McCowan v. Earp Meat Company

Filing 11

MEMORANDUM AND ORDER granting 6 Motion to Remand. IT IS THEREFORE ORDERED BY THE COURT that Plaintiff's Motion to Remand (Doc. 6) is GRANTED and Plaintiff's request for attorney fees and costs is DENIED; the Clerk is directed to remand the case to the Twenty-Ninth Judicial District in Wyandotte County, Kansas. Signed by District Judge Julie A. Robinson on 7/20/15. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JEREMIAH R. MCCOWAN,

)
)
Plaintiff,
)
)
vs.
)
)
EARP MEAT COMPANY,
)
)
Defendant. )
________________________________________ )

Case No. 15-cv-02632-JAR-KGG

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Jeremiah McCowan’s Motion to Remand
(Doc. 6). 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 to remand the case to the Twenty-Ninth
Judicial District in Wyandotte County, Kansas, but the Court does not award Plaintiff any
associated fees and costs.
I.

Background
Defendant Earp Meat Company employed Plaintiff as a delivery driver.1 In March 2014,

Plaintiff injured his left shoulder in the course of his employment.2 He sought and received
workers’ compensation benefits, including temporary total disability and medical treatment.3
Plaintiff filed his petition in the District Court of Wyandotte County, Kansas, alleging
wrongful termination in retaliation for filing for benefits under the Kansas Workers’

1

Doc. 1, Ex. A at . ¶¶ 3–4.

2

Id.

3

Id. at . ¶ 5.

Compensation Act (“KWCA”).4 Defendant did not reply within twenty-one days, and Plaintiff
filed a motion for default judgment on February 27, 2015.5
Defendant removed this case to this Court based on federal question jurisdiction on the
grounds that Plaintiff was also seeking relief under the Family Medical Leave Act (“FMLA”).6
Plaintiff seeks remand and associated fees and costs, arguing that this Court lacks removal
jurisdiction based on 28 U.S.C. § 1331.7
II.

Discussion
A.

Jurisdiction

Plaintiff’s Motion to Remand turns on whether the Petition contains a claim for which
this Court has original jurisdiction. 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.”8 There is no diversity jurisdiction because Plaintiff and Defendant are both Kansas
citizens, so original jurisdiction rests upon federal question jurisdiction.9
To have a federal question, a claim must arise under the Constitution, laws, or treaties of
the United States.10 A case “arises under” federal law if its well-pleaded compliant establishes
that either 1) federal law creates the cause of action asserted or 2) the plaintiff’s right to relief

4

Id. at at . ¶ 22.

5

Id. at 10.

6

Doc. 1 at 1.

7

Doc. 7 at 4.

8

28 U.S.C. § 1441(a).

9

Doc. 1, Ex. A at . ¶¶ 1–2.

10

28 U.S.C. § 1331.

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necessarily depends on resolution of a substantial question of federal law.11 There is a
presumption against finding federal jurisdiction, and the burden of proving jurisdiction lies with
the party asserting it exists.12
Plaintiff’s retaliatory discharge claim stems from Kansas common law.13 In Kansas, to
establish a claim for retaliatory discharge based on filing a claim under the KWCA, a plaintiff is
required to prove that she filed a claim for workers’ compensation or sustained an injury for
which a claim for workers’ compensation may arise, that the employer had knowledge of her
claim or injury, that the employer terminated her, and that there is a causal connection between
her claim or injury and her termination.14 Thus state law, rather than federal law, creates this
cause of action.
But even where state law creates the cause of action, if Plaintiff’s relief depends on the
resolution of a substantial question of federal law, then federal jurisdiction still lies.15 The
Supreme Court clarified 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.”16 Here,
Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 689–90 (2006); Nicodemus v. Union Pac.
Corp., 440 F.3d 1227, 1232 (10th Cir. 2006).
11

12

Devon Energy Prod. Co. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1201 (10th Cir. 2012).

13

See Murphy v. City of Topeka, Shawnee Cnty. Dept. of Labor Servs., 630 P.2d 186, 192 (Kan. Ct. App.
1981) (holding that a claim for retaliatory discharge based on an employees’s filing of a workers’ compensation
claim is a viable cause of action).
14

See Rebarchek v. Farmers Co-op. Elevator & Mercantile Ass’n, 35 P.3d 892, 898–99 (Kan. 2001).

15

Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013).

16

Gunn, 133 S. Ct. at 1064 (citing Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308,
314 (2005)); Becker v. Ute Indian Tribe of the Uintah & Ouray Reservation, 770 F.3d 944, 947 (10th Cir. 2014)
(“To invoke this so-called ‘substantial question’ branch of federal question jurisdiction, a [party] must show [the

3

Defendant does not raise or dispute a federal issue, therefore the “substantial question” arm of
federal-question jurisdiction does not lie over this state claim.
Defendant argues that the Petition, in addition to the KWCA retaliation claim, also
alleges facts supporting a FMLA retaliation claim, a federal cause of action.17 The well-pleaded
complaint rule makes plaintiff the master of his claim by allowing him to elect either federal or
state court based on how the complaint is drafted.18 Plaintiff may not circumvent federal
jurisdiction by omitting federal issues that are essential to his claim, but can avoid federal
jurisdiction by exclusive reliance on state law.19
Plaintiff’s Complaint includes only the KWCA retaliation claim. Although Plaintiff’s
Complaint alleges that he was informed by Defendant that he had exhausted his FMLA leave, he
does not allege that he requested FMLA leave or that is termination was a result of retaliation
against him for exercising his rights under the FMLA, nor does he seek relief under the FMLA.20
For reasons explained above, the claim relies exclusively on state law and has no federal issues.
Therefore, the Court concludes that Plaintiff has properly elected state court for this action.
In sum, federal law does not create Plaintiff’s cause of action, nor does his claim rely on
a substantial question of federal law. Plaintiff relied exclusively on state law without omitting
essential federal issues. Thus, the Court concludes Plaintiff’s retaliation claim does not “arise
under” federal law, and the Court does not have original jurisdiction. Accordingly, the Court
four Gunn factors].”).
17

Doc. 9 at 3.
Firstenberg v. City of Sante Fe, N. M., 696 F.3d 1018, 1023 (10th Cir. 2012).

18

19

Id.

20

Doc. 1, Ex. A at . ¶¶ 9–12.

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grants Plaintiff’s motion to remand.
B.

Attorney Fees

Plaintiff seeks attorney’s fees and associated costs incurred as a result of the improper
removal. Under 28 U.S.C. § 1447(c), “[a]n order remanding the case may require payment of
just costs and any actual expenses, including attorney fees, incurred as a result of the removal.”
The Supreme Court explained,
Absent unusual circumstances, courts may award attorney’s fees
under § 1447(c) only where the moving party lacked an objectively
reasonable basis for seeking removal. Conversely, when an
objectively reasonable basis exists, fees should be denied. In
applying this rule, district court retain discretion to consider
whether unusual circumstances warrant a departure from the rule
in a given case. For instance, a plaintiff’s delay in seeking remand
or failure to disclose facts necessary to determine jurisdiction may
affect the decision to award attorney’s fees. When a court
exercises its discretion in this manner, however, its reasons for
departing from the general rule should be “faithful to the purposes”
of awarding fees under § 1447(c).21
Here, Defendant argues that even if removal was improper, the Petition’s ambiguity
provided a reasonable basis for removal.22 Defendant argues that the Petition lacks any specific
counts; includes extensive reference to the FMLA; and alleges all of the elements necessary to
assert a claim for retaliation under the FMLA.23 After reviewing the Petition, this Court finds
that Defendant had an objectively reasonable basis to remove this action to federal court.
To be sure, even though this Court finds Defendant had a reasonable basis for removal,
this Court may nevertheless depart from the general rule of objective reasonableness to be

21

Martin v. Franklin Capital Corp., 546 U.S. 132, 140 (2005).

22

Doc. 9 at 4.

23

Id. at 3–4.

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faithful to the purposes of awarding fees.24 One such purpose is to deter removal sought for the
purpose of prolonging litigation.25 Defendant removed this claim on the same day as the
Plaintiff moved for default judgment for failure to answer. Plaintiff argues that this Court should
consider the sequence of filings, conclude that removal was to prolong litigation by avoiding
default judgment, depart from the general rule of objective reasonableness, and award costs.
However, the Court should not undermine Defendant’s right to remove as a general
matter, when the statutory criteria is satisfied.26 Defendant removed the claim within the allotted
period under federal statute,27 and the motion for default judgment would ostensibly remain
pending before this Court in the event it denied the request to remand. The Court finds that the
basis for removal was reasonable, and does not find any unusual circumstances present that
would warrant a departure from the general rule. Thus, the Court declines Plaintiff’s request to
impose fees and costs associated with this motion.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion to Remand
(Doc. 6) is GRANTED and Plaintiff’s request for attorney fees and costs is DENIED; the Clerk
is directed to remand the case to the Twenty-Ninth Judicial District in Wyandotte County,
Kansas.
IT IS SO ORDERED.

24

Martin, 546 U.S. at 141.

25

Id.

26

Id. at 140.

27

§ 1446(b).

6

Dated: July 20, 2015
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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