Mendoza v. Vanguard Prod Corp

Filing 13

ORDER dismissing case for lack of subject matter jurisdiction. The Clerk shall effect remand to Connecticut Superior Court, Judicial District of Danbury at Danbury. Signed by Judge Stefan R. Underhill on 04/18/2017. (Jamieson, K)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JOSE MENDOZA,
Plaintiff,

No. 3:17-cv-00150 (SRU)

v.
VANGUARD PRODUCTS CORP.,
Defendant.
ORDER REMANDING CASE
Vanguard Products Corp. (“Vanguard”) removed Jose Mendoza’s state tort suit to this
court on February 1, 2017. Notice of Removal, Doc. No. 1. Vanguard asserted that, because
Mendoza claims that work conditions at Vanguard failed to meet federal standards under the
Occupational Safety and Health Act (“OSH Act”), his civil action “aris[es] under the
Constitution, laws, or treaties of the United States.” See 28 U.S.C. § 1331. At the Rule 16 pretrial
conference held on March 20, 2017, I asked counsel to research whether an alleged violation of
the OSH Act affords subject matter jurisdiction over a state tort suit. See Conf. Mem. & Order,
Doc. No. 12, at 1. Counsel have reported that subject matter jurisdiction is lacking, and I agree.
Pursuant to the federal removal statute, “any civil action brought in a State court of which
the district courts of the United States have original jurisdiction, may be removed by the
defendant . . . to the district court of the United States for the district and division embracing the
place where such action is pending.” 28 U.S.C. § 1441(a). Thus, whether a civil action may be
removed from state court turns on whether “the district court has original jurisdiction,” Aetna
Health v. Kirshner, 415 F. Supp. 2d 109, 112 (D. Conn. 2006), as determined “by looking to the
complaint as it existed at the time the petition for removal was filed.” Moscovitch v. Danbury
Hosp., 25 F. Supp. 2d 74, 79 (D. Conn. 1998).

“The burden of establishing the existence of federal subject matter jurisdiction rests on
the removing party,” Kirshner, 415 F. Supp. at 112, and “courts may raise jurisdictional defects
in removal cases sua sponte.” Stark v. Tyron, 171 F. Supp. 3d 35, 39 (D. Conn. 2016) (citing
Barbara v. N.Y. Stock Exch., 99 F.3d 49, 53 (2d Cir. 1996)). “If it appears before final judgment
that a case was not properly removed, because it was not within the original jurisdiction of the
United States district courts, the district court must remand it to the state court from which it was
removed.” Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 8 (1983).
“[E]mployees do not have a private right of action” under the OSH Act, Donovan v.
OSHRC, 713 F.2d 918, 926 (2d Cir. 1983), and so I cannot exercise subject matter jurisdiction
on a theory that Mendoza states a claim for violation of that statute. Nor has Mendoza raised a
federal claim simply because he contends that the alleged violation of the OSH Act supports his
state cause of action for negligence. Even if a violation of the OSH Act or its regulations
constituted negligence per se under state law—which the Second Circuit has held it does not, see
Jones v. Spentonbush–Red Star Co., 155 F.3d 587, 595–96 (2d Cir. 1998)—a complaint that
merely “alleg[es] a violation of a federal statute as an element of a state cause of action, when
Congress has determined that there should be no private, federal cause of action for the violation,
does not state a claim ‘arising under the Constitution, laws, or treaties of the United States.’”
Merrell Dow Pharm. v. Thompson, 478 U.S. 804, 818 (1986) (quoting 28 U.S.C. § 1331).
In short, no federal question jurisdiction exists over Mendoza’s lawsuit. Diversity
jurisdiction also is lacking, because Mendoza is a resident of Connecticut and Vanguard is a
Connecticut corporation. See 28 U.S.C. § 1332. As a result, Mendoza’s case is “not within the
original jurisdiction of the United States district courts” and “was not properly removed.”
Franchise Tax Bd., 463 U.S. at 8. I dismiss the case sua sponte for lack of subject matter

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jurisdiction, see Stark, 171 F. Supp. 3d at 39, and direct the Clerk to effect remand to
Connecticut Superior Court, Judicial District of Danbury at Danbury.

So ordered.
Dated at Bridgeport, Connecticut, this 18th day of April 2017.
/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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