Gallagher-McKee v. Lahey Clinic Hospital, Inc.

Filing 25

Judge Mark L. Wolf: "...[I]t is hereby ORDERED that this case is REMANDED to the Superior Court Department of the Trial Court of Massachusetts for Essex County." ORDER entered. MEMORANDUM AND ORDER(Bono, Christine)

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ELAINE GALLAGHER-MCKEE,

Plaintiff,
V.

C.A. No. 17-10184-MLW

LAHEY CLINIC HOSPITAL, INC.,
Defendant.

MEMORANDUM AND ORDER

WOLF, D.J.

March 29, 2018

Plaintiff filed this case in Massachusetts Superior Court
alleging violations of the Family Medical Leave Act of 1993 (the

"FMLA"), 29 U.S.C. §2615, as well as fraudulent and negligent

misrepresentation

under

Massachusetts

law.

Defendant

timely

removed the case to this federal court. It alleged the court had
federal question jurisdiction over the FMLA claim under 28 U.S.C.
§1331 and supplemental jurisdiction over the state law claims under

28 U.S.C. §1367. Plaintiff subsequently dismissed the FMLA and

fraud claims, and amended the complaint to allege only one count
of negligent misrepresentation under Massachusetts law. For the

reasons

described

below,

the

court

lacks

subject

matter

jurisdiction to decide that claim. Therefore, it is remanding this
case to state court.

"A court is duty-bound to notice, and act upon, defects in
its STibject matter jurisdiction sua sponte." Spooner v. EEN, Inc.,

644 F.3d 62, 67 (1st Cir. 2011). On November 2, 2017, the court

issued a Memorandum and Order questioning whether it had subject
matter jurisdiction to decide the case. The court explained the
reasons

it

doubted

the

existence

of

jurisdiction,

which

are

amplified below, and ordered that "the parties shall, by November
20, 2017, confer concerning the issues raised in this Memorandum
and Order and report whether this case should be remanded to state

court." Nov. 2, 2017 Memo, and Order at 5, Hi. It also ordered

that "[i]f either party asserts the case should proceed in this
court, the parties shall, by December 8, 2017, each submit a

memorandum addressing whether this court may properly exercise
jurisdiction over this case." Id. at ^2. See Fabrica de Muebles
J.J. Alvarez, Incorporado v. Inversiones Mendoza, Inc., 682 F. 3d

26, 32-33 (1st Cir. 2012)(stating that when the court notices a

defect

in

subject-matter

jurisdiction,

the

"party

asserting

jurisdiction has the burden of demonstrating [its] existence").
On November 27, 2017, the parties had not filed the report
required by paragraph one of the November 2, 2017 Order. Therefore,
the court ordered the case remanded to state court. See Dec. 27,

2017

Memo.

and

Order.

The

parties

promptly

moved

for

reconsideration, explaining that they incorrectly believed they
were only required to report by November 20, 2017 if they consented
to have the case remanded. The court allowed the motion and stayed
the

December

27,

2017

Order

requiring

remand.

The

parties

subsequently filed a Joint Memorandum in Favor of Finding Federal
Jurisdiction, arguing that the case should remain in federal court.
The parties agree, as the court found on November 2 and

December 27, 2017, that the court cannot exercise supplemental
jurisdiction over the negligent misrepresentation claim under 28
U.S.C. §1367. See Wilber v. Curtis, 2017 WL 4159603, at *6 (1st

Cir. Sept. 20, 2017); Rivera-Diaz v. Humana Ins, of Puerto Rico,
Inc., 748 F.3d 387, 392 (1st Cir. 2014). They argue, however, that
28 U.S.C. §1331 confers federal question jurisdiction over the

claim because it alleges that defendant owed plaintiff a duty under
two federal statutes, the FMLA and the Americans with Disabilities

Act of 1990 (the "ADA"), 42 U.S.C. §12112. See Compl. at 1(38.
28 U.S.C. §1331 authorizes the United States District Courts

to hear "all civil actions arising under the Constitution, laws,
or treaties of the United States." "A case 'aris[es] under' federal

law within the meaning of §1331...if 'a well-pleaded complaint
establishes either that federal law creates the cause of action or

that the plaintiff's right to relief

necessarily depends on

resolution of a siibstantial question of federal law.'" Empire
Healthchoice

Assur.,

Inc.

v.

McVeigh,

547

U.S.

677,

689-90

(2006)(quoting Franchise Tax Bd. Of Cal. v. Construction Laborers
Vacation Trust for Southern Cal., 463 U.S. 1, 27-28 (1983)). This
means that "federal question jurisdiction under 28 U.S.C. §1331
encompasses a narrow swath of cases in which a state-law claim [1]

necessarily raise[s] a stated federal issue, [2] actually disputed
and [3] substantial, [4] which a federal forum may entertain
without disturbing any congressionally approved balance of federal
and

state

judicial

responsibilities."

Anversa

v.

Partners

Healthcare Sys., Inc., 835 F.3d 167, 175 (1st Cir. 2016)(citing
Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S.

308, 314 (2005); see also Gunn v. Minton, 133 S. Ct. 1059, 106567 (2013).

The requirement that a question of federal law embedded in a
state-law

claim

be

"substantial"

"demands

that

[the]

federal

question must be not only important to the parties, but important
to the federal system." Municipality of Mayagiiez v. CPDO, 726 F.3d
8, 13 (1st Cir. 2013). A claim

raises a "substantial" federal

question when (a) its outcome "could turn on a new interpretation
of a federal statute or regulation which will govern a large number
of cases" and "could be settled once and for all" if adjudicated
in a federal forum; or (b) presents an issue of federal law whose

resolution "has broader significance for the federal government,"

such as a claim that "directly challenges the propriety" of a
federal administrative action. Id. at 13-14. The Supreme Court has
also considered whether allowing state courts to resolve the claim

will "undermine the development of a uniform body of [federal]
law." Gunn, 568 U.S. at 261.

As the basis for her claim of negligent misrepresentation
under Massachusetts law, plaintiff alleges that while she was on

leave because of anxiety and depression, defendant "misrepresented
that [she] would not be terminated while on [leave due to her]
disability," even though it "knew or should have known that [her]

position would not be available as of November 3, 2014." Am. Compl.
at 111139-40. She further alleges that defendant "failed to inform
[her] that she needed to provide a return to work date in order to

retain her employment with [defendant]." Am. Compl. at 1I1|36. She
also alleges that defendant's "misrepresentation to [her] caused
her to remain out on leave beyond" June 23, 2014, the date to which

defendant had previously extended her leave. Id. at 1l42. As a
result, on November 3, 2014, she was terminated. Id.

Plaintiff claims that defendant's misrepresentation breached

its "duty to [plaintiff] to inform her of her rights under the

FMLA and ADA." Id. at 1|38. However, plaintiff dismissed her FMLA
claim because the alleged misrepresentations occurred after the

12-week period of leave to which the FMLA allegedly entitled her.

See PI'S 0pp. to Motion to Dismiss (Docket No. 11) ("Pi's 0pp.")
at 2; see also 29 U.S.C. §2612(a). She has not asserted a claim

under the ADA. The parties concede that there is no provision of
the FMLA or the ADA that required defendant to notify plaintiff,
after her 12-week FMLA leave ended, that she could be terminated

for remaining on indefinite leave without setting a date for her

return. See Def's Memo, in Supp. of Motion to Dismiss (Docket No.

7) at 1; PI'S 0pp. at 6. Plaintiff does not allege that defendant
failed to comply with any of the FMLA notice requirements under 29
C.F.R. §825.300 during her initial 12 weeks of leave.^ In effect,

plaintiff contends that the FMLA and ADA are evidence of a "public
policy"

that

employers

should

provide

complete

and

accurate

information in the circumstances alleged, and that Massachusetts
law elevates that policy into a duty. Pi's 0pp. at 5, 8.
As explained earlier, §1331 gives United States District
Courts the power to decide state-law claims that "depend on the
construction or application of federal law," if "the contested
federal issue [is] a substantial one." Grable, 545 U.S. at 314

(emphasis added); see also Merrell Dow Pharma. Inc., v. Thompson,

478 U.S. 804, 808-09 (1986)(stating that "the vindication of a

right under state law [must] necessarily turn on some construction
of federal law")(emphasis added). To provide federal jurisdiction
to decide a claim based on state law, the claim must depend on the

"interpretation
propriety of

of

a

federal

statute

a federal administrative

or

regulation"

action.

or

the

Municipality of

^ In fact, plaintiff alleges that on February 27, 2014, defendant
provided her with paperwork authorizing her to take leave under
the FMLA, and that defendant misrepresented its intent not to
terminate her on May 22, 2014 after her "leave ran out." Am. Compl.
at 1|28.

Mayaguez, 726 F.3d at 14. In Grable, for example, the plaintiff in
a quiet-title action alleged that the Internal Revenue Service

violated a duty imposed under a federal tax statute, 26 U.S.C.
§6335(a), when it seized his property. See 545 U.S. at 311. Because

any duty to plaintiff in this case was imposed by state, not
federal law, §1331 does not apply.
In Fracasse v. People's United Bank, the Second Circuit found

that it lacked jurisdiction over a comparable case and remanded it
to state

court.

747

F.

3d 141

(2nd

Cir.

2014). It

held

that

"[n]either the federal government nor the federal system as a whole
has a pressing interest in ensuring that a federal forum is
available to defendants in state tort suits that [like this case]

include passing references to a federal statute cited only as an
articulation of public policy." Id. at 145. In Fracasse, the

plaintiffs alleged that their employer failed to compensate them
for overtime work and wrongfully terminated one of them while she
was on medical leave due to increased stress and anxiety. Id. at
142-43. They asserted claims for breach of the covenant of good
faith and fair dealing and wrongful termination under state law.
Id. The plaintiffs referenced the Fair Labor Standards Act as "one

of numerous public policies" supporting their claims. Id. at 144.
In finding that it lacked jurisdiction under §1331, the court
reasoned that employees whose FLSA rights were violated "ha[d]

direct access to a federal forum to assert their rights under the

FLSA." Id. at 145. Therefore, there was no "pressing" federal

interest in providing a federal forum for state-law claims raising
FLSA issues. Id. at 145. In addition, declining jurisdiction would
not "cede an opportunity to establish binding precedent" because
the FLSA "need[ed] no interpretation in connection with the state

tort claims that ha[d] been pled." Id.
Similarly, in this case plaintiff does not ask the court to

interpret any provision in the ADA or FMLA, but merely to define
the

"policies"

behind

those

statutes

and

their

implementing

regulations. Therefore, as in Fracasse, this case does not require
the court to construe a federal law definitively. Since it does
not pose a question of federal law, state court adjudication of
the

claim

will

not,

as

the

parties

contend,

"undermine

the

development of a uniform body of [federal] law." Joint Memo, at 5.

In addition, employees alleging that they were harmed by
violations of the FMLA's notice provisions may seek relief directly
under the FMLA. See Ragsdale v. Wolverine World Wide, Inc., 535

U.S. 81, 89 (2002); 29
Reserve

Bank

of

C.F.R.

Richmond,

827

§825.300(e);
F.

3d

296,

Vannoy v. Federal
301-02

(4th

Cir.

2016)(holding that claim under FMLA based on employer's failure to
notify employee of his right to reinstatement at the conclusion of
his medical leave, which would have caused him to structure his

leave

differently).

Employees

alleging

failures

to

grant

a

reasonable request for medical leave as an accommodation for a

disability may sue under the ADA. See Garcia-Ayala v. Lederle
Parentals, Inc., 212 F. 3d 638, 645-50 (1st Cir. 2000). Such claims

give the federal courts ample opportunity to interpret the ADA'S
and FMLA's requirements applicable to leave. Therefore, as in

Fracasse, there is no federal interest in allowing a state-law
claim such as plaintiff's negligent misrepresentation claim in
this case to be used as a vehicle to do so. See 747 F. 3d at 145.

The cases cited by the parties are materially different. In
each of them, the court was required to interpret federal law--

not just an unwritten federal policy--to grant full relief. In
Anversa,

"all

of

the

plaintiff's

claims

turn[ed]

on

the

interpretation of...federal regulations." 835 F.3d at 174 n.5 (1st
Cir. 2016). In Bd. of Comm'rs of Southeast La. Flood Protection
Auth. - East V. Tenn. Gas. Pipeline Co., LLC., the Fifth Circuit

found jurisdiction over the plaintiff's negligence and nuisance
claims because they could "not be resolved without a determination

whether multiple federal statutes create[d] a duty of care that
does not otherwise exist under state law." 850 F.3d 714, 724 (5th

Cir. 2017). Similarly, in Shea v. Union Free School Dist. of
Massapequa, the court construed the plaintiff's allegations as

asserting that the defendant "failed to comply with the provisions
of the [Individuals with Disabilities Act (the "IDEA")]." 682 F.

Supp.

2d

239,

242

(E.D.N.Y.

2010).

Therefore,

although

the

plaintiffs "appear[ed] to challenge the defendant's compliance

with state, not federal, procedural mechanisms," the court found

they asserted that the defendants "prevented [plaintiff] from
proper

classification

under

the

IDEA,"

which

the

court

foimd

"g[ave] rise to questions related to the IDEA'S federal guarantee
of rights." Id.

Even if plaintiff had a meaningful argument that the ADA or

FMLA imposed a duty on defendant in the circumstances alleged, the
court would still lack jurisdiction. "Where a federal issue is

present as only one of multiple theories that could support a
particular

claim...this

is

insufficient

to

create

federal

jurisdiction." Anghel v. Ruskin Moscou Faltischek, P.C., 598 F.
App'x 805, 807 (2d Cir. 2015)(citing Christiansen v. Colt Indus.

Operating Corp., 486 U.S. 800, 807-09 (1988)); accord Wright &
Miller, 13D Fed. Prac. & Proc. Juris. §3562 (3d ed.).

Here,

a

court

misrepresentation

could

claim

grant

without

relief

relying

on

on

the

any

negligent

federal

statute. Under Massachusetts law, "fraud, deceit, and negligent

misrepresentation may be perpetrated by a half truth, or by an
implied representation, as well as by an express representation of
material fact." Copperbeech P'ship, Ltd. v. Seegel, Lipshutz &

Wilchins, P.C, 2004 WL 1431052, at *2 (Mass. Super. Ct. 2004).
[E]ven in an arms-length transaction, though there may be
no duty otherwise imposed, if a party does speak 'to a
given point of information, voluntarily or [otherwise],
he is bound to speak honestly and to divulge all the
material facts bearing upon the point that lie within his
10

[or her] knowledge. Fragmentary information may be as
misleading...as active misrepresentation, and half-truths
may be as actionable as whole lies.
'

Copley Place Assocs., LLC v. Tellez-Bortoni, 91 Mass. App. Ct. 186
(2017)(quoting Kannavos v. Annino, 356 Mass. 42, 48 (1969)); see

also Restatement (Second) of Torts §551(2)(b)("One party to a
business transaction is under a duty to exercise reasonable care
to disclose to the other before the transaction is consummated,
matters known to him that he knows to be necessary to prevent his

partial

or

ambiguous

statement

of

the

facts

from

being

misleading.").

Plaintiff could prevail in this case based on her allegation
that defendant told

her she "would not

be

terminated

while

on

disability" when it knew or should have known that position would
not be available as of November 3, 2014. Am. Compl. at 1I1|39-40.
Plaintiff has a claim that without additional information, this
statement reasonably misled her to believe that she would not be

terminated while on leave regardless of whether she provided
defendant a date on which she planned to return to work. Therefore,
plaintiff's

negligent

misrepresentation

claim

does

not

"necessarily depend[] on resolution of a substantial question of
federal law" and does not "arise under" it. Empire Healthchoice,
547 U.S. at 690.

In view of the foregoing, the court lacks jurisdiction to

decide the only claim in the Amended Complaint. Therefore, it is
11

hereby ORDERED that this case is REMANDED to the Superior Court
Department of the Trial Court of Massachusetts for Essex County.

UNITED STATES DISTRICT JUDGE

12