United States District Court, D. Maine
ORDER ON MOTION TO REMAND
GEORGE Z. SINGAL, District Judge.
Before the Court is Plaintiff's Motion for Remand (ECF No. 5). Before the Court could issue a ruling on this Motion, this case was the subject of an interlocutory appeal on the preliminary injunction entered by the state court prior to removal. (See Notice of Interlocutory Appeal (ECF No. 32).) As a result, the Court concluded it would reserve ruling until that appeal was concluded. (See Endorsement Orders (ECF Nos. 34 & 43).) On August 6, 2014, the First Circuit issued an order (ECF No. 44), which directed this Court to decide the pending motion for remand. As a result, this Court held oral argument on the Motion for Remand on August 13, 2014. Having considered the parties' written and oral submissions, the Court now DENIES the Motion for Remand.
I. LEGAL STANDARD
A defendant who removes a case to federal court bears the burden of showing a basis for federal jurisdiction. Danca v. Private Health Care Sys., Inc. , 185 F.3d 1, 4 (1st Cir. 1999). "The removal statute does not in itself create jurisdiction. Indeed, removal statutes are strictly construed." Id . Under the well-pleaded complaint rule, "[j]urisdiction is normally ascertained from the face of the state court complaint that triggered the removal." Id . Nonetheless, exceptions to this rule exist. As it relates to the pending case, "where the complaint articulates a claim exclusively in terms of state law, there are only two narrow exceptions to the well-pleaded complaint rule." Cambridge Literary Properties, Ltd. v. W. Goebel Porzellanfabrik G.m.b.H. & Co. KG. , 510 F.3d 77, 93-94 (1st Cir. 2007).
Such a claim might be considered to "arise under" federal law for jurisdictional purposes if: (i) an adjudication of the state-law claim necessarily will involve the determination of a "substantial federal question, " or (ii) a federal statute ( e.g., the Copyright Act) can be said to exert such a pervasive and overpowering preemptive force that all state-law claims of the type pleaded are completely preempted.
Id. (internal citations and quotations omitted). In addition to these narrow judicially crafted exceptions, Congress has recently crafted a statutory exception to the well pleaded complaint rule. 28 U.S.C. § 1454, which was enacted in 2011, allows for removal of "[a] civil action in which any party asserts a claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights." Id . Thus, the assertion of a copyright claim by either plaintiff or defendant may serve as the basis for removal.
The procedure for removal in this case is governed by 28 U.S.C. § 1446(b), which reads in relevant part:
[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, 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). With respect to removals under § 1454, Congress has explicitly indicated that these time limits "may be extended at any time for cause shown." 28 U.S.C. § 1454(b)(2).
Given the just-described standards for removal, the remand papers in this case raise three questions that must be resolved in order to determine whether this case must be remanded. The Court considers each in turn.
A. Was the Removal Timely?
This case was removed on January 9, 2014 (ECF No. 1). Pick maintains that removal on this date was within the requisite 30-day period because the triggering event under 28 U.S.C. § 1446(b) occurred on December 10, 2013. On that date, the state court granted Concordia's motion to amend its complaint, which resulted in the Second Amended Complaint becoming the operative pleading. In contrast, Concordia asserts that the 30-day clock for removal began to run on the day Concordia filed its motion to amend the complaint. There is no dispute that on or about November 12, 2013 Concordia filed the motion to amend seeking to add a claim for "Breach of Contract (copying of Concordia's owned materials)." (See Second Am. Compl. (ECF No. 1-2) at 19 (Count III).)
Both sides acknowledge that the First Circuit has not had an opportunity to decide whether the time to remove based on an amended pleading runs from the date the defendant receives a copy of the motion to amend with the proposed amended complaint attached or whether the time to remove runs from the time the motion to amend is actually ...