Garber v. Bosch Rexroth Corporation et al
Filing
13
MEMORANDUM OPINION AND ORDER: Pla's 6 Motion to Remand to State Court is GRANTED, and this matter is REMANDED to the Fayette Circuit Court. Signed by Judge Joseph M. Hood on October 30, 2013. (AWD) cc: COR,Certified copy to Fayette Circuit Court
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
BRADLEY P. GARBER,
Plaintiff,
v.
BOSCH REXROTH CORPORATION,
et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
Civil Case No.
5:13-cv-268-JMH
MEMORANDUM OPINION
AND ORDER
***
This matter is before the Court upon Plaintiff’s Motion to
Remand. [D.E. 6]. Defendants have filed their Response [D.E. 9],
and Plaintiff filed a Reply. [D.E. 10]. This matter being fully
briefed, and the Court being otherwise sufficiently advised, it
is now ripe for review.
I. Procedural Background
Plaintiff filed suit against Defendants on October 26, 2012
in Fayette Circuit Court alleging disability discrimination in
violation of Kentucky law, failure to accommodate in violation
of Kentucky law, wrongful use of administrative and/or civil
proceedings, retaliation in violation of Kentucky law, outrage
and intentional infliction of emotional distress, and punitive
damages. [D.E. 1-1]. Plaintiff filed an amended complaint in
Fayette Circuit Court on August 1, 2013 adding additional claims
of retaliation, wrongful discharge, violation of KRS 337.385,
conversion, and breach of contract. The Defendants removed the
action to this Court on August 22, 2013, claiming this Court has
subject-matter jurisdiction over Plaintiffs claims based on 28
U.S.C. § 1331 and 28 U.S.C. § 1332. Defendants ask the Court to
exercise supplemental jurisdiction under 28 U.S.C. § 1367 over
all other claims. Plaintiff filed a timely Motion to Remand.
[D.E. 6].
II. Standard of Review
“[A]ny civil action brought in a State court of which the
district courts of the United States have original jurisdiction,
may
be
district
removed
by
the
defendant
court
of
the
United
or
States
the
for
defendants,
the
to
the
district
and
division embracing the place where such action is pending.” 28
U.S.C. § 1441. “The notice of removal of a civil action or
proceeding shall be filed within 30 days after the receipt by
the defendant through service or otherwise.” Id. § 1446(b)(1).
“If the case stated by the initial pleading is not removable, a
notice of removal may be filed within 30 days after receipt by
the defendant, through service or otherwise, of a copy of an
amended pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has become
removable.” Id. § 1446(b)(3).
2
III. Analysis
Defendants assert that the case is removable because the
Court has original jurisdiction under 28 U.S.C. § 1331 and 28
U.S.C. § 1332. Defendants contend the Court has jurisdiction
under § 1332 because Defendants Dan Reynolds and Geoff O’Nan
were fraudulently joined to prevent diversity. To support this
claim, Defendants aver that “Counts I and II of the Original
Complaint cannot be asserted or maintained against individual
defendants.” [D.E. 1 at 4]. Thus, because the claims appeared in
the
original
possibility
of
complaint,
fraudulent
Defendants
joinder
were
from
on
the
notice
initial
of
the
pleading
filed on October 26, 2012. Plaintiff contends, and Defendants do
not dispute, that on July 3, 2013 the Defendants were served
with interrogatories that made it clear Plaintiff was seeking
damages in excess of $75,000, a jurisdictional requirement of §
1332.
Therefore,
on
July
3,
2013,
at
the
very
latest,
the
Defendants had “solid and unambiguous information” of complete
diversity of citizenship and of the amount-in-controversy such
that the thirty-day period to file a notice of removal based on
diversity jurisdiction began to run. 28 U.S.C. § 1332; Lindon v.
Kakavand, No. 5:13-cv-26-DCR, 2013 WL 5441981, at *3 (E.D. Ky.
Sept. 27, 2013) (quoting Walker v. Phillip Morris USA, Inc., 443
F. App’x 946, 950 (6th Cir. 2011)); 28 U.S.C. § 1446(b)(3) (“If
the case is stated by the initial pleading is not removable, a
3
notice of removal may be filed within 30 days after receipt by
the defendant . . . of a copy of . . . other paper from which it
may first be ascertained that the case is one which is or has
become removable.”).
Under § 1446(b)(3), Defendants had 30 days from July 3,
2013, or until August 2, 2013, in which to file a notice of
removal based on diversity jurisdiction. Defendants did not file
a
notice
of
removal
in
this
action
until
August
22,
2013.
Therefore, the Court will not address the merits of Defendants
claim of fraudulent joinder because it is an untimely argument.
See Whiteley v. Wolverine Harley-Davidson, Inc., No. 2:10-cv12410,
2010
WL
3564262,
at
*2
(E.D.
Mich.
Sept.
9,
2010)
(“[E]ven if the defendants can establish a case for fraudulent
joinder, they are time-barred from removing this action under 28
U.S.C. § 1446(b) because the alleged issues with Wolverine’s
joinder were equally apparent in the original complaint, filed
more than thirty days before the removal.”).
However, Defendants also submit that the case is removable
based upon 28 U.S.C. § 1331, which only became apparent upon
Plaintiff filing an amended complaint on August 1, 2013. Thus,
the
question
becomes
whether
Defendants
may
remove
based
on
federal question jurisdiction after they have waived their right
to
remove
based
upon
diversity
jurisdiction.
“[T]he
plain
language of the statute does not permit removal, even on an
4
entirely new basis, if the initially removable case was not
timely removed.” Clegg v. Bristol-Myers Squibb Co., 285 B.R. 23,
29 (M.D. Fla. 2002) (citations omitted).
“The courts, however,
have read into the statute an exception for the case where the
plaintiff files an amended complaint that so changes the nature
of his action as to constitute substantially a new suit begun
that
day.”
Wilson
v.
Intercollegiate
(Big
Ten)
Conference
Athletic Ass’n, 668 F.2d 962, 965 (7th Cir. 1982) (citations
omitted) (internal quotation marks omitted); see also Johnson v.
Heublein Inc., 227 F.3d 236, 242 (5th Cir. 2000) (citations
omitted)
(internal
quotation
marks
omitted)
(“[A]lthough
a
defendant has submitted himself to state court jurisdiction on
one cause of action, this does not prevent his removing the
cause when an entirely new and different cause of action is
filed in the same case.”).
Defendants
exception”
may
because
take
advantage
Plaintiff
of
asserted
the
so-called
entirely
new
“revival
causes
of
action in his amended complaint. Thus, on August 1, 2013, the
day the amended complaint was filed by Plaintiff, the 30-day
window for filing a notice of removal began anew. Plaintiff’s
original
complaint
discrimination,
stated
failure
causes
to
of
action
accommodate,
for
disability
wrongful
use
of
administrative proceedings, retaliation, intentional infliction
of
emotional
distress,
and
punitive
5
damages.
In
the
amended
complaint,
Plaintiff
violation
of
added
Kentucky
claims
statute
for
for
wrongful
discharge,
wrongfully
a
withholding
payment, conversion, and breach of contract. As the causes of
action appearing in the original complaint and the causes of
action
appearing
in
the
amended
complaint
rely
on
entirely
different facts, the new causes of action asserted by Plaintiff
“constitute substantially a new suit.” Wilson, 668 F.2d at 965.
It first became apparent that the case was removable based
upon
federal
amended
question
complaint
on
jurisdiction
August
1,
when
2013.
Plaintiff
Defendants
filed
filed
his
their
notice of removal on August 22, 2013. When applying the revival
exception, Defendants filed a timely notice of removal and the
Court
must
determine
whether
Plaintiff’s
amended
complaint
creates federal question jurisdiction. See 28 U.S.C. § 1446(b).
Plaintiff
contends
the
issue
of
federal
question
jurisdiction is moot because of a settlement that occurred after
the notice of removal. [D.E. 6 at 4]. However, “[i]t has long
been the case that ‘the jurisdiction of the Court depends upon
the state of things at the time of the action brought.’” Grupo
Dataflux v. Atlas Global Grp., 541 U.S. 567, 570 (2004) (quoting
Mollan v. Torrance, 22 U.S. 537 (1824)). This action was removed
on
August
22,
2013.
[D.E.
1].
The
affidavit
provided
by
Plaintiff was not sworn until September 19, 2013. [D.E. 6-4].
6
Thus,
the
Court
must
determine
whether
federal
question
jurisdiction existed at the time the case was removed.
The Court does not have federal question jurisdiction based
on
complete
preemption
by
§
301
of
the
Labor
Management
Relations Act. See 29 U.S.C. § 185. “The presence or absence of
federal-question jurisdiction is governed 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.”
Caterpillar, Inc. v.
Williams, 482 U.S. 386, 392 (1987) (citations omitted) (internal
quotation marks omitted). A federal question
must be disclosed upon the face of the complaint,
unaided by the answer or by the petition for removal.
Indeed, the complaint itself will not avail as a basis
of jurisdiction in so far as it goes beyond a
statement of the plaintiff’s cause of action and
anticipates or replies to a probable defense.
Gully v. First Nat’l Bank, 299 U.S. 109, 113 (1936) (citations
omitted).
Defendants
jurisdiction
preempted
by
contend
because
federal
the
the
Court
has
Plaintiff’s
law.
“[S]ection
federal
state-law
301
[of
question
claims
the
are
Labor
Management Relations Act] constitutes an exception to the wellpleaded complaint rule because the pre-emptive force of § 301 is
so powerful as to displace entirely any state cause of action
for
violation
of
contracts
between
7
an
employer
and
a
labor
organization.” Fox v. Parker Hannifin Corp., 914 F.2d 795, 799
(6th Cir. 1990) (quoting Franchise Tax Bd. v. Constr. Laborers
Vacation Trust, 462 U.S. 1, 23 (1983)) (internal quotation marks
omitted).
Section
301
preempts
a
state
cause
of
action
and
creates federal question jurisdiction, “if the resolution of a
state-law
claim
depends
upon
the
meaning
of
a
collective-
bargaining agreement.” Lingle v. Norge Div. of Magic Chef, 486
U.S. 399, 405-06 (1988). Complete preemption does not exist when
the state law remedy is independent of the collective-bargaining
agreement
(CBA).
Id.
at
407.
The
state
law
remedy
is
“independent” if “resolution of the state-law claim does not
require construing the collective-bargaining agreement.” Id.
The Sixth Circuit has
developed a two-step approach for determining whether
section 301 preemption applies. First, the district
court must examine whether proof of the state law
claim requires interpretation of collective bargaining
agreement terms. Second, the court must ascertain
whether the right claimed by the plaintiff is created
by the collective bargaining agreement or by state
law. If the right both is borne of state law and does
not involve contract interpretation, then there is no
preemption. However, if neither or only criterion is
satisfied, section 301 preemption is warranted.
DeCoe v. Gen. Motors Corp., 32 F.3d 212, 216 (6th Cir. 1994).
Defendants
Plaintiff’s
assert
amended
that
counts
complaint
two
create
through
federal
five
of
question
jurisdiction. Count II is a claim for wrongful discharge, Count
III
alleges
a
violation
of
KRS
8
337.385
for
wrongfully
withholding
alleges
wages,
breach
Count
of
IV
alleges
contract.
conversion,
Whether
and
federal
Count
V
question
jurisdiction arises under any of these claims will be discussed
in turn.
Plaintiff’s claim for wrongful discharge does not establish
federal question jurisdiction. In Paragraph 11 of the amended
complaint,
Plaintiff
claims
that
he
“opposed
and
reported
a
practice of his employer that was in violation of the Union
contract between Bosch Rexroth and the Union of which Bradley
Garber was a member.” [D.E. 1-5 at 2]. While Plaintiff’s amended
complaint references the CBA between the Union and Defendant
Bosch Rexroth, an interpretation of the CBA is not required,
because, under Kentucky law, a violation of the CBA cannot be
the basis for a wrongful discharge claim.1 “KRS 446.070, the
underpinning of a wrongful discharge, extends a right of action
only for the violation of a Kentucky statute or a constitutional
provision.” Shrout v. TFE Group, 161 S.W.3d 351, 355 (Ky. Ct.
App. 2005). Therefore, an interpretation of the CBA will never
be required to determine whether Plaintiff can succeed on his
1
Plaintiff asserts that the wrongful discharge claim is
essentially a claim of retaliation. In his Motion for Remand,
Plaintiff claims to have “asserted the common law wrongful
discharge claim, a discharge against public policy, in the event
that reporting the violation was not considered a protected
activity under the KCRA.” [D.E. 6 at 9]. Thus, based upon
Plaintiff’s clarifications, the alleged wrongful discharge
occurred without respect to the CBA.
9
claim
of
wrongful
discharge
because
a
violation
of
the
CBA
cannot provide the basis for a claim of wrongful discharge.
Additionally, the wrongful discharge claim is created by state
law, and Plaintiff has chosen not to pursue an action for a
right created by the CBA. Shrout, 161 S.W.3d at 354 (“[T]he
Kentucky
Supreme
Court
recognized
a
narrow
exception
to
the
terminable at will doctrine and acknowledged a cause of action
for wrongful discharge. . . .”); see also Gentek Bldg. Prods. v.
Sherwin-Williams
(citations
Co.,
omitted)
491
(“The
F.3d
320,
plaintiff
may
325
(6th
simply
Cir.
avoid
2007)
federal
jurisdiction by relying exclusively on state law.”).
Defendants argue that Plaintiff’s claim under KRS 337.385,
the
claim
for
conversion,
and
the
breach
of
contract
claim2
provide for federal question jurisdiction because they require
the Court to enforce and interpret an arbitration award that
“contained specific interpretations of the language of the CBA.”
[D.E. 9 at 4]. This is not enough for Defendants to invoke
federal question jurisdiction. Assuming Defendants’ assertions
are true, the enforcement of the arbitration award is all that
would be at issue. The Court would not be required to look
behind the award for the basis of the arbitrator’s decision and
2
The Court notes that, according to Plaintiff, the breach of
contract claim arises out of an alleged alteration of the atwill employee relationship and not out of an alleged breach of
the CBA. [D.E. 10 at 5].
10
assess whether the CBA was properly interpreted. At most, the
CBA would be “tangential” to the analysis, which is not enough
to create federal question jurisdiction. Fox, 914 F.2d at 800.
In their Notice of Removal, but not in their Response,
Defendants claim the Court has jurisdiction because “Plaintiff’s
claim for conversion pursuant to an arbitration ruling invokes
the
Federal
Federal
Arbitration
Arbitration
Act
Act.”
[D.E.
“bestows
no
1
at
federal
1].
However,
the
jurisdiction
but
rather requires for access to a federal forum an independent
jurisdictional
basis
over
the
parties’
dispute.”
Vaden
v.
Discover Bank, 556 U.S. 49, 59 (2009) (quoting Hall St. Assocs.
v. Mattel, Inc., 552 U.S. 576, 581-82 (2008)). Thus, an issue
involving the Federal Arbitration Act has no bearing on whether
this
Court
Accordingly,
has
this
original
Court
subject-matter
does
not
have
jurisdiction.
federal
question
jurisdiction over this matter and the case must be remanded for
lack of subject-matter jurisdiction.3
3
According to Plaintiff, the claims that Defendants argue
provide federal question jurisdiction are now moot due to a
partial settlement after the Notice of Removal was filed. [D.E.
6 at 4]. Plaintiff swore in an affidavit that he is no longer
pursuing the claims for violation of KRS 337.385, conversion, or
breach of contract. [D.E. 6-4]. Thus, even if this Court had
federal question jurisdiction based on one of these claims, the
claims would subsequently be dismissed. In that event, the Court
would decline to exercise pendent jurisdiction over the
remaining state law claims at this early stage of litigation and
the claims would be dismissed without prejudice. See 28 U.S.C. §
1367(c); Carnegie-Mellon U. v. Cohill, 484 U.S. 343, 350 (1988)
11
IV. Conclusion
Accordingly, for the foregoing reasons, IT IS ORDERED that
Plaintiff’s Motion to Remand [D.E. 6] be, and the same hereby
is, GRANTED and this matter is hereby REMANDED to the Fayette
Circuit Court.
This the 30th day of October, 2013.
(citing United Mine Workers v. Gibbs, 383 U.S. 715, 726-27
(1966)) (“[W]hen the federal-law claims have dropped out of the
lawsuit in its early stages and only state-law claims remain,
the federal court should decline the exercise of jurisdiction by
dismissing the case without prejudice.”).
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?