Heimann v. Alternative Energy, LLC

Filing 9

ORDER granting 3 motion to remand and remanding this case to the Circuit Court of Greene County, Missouri. Signed on 12/15/2017 by District Judge Roseann Ketchmark. (Perry, Madison)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
HOWARD HEIMANN,
Plaintiff,
v.
ALTERNATIVE ENERGY, LLC,
Defendant.

)
)
)
)
)
)
)
)

Case No. 6:17-03348-CV-RK

ORDER
Now before the Court is Plaintiff’s Motion to Remand. (Doc. 3.) Defendant filed
suggestions opposing the motion. (Doc. 4.) Plaintiff did not file a reply, and the time for doing
so has now expired. For the reasons stated below, Plaintiff’s Motion to Remand is GRANTED.
Plaintiff filed this case in the Circuit Court of Greene County, Missouri, alleging that he
was unlawfully retaliated against by Defendant, his employer, because he had complained about
harassment based on his disability. (Doc. 1-1 at 8-9.) Subsequently, Defendant removed the
case to this Court. (Doc. 1.) Defendant’s Notice of Removal asserts that this Court has subject
matter jurisdiction under 28 U.S.C. § 1331 and 1343(a), because “Plaintiff raises claims of
violations of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.” (“ADA”), and the
Court has pendent jurisdiction of Plaintiff’s state-law claims because they “arise out of the same
acts and events that give rise to Plaintiff’s federal claims.” (Id.)
An action may be removed to federal court if it falls within the original jurisdiction of the
district court, and federal district courts have original jurisdiction over civil cases arising under
federal law. 28 U.S.C. §§ 1331, 1441(a). If the case does not fall within the district court’s
original jurisdiction, the court must remand the case to the state court from which is was
removed. 28 U.S.C. § 1447(c). A party seeking removal and opposing remand carries the
burden of establishing federal subject-matter jurisdiction by a preponderance of the evidence. In
re Prempro Prods. Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010). Furthermore, any doubts
about the propriety of removal should be resolved in favor of remand. In re Bus. Men’s
Assurance Co. of Am., 992 F.2d 181, 183 (8th Cir. 1993) (per curiam).
Here, the parties dispute whether Plaintiff asserts a claim under the ADA. The first
paragraph of Plaintiff’s two-page Petition states, “This cause of action is brought pursuant to

R.S.Mo. § 213.111.” This section of the Revised Statutes of Missouri provides the right to civil
actions for violations of the Missouri Human Rights Act. Thus, Plaintiff argues “the Petition
explicitly states that Plaintiff’s cause of action arises under the Missouri Human Rights Act and
not under any Federal law.” Defendant argues that despite the initial paragraph, Plaintiff asserts
an ADA claim because (1) Plaintiff’s factual allegations cover the elements of an ADA claim;
(2) the Petition references the ADA; and (3) the Petition references the fact that Plaintiff’s charge
of discrimination was filed with the Equal Employment Opportunity Commission (“EEOC”) in
addition to the Missouri Commission on Human Rights (“MCHR”).
The Court finds that Plaintiff’s Petition, which begins, “[t]his cause of action is brought
pursuant to R.S.Mo. § 213.111,” does not state a claim that arises under federal law. See
Zampitella v. Walgreens Co., 2016 U.S. Dist. LEXIS 87224, at *8 (E.D. Mo. July 6, 2016)
(holding that, despite references to federal statutes in the complaint, plaintiff’s claims did not
arise under federal law where the first paragraph of the complaint states that the case arises under
the Missouri Human Rights Act). Defendant’s first argument holds no weight because the
factual allegations, which may lead to a cause of action under the ADA, also lead to a cause of
action under the Missouri Human Rights Act. Horner v. City of Lee’s Summit, 2009 U.S. Dist.
LEXIS 120890, at *4 (W.D. Mo. Dec. 29, 2009) (“plaintiff is the master of his claim and may
avoid federal removal jurisdiction by exclusive reliance on state law”). Next, the Court finds
that Plaintiff’s single reference to the ADA – “[Plaintiff’s] condition constitutes a ‘disability’
under the Missouri Human Rights Act and Americans with Disabilities Act” – is insufficient to
establish jurisdiction viewed in light of the whole Petition. Cross v. Children’s Place Retail
Stores, Inc., 2015 U.S. Dist. LEXIS 67629, at *6 (E.D. Mo. May 26, 2015) (“Mere references to
federal statutes do not amount to asserting a federal claim.”) (citations omitted). Finally, the
reference to the EEOC1 is not enough to establish federal jurisdiction. See Cross, 2015 U.S.
Dist. LEXIS 67629, at *6-7 (explaining the “worksharing agreement” between the MCHR and
the EEOC under which “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

1

For clarity, the Court notes that the Petition states a charge and a later amendment were filed
“with the Missouri Commission on Human Rights” (“MCHR”) (Doc. 1-1 at ¶¶ 17, 20.) The charge and
amendment were attached to the Petition and incorporated by reference. (Id.) On both the charge and
amendment, Plaintiff had checked a box that said, “I want this charge filed with both the EEOC and the
[MCHR].” (Id. at 10-11.)

2

discrimination with either the MHRC or the EEOC after which one or the other agency will
respond[,]” and therefore, holding that “references to the EEOC merely demonstrate that [the
plaintiff] has exhausted his administrative remedies” and do not assert a federal cause of action).
Therefore, because Plaintiff’s claims do not arise under federal law and there is no basis
for finding jurisdiction based on diversity of citizenship, the Court lacks subject-matter
jurisdiction over this action.
Accordingly,
IT IS ORDRED that Plaintiff’s Motion to Remand (doc. 3) is GRANTED.
IT IS FURTHER ORDERED that this case is REMANDED to the Circuit Court of
Greene County, Missouri.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: December 15, 2017

3