Ortiz v. A.C.I. Motor Freight, Inc.
Filing
14
MEMORANDUM AND ORDER granting 8 Motion to Remand to State Court. Signed by District Judge Julie A. Robinson on 11/7/14. (kao)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
HENRY ORTIZ,
Plaintiff,
vs.
A.C.I. MOTOR FREIGHT, INC.,
Defendant.
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Case No. 14-cv-2427-JAR-JPO
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Henry Ortiz’s Motion to Remand (Doc. 8).
The matter is fully briefed and the Court is prepared to rule. For the reasons explained in detail
below, the Court grants Plaintiff’s motion and remands the case to the Twenty-Ninth Judicial
District in Wyandotte County, Kansas.
I.
Background
Plaintiff was employed by Defendant A.C.I. Motor Freight, Inc. as a pick-up and delivery
driver of semi-trailer trucks. On August 11, 2014, Plaintiff commenced this action against
Defendant in Wyandotte County District Court, alleging that Defendant wrongfully terminated
him in violation of public policy, specifically the Kansas whistleblower law. In Count I, Plaintiff
contends that Defendant terminated him for reporting an unsafe condition on his commercial
vehicle in violation of public policy expressed in three federal regulations promulgated by the
Federal Motor Carrier Safety Administration (“FMCSA”): 49 C.F.R. § 396.7, 49 C.F.R.
§ 396.11(a)(1)(i); and 49 C.F.R. § 396.11(a)(3)(i). Plaintiff alleges that his December 13, 2013
vehicle inspection report identified an unsafe condition on his vehicle likely to cause an accident
or breakdown of the vehicle. In reporting this unsafe condition, Plaintiff alleges he engaged in
protected activity by reporting illegal conduct on the part of Defendant, namely permitting its
driver to operate a vehicle with trailer brakes in an unsafe condition. Plaintiff alleges that he was
terminated as a result of his complaints related to the safety of Defendant’s vehicles. Count II
alleges a violation of state law and public policy. Plaintiff contends that Defendant also
terminated him for his complaint reporting the battery he suffered by one of Defendant’s
supervisors in violation of the public policy expressed in K.S.A. § 21-3412(a).
Defendant removed this case contending this Court has original jurisdiction over
Plaintiff’s claims on two alternative grounds: 1) diversity of citizenship jurisdiction under 28
U.S.C. § 1332, and 2) federal question jurisdiction under 28 U.S.C. § 1331. Plaintiff’s Motion to
remand followed.
II.
Discussion
In its response, Defendant concedes that Plaintiff’s claims do not satisfy the requirements
of diversity jurisdiction, and thus removal rests upon federal question jurisdiction.1 The
applicable statute allows removal of “any civil action brought in a State court of which the
district courts of the United States have original jurisdiction.”2 Congress has authorized the
federal district courts to exercise original jurisdiction in “all civil actions arising under the
Constitution, laws, or treaties of the United States.”3 Federal question jurisdiction exists only
over those cases in which either 1) federal law creates the cause of action asserted, or 2)
plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal
1
Doc. 12 at 5 n. 15.
2
28 U.S.C. § 1441(a).
3
28 U.S.C. § 1331.
2
law.4 Whether a suit “arises under” federal law is determined by the well-pleaded complaint
rule, which provides that federal jurisdiction exists “only when a federal question is presented on
the face of the plaintiff’s properly pleaded complaint.”5
Cases arise under federal law in two ways. First, “when federal law creates the cause of
action asserted,” which covers a category of cases that “accounts for the vast bulk of suits that
arise under federal law.”6 In a much narrower category are state law claims that “implicate
significant federal issues.”7 Claims in this category fall within a limited exception to the wellpleaded complaint rule, which is grounded in “the commonsense notion that a federal court
ought to be able to hear claims recognized under state law that nonetheless turn on substantial
questions of federal law, and thus justify resort to the experience, solicitude, and hope of
uniformity that a federal forum offers on federal issues.”8
The issue presented by Defendant’s Motion to Remand is whether Plaintiff’s state law
whistleblower claim in Count I raises an issue of federal law that is substantial enough to warrant
the exercise of federal question jurisdiction. There is a presumption against finding federal
jurisdiction.9 The burden of proving jurisdiction lies with the party asserting it exists.10
Defendant analyzes the federal jurisdiction question under the factors articulated by the
4
Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 689–90 (2006).
5
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).
6
Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013).
7
Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005); see also Empire, 547
U.S. at 699 (explaining that such claims are in a “special and small category” of federal “arising under” jurisdiction).
8
Grable, 545 U.S. at 312.
9
Devon Energy Prod. Co. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1201 (10th Cir. 2012).
10
Id.
3
Tenth Circuit in Rice v. Office of Servicemembers’ Group Life Insurance,11 which requires that to
fall within the so-called “substantial federal question” exception, (1) the issues implicated are
governed by federal law; (2) the raised issues must present substantial questions of federal law
that must be resolved; and (3) the applicable statute must give rise to an implied cause of
action.12 The Supreme Court has recently clarified, however, that federal jurisdiction over a state
law claim will lie if a federal issue is: “(1) necessarily raised, (2) actually disputed, (3)
substantial, and (4) capable of resolution in federal court without disrupting the federal-state
balance approved by Congress.”13 As discussed below, this is not one of those cases.
“Kansas follows the common-law employment-at-will doctrine, which allows employers
to terminate employees for good cause, for no cause, or even for the wrong cause.”14 To prevail
on a retaliatory discharge claim, an employee must demonstrate that he or she falls within one of
the exceptions to the employment-at-will doctrine.15 One of these exceptions is termination for
“whistleblowing.”16 To establish a retaliatory discharge claim for whistleblowing, a plaintiff has
the burden of proving the following elements by clear and convincing evidence:
[A] reasonably prudent person would have concluded the
employee’s coworker or employer was engaged in activities in
violation of rules, regulations, or the law pertaining to public
11
260 F.3d 1240 (10th Cir. 2001).
12
Id. at 1245.
13
Gunn, 133 S. Ct. at 1064 (citing Grable, 545 U.S. at 314); Becker v. Ute Indian Tribe of the Uintah &
Ouray Reservation, —F.3d—, 2014 WL 5334690, at *2 (10th Cir. Oct. 21, 2014) (“To invoke this so-called
“substantial question’ branch of federal question jurisdiction, a [party] must show [the four Gunn factors].”).
14
Goodman v. Wesley Med. Ctr., L.L.C., 78 P.3d 817, 821 (Kan. 2003).
15
Id. (citation omitted).
16
Id. (citation omitted).
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health, safety, and the general welfare; the employer had
knowledge of the employee’s reporting of such violation prior to
discharge of the employee; and the employee was discharged in
retaliation for making the report.17
Plaintiff does not dispute that federal transportation safety regulation issues are
“necessary” to his case or that the federal issue is disputed by Defendant. Thus, the Court turns
its analysis to the third and fourth Gunn factors in determining whether Plaintiff’s whistleblower
claim arises under federal law.
Substantial Federal Issue
To demonstrate substantiality, “it is not enough that the federal issue is significant only
to the parties in the immediate suit; that will always be true when the state claim ‘necessarily
raises’ a disputed federal issue.”18 Rather, the “substantiality inquiry . . . looks instead to the
importance of the issues to the federal system as a whole.”19 “Neither the federal government
nor the federal system as a whole has a pressing interest in ensuring that a federal forum is
available in state tort suits that include passing references to a federal statute cited only as an
articulation of public policy.”20
The Supreme Court has identified three factors to consider in determining substantiality:
First, a pure question of law is more likely to be a substantial
federal question. Second, a question that will control many other
cases is more likely to be a substantial federal question. Third, a
17
Id. (quoting Palmer v. Brown, 752 P.2d 685, 690 (Kan. 1988)).
18
Gunn, 133 S. Ct. at 1066 (citation omitted) (emphasis in the original).
19
Id.; see Grable, 545 U.S. at 313(“It has in fact become a constant refrain . . . that federal jurisdiction
demands not only a contested federal issue, but a substantial one, indicating a serious federal interest in claiming the
advantages thought to be inherent in a federal forum.”).
20
Fracasse v. People’s United Bank, 747 F.3d 141, 145 (11th Cir. 2014) (examining whether the issue was
substantial under Gunn’s third factor).
5
question that the government has a strong interest in litigating in a
federal forum is more likely to a be a federal question.21
The factors are not present in this case. This is a dispute between private parties; no federal
actor is involved. The federal question is not a near “pure issue of law,” but requires the
application of unique facts to transportation safety regulations. And, because the key issue
involves a determination under a reasonable person standard, it is not likely to control many
other cases. Defendant’s assertion that Plaintiff must prove an actual violation of FMCSA
regulations is not well-taken. As discussed above, under Kansas law it is not necessary to show
an actual violation of the federal regulations referenced in Plaintiff’s complaint, only that a
reasonably prudent person would have concluded that a violation occurred. Any interpretation
of the federal regulations by the State court would not serve as binding precedent because such a
determination is case-based. Accordingly, the Court finds that Defendant has not shown that the
disputed issue of federal law in this case is “substantial” within the meaning of federal question
jurisdiction.
Federal-State Balance
Nor has Defendant met its burden of showing that this action is capable of resolution in
the federal courts without disturbing the federal-state balance. Defendant contends that the
federal statute at issue, the Surface Transportation Assistance Act (“STAA”),22 gives rise to a
private cause of action. Specifically, Sections 405(a) and (b) of the STAA prohibit a motor
carrier from discharging an employee for making safety-related complaints or for refusing to
operate a motor vehicle when such operation constitutes a violation of federal safety
21
Empire, 547 U.S. at 700–01; Grable, 545 U.S. at 315–16.
22
49 U.S.C. § 31105(a).
6
regulations.23 As Plaintiff points out, however, Defendant does not discuss the text of the statute
concerning remedies. To seek judicial review of such a claim, a plaintiff must file a complaint
with the Secretary of Labor.24 Moreover, the STAA also contains language on preemption and
rights retained that undercuts Defendant’s argument:
(f) No Preemption. Nothing in this section preempts or
diminishes any other safeguards against discrimination, demotion,
discharge, suspension, threats, harassment, reprimand, retaliation,
or any other manner of discrimination provided by Federal or State
law.
(g) Rights Retained by Employee. Nothing in this section shall
be deemed to diminish the rights, privileges, or remedies of any
employee under any Federal or State law.25
Thus, Defendant has not demonstrated that resolution of this action in federal court
would not disrupt the federal-state balance. If the Court allowed federal jurisdiction in this case,
any defendant in a Kansas whistleblower case could remove simply by referencing a federal
issue involved. Kansas has a strong interest in adjudicating retaliatory discharge claims
regarding whistleblowing on safety violations,26 and courts have traditionally adjudicated cases
such as this, where a whistleblower premises his claim on violation of a federal regulation.27
23
Id.
24
49 U.S.C. § 31105(b),(c).
25
49 U.S.C. § 31105(f).
26
See Palmer v. Brown, 752 P.2d 685. Syl. ¶ 1 (Kan. 1988) (“It is declared the public policy of the State of
Kansas to encourage citizens to report infractions of the law pertaining to public health, safety, and the general
welfare.”).
27
See, e.g., Flenker v. Willamette Indus., Inc., 967 P.2d 295, 300 (Kan. 1998) (considering OSHA violations
for machine safety and holding that plaintiff could maintain a state-law tort claim for retaliatory discharge because
the federal OSHA remedy was inadequate); Palmer, 752 P.2d at 685 (involving reports of Medicaid fraud); Moyer v.
Allen Freight Lines, Inc., 885 P.3d 391, 394 (Kan. Ct. App. 1994) (involving report of equipment failures in
violation of federal Department of Transportation regulations).
7
And, although it does not appear that Kansas courts have addressed the issue, other courts have
rejected arguments that state whistleblower claims that allege violations of STAA or the FMCSA
arise under federal law.28
In sum, though the federal question is necessarily raised and actually disputed, it is not
substantial, and resolution in a federal court would cause significant disruption to the federalstate balance. Thus, the Court concludes Count I does not “arise under” federal law, and the
Court does not have original jurisdiction. Likewise, the Court does not have supplemental
jurisdiction over Count II, which relies exclusively on Kansas law.29 Accordingly, the Court
grants Plaintiff’s motion to remand.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion to Remand
(Doc. 8) is GRANTED; the Clerk is directed to remand the case to the Twenty-Ninth Judicial
District in Wyandotte, Kansas.
IT IS SO ORDERED.
Dated: November 7, 2014
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
28
See, e.g., Dobberowsky v. Cryogenic Transp., Inc., 989 F. Supp. 848, 851 (E.D. Mich. 1997) (remanding
case); Groves v. Sup. Well Servs., Ltd., No. 10CV149, 2010 WL 5348775, at *2 (N.D. W. Va. Dec. 21, 2010)
(same).
29
See 29 U.S.C. § 1367 (supplemental jurisdiction applicable to claims in “which the district courts have
original jurisdiction”).
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