IN	THE	UNITED	STATES	DISTRICT	COURT	FOR	THE

SOUTHERN	DISTRICT	OF	ALABAMA

SOUTHERN	DIVISION

HARBOR	

COMMUNICATIONS,	LLC	

BOIHEM	INVESTMENT	

COMPANY,	LLC,	and	J	&	L,	

LLC,

Plaintiffs,

v.

SOUTHERN	LIGHT,	LLC,	

ANDREW	M.	NEWTON	and	

EDWARD	W.	FORBESS,

Defendants,

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CIVIL	ACTION	NO.

14-00403-CB-B

		ORDER

This	matter	is	before	the	Court	on	Plaintiffs’	motion	to	remand	this	action	to	

state	court.		After	due	consideration	of	the	motion	(Doc.	10),	Defendants	response	

(Doc.	18)	and	Plaintiffs’	reply	(Doc.	19),	the	Court	finds	that	remand	is	required	

because	removal	was	untimely.

Background

This	action	was	filed	in	the	Circuit	Court	of	Baldwin	County,	Alabama	on	

March	29,	2013	by	Plaintiffs	Harbor	Communications,	LLC,	(Harbor),	Boihem	

Investment	Company,	LLC	and	J	&	L,	LLC.		The	complaint	alleged	only state	law	

causes	of	action	against	Defendants	Southern	Light,	LLC,	Andrew	M.	Newton	and	

Edward	W.	Forbess,	arising	from	the	alleged	unauthorized	conveyance	of	Harbor’s	

facilities	and	equipment	to	Southern	Light.1		According	to	the	Complaint,	the	

																																																							 1 All	of	the	parties	are	Alabama	citizens.

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ultimate	result	of	this	wrongful	conveyance	was	that	Southern	Light	charged	Harbor	

approximately	$700,000	per	year	to	use	equipment	that	Harbor	rightfully	owned.		

After	the	state	court	litigation	was	commenced,	Southern	light	began	refusing

to	allow	Harbor’s	new	customers	to	interconnect	to	Southern	Lights	fiber	optic	lines	

and	facilities.			On	June	24,	2014,	Plaintiffs	filed	a	Motion	for	Temporary	Restraining	

Order (TRO)	and	Preliminary	Injunction	in the	state	court	action	requesting	an	

order	“prohibiting	Southern	Light	from	refusing	interconnection	requests	from	

Harbor	and/or	allowing	Harbor	the	type	of	access	to	its	equipment	that	would	allow	

Harbor	to	interconnect	through	an	alternate	network	service	provider.”		(Pls.’	Br.,	Ex	

2,	Doc.	1-1,	p.	49.)		

In	its	brief	in	support	of	the	motion, Harbor	argued	that	it	met	the	

requirements	for	obtaining	preliminary	injunctive	relief	under	state	law.		Among	

those	requirements	was	the proof	that	the	movant	“’has	at	least	a	reasonable	chance	

of	success	on	the	ultimate	merits	of	his	case.’”		(Id. Ex.	3	)(quoting	Holiday	Isle,	LLC	v.	

Adkins,	12	So.	3d	1173,	1176	(Ala.	2008)).		Because	the	basis	of	Plaintiffs’	successon-the-merits	arguments	is key	to	the	removal	issue,	it	is	quoted	verbatim:

First,	federal	statutes	and	their	supporting	regulations	clearly	

demonstrate	that	Southern	Light	has	a	duty	to	interconnect	with	

Harbor.		The	controlling	statutory	authority	is	the	

Telecommunications	Act	of	1996.		The	Act	states	that	“Each	

telecommunications	carrier	has	the	duty...to	interconnect	directly	or	

indirectly	with	the	facilities	or	equipment	of	other	

telecommunications	carriers.”		47	U.S.C.	§	251(a).		The regulations	

implementing	that	federal	statute	are	equally	clear	on	this	duty.		The	

regulations	define	a	“Telecommunications	Carrier”	as	“any	provider	of	

telecommunications	services.”		47	C.F.R.	§	515.		The	regulations	echo	

the	statutory	text	by	stating,	“Each	telecommunications	carrier	has	

the	duty...to interconnect	directly	or	indirectly	with	the	facilities	and	

equipment	of	other	telecommunications carriers.”		Id.	at	§	51.100.		As	

a	“Telecommunications	carrier,”	Southern	Light	has	an	unambiguous	

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duty	to	interconnect	with	Harbor,	just	as	AT&T	has	a	duty	to	

interconnect	with	Harbor	and	Southern	Light.

Second,	Southern	Light	has	repudiated	its	agreement	with	

Boihem	that	it	would	accept	new	orders	from	Harbor	in	exchange	for	

its	infrastructure’s	presence	on	Boihem’s	tower	sites.

Third,	Southern	Light	has	taken	the	position	in	this	litigation	

that	the	MSA	is	valid	and	enforceable.		Southern	Light	should	not	be	

permitted	to	take	this	position,	yet	simultaneously	deny	Harbor	the	

basic	service	connections	inherent	in	that	agreement.		Southern	Light

has	stated	that	it	will	not	connect	Harbor	“as	long	as	there’s	pending	

litigation.”		Because	the	MSA	obligates	Southern	Light	to	interconnect	

with	Harbor,	Southern	Light	will	carry	a	duty	of	interconnection	even	

if	it	prevails	in	the	underlying	lawsuit and	proves	that	the	MSA	is	valid	

and	enforceable.

(Id.)			

In	their	August	25,	2014	response	to	Plaintiffs’	motion,	Defendants	

addressed	Plaintiffs’	first	success-on-the-merits	argument	under	the	heading	

“Southern	Light	has	no	statutory	duty	to	provide	service	to	Harbor [under	47	U.S.C.	

§	251(a)].”	(Id.)		 On	the same	day,	Plaintiffs filed	an	amended	motion	for	TRO	and	

preliminary	injunction	“to	request	that	the	Court	award,	in	addition	to	all	other	

relief	to	which	Plaintiff	is	entitled,	a	reasonable	attorney’s	fee	and	costs	of	litigation	

pursuant	to	47	U.S.C.	§	207.”		(Id. Ex.	4.)		A	hearing	was	held	on	August	26,	2014.		On	

August	28,	2014,	Defendants	filed	a	“Motion	to	Dismiss	or	Strike	Plaintiffs’	Federal	

Telecommunications	Act	Claim.”		(Doc.	1-5,	58.)		The	state	court	denied	that	motion	

on	August	29,	2014.2		That	same	day,	Defendants	filed	a	Notice	of	Removal	in	this	

Court.

Defendants	invoke	removal	jurisdiction	under	28	U.S.C	1441(a)	based	on	

original	jurisdiction	under	28	U.S.C.	§	1331,	which	gives	federal	court	original	

																																																							 2 The	state	court	record	attached	to	the	Notice	of	Removal	does	not	contain	

an	order	or	notice	of	ruling	on	the	motion	to	dismiss	or	strike.		However,	Defendants	

state	in	their	Notice	of	Removal	that	the	motion	was	denied	on	August	29,	2014.

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jurisdiction	over	civil	actions	arising	under	federal	laws.		The	federal	question	claim	

or	claims	giving	rise	to	jurisdiction,	according	to	the	Notice	of	Removal,	are	found	in	

the	Amended	Motion	for	TRO	wherein	“Harbor	is	pursuing	claims	under	the	

Telecommunications	Act	of	1996,”	which	include	attorney’s	fees	and	costs	pursuant	

to	47	U.S.C.	§	207	and	allegations	that	Southern	Light	violated	47	U.S.C.	§§	251,	201	

and	202.”		(Doc.	1	¶	15.)

Legal	Analysis

The	question	before	the	Court	is	whether	the	notice	of	removal	was	timely.		

The	procedure	for	removal	is	governed	by	28	U.S.C.	§	1446,	which	sets	a	30-day	

removal	window.		If	the	case	was	not	initially	removable,	“a	notice	of	removal	may	

be	filed	within	30	days	after	[the	defendant’s	receipt]	.	.	.	of	a	copy	of	an	amended	

pleading,	motion	order,	or	other	paper	from	which	it	may	first	be	ascertained	that	

the	case	is	one	which	is	or	has	become	removable.”		28	U.S.C.	§	1446(b)(3).	 Because	

removal	jurisdiction	raises	significant	federalism	concerns,	federal	courts	are	

directed	to	construe	removal	statutes	strictly.		Univ.	of	S.	Alabama	v.	Am.	Tobacco	Co.,	

168	F.3d	405,	411	(11th	Cir.	1999).		Though	not	jurisdictional,	the	30-day	removal	

period	is	“a	strictly	applied	rule	of	procedure	that	may	not	be	extended	by	the	

court.”		BBC	Apartments, Ltd.	v.	Browning,	994	F.	Supp.	1440,	1442	(S.D.	Fla.	1997).		

The	removing	party	has	the	burden	of	demonstrating	that	removal	was	proper.		Id.

“[F]ederal-question	jurisdiction	is	invoked	by	and	large	by	plaintiffs	pleading	

a	cause	of	action	created	by	federal	law.”		Grable	&	Sons	Metal	Prods.,	Inc.	v.	Darue	

Eng'g	&	Mfg.,	545	U.S.	308,	312	(2005).		Plaintiffs	argue	that	notice	of	the	

Telecommunications	Act	claim	was	contained	in	the	original	Motion	for	

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TRO/Preliminary	Injunction	(“the	Motion”)	which	Defendants	received	more	than	

30	days	prior	to removal.		Defendants	counter	that	they did	not	receive	notice	of a	

cause	of	action	made	under	the	Telecommunications	Act	until	Plaintiffs	filed	their	

Amended	Motion	for	TRO/Preliminary	Injunction (“the	Amended	Motion”)	adding	a	

claim	for	attorney’s	fees	under	the	Act.	More	specifically,	Defendants contend the	

Motion	did	not	assert a	cause	of	action	at	all,	and,	if	it	did,	the	cause	of	action	was	

actually	a	state	law	claim	for	preliminary	injunctive	relief.		These	arguments	twist

the	traditional	definition	of	a	motion	for	preliminary	injunction.		

A	motion	for	preliminary	injunction	is	a	pleading	by	which	a	party	seeks	“an	

extraordinary	and	drastic	remedy”	when	“drastic	relief	is	necessary	to	preserve	the	

status	quo.”		All	Care	Nursing	Serv.,	Inc.	v.	Bethesda	Mem.	Hosp.,	Inc.,	887	F.2d	1536,	

1537	(11th Cir.	1989);	see	also Spinks	v.	Automation	Personnel	Servs.,	Inc.,	49	So.3d	

186	(Ala.	2010).		Whether	a	motion	for	preliminary	injunction is	brought	in	state	or	

federal	court,	relief	will	be	granted	only	if	the	movant	shows,	inter	alia,	a	substantial	

likelihood	of	success	on	the	merits	of	his	underlying	claim.		Siegel	v.	LaPore,	234	F.3d	

1163,	1176	(11th Cir.	2000)	(per	curiam)	(en	banc);		Barber	v.	Cornerstone	

Community	Outreach,	Inc.,	42	So.3d	65,	78	(11th Cir.	2009).		“[A]ny	motion	or	suit	for	

a	traditional	injunction	must	be	predicated	upon	a	cause	of	action.	.	.	.	regarding	

which	a	plaintiff	must	show	a	likelihood	or	actuality	of	success	on	the	merits.”

Klay	v.	United	Healthgroup,	Inc.,	376	F.3d	1092,	1097	(11th	Cir.	2004).	

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Plaintiffs’	Motion	was	not	tied	to	any cause	of	action	asserted	in	the	

complaint,	but	that	does	not	mean	there	was	no	underlying cause	of	action.3 The	

Motion	cited	three	claims	that	allegedly	entitled	Plaintiffs	to	preliminary	injunctive	

relief:		a	cause	of	action	arising	from	the Telecommunications	Act	and	two	state-law	

causes	of	action.

4		

Defendants,	however,	do	not	concede	that	Plaintiffs’	reliance	on	federal	law	

as	a	basis	for	success	on	the	merits	is	the	same	as	alleging	a	cause	of	action	under	

federal	law.		Instead,	they	point	out	that “asserting	the	violation	of	a	federal	statute	

in connection	with	a	state	law	claim	is	not	the	same	thing	as	alleging	a	cause	of	

action	created	by	federal	law.”		(Defs.’	Rsp.	8,	Doc.	18	(emphasis	omitted)).		Next,	

they	argue	that	the	motion	for	preliminary injunction	is,	itself,	the	state	law	cause	of	

action	and	imply	that	the	alleged	Telecommunications	Act	violation	is	nothing	more	

than	an	element	of	that	claim.		The	fallacy	in	this	argument	is	clear.		A	motion	for	

preliminary	injunction	is	not	a	cause	of	action.		It	is	a	procedural	mechanism	by	

which	a	party	may	obtain	relief.		In	the Motion,	Plaintiffs	sought	a	preliminary	

injunctive	relief	based	on	both	federal	and	state	law	causes	of	action.		Defendants	

should	have	removed	this	action	within	thirty	days after	receiving	notice	of	the	

Motion.

																																																							 3 It	would	certainly	have	simplified	matters	if	Plaintiffs	had	amended	their	

complain	to	include	the	claims	asserted	in	the	Motion	for	TRO/Preliminary	

Injunction.		Nevertheless,	the	Motion	was	sufficient	to	put	Defendants	on	notice	of	a	

federal-law	cause	of	action.		Furthermore,	Defendants’	argument	is	undercut	by	the	

fact	that	the	Notice	of	Removal	was	based	on	the	Amended	Motion for	TRO	

Preliminary	Injunction,	which	also	is	not	tied	to	any	claim	asserted	in	the	Complaint.		

4 Defendants	argue	that	they	were	not	on	notice	of	a	federal	cause	of	action	

until	Plaintiffs	amended	the	Motion	to	assert	a	claim	for	attorney’s	fees	under	the	

Telecommunications	Act.		This	argument	undermines	Defendants’	argument	that	

the	Motion	did	not	plead	a	cause	of	action.

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Even	if	removal	was	untimely,	Defendants alternatively argue,	this	Court	

should	ignore	the 30-day	removal	requirement	because	the	state	court	has	no	

jurisdiction	over	the	federal	claim.		Defendants	point	out	that	only	federal	district	

courts	and	the	Federal	Communications	Commission	have	jurisdiction	over	

Telecommunications	Act	claims.		AT&T	Corp.	v.	Coeur	d’Alene	Tribe,	295	F.3d	899,	

905	(9th Cir.	2002).	 Defendants	rely	on	three	cases	in	which	district	courts	have	

used	exclusive	federal	jurisdiction	as	a	basis	for	ignoring the	removal	statute’s	

procedural	requirements.		In	Barefield	v.	State	Farm	&	Cas.	Co.,	296	F.Supp.2d	741	

(S.D.	Tex.	2003),	the	court	concluded	that	timeliness	of	removal	was	irrelevant	

because	federal	courts	had	original	exclusive	jurisdiction	over	the	plaintiff’s	claim	

under	the	National	Flood	Insurance	Program.		Unfortunately,	Barefield	creates	an	

exception	to	the	removal	statute	without	actually	addressing	the	statute	itself.		

Section	1446(b)	makes	no	distinction	between	cases	involving	exclusive	jurisdiction	

and	those	involving	concurrent	jurisdiction.		It	simply and	clearly requires	that	the	

notice	of	removal	be	filed	within	30	days	after	receipt	of	the	complaint	or,	as	in	the	

instant	case,	the	paper	from	which	the	basis	for	removal	can	be	ascertained.		See	28	

U.S.C.	§	1446(b)(1)	and	(b)(3).		The	other	cases	cited	by	Defendant	are	similarly	

flawed.		Morris	v.	Simsol	Ins. Servs.,	2013	WL	6590584	(W.D.	La.	Dec.	16,	2013),	

followed	Barefield	without	discussion.	 In Fitzgerald v.	Bestway	Servs.,	Inc. 284	

F.Supp.2d	1311	(N.D.	Ala.	2003),	the	court	actually	found	that	removal	was	timely	

under	the	last-served	defendant	rule	but stated	in	dicta	that	it	“would	be	required	to	

exercise	jurisdiction	over	the	explicit	ERISA	claim	even	if	[	]removal	had	not	been	

timely.” Id. at	1317.		Like	the	Barefield	decision,	Fitzgerald	does	not	discuss	the	

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removal	statute	or	provide	any	analysis	to	support this	de	facto	exception	to	the	

removal	statute.

The	cases	cited	above,	which	represent	the	minority	view,	run	contrary	to	

the	longstanding	principle	that	“all	rules	governing	removal.	.	.	must	be	strictly	

interpreted	and	enforced	because	of	the	significant	federalism	concerns	arising	in	

the	context	of	federal	removal	jurisdiction.”		Russell	Corp	v.	American	Home	Assur.	

Co.,	264	F.3d	1040,	1049	(11th Cir.	2001).		Thus,	the	majority	of	courts	that	have	

addressed	the	issue	have	concluded	that “removal	is	permitted	only	if	the	statutory	

requirements	have	been	satisfied	and	the	fact	that	the	Court	might	have	exclusive	

jurisdiction	does	not	dispense	with	the	necessity	of	complying	with	the	statutory	

requirements.”		Bradwell	v.	Silk	Greenhouse,	Inc.,	828	F.Supp.	940,	944	(M.D.	Fla.	

1993); accord	Pix	v.	Alper,	2014	WL	3927536	(W.D.	Wash.	Aug.	12,	2014)	(“courts	

have	consistently	rejected	the	argument	that	a	removing	defendant	does	not	have	to	

comply	with	the	rule	of	unanimity	simply	because	exclusive	federal	jurisdiction	

exists”); Nichols	v.	HealthSouth	Corp.,	2012	WL	3929797	(N.D.	Ala.	Sept.	10,	2012)	

(recognizing	that	“a	claim	providing	for	exclusive	federal	jurisdiction	does	not	

exempt	defendants”	from	removal	statute’s	procedural	requirements);	Harbour	

Light Towers	Assoc.	v.	Ameriflood,	LLC,	 2011	WL	2517222 (M.D.	Fla.	June	23,	2011)	

(granting	motion	to	remand	based	on	defect	in	removal	procedure	even	though	

federal	court	had	exclusive	jurisdiction	based	on	National	Flood	Insurance	Act);	

Malone	v.	Malone,	2007	WL	789449	(D.	Or.	Mar.	13,	2007)	(“the	court	would	add	this	

case	to	the	apparent	majority”	requiring	remand	in	cases	of	defective	removal	even	

if	exclusive	ERISA	jurisdiction	existed);	Viala	v.	Owens-Corning	Fibeglas Corp.,	1994	

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WL	139287,	*2	n.	3	(N.D.	Cal.	Apr.	13,	1994)	(“nothing	in	the	language	of	sections	

1441	or	1446	or	in	the	case	law	surrounding	these	sections	lends	credence”	to	

defendant’s	claim	that	procedural	removal	requirement	need	not	be	met	if	the	

federal	question	is	one	over	which	the	federal	court	has	exclusive	jurisdiction);	

Samuel	v.	Langham,	780	F.Supp.	424,	427	(N.D.	Tex	1992)	(remanding	case	based	on	

removal	defect	even	if	exclusive	ERISA	jurisdiction	applied);	McCain v.	Cahoj,	794	

F.Supp.	1061	(D.	Kan.	1992)	(assuming	existence	of	exclusive	federal	jurisdiction	

over	federal	crop	insurance	claim	and	nevertheless	remanding	for	defect	in	removal	

procedures).

While	it	may	seem	counterintuitive	to	remand	a	case	over	which	the	state	

court	arguably	has	no	jurisdiction,	a	defendant	in	this	situation	“may	bring	whatever	

motions	it	deems	appropriate	in	the	state	court	proceeding.”		Harbor	Light,	2011	WL	

2517222	at	*6.		This	Court	has	been	informed that	the	state	court	denied	

Defendants’	motion	to	dismiss	the	Federal	Telecommunications	Act	claim.		

Apparently,	only	after	that	order	was	entered	did	the	Defendants	remove	this	

action.		However,	this	Court	is	not	a	state	appellate	court,	and	removal	is	not	the	

appropriate	method for	challenging a	state	court’s	ruling.

Conclusion

For	the	reasons	set	forth	above,	the	motion	to	remand	is	GRANTED.	 This	

action	is	hereby	REMANDED to	the	Circuit	Court	of	Baldwin	County,	Alabama.

DONE and ORDERED this	the	2nd day	of	February,	2015.

s/Charles	R.	Butler,	Jr.

Senior	United	States	District	Judge

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