Pepper v. Garrett

Filing 16

ORDER granting in part and denying in part 7 Motion to Dismiss; ORDER REMANDING CASE TO UNION COUNTY STATE COURT. Signed by Honorable Jimm Larry Hendren on May 3, 2010. (cnn)

IN THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF ARKANSAS E L DORADO DIVISION C H R I S T Y S. PEPPER v. W E N D E L L GARRETT, DDS ORDER N o w on this 3rd day of May, 2010, comes on for consideration d e f e n d a n t ' s Motion To Dismiss (document #7), and from said motion, a n d the response thereto, the Court finds and orders as follows: 1. Plaintiff filed suit in the Circuit Court of Union C i v i l No. 10-1013 DEFENDANT PLAINTIFF

C o u n t y , Arkansas, alleging that defendant "violated both federal and state statutes prohibiting sexual harassment in the work

place." "would

She also alleged that defendant's conduct was such that it be offensive to a civilized society and would not be

t o l e r a t e d , " language which appears to invoke a cause of action for i n t e n t i o n a l infliction of emotional distress, or "outrage," under A r k a n s a s law. 2. presence D e f e n d a n t removed the case to this Court based on the of a federal question, failed and to now moves that to dismiss, has

contending

that

plaintiff

allege

defendant

e n o u g h employees for a cause of action to exist against him under f e d e r a l or state law, and that the conduct alleged does not suffice t o plead a claim of outrage under Arkansas law. 3. I n response, plaintiff concedes that defendant does not

h a v e at least fifteen employees, the number required to trigger the

federal

statute

prohibiting

sexual

harassment.

42

U.S.C.

§

2000e(b).

She does not concede that the number of employees is

f e w e r than that required to trigger the provisions of the Arkansas C i v i l Rights Act, and she argues that she has sufficiently pled a c l a i m of outrage. 4. I t is clear following plaintiff's concession that there

i s no federal question in this case, and that the Motion To Dismiss s h o u l d be granted as to the federal claim of sexual harassment. Under 28 U.S.C. § 1367, the Court may decline to exercise

s u p p l e m e n t a l jurisdiction where it has dismissed all claims over w h i c h it has original jurisdiction -- a course of action suggested b y plaintiff -- and the Court finds that appropriate in this case. IT IS THEREFORE ORDERED that defendant's Motion To Dismiss ( d o c u m e n t #7) is granted in part and denied in part. The motion is granted insofar as it seeks dismissal of

p l a i n t i f f ' s claim under federal law, and that claim is dismissed w i t h prejudice. The motion is denied insofar as it seeks dismissal of

p l a i n t i f f ' s state law claims. I T IS FURTHER ORDERED that this matter be remanded to the C i r c u i t Court of Union County, Arkansas. I T IS SO ORDERED. /s/ Jimm Larry Hendren JIMM LARRY HENDREN U N I T E D STATES DISTRICT JUDGE

-2-