Molina v. Blevins et al
MEMORANDUM AND ORDER finding as moot 7 Motion to Dismiss for Failure to State a Claim; granting 13 Motion to Remand to State Court. Signed by District Judge Eric F. Melgren on 11/29/2017. (sz)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
FRANK MOLINA, JR.,
Case No. 17-CV-1101-EFM-JPO
TONY BLEVINS, MARK LOVE and
MEMORANDUM AND ORDER
Plaintiff Frank Molina, Jr. brings several state law claims against three Defendants
alleging that Defendants defamed him and intentionally inflicted emotional distress upon him by
making untrue statements that he misappropriated and mismanaged funds. Defendants now seek
dismissal asserting that Plaintiff’s claims are preempted by the Labor Management Relations Act
(“LMRA”) and that he fails to state a claim (Doc. 7). Plaintiff disagrees that his claims are
preempted and also states that the Court should remand the matter back to state court (Doc. 13).
Because the Court finds that it lacks subject matter jurisdiction, the Court remands the matter
back to state court.
Factual and Procedural Background
In Plaintiff’s eight-paragraph cursory complaint, he asserts that Defendants Tony Blevins,
Mark Love, and Rick Fisher stated to the news media on and after February 2, 2016, the untrue
statement that he misappropriated and mismanaged funds. He alleges that these statements are
defamatory and that he suffered severe loss of respect from his family, friends, and community
and loss of income. Plaintiff also states that these statements were made with a callous disregard
for the truth and constitute outrageous behavior.
On May 8, 2017, Defendants filed a Notice of Removal to this Court and asserted that
Plaintiff’s claims were preempted by the LMRA. On May 22, 2017, Defendants filed a Motion
to Dismiss asserting that (1) Plaintiff fails to state a claim because of the doctrine of res judicata,
(2) Plaintiff’s claims are completely preempted by the LMRA, (3) Plaintiff fails to state
sufficient facts to state a claim, and alternatively (4) Plaintiff’s claims are completely preempted
under the Garmon doctrine and the Labor Management Reporting and Disclosure Act
(“LMDRA”). Plaintiff filed a response to this motion, entitled “Reply to Motion to Dismiss.” In
this response, he asked the Court to remand the case back to state court. Thus, this response has
also been designated as a Motion to Remand.
If an action originally filed in state court could have been heard in federal court, it can be
removed to federal court.1 The federal court must have a statutory or constitutional authority to
hear the case in order to satisfy its limited jurisdiction.2
“[T]he propriety of removal is judged
28 U.S.C. § 1441(a); Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).
See U.S. Const. art. III; Sheldon v. Sill, 49 U.S. 441, 448-49 (1850).
on the complaint as it stands at the time of the removal.”3 “Under the ‘well-pleaded complaint’
rule, the plaintiff is considered the ‘master of the claim’ and thus the federal question giving rise
to jurisdiction must appear on the face of the complaint.”4 A federal court must remand the
action to state court “if at any time before final judgment it appears that the district court lacks
subject matter jurisdiction.”5
In this case, Plaintiff brings two state law claims: defamation and intentional infliction of
emotional distress. As noted above, Plaintiff’s complaint is sparse. Four of the eight allegations
in Plaintiff’s complaint relate to the parties and state their names and the state (Kansas) in which
they reside or work. Two of the allegations relate to Plaintiff’s defamation claim. The only
specific factual allegation states that on or about February 2, 2016, Blevins, Love, and Fisher
stated to the news media and others that Plaintiff misappropriated and mismanaged funds which
was an untrue statement and defamed him. Plaintiff’s other allegation relating to defamation
simply states that he makes a claim for an amount of $75,000. The other two allegations state
that Plaintiff incorporates all of the other allegations and that the above statements were made
with a callous disregard for the truth and constitute outrageous behavior.
Defendants seek the dismissal of Plaintiff’s complaint on multiple grounds. In Plaintiff’s
response to Defendants’ motion, however, he includes a request for this Court to remand the
matter back to state court. Defendants complain that Plaintiff’s request is untimely because
Plaintiff’s request for remand was made 32 days after removal of the case. Indeed, pursuant to
Salzer v. SSM Health Care of Okla. Inc., 762 F.3d 1130, 1133 (10th Cir. 2014) (citation omitted).
Karnes v. Boeing Co., 335 F.3d 1189, 1192 (10th Cir. 2003).
28 U.S.C. § 1447(c).
28 U.S.C. § 1447(c), “[a] motion to remand the case on the basis of any defect other than lack of
subject matter jurisdiction must be made within 30 days after the filing of the notice of removal
under section 1446(a).”
As noted in this statute, however, a motion to remand on the basis of the lack of subject
matter jurisdiction does not have to be made within 30 days. In addition, because federal courts
are of limited jurisdiction, the Court has a duty to determine whether it has jurisdiction over a
case sua sponte.6 “It is well settled that a federal court must dismiss a case for lack of subject
matter jurisdiction, even should the parties fail to raise the issue.”7
From the face of the complaint, it does not appear that Plaintiff’s claim has anything to
do with the LMRA or a labor organization. There are no allegations relating to federal question
jurisdiction. It is also clear that diversity jurisdiction is lacking. Although Plaintiff never uses
the words “subject matter jurisdiction” in seeking remand to state court, he states that he only
asserts state law claims and that there are no allegations of union involvement or a federal claim
relating to the LMRA.
Defendants removed the case by stating that Plaintiff’s claims were preempted by the
LMRA and thus there was a federal question. Plaintiff’s eight-paragraph complaint is very
cursory and gives little information as to the facts underlying his claims or the legal elements of
his claims. Thus, it does not appear that Plaintiff’s state law claims are preempted by federal law
Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).
Williams v. Life Sav. & Loan, 802 F.2d 1200, 1202 (10th Cir. 1986).
or raise a federal question.8 Accordingly, because there is no basis for this Court’s subject matter
jurisdiction, the Court remands the matter to state court.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (Doc. 7) is
DENIED AS MOOT.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Remand (Doc. 13) is
IT IS SO ORDERED.
Dated this 29th day of November, 2017.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
The Court recognizes that a similar case involving Plaintiff was previously before this Court. Plaintiff
previously filed a different state court action against six Defendants, including one of the named individuals in this
case, and those Defendants removed that case to federal court. See Case No. 16-CV-1099. In the previous case, the
Court found that Plaintiff’s claims were preempted by the LMRA and that he failed to state a breach of contract,
wrongful termination, or defamation claim. The Court, however, cannot add facts to Plaintiff’s current complaint.
Unlike Plaintiff’s previous Complaint in which the labor union was a party to the suit, there were allegations of
union involvement, and facts regarding the individual Defendants’ relationship with the union, this Complaint is
devoid of such facts. Although the Court can take judicial notice of previous pleadings, as noted above, the Court
cannot add additional allegations to Plaintiff’s complaint in an effort to ascertain Plaintiff’s cause of action.
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