Jon Riley Hays v. Bryan Cave Llp

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2154
J ON R ILEY H AYS ,
Plaintiff-Appellant,
v.
B RYAN C AVE LLP, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 04-CV-451-WDS—William D. Stiehl, Judge.
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S UBMITTED A PRIL 6, 2006—D ECIDED M AY 3, 2006
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Before BAUER , P OSNER , and W OOD, Circuit Judges.
P OSNER , Circuit Judge. This is a case of some novelty
but little difficulty. The plaintiff brought suit in an Illinois
court, charging the defendants, a law firm and its lawyers
who had represented him in a federal criminal case (he
was convicted, and did not appeal, and the denial of his
motion for postconviction relief under 28 U.S.C. § 2255
was affirmed in Hays v. United States, 397 F.3d 564 (7th
Cir. 2005)), with legal malpractice under Illinois com-
mon law. The defendants removed the case to federal dis-
trict court on the ground that it really arose under federal

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2 No. 05-2154
law because, as the district court ruled in refusing to
remand the case, the resolution of a malpractice claim
growing out of the defense of a federal criminal case
would “require a substantial evaluation of applicable
federal law,” specifically a determination of the meaning
and scope of the federal criminal statutes under which Hays
had been convicted.
Having accepted jurisdiction of the case, the district judge
dismissed it on the merits, precipitating this appeal, in
which Hays contends that the district court never obtained
jurisdiction because the suit was not removable. We have
found two reported cases—Winniczek v. Nagelberg, 394 F.3d
505, 510 (7th Cir. 2005), and, less clearly, Bilal v. Kaplan, 904
F.2d 14 (8th Cir. 1990) (per curiam)—that assume that there
is no federal jurisdiction over a state-law malpractice suit
merely because its genesis is a federal suit. But we cannot
find a reported decision that actually rules on the matter.
The standard applied by the district judge in deciding
to deny the motion to remand was incorrect. A defendant
might have defenses based on federal law to claims that
arose only under state law, and it might be predictable at
the outset that most of the time and the other resources
consumed in the litigation would be devoted to those
defenses. Yet with immaterial exceptions, a case filed in
state court under state law cannot be removed to federal
court on the basis that there are defenses based on federal
law. Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003);
Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152 (1908);
Moran v. Rush Prudential HMO, Inc., 230 F.3d 959, 966-67
(7th Cir. 2000). What is true is that if federal law creates the
claim on which the plaintiff is suing, the fact that he has
omitted from his complaint any reference to federal law will
not defeat removal. Franchise Tax Bd. v. Construction Laborers
Vacation Trust, 463 U.S. 1, 22-23 (1983); Burda v. M. Ecker Co.,

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No. 05-2154 3
954 F.2d 434, 438 (7th Cir. 1992); Mikulski v. Centerior Energy
Corp., 435 F.3d 666, 671 (6th Cir. 2006). As the cases say, the
plaintiff cannot abrogate the defendant’s right of removal by
“artful pleading.” E.g., Tifft v. Commonwealth Edison Co., 366
F.3d 513, 516 (7th Cir. 2004); International Armor & Limousine
Co. v. Moloney Coachbuilders, Inc., 272 F.3d 912, 915 (7th Cir.
2001); Sullivan v. American Airlines, Inc., 424 F.3d 267, 271 (2d
Cir. 2005). So for example if a suit is filed in state court
charging a fiduciary with a breach of his fiduciary duty, and
the defendant is an ERISA fiduciary, the case is removable
to federal court even if the complaint does not mention
ERISA. Aetna Health Inc. v. Davila, 542 U.S. 200, 209 (2004);
Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 67 (1987);
Mayeaux v. Louisiana Health Service & Indemnity Co., 376 F.3d
420, 432 (5th Cir. 2004). Because ERISA displaces all state
law within its scope, such a case necessarily arises under
federal law, namely under ERISA, and so is removable
despite the complaint’s reticence.
That is not the case here. Nothing in federal law prevents
a disappointed litigant in a federal case from suing his
lawyer under state malpractice law. E.g., Kregos v. Stone, 872
A.2d 901, 903 (Conn. App. 2005); Burns v. Goudeau, 888 So.
2d 1031, 1031-32 (La. App. 2004). The elements of legal
malpractice in Illinois (as elsewhere)—“an attorney-client
relationship, a duty arising from that relationship, a breach
of that duty, and actual damages or injury proximately
caused by that breach,” Sorenson v. Law Offices of Theodore
Poehlmann, 764 N.E.2d 1227, 1229 (Ill. App. 2002); Profit
Management Development, Inc. v. Jacobson, Brandvik & Ander-
son, Ltd., 721 N.E.2d 826, 842 (Ill. App. 1999), plus, if the case
in which the alleged malpractice occurred was a criminal
case, that the defendant was actually innocent, Moore v.
Owens, 698 N.E.2d 707, 709 (Ill. App. 1998); Winniczek v.
Nagelberg, supra, 394 F.3d at 507 (Illinois law)—are inde-

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4 No. 05-2154
pendent of the law under which the suit that the defendant
lawyer is alleged to have muffed was brought. Issues
concerning the meaning of that law are quite likely to arise
in such a malpractice action, but there is nothing unusual
about a court having to decide issues that arise under the
law of other jurisdictions; otherwise there would be no field
called “conflict of laws” and no rule barring removal of a
case from state to federal court on the basis of a federal
defense. “Mentioning a federal issue in a contract, or for that
matter a complaint, does not determine the source of the
claim itself.” City of Chicago v. Comcast Cable Holdings, L.L.C.,
384 F.3d 901, 904-05 (7th Cir. 2004).
Cases that arise under federal law are removable to
federal court, though filed originally in state court, in order
to limit forum shopping. Doe v. Allied-Signal, Inc., 985 F.2d
908, 911 (7th Cir. 1993). For otherwise, in any area of
concurrent federal-state jurisdiction, plaintiffs would have
a free choice of whether the suit would be litigated in
state court or in federal court. With removal on the basis
of the federal nature of the plaintiff’s claim possible, either
side can choose to litigate in federal court, while if removal
were possible on the basis of a federal defense, then defen-
dants would have the exclusive choice of forum in any case
in which a nonfrivolous federal defense could be pleaded.
The judgment of the district court is vacated with direc-
tions to remand the case to the state court in which it was
filed.
V ACATED AND R EMANDED .

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No. 05-2154 5
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-3-06

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