiction to exist, the action must arise “under the

Constitution, laws, or treaties of the United States.” Id. 

“Ordinarily, the basis for federal-question jurisdiction must be

apparent from the face of the plaintiff’s well-pleaded complaint.” 

Crosby v. Cooper B-Line, Inc., 727 F.3d 795, 800 (7th Cir. 2013);

see also Northeastern Rural Elec. Membership Corp. v. Wabash Valley

Power Association, 707 F.3d 883 (7th Cir. 2013). In the instant

case, the complaint itself leaves much to be desired, but before

this Court can pass judgment on whether the complaint can survive

a motion to dismiss, the Court must be satisfied that it has

subject-matter jurisdiction. 

The only mention of any federal law in Fick’s complaint is a

reference in the prayer for relief which, among other things, seeks

reasonable attorney fees under 42 U.S.C. § 1988. The federal

statute Fick cites to, 42 U.S.C. § 1988, allows a court to award

attorneys fees to a party who prevails in one of the causes of

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action enumerated in the statute. 42 U.S.C. § 1988. The body of

the complaint, however, does not suggest that Fick intended to

bring a claim under 42 U.S.C. § 1983 (as Defendants presume) or any

other federal claim referenced in 42 U.S.C. § 1988. Rather, it

appears (although this Court cannot be certain) that the reference

to 42 U.S.C. § 1988 was a scriveners error of some sort. See

George v. Bd. of Cnty. Comm’rs of Franklin Cnty., 1998 WL 220206,

No. 98-4025-RDR (D.Kan. Apr. 16, 1988)(holding that where an

amendment to the complaint inadvertently failed to excise every

reference to federal law, leaving an isolated reference to the

federal statutes referenced in the previous complaint, it was

nonetheless clear that the plaintiff intended to state only state

law claims); see also Brumfield v. Baker, No. 11-507-BAJ-CN, 2011

WL 5178267 (M.D. La. Sept. 30, 2011)(“[I]t is the cause of action,

not the relief requested that gives rise to a claim based on

federal law.”). Because Defendants bear the burden of establishing

that removal is proper, they must convince this Court that Fick’s

complaint arises under federal law. More specifically, Defendants

must explain with specificity why the lone reference to 42 U.S.C.

§ 1988 in the prayer for relief section, without any reference to

an underlying federal cause of action that would permit such

relief, is sufficient to bestow federal question jurisdiction on

this Court. 

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CONCLUSION

For the reasons set forth above, this Court ORDERS Defendants

to submit a brief, including citations to relevant law, stating

with precision why federal question jurisdiction exists. The brief

shall be filed no later than June 6, 2014. Failure to file the

required brief may result in the Court sua sponte issuing a remand

to the LaPorte Superior Court for lack of subject matter

jurisdiction. 

DATED: May 16, 2014 /s/RUDY LOZANO, Judge

United States District Court

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