Cross v. The Children's Place Retail Stores, Inc. et al

Filing 24

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to remand [Doc. # 12 ] is granted. IT IS FURTHER ORDERED that the Clerk of the Court shall remand this action to the Twenty-First Judicial Circuit Court of Missouri (St. Louis County), from which it was removed. Signed by District Judge Carol E. Jackson on 5/26/15. (cc: St. Louis County Circuit Clerk)(JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARTY CROSS,
Plaintiff,
vs.
THE CHILDREN’S PLACE RETAIL
STORES, INC. and DAN CARR,
Defendants.

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Case No. 4:15-CV-320-CEJ

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion to remand this action to
the Missouri state court from which it was removed. The issues are fully briefed.
I.

Background

Plaintiff initiated this action in the St. Louis County Circuit Court on
November 4, 2014, asserting claims of retaliatory discharge, in violation of the
Missouri Workers Compensation Law, Mo. Rev. Stat. § 287.780, and intentional
infliction of emotional distress. In support of his intentional infliction of emotional
distress claim, plaintiff alleged that defendant “Dan Carr’s termination of [p]laintiff’s
employment was . . . in violation of the . . . Americans with Disabilities Act and the
Missouri Human Rights Act.” [Doc. #6 at 6, ¶40]. The Children’s Place, Inc. was
served on November 24, 2014. Carr was served on December 2, 2014.
On February 10, 2015, plaintiff filed a first amended petition, which
contained the same claims he asserted in the original petition and repeated the
allegation that Carr violated the Americans with Disabilities Act (ADA), 42 U.S.C.
§§ 12101, et seq. The amended petition also included a new state law claim of
disability discrimination, in violation of the Missouri Human Rights Act (MHRA), Mo.

Rev. Stat. §§ 213.010, et seq., against defendant The Children’s Place. In addition,
plaintiff alleged for the first time that he had filed a charge of discrimination against
The Children’s Place with the Missouri Human Rights Commission (MHRC) and the
Equal Employment Opportunity Commission (EEOC), from which he received a
right-to-sue letter on December 5, 2014.

Nowhere in the amended petition did

plaintiff explicitly state that he was asserting an ADA claim against The Children’s
Place.
Defendants removed the action on February 19, 2015, invoking jurisdiction
based on federal question.

28 U.S.C. § 1331.

Defendants contend that the

references to the ADA and the EEOC right-to-sue letter in the amended petition
establish that plaintiff’s claims arise under federal law.
In their notice of removal, defendants asserted that removal was timely
sought within thirty days of service of the amended petition. On April 15, 2015, the
Court ordered the parties to submit supplemental briefs addressing whether the
timeliness of removal should be measured from the date on which the last
defendant was served with either the original petition or the amended petition.
II.

Legal Standard

An action is removable to federal court if the claims originally could have
been filed in federal court. 28 U.S.C. § 1441; In re Prempro Prods. Liability Litig.,
591 F.3d 613, 619 (8th Cir. 2010).

Defendants bear the burden of establishing

federal jurisdiction by a preponderance of the evidence. Altimore v. Mount Mercy
Coll., 420 F.3d 763, 768 (8th Cir. 2005). A case must be remanded if, at any time,
it appears that the district court lacks subject matter jurisdiction.

28 U.S.C.

§ 1447(c); Fed. R. Civ. P. 12(h)(3). Any doubts about the propriety of removal are
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resolved in favor of remand. Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir.
2007).
III.

Discussion

“Federal question jurisdiction exists only when the plaintiff’s 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 substantial question
of federal law.” McNeill v. Franke, 171 F.3d 561, 563 (8th Cir. 1999) (quotation
marks and citation omitted); see Merrell Dow Pharmaceuticals Inc. v. Thompson,
478 U.S. 804, 808 (1986); Franchise Tax Bd. v. Constr. Laborers Vacation Trust,
463 U.S. 1, 13 (1983). Defendants’ arguments in favor of removal implicate only
the first basis for federal question jurisdiction: whether either the original or the
amended petition alleged an ADA claim.1
But “[a] court does not obtain subject-matter jurisdiction just because a
plaintiff raises a federal question in his or her complaint.” Biscanin v. Merrill Lynch
& Co., 407 F.3d 905, 907 (8th Cir. 2005) (citing Hagans v. Lavine, 415 U.S. 528,
537–38 (1974), and Bell v. Hood, 327 U.S. 678, 682–83 (1946)). “If the asserted
basis of federal jurisdiction is patently meritless, then dismissal for lack of
jurisdiction is appropriate.” Id. (citing Hagans, 415 U.S. at 537–38, and Perpetual
Securities, Inc. v. Tang, 290 F.3d 132, 137 (2d Cir. 2002)).

“Because this is a

facial rather than a factual challenge to jurisdiction, [the court must] determine
whether the asserted jurisdictional basis is patently meritless by looking to the face
of the complaint and drawing all reasonable inferences in favor of the plaintiff.” Id.
1

The parties do not argue that the outcome of a claim under the MHRA in this case necessarily
depends on the resolution of some question of federal law, i.e., the ADA. See Merrell Dow, 478 U.S.
at 813 (“[T]he mere presence of a federal issue in a state cause of action does not automatically
confer federal-question jurisdiction.”).

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(citations omitted).2

If a purportedly federal claim is “obviously doomed to fail,

then . . . it is patently meritless.” Id. at 908.
a. Timeliness of Removal
After reviewing the original petition, the Court agrees with defendants that it
did not state a non-meritless ADA claim. In the original petition plaintiff asserted
that only Carr violated the ADA.

However, the ADA permits suits against

employers, not individual supervisors. See Stevenson v. Best Buy Corp., No. 4:03CV-01188-RWS, 2005 WL 3434770, at *3 (E.D. Mo. Dec. 14, 2005).

Thus, even if

the original petition were construed as asserting an ADA claim against Carr, that
claim was “patently meritless” and remand would have been required.

Biscanin,

407 F.3d at 907. Because the original petition contained, at most, a federal claim
that was doomed to fail, the timeliness of removal is to be measured from the date
of service of the amended petition.

See 28 U.S.C. § 1446(b)(3).

As such,

defendants’ removal was timely.
b. Subject Matter Jurisdiction
Notwithstanding the timeliness of the removal, this case must be remanded
because the amended petition suffers from the same jurisdictional defect as the
original petition. The amended petition makes only two passing references to the
ADA.

First, in his introductory allegations plaintiff merely asserts that The

Children’s Place is subject to the ADA. Nowhere else in the amended petition does
plaintiff mention the ADA with reference to The Children’s Place, let alone explicitly
assert that The Children’s Place violated the ADA.

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Mere “references to federal

Plaintiff’s brief includes a series of e-mails that were not incorporated in or attached to either petition
and which, as Biscanin instructs, the Court will not consider to determine what claims were asserted
therein.

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statutes” do not amount to asserting a federal claim. Cycenas v. U.S. Bank, N.A.,
No. CIV. 05-2268-PAM-RLE, 2006 WL 145218, at *3 (D. Minn. Jan. 18, 2006)
(citing McNeill, 171 F.3d at 564). Accordingly, the Court concludes that on its face
the amended petition asserts only Missouri law-based anti-discrimination claims
against The Children’s Place. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987) (“The [well-pleaded complaint] rule makes the plaintiff the master of the
claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.”).
Second, the only other reference to the ADA in the amended petition is a
recapitulation of the original petition’s claim that Carr violated the ADA.

As

discussed above, an ADA claim against a supervisor is “patently meritless” and
insufficient to confer subject matter jurisdiction. Biscanin, 407 F.3d at 907.
Finally, defendants contend that because plaintiff states in the amended
petition that he filed a charge of discrimination with the MHRC and the EEOC and
that he received a right-to-sue letter from the EEOC, it follows that he must be
asserting a federal claim. The defendants are incorrect. The MHRC and the EEOC
have a “worksharing agreement” with respect to handling administrative charges of
discrimination. See Gruben v. Famous-Barr Co., 823 F. Supp. 664, 667 (E.D. Mo.
1993). Under that agreement, a Missouri plaintiff may satisfy the requirement that
he exhaust administrative remedies prior to filing suit in federal or state court by
filing a charge of discrimination with either the MHRC or the EEOC, after which one
or the other agency will respond. Id.
The amended petition refers to the EEOC in the context of plaintiff’s explicit
claim that The Children’s Place violated the MHRA. It is apparent from the face of
the amended petition that plaintiff is asserting claims based only on the MHRA. The
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references to the EEOC merely demonstrate that he exhausted his administrative
remedies. Notwithstanding plaintiff’s references to a federal agency, the amended
petition does not assert a federal cause of action.
IV.

Conclusion

For the reasons discussed above, the Court finds that the defendants have
not met their burden to establish subject matter jurisdiction. Therefore, remand is
required. Altimore, 420 F.3d at 768.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to remand [Doc. #12] is
granted.
IT IS FURTHER ORDERED that the Clerk of the Court shall remand this
action to the Twenty-First Judicial Circuit Court of Missouri (St. Louis County), from
which it was removed.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 26th day of May, 2015.

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