Moody-Williams v. LipoScience, et al

Filing 43

ORDER denying 34 Motion to Remand and Motion for Reimbursement; denying 38 Motion to Strike; and denying 40 Motion to Strike - Signed by District Judge Louise Wood Flanagan on 03/26/2013. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:12-CV-104-FL
TRACY MOODY-WILLIAMS,
Plaintiff,
v.
LIPOSCIENCE, LOUVENIA CLEMONS,
and RONALD BESS,
Defendants.

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ORDER

This matter is before the court on plaintiffs motion to remand and for reimbursement (DE
# 34), to which defendants have responded, and defendants' motion to strike (DE# 38) and second
motion to strike (DE# 40), to which plaintiff has responded.' The motions are now ripe for ruling.
For the following reasons, the court denies the parties' motions.

STATEMENT OF THE CASE
Plaintiff originated this employment discrimination lawsuit prose on February 2, 2012, in
Superior Court ofFranklin County, North Carolina. Defendants timely filed a notice of removal on
March 1, 2012, pursuant to 28 U.S.C. § 1331, based on plaintiffs claims under Title VII of the Civil
Rights Act of 1964 ("Title VII"), the Americans with Disabilities Act ("ADA"), the Genetic
Information Nondiscrimination Act ("GINA"), and the Age Discrimination in Employment Act
("ADEA"). Plaintiff also asserted a claim pursuant to North Carolina tort law for intentional
infliction of emotional distress. On September 28, 2012, after defendants had answered the

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Also pending on the docket is defendants' partial motion to dismiss and the magistrate judge's memorandum
and recommendations ("M&R") regarding that motion. Those matters will be taken up by separate order.

complaint and filed a motion to dismiss, and magistrate judge had issued an M&R on said motion,
plaintiff moved to remand the case to state court and for reimbursement of expenses. Defendants
then filed a motion to strike a portion of plaintiffs motion to remand and reimburse pursuant to Rule
12(f). Defendants filed a second motion to strike a filing by plaintiff responding to defendants'
memorandum in support ofM&R. The parties' motions are denied for the reasons stated below.
DISCUSSION
A.

Defendants' Motions to Strike
Rule 12(f) states that the court "may strike from a pleading an insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "The purpose of
the motion to strike is to avoid the waste of time and money that arises from litigating unnecessary
issues. The district court possesses considerable discretion in disposing of a Rule 12(f) motion to
strike." Godfredson v. JBC Legal Group. P.C., 387 F. Supp. 2d 543, 547 (E.D.N.C. 2005) (internal
citations and quotation marks omitted). However, motions to strike are "generally viewed with
disfavor because striking a portion of a pleading is a drastic remedy." Waste Management Holdings.
Inc. v. Gilmore, 252 F .3d 316, 347 (4th Cir. 2001) (internal quotation marks omitted). Therefore,
"motions to strike are rather strictly considered and have often been denied even when literally
within the provisions of Rule 12(f) where there is no showing of prejudicial harm to the moving
party." Godfredson, 387 F.Supp. 2d at 547-48. Furthermore, when considering a motion to strike
against a prose litigant, the court does not hold her to "the same stringent standards as attorneys."
Sawer v. Potash Corp. of Saskatchewan, 417 F.Supp.2d 730,738 (E.D.N.C. 2006).
Here, neither of defendants' motions to strike seek to remove any remarks from the
pleadings. The first motion to strike seeks to strike the "scandalous and impertinent" portions of
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plaintiffs motion to remand, contained on pages 3-5 thereof. Defs.' Mot. to Strike 1. The second
motion to strike seeks to remove similar assertions from plaintiffs objection to defendants' brief in
support of M&R. Defs.' Second Mot. to Strike 1. Neither motion to strike is supported by an
assertion that the "scandalous and impertinent" material would cause prejudicial harm. See Defs.'
Resp. in Opp 'n 4-5 (arguing that plaintiffs scandalous assertions about defense counsel and Director
of the EEOC Thomas Colclough in her motion to remand are without merit); Defs.' Second Mot.
to Strike 1-3 (arguing that plaintiffs suggestion of improper conduct in relation to her case between
defense counsel and Colclough is unsupported by fact, distortion of defendants' arguments and
irrelevant personal attacks on individual defendants should be stricken). Where, as here, the
defendants are seeking to strike materials filed by a pro se litigant without a sufficient showing of
prejudice, the motions are denied. 2

B.

Plaintiffs Motion to Remand and Reimburse Expenses
Defendants removed this action pursuant to 28 U.S.C. § 1331. Plaintiff moves for remand

to state court and reimbursement of expenses incurred as a result of removal, pursuant to 28 U.S.C.

§ 1447(c), on the basis that this court lacks subject matter jurisdiction over the controversy.
Defendants respond that this court has subject matter jurisdiction based upon plaintiffs Title VII
claim (which will remain in part regardless of whether defendants' partial motion to dismiss is
granted).
The court strictly construes removal jurisdiction due to federalism concerns. Md. Stadium
Auth. v. Ellerbe Becket Inc., 407 F .3d 255, 260 (4th Cir. 2005). Accordingly, "iffederal jurisdiction
is doubtful, a remand to state court is necessary." Id. (internal quotation marks omitted). Remand

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Note that the court will disregard any immaterial assertions made by the parties.

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to state court is required absent any basis for federal subject-matter jurisdiction. See,~. Steel Co.
v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (reminding every federal court that it must
have jurisdiction to hear the claims before it as a "threshold matter"); Jones v. Am. Postal Workers
Union, 192 F.3d417, 429 (4th Cir. 1999) (reversing a district court's remand to state court of a claim
brought pursuant to the ADA). In this case, federal question forms the basis of the court's subjectmatter jurisdiction. See 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties of the United States.") This court has
original jurisdiction over claims under federal law, including Title VII, the ADA, the GINA, and the
ADEA. See id.
Plaintiff asserts that state courts have authority and are competent to adjudicate federal
claims. Pl.'s Mot. 1 (citing Tafflin v. Levitt, 493 U.S. 455 (1992)). In Tafflin, the Supreme Court
held that state courts have concurrent jurisdiction over civil claims under the Racketeer Influenced
and Corrupt Organizations Act ("RICO"). Tafflin, 493 U.S. at 467. In this case, it is immaterial
whether state courts have concurrent jurisdiction to hear any of plaintiffs claims. Plaintiff may not
simply rely upon concurrent jurisdiction, but must show an absence of any basis for subject-matter
jurisdiction to accomplish remand once a case has been properly brought in this court. See Jones,
192 F.3d at 429. Therefore plaintiffs motion to remand and for related expenses is denied.

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CONCLUSION

For the foregoing reasons, defendants' motions to strike (DE## 38, 40), and plaintiffs
motion to remand and for reimbursement (DE# 34), are DENIED.

SO ORDERED, this the~ day of March, 2013.

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