1

 This Report and Recommendation is amended solely to attach the instructions

regarding the parties’ Rights and Responsibilities Following Recommendation. 

2

 Plaintiff initially sought as well an award sanctions for defendants’ wrongful removal

of that claim but withdrew that request in his reply brief. (Doc. 12).

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CALVIN WILSON, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 10-00078-CG-N

)

DOMINION MANAGEMENT, LLC, et al., )

)

Defendants. )

AMENDED REPORT AND RECOMMENDATION1

This action is before the Court on a motion (doc. 9) filed by the plaintiff, Calvin

Wilson, to sever and remand Count One of plaintiff’s Complaint, a claim based on

alleged violations of Alabama’s Workers Compensation Laws (Ala. Code § 25-5-1, et

seq.) for wrongful discharge.2

 This matter has been referred to the undersigned

Magistrate Judge pursuant to 28 U.S.C. § 636 (b)(1)(A) and Standing Order 6 of this

Court. Upon consideration of plaintiff’s motion (doc. 9), defendants’ response in

opposition thereto (doc. 10), plaintiff’s reply (doc. 12) and all other pertinent portions of

the record, the undersigned recommends that the motion be GRANTED.

1. Background.

Plaintiff Calvin Wilson commenced this action on January 18, 2010, in the Circuit

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Court of Mobile County, Alabama. In Count One of his Complaint, Wilson asserts a

claim against the defendants, his prior employers, for wrongful discharge in violation of

Alabama’s Workers Compensation Laws, Ala. Code § 25-5-1, et seq. In Count Two of

his Complaint, Wilson seeks damages for unpaid overtime under the federal Fair Labor

Standards Act (“FLSA”), 29 U.S.C. § 201. On February 18, 2010, defendants removed

the action to this Court (doc. 1) pursuant to 28 U.S.C. §§ 1331 and 1441(c). 

On February 23, 2010, Wilson filed the present motion (doc. 9) to sever and

remand Count One on the grounds that his Workers Compensation claim is not removable

pursuant to 28 U.S.C. § 1445(c). Defendants concede that Wilson’s retaliatory discharge

claim, a claim under Ala. Code § 25-1-11.1, “is considered to be a claim arising under the

workers’ compensation laws of the state that is not removable under 28 U.S.C. §

1445(c).” Defendants’ Opposition Brief (Doc. 11) at 2, citing Reed v. Heil Co., 206 F.3d

1055, 1060-61 (11th Cir. 2000). However, defendants nonetheless argue that “[b]ecause

Plaintiff’s Complaint contains two separate and independent causes of action – one of

which is removable [the FLSA claim] and one of which is non-removable [the Workers

Compensation claim], the entire case is subject to removal under Section 1441(c).” Id. at

3, citing Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 105-106 (5th Cir. 1996). The

motion has been fully briefed and is ripe for the court’s consideration.

2. Discussion.

"A civil action in any State court arising under the workmen's compensation laws

of such State may not be removed to any district court of the United States." 28 U.S.C. §

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3

 Section 1447(c) of Title 28 states: “A civil action in any State court arising under the

workmen's compensation laws of such State may not be removed to any district court of the

United States.”

3

1445(c). The appropriate remedy when a properly removed case includes a claim

captured by Section 1445(c) is to remand the worker's compensation claim to state court.

Reed, 206 F.3d at 1061, 1063; Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1119

(5th Cir.1998); Richardson v. Georgia-Pacific Corp., 2007 WL 3287361 at *3-4 (S. D.

Ala.2007). 

Wilson’s FLSA claim was properly removed pursuant to 28 U.S.C. §§ 1331 and

1441(c) because it is a claim arising under federal law over which this Court has original

jurisdiction. However, Wilson’s retaliatory discharge claim brought pursuant to Ala.

Code § 25-1-11.1 has been held to “arise under” the Alabama workers’ compensation

laws and, consequently, this Court “lacks subject matter jurisdiction to entertain

[Wilson’s] retaliatory discharge claim [and] it must be remanded to state court.” Reed,

206 F.3d at 1060-61. 

 The Eleventh Circuit has stated unequivocally that “[a] federal statute, 28 U.S.C.

§ 1445(c), bars the removal to federal court of claims arising under state workers'

compensation laws.” Id. at 1057.3

 In Reed, the Court reversed the district court’s grant

of summary judgment against the plaintiff on the retaliatory discharge claim and directed

that the claim be remanded to state court but affirmed the district court’s grant of

summary judgment against the plaintiff on his American’s With Disabilities Act claim. 

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Id. at 1062. See also Nelson v. Dolgencorp, Inc., 2005 WL 1588688, * 4 (S.D. Ala. June

30, 2005)(“ Nelson's claim for worker's compensation benefits (Count One) is not [by

virtue of 28 U.S.C. § 1445(c)] subject to removal to this Court . . .[and] must be remanded

to the Circuit Court of Escambia County, Alabama from whence it came.); Wall v.

Kimberly-Clark, 2000 WL 1367995, *1 (S.D. Ala. Sept. 19, 2000)(“A claim for benefits

under the Alabama worker's compensation laws is not subject to removal to federal

district court.... As such, Defendants' removal of Plaintiff's claim for worker's

compensation benefits pursuant to the State of Alabama Worker's Compensation Act

(Count One) was not proper.”)

Despite this precedent, defendants nonetheless argue that this Court has

jurisdiction over Wilson’s retaliatory discharge claim by virtue of 28 U.S.C. § 1441(c),

which provides:

Whenever a separate and independent claim or cause of action within

the jurisdiction conferred by section 1331 of this title [federal

question jurisdiction], is joined with one or more otherwise

non-removable claims or causes of action, the entire case may be

removed and the district court may determine all issues therein, or, in

its discretion, may remand all matters in which state law

predominates.

Defendants’ Opposition Brief (Doc. 11) at 3, citing Eastus, supra, 97 F.3d at 105-106. 

However, neither Eastus nor § 1441(c) provides this Court with subject matter over

Wilson’s retaliatory discharge claim. The Fifth Circuit in Eastus was not presented with a

claim arising under a state’s workers’ compensation laws, a claim expressly made nonremovable by federal statute, namely 28 U.S.C. § 1446(c). Rather, the two state law

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The Fifth Circuit in Eastus ultimately upheld the district court’s remand on the tortious

interference with prospective contractual relationship claim as a “separate and independent claim

or cause of action under § 1441(c)” from the removed federal question (FMLA) claim and a

claim which “is predominated by state law; in fact, it is solely state law.” 97 F.3d at 105-106. 

The Fifth Circuit reversed, however, the district court’s remand of the intentional infliction of

emotional distress claim as an abuse of discretion because the claim was not separate and

independent of the FMLA termination claim but instead involved the same facts. Id. 97 F.3d at

104-105.

5

claims at issue in Eastus (tortious interference with prospective contractual relations and

intentional infliction of emotional distress) were not claims which had been declared nonremovable by a federal statute but were simply “otherwise” non-removable in that, absent

complete diversity between the parties, they could not be removed without being joined

with a federal claim or cause of action. See Buchner v. F.D.I.C., 981 F.2d 816, 818 (5th

Cir. 1993)(“The authority of a district court to remand a properly removed case is

dependent on the nature of the claims which the case comprises and the nature of the

district court's jurisdiction over those claims.”) In Eastus, the state law claims were

removable under § 1441(c) solely by virtue of their joinder to a federal Family and

Medical Leave Act (FMLA) claim.4

 

Moreover, the Fifth Circuit has held that “where the workers compensation

retaliatory discharge claim was removed along with an Age Discrimination in

Employment Act (ADEA) claim, § 1445(c) prohibits removal of state worker's

compensation claims regardless of whether jurisdiction is based on diversity or federal

question [and] the district court erred by failing to sever and remand the state worker's

compensation claim.” Barrow v. Harris Corp., 2004 WL 2713276, * 2 (W.D. Tex. Nov.

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30, 2004), citing Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1118-1119 (5th Cir.

1998). Consequently, there is no support for defendants’ interpretation of § 1441(c) and

Eastus or the application of either to the case at bar. As such, the court does not have

jurisdiction over the worker’s compensation claim and it must be remanded to state court.

CONCLUSION

For the reasons stated above, § 1445(c) prohibits removal of state worker’s

compensation claims, including those for retaliatory discharge and, consequently, this

Court must sever and remand plaintiff’s workers’ compensation retaliatory discharge

claim as set forth in Count One of his Complaint. However, plaintiff’s FLSA claim was

properly removed to this court. It is, therefore recommended that plaintiff’s motion to

sever and remand (doc. 9) Count One of his Complaint to the Circuit Court of Mobile

County, Alabama, from whence it was removed be GRANTED and that this Court retain

jurisdiction over the FLSA claim.

DONE this 29th day of March, 2010.

/s/ Katherine P. Nelson 

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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RIGHTS AND RESPONSIBILITIES FOLLOWING

RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or anything in it must, within

fourteen days of the date of service of this document, file specific written objections with the

clerk of court. Failure to do so will bar a de novo determination by the district judge of anything

in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)©; Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles

v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for challenging

the findings and recommendations of the magistrate judge is set out in more detail in SD ALA

LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate judge in a

dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by

filing a “Statement of Objection to Magistrate Judge’s Recommendation” within

ten days after being served with a copy of the recommendation, unless a different

time is established by order. The statement of objection shall specify those

portions of the recommendation to which objection is made and the basis for the

objection. The objecting party shall submit to the district judge, at the time of

filing the objection, a brief setting forth the party’s arguments that the magistrate

judge’s recommendation should be reviewed de novo and a different disposition

made. It is insufficient to submit only a copy of the original brief submitted to the

magistrate judge, although a copy of the original brief may be submitted or

referred to and incorporated into the brief in support of the objection. Failure to

submit a brief in support of the objection may be deemed an abandonment of the

objection.

A magistrate judge’s recommendation cannot be appealed to a Court of Appeals; only the

district judge’s order or judgment can be appealed.

2. Transcript (applicable where proceedings tape recorded). Pursuant to 28 U.S.C. §

1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this

action are adequate for purposes of review. Any party planning to object to this

recommendation, but unable to pay the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required before the United States will pay the cost

of the transcript.

Done this 2nd day of April, 2010.

/s/ Katherine P. Nelson 

UNITED STATES MAGISTRATE JUDGE

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