Demmer v. Darden Restaurants, Inc. et al

Filing 16

OPINION AND ORDER: it is the ORDER, JUDGMENT, and DECREE of the court that this case is remanded to the Circuit Court of Houston County, Alabama; The clerk of the court is to take appropriate steps to effect the remand; All pending motions are left for resolution by the state court after remand and are terminated in this court; This case is closed, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 4/15/2014. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION

JENNIFER DEMMER,

)
)
Plaintiff,
)
)
v.
)
)
DARDEN RESTAURANTS, INC., )
d/b/a Olive Garden Italian )
Restaurant, and LIBERTY
)
MUTUAL GROUP, INC.,
)
)
Defendants.
)

CIVIL ACTION NO.
1:14cv183-MHT
(WO)

OPINION AND ORDER
By agreement of the parties made on the record on
April 11, 2014, it is the ORDER, JUDGMENT, and DECREE of
the court that this case is remanded to the Circuit Court
of Houston County, Alabama.
The clerk of the court is to take appropriate steps
to

effect the remand.
All pending motions are left for resolution by the

state court after remand and are terminated in this
court.

This case is closed.
***
Prior to the parties’ agreement to remand the case,
defendant Liberty Mutual Group, Inc. sought to have one
count of the amended complaint severed and retained by
this court while the other count was remanded.

While the

court need not reach Liberty Mutual’s arguments, it does
feel obliged to clarify this point for counsel.
parties

agree

that

the

first

count

of

the

The

amended

complaint is not removable because it “aris[es] under the
workmen’s
§ 1445(c).

compensation

laws”

of

Alabama.

28

U.S.C.

The general rule is that courts, if they

remand at all, remand entire cases.

See 14C Fed. Prac.

& Proc. Juris. § 3739 (4th ed.) (court “must remand the
entire case” and “may not remand some, but fewer than
all, of the claims that comprise the case”).

The only

removal statutory provision that authorizes courts to
sever and remand part of a case is 28 U.S.C. § 1441(c),
which applies only if the case includes a claim that

2

falls under federal-question jurisdiction (which this
case does not).
In

its

notice

of

removal,

Liberty

Mutual

cites

several cases in support of severance and retention of
the second claim (which asserts the tort of outrage), but
those cases are inapposite.

In Raye v. Employer's Ins.

of Wausau, 345 F. Supp. 2d 1313, 1315 (S.D. Ala. 2004)
(Steele, J.), for example, the court held that the tort
claims asserted in that case, including the tort of
outrage, did not themselves arise under the worker’s
compensation laws and thus were not rendered nonremovable
by 28 U.S.C. § 1445(c).

But in this case, unlike Raye,

there is another claim which, it is undisputed, does
arise under the worker’s compensation laws.

Thus the

question here is whether, given that § 1445(c) applies to
part of the case, the entire case must be remanded.
Neither Raye nor the other cases cited by Liberty Mutual
address this question.

Liberty Mutual has offered no

3

authority to support its view that the general rule of
remanding the entire case should not apply.
DONE, this the 15th day of April, 2014.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE