Raktabutr v. Greater Baltimore Medical Center

Filing 9

MEMORANDUM. Signed by Judge Ellen L. Hollander on 2/18/2021. (c/m)(krs, Deputy Clerk)

Case 1:21-cv-00008-ELH Document 9 Filed 02/18/21 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
APICHAYA RAKTABUTR

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Plaintiff

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v

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GREATER BALTIMORE MEDICAL
CENTER,

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Civil Action No. ELH-21-0008

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Defendant
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MEMORANDUM

Apichaya Raktabutr, who is self-represented, filed suit (ECF 1) against the Greater
Baltimore Medical Center (“GBMC”), along with a motion for leave to proceed in forma pauperis
(ECF 2). Because Raktabutr’s financial affidavit demonstrates that she is eligible to proceed in
forma pauperis, I shall grant the motion (ECF 2).
GBMC filed a motion to dismiss the Complaint for lack of subject matter jurisdiction,
pursuant to Fed. R. Civ. P. 12(b)(1). ECF 6. Defendant’s motion is supported by a memorandum
of law (ECF 6-1) and a declaration. ECF 6-2. Plaintiff filed a letter in response, asking to “stay in
the case until final.” ECF 8.
No hearing is necessary to resolve the motion. See Local Rule 105.6. For the reasons that
follow, I will grant the motion and dismiss the complaint, without prejudice, and with leave to
amend.
I. PLAINTIFF’S ALLEGATIONS
Plaintiff initiated this action by filing her claims on a preprinted form titled “Complaint
For Employment Discrimination.” ECF 1. She alleges that she worked as a Clinical Pharmacist at

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GBMC, and that GBMC, her former employer, obstructs her prospects for future employment by
making untrue statements about her. ECF 1 at 3. She alleges that GBMC unfairly terminated her
from employment for not showing up at work, although she was not scheduled to work, and she
has “the schedule to prove it.” Id. at 4. Further, she claims that GBMC continues to inform
potential employers about her termination. Id. She also claims that GBMC has retaliated against
her. Id.
Plaintiff checked boxes on the Complaint form that indicate she is claiming discriminatory
conduct for termination of her employment, retaliation, and other acts Id. at 4. The Complaint
form reads: “It is my best recollection that the alleged discriminatory acts occurred on…” In
response, plaintiff has written the date “January 2017.” Id. However, plaintiff has not checked
any boxes on the form listing possible bases for unlawful discrimination. Id. Plaintiff asks “a
judge/court to tell GBMC hospital to stop persecution/retaliation me [sic]” and she seeks “some
compensation if possible” of an unstated sum. Id. at 5 at 5-6.
As the basis for jurisdiction in this case, plaintiff indicates “Other federal law,” “Relevant
state law,” and “Relevant city or county law.” But, she does not identify the law or laws under
which she brings her claims. Id. at 3.
II. DISCUSSION
A. Legal Standard
Rule 12(b)(1) of the Federal Rules of Civil Procedure permits a defendant to challenge the
court's subject matter jurisdiction. Under Rule 12(b)(1), the plaintiff bears the burden of proving,
by a preponderance of evidence, the existence of subject matter jurisdiction. See Demetres v. E.
W. Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); see also The Piney Run Preservation Ass'n v.
Cty. Comm'rs of Carroll Cty., 523 F.3d 453, 459 (4th Cir. 2008); Evans v. B.F. Perkins Co., 166

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F.3d 642, 647 (4th Cir. 1999). However, a court should grant a motion to dismiss for lack of
subject matter jurisdiction under Rule 12(b)(1) “‘only if the material jurisdictional facts are not in
dispute and the moving party is entitled to prevail as a matter of law.’” B.F. Perkins, 166 F.3d at
647 (citation omitted). A challenge to subject matter jurisdiction under Rule 12(b)(1) may proceed
“in one of two ways”: either by a facial challenge or a factual challenge. Kerns v. United States,
585 F.3d 187, 192 (4th Cir. 2009); accord Hutton v. Nat'l Bd. of Exam'rs Inc., 892 F.3d 613, 62021 (4th Cir. 2018). Here, defendant raises a facial challenge to the Complaint.
B. Jurisdiction
This court is one of limited jurisdiction. Gunn v. Minton, 586 U.S. 251, 256 (2013);
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see Home Depot U.S.A.,
Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019); Exxon Mobil Corp. v. Allapattah Servs., Inc., 545
U.S. 546, 552, (2005). “A court is to presume, therefore, that a case lies outside its limited
jurisdiction unless and until jurisdiction has been shown to be proper.” United States v. Poole, 531
F.3d 263, 274 (4th Cir. 2008) (citing Kokkonen, 511 U.S. at 377). Moreover, the “burden of
establishing subject matter jurisdiction is on . . . the party asserting jurisdiction.” Robb Evans &
Assocs., LLC v. Holibaugh, 609 F.3d 359, 362 (4th Cir. 2010); accord Hertz Corp. v. Friend, 559
U.S. 77, 96 (2010); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010).
In general, a district court may hear claims only that arise from a federal question
presented, 28 U.S.C. § 1331, or which are based on diversity of citizenship, 28 U.S.C. § 1332.
Federal question jurisdiction exists for any civil action “arising under the Constitution, laws, or
treaties of the United States,” 28 U.S.C. § 1331. Diversity jurisdiction exists where the parties are
residents of different states and the amount in controversy exceeds $75,000, 28 U.S.C. § 1332. If
at any time a court determines that it lacks subject matter jurisdiction, the court must dismiss the

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action. Fed. R. Civ. P. 12(h)(3); Kontrick v. Ryan, 540 U.S. 443, 455 (2004); see also Arbaugh v.
Y & H Corp., 546 U.S. 500, 506-07 (2006).
1. Diversity of Citizenship of the Parties
Defendant argues that plaintiff has not met the requisites for diversity jurisdiction. ECF 61 at 3-4. First, plaintiff and defendant are citizens of the same state, Maryland. According to the
Complaint, plaintiff is domiciled in Maryland. ECF 1 at 1. GBMC is incorporated in Maryland,
with its principal place of business in Towson, Maryland. Affidavit of Susan F. Martielli, ECF 62, ¶ 4-5. Second, plaintiff has not satisfied amount in controversy requirement, because she does
not assert that the matter in controversy exceeds $75,000. ECF 1 at 5. The relief plaintiff seeks is
for the court to direct defendant to cease retaliation against her, and to award her “some
compensation if possible,” without stating a specific amount. Id.
Under these facts, plaintiff provides no grounds for jurisdiction based on diversity of the
parties’ citizenship.
2. Federal Question Jurisdiction
Defendant next asserts that no federal question is presented on the face of the Complaint.
ECF 6-1 at 4-6. A “case arises under federal law when federal law creates the cause of action
asserted.” Gunn v. Minton, 568 U.S. 251, 257 (2013); see also Am. Well Works Co. v. Layne &
Bowler Co., 241 U.S. 257, 260 (1916) (stating that a “suit arises under the law that creates the
cause of action”). A claim is also deemed to arise under federal law for purposes of 28 U.S.C. §
1331 when, although it finds its origins in state law, “the plaintiff's right to relief necessarily
depends on resolution of a substantial question of federal law.” Empire Healthchoice Assurance
Inc. v. McVeigh, 547 U.S. 677, 690(2006); see Franchise Tax Bd. of State of California v.
Construction Laborers Vacation Trust for Southern California, 463 U.S. 1,13 (1983).

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GBMC accurately notes that plaintiff asserts no facts to suggest that her employment
claims arise under federal law, whether it be Title VII of the Civil Rights Act of 1964, 42 U.S .C.
§ 2000e et seq.; the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12111 et seq.; the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., or any other federal
law. ECF 6-1 at 4. Further, plaintiff does not allege that she was terminated from employment
based on any legally protected basis to support a federal employment claim. Id. at 5. Rather,
plaintiff alleges that she was unfairly terminated for not coming to work on days she claims she
was not scheduled to work. Id.
Defendant asserts that the claim is essentially one for wrongful termination, which arises
under state law, or tortious interference, which also arises under state law. Id. And, according to
GBMC, such a claim would be untimely filed, as the statute of limitations for such a state law
claim is three years. See ECF 6-1 at 5 n.2; see also Md. Code, Cts. & Jud. Proc. § 5-101; BowmanCook v. Wash. Metro. Area Transit Auth., Civ. No. DKC-14-1877, 2017 WL 3592450, at *5 (D.
Md. Aug. 21, 2017) (applying § 5-101).1
GBMC also argues that, even if a basis for federal question jurisdiction were apparent from
the face of the Complaint, plaintiff presents no evidence that she exhausted her administrative
remedies by filing her claims with the Equal Employment Opportunity Commission (“EEOC”)
prior to filing this lawsuit. ECF 6-1 at 5-6; see Sydnor v. Fairfax Cty., 681 F.3d 591, 592 (4th Cir.
2012) (exhaustion requirements apply to claims under Title VII and the ADA); Byington v. NBRS
Financial Bank, 903 F. Supp. 2d 342, 348 (D. Md. 2012) (noting exhaustion requirement applies
to ADEA claims). Failure to follow these procedures will bar the claimant from bringing suit.

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Because plaintiff alleges continuing misconduct by GBMC, the claims are not necessarily
barred by limitations.
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Plaintiff does not dispute defendant’s arguments in her response letter. And, in light of the
circumstances described above, the court does not appear to have a basis to exercise jurisdiction
over this matter. However, because plaintiff is self-represented, and her filings are subject to
liberal construction, I will grant her leave to amend, until March 19, 2021.
To comply with the Federal Rules of Civil Procedure, a complaint must contain, at a
minimum, a short and plain statement of the claim that shows the plaintiff is entitled to relief and
a request for relief. See Fed. R. Civ. Proc. 8(a). Additionally, under Rule 8(a), a pleading must
“give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”
Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)). Under Rule 8(d)(1), each allegation in a complaint should be “simple, concise, and
direct.” A pleading that offers labels and conclusions or a formulaic recitation of the elements of
a cause of action does not satisfy Rule 8’s basic pleading requirements. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Therefore, if plaintiff seeks to amend her suit, she should include the following
information: a clarification as to whether plaintiff is alleging that defendant violated federal law
in terminating her employment; the name(s) of the law or laws; facts to show how these laws were
violated; and the names of any persons she believes unlawfully terminated her employment, with
facts in support. Plaintiff should also specify whether plaintiff has presented her claims to the
EEOC and the results.
Plaintiff is also directed to write the above case number on the amended complaint.
Plaintiff is cautioned that if she fails to comply with this Order, the suit may be dismissed, without
prejudice, and without further notice.

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III. CONCLUSION
For the foregoing reasons, I will grant the motion, without prejudice, and with leave to
amend. A separate Order follows.

February 18, 2021
Date

/s/
Ellen L. Hollander
United States District Judge

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