Horner v. A'Viands, LLC et al
ORDER by Chief Judge M. Christina Armijo denying 7 Motion to Remand to State Court (nlb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
A’VIANDS, LLC and KRISTI
ROMERO, individually and as an
Employee of A’VIANDS, LLC,
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court upon Plaintiff Terence Horner’s (Plaintiff’s)
Motion to Dismiss Defendants’ Notice of Removal and Plaintiff’s Motion to Remand
Case to State District Court (Motion to Remand). [Doc. 7] The Court has considered the
parties’ submissions and the relevant law, and is otherwise fully informed. Also pending
before this Court is the parties’ Joint Motion to Stay Proceedings [Doc. 12]. That matter
will be addressed by separate order. However, the Court does not believe that a decision
on the pending Motion to Remand will have any effect on Plaintiff’s administrative
remedies should a stay be imposed and therefore believes it is the responsibility of the
Court to clarify for the parties the jurisdictional questions based on the current state of the
pleadings. For the following reasons, the Court denies Plaintiff’s Motion to Remand.
On September 1, 2016, Plaintiff filed a Complaint in the Fourth Judicial District
Court, San Miguel County, New Mexico. [Doc. 1-2] In the three-count Complaint,
Plaintiff alleged that Defendants A’Viands, LLC and Kristi Romero, individually and as
an employee of A’Viands, LLC (collectively, Defendants), discriminated against him on
the bases of sex and national origin contrary to 42 U.S.C. § 2000e (“Title VII”) and the
New Mexico Human Rights Act (“the NMHRA”). [Doc. 1-2] Plaintiff also alleged that
Defendants retaliated against him contrary to Title VII and the NMHRA. [Doc. 1-2]
Finally, Plaintiff alleged that Defendants intentionally inflicted emotional distress. [Doc
Defendants filed a Notice of Removal on October 21, 2016 [Doc. 1], and answered
the Complaint on October 28, 2016. [Doc. 4] Defendants argued that removal to this
Court is appropriate because (1) Plaintiff’s action “involves claims that relate to the laws
of the United States; specifically, Title VII of the Civil Rights Act of 1964, 42 U.S.C. [§]
2000e” and (2) this Court has supplemental jurisdiction over Plaintiff’s state-law claims.
[Doc. 1] Plaintiff moved for remand of the entire Complaint back to the Fourth Judicial
District Court. [Doc. 7 (Plaintiff’s Motion to Remand); Doc. 8 (Defendants’ Response)]
Plaintiff filed a Notice of Completion of Briefing on Plaintiff’s Motion to Remand on
December 13, 2016. [Doc. 11]
Generally, “any civil action brought in a State court of which the district courts of
the United States have original jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States.” 28 U.S.C. § 1441(a) (2012).
Under 28 U.S.C. § 1331, federal district courts have original jurisdiction of
all civil actions arising under the Constitution, laws, or treaties of the
United States. To determine whether [a] claim arises under federal law,
[courts] examine the ‘well[-]pleaded’ allegations of the complaint and
ignore potential defenses. . . . Under the ‘well-pleaded complaint’ rule, a
suit arises under federal law only when the plaintiff’s statement of his own
cause of action shows that it is based on federal law. . . . By omitting
federal claims from a complaint, a plaintiff can [generally] guarantee an
action will be heard in state court.
Devon Energy Prod. Co. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1202 (10th
Cir. 2012) (internal quotation marks and citation omitted). “For a case to arise under
federal law within the meaning of § 1331, the plaintiff’s ‘well-pleaded complaint’ must
establish one of two things: 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.” Firstenberg v. City of Santa Fe, N.M., 696 F.3d 1018, 1023 (10th Cir.
2012) (internal quotation marks and citation omitted).
Plaintiff argues first that remand is proper because “[t]there is no federal question
presented in this lawsuit requiring original federal jurisdiction.” [Doc. 7-1] Plaintiff
does not address directly whether federal law created the causes of action in his
Complaint. Instead, Plaintiff attempts to downplay the fact that he included Title VII
claims in his Complaint and their importance to his suit. Plaintiff also argues that his
state-law claims do not require resolution of a substantial federal question.
approaches are unavailing.
Plaintiff maintains that his “lawsuit arises under the NMHRA,” that “the NMHRA
is better suited for [P]laintiff’s cause of action,” and that “[t]he federal issue carries no
significance.” [Doc. 7-1, pgs. 4, 6] In his Complaint, however, Plaintiff specifically
states that counts 1 and 2 are based on both Title VII and the NMHRA. [Doc. 1-2, pg. 9]
Plaintiff references exhaustion of administrative procedures with the Equal Employment
Opportunity Commission (EEOC), which are required under Title VII. 42 U.S.C. §
[Doc. 1-2, pg. 7-8]
Moreover, Plaintiff seeks attorney fees and costs
pursuant to Title VII. 42 U.S.C. § 5000e-5(k). [Doc. 1-2, pg. 11] Thus, on its face, the
Complaint indicates that Plaintiff is seeking relief under federal law. Cf. Fielden v. WalMart Stores, Inc., No. 03-1009-WEB, 2003 WL 1751000, at *3 (D. Kan. Mar. 27, 2003)
(stating that the plaintiff had not stated a federal claim where “[n]o federal laws [we]re
cited, no allegation [wa]s made regarding exhaustion of EEOC administrative remedies,
and no exclusively federal relief [wa]s prayed for in the complaint.”). As master of his
Complaint, Plaintiff could have avoided federal jurisdiction by pleading only state-law
claims. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (stating that the “wellpleaded complaint rule” “makes the plaintiff the master of the claim; he or she may avoid
federal jurisdiction by exclusive reliance on state law.”). Plaintiff chose not to do so, nor
has he moved to dismiss the Title VII claims from his Complaint.
Plaintiff also relies on Gunn v. Minton to argue that federal jurisdiction is
inappropriate because his state-law claims do not implicate a federal issue that is: “(1)
necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in
federal court without disrupting the federal-state balance approved by Congress.” 133 S.
Ct. 1059, 1065 (2013). However, this analysis is necessary only if the first prong of the
jurisdictional analysis—whether the Complaint alleges a cause of action that is created by
federal law—is unsatisfied. Here, Plaintiff’s Title VII claims are clearly created by
federal law. Thus, there is no need to address this argument further.
Next, Plaintiff argues that “[t]here is no basis for this [C]ourt to agree to take
supplemental jurisdiction over the state[-]law claims” because the state-law claims
“substantially predominate the Title VII claims.” [Doc. 7-1, pg. 8] 28 U.S.C. § 1367(a)
provides that “the district courts shall have supplemental jurisdiction over all other claims
that are so related to claims in the action within such original jurisdiction that they form
part of the same case or controversy under Article III of the United States Constitution.”
District courts may decline supplemental jurisdiction under circumstances defined by 28
U.S.C. § 1367(c):
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over
which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original
(4) in exceptional circumstances, there are other compelling reasons for
Whether state-law claims predominate is assessed “in terms of proof, of the scope
of the issues raised, or of the comprehensiveness of the remedy sought.” United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 726–27 (1966). Plaintiff maintains that his “state
claims involve separate causes of action with distinct standards of proof and type of
damages” and that his state-law claims “address separate and specific tortious actions of
the defendants that are actionable under New Mexico law independent of his Title VII
claims.” [Doc. 7-1, pg. 9] To address this argument, the Court again looks to Plaintiff’s
Complaint. See Gard v. Teletronics Pacing Sys., Inc., 859 F. Supp. 1349, 1353 (D. Colo.
1994) (relying on the complaint to determine whether state-law claims predominated).
Plaintiff alleged that “Plaintiff was denied a position with Defendant due to his sex
(male) and his national origin (Hispanic) in violation of [Title VII] and [the NMHRA].
When Plaintiff complained about such treatment to the EEOC, his employer retaliated
against him in violation of the NMHRA and Title VII.” [Doc. 1-2, pg. 7] He also alleges
that “Defendants’ conduct . . . was extreme and outrageous, wanton, knowingly wrongful,
intentional or in reckless disregard of Plaintiff’s rights to be free of such discrimination.”
[Doc. 1-2, pg. 10] Contrary to Plaintiff’s contention that his claims depend on “separate
and specific tortious actions of the defendants,” the Complaint does not allege separate
facts related to Title VII, NMHRA, or intentional infliction of emotional distress claims.
Instead, the claims for discrimination and retaliation reference both Title VII and the
NMHRA, and the same underlying facts are expressly incorporated within each claim.
[Doc. 1-2, pgs. 9-10] Moreover, a plaintiff’s “burden under the NMHRA is identical to
[his or her] burden under Title VII.” Orr v. City Of Albuquerque, 417 F.3d 1144, 1149 n.
5 (10th Cir. 2005). Although the elements of intentional infliction of emotional distress
differ from those of the other two claims, that claim arises from the same conduct as
alleged in the Title VII and NMHRA claims. See Eastus v. Blue Bell Creameries, L.P.,
97 F.3d 100, 105 (5th Cir. 1996) (stating that a state-law claim for intentional infliction of
emotional distress was not separate and independent of federal FMLA claims because
both claims rested on “the single wrong [of] termination, and the various claims are
simply different theories of recovery”); Coates v. Wal-Mart Stores, Inc., 1999-NMSC013, ¶ 47, 127 N.M. 47, 976 P.2d 999 (“To recover for intentional infliction of emotional
distress, the claimant must show that the tortfeasor’s conduct was extreme and
outrageous under the circumstances, that the tortfeasor acted intentionally or recklessly,
and that as a result of the conduct the claimant experienced severe emotional distress.”).
Hence, the facts necessary for proof of each claim are substantially similar. See Lyon v.
Whisman, 45 F.3d 758, 761 (3d Cir. 1995) (stating that “when the same acts violate
parallel federal and state laws, the common nucleus of operative facts is obvious and
federal courts routinely exercise supplemental jurisdiction over the state law claims”);
Gard, 859 F. Supp. at 1353 (stating that “[t]he test for predominance is an analysis of the
facts which must be proved relative to each claim. If these facts are similar or identical,
it cannot be said the state-law claims predominate over the federal claim or the scope of
the case would be expanded”). Given that all of Plaintiff’s claims depend on “a common
nucleus of operative facts” and the federal-law claims share the same essential elements
with the NMHRA claims, Plaintiff’s assertion that the claims allow different types of
damages fails to render the state-law claims predominant over the federal-law claims.
[See Doc. 1-2, pg. 9] See Gandy v. Wal-Mart Stores, Inc., 1994-NMSC-040, ¶ 8, 117
N.M. 441, 872 P.2d 859 (stating that punitive damages are not available under the
NMHRA); Hysten v. Burlington Northern Santa Fe Ry. Co., 530 F.3d 1260, 1278 (10th
Cir. 2008) (stating that punitive damages are available under 42 U.S.C. § 1981a(b)1).
See Jones v. Halliburton Co., 791 F. Supp. 2d 567, 592 (S.D. Tex. 2011) (stating that
federal courts have exercised jurisdiction over state statutory and common law claims
filed alongside claims brought under Title VII and other federal antidiscrimination
statutes” and collecting cases).
In sum, Plaintiff’s Complaint alleges claims arising from federal law over which
this Court has original jurisdiction. Consequently, removal from state court to this Court
was proper. In addition, Plaintiff’s state-law claims do not substantially predominate
over the federal claims such that supplemental jurisdiction should be declined at this
stage of the proceedings.
Accordingly, Plaintiff’s Motion to Remand is denied.
SO ORDERED this 14th day of December, 2016.
M. CHRISTINA ARMIJO
CHIEF UNITED STATES DISTRICT JUDGE
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