Dickson v. The TJX Companies, Inc. et al

Filing 19

REPORT AND RECOMMENDATION that this case be REMANDED TO STATE COURT for lack of subject matter jurisdiction. In addition, the Preliminary Pretrial Conference scheduled for 3/22/2017 is VACATED. Objections to R&R due by 4/4/2017. Signed by Magistrate Judge Kimberly A. Jolson on 3/21/2017. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LINDA M. DICKSON,
Plaintiff,
v.

Civil Action 2:17-cv-177
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Jolson

THE TJX COMPANIES, INC., et al.,
Defendants.
REPORT AND RECOMMENDATION
For the reasons that follow, the Court addresses the issue of subject-matter jurisdiction
sua sponte and RECOMMENDS that this case be REMANDED TO STATE COURT for lack
of subject-matter jurisdiction.
I.

BACKGROUND
The procedural posture of this case is somewhat unusual. On July 15, 2016, Plaintiff

Linda Dickson filed a Complaint in Fairfield County Court of Common Pleas, alleging claims
for discrimination and retaliation in violation of the Ohio Civil Rights Act, OHIO REV. CODE
§ 4112.01, et seq.; for infliction of emotional distress under Ohio common law; for defamation,
slander and libel under Ohio common law; and for declaratory relief pursuant to OHIO REV. CODE
§ 2721. (Doc. 1-2). On September 28, 2016, Plaintiff filed an Amended Complaint alleging the
same, or similar, state-law claims for discrimination and retaliation. (Id.; see also Doc. 6).
According to a scheduling order entered by the state court, all pleadings were set to be
amended by February 1, 2017. (Doc.1-2, PAGIED #: 80). This deadline was later extended by ten
days. (Id., PAGEID #: 83). Then, on February 3, 2017, Plaintiff filed her Motion for Leave to File a
Second Amended Complaint, with the proposed Second Amended Complaint attached as Exhibit A.

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(Doc. 1-1). The Second Amended Complaint, inter alia, removed Amber Glenaman and Elizabeth
Kness as Defendants, and alleged violations under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §2000e, et seq. (Id. at 1–2).
Defendants, rather than waiting for the state court to rule on the Motion for Leave to Amend,
removed this case to the United States District Court for the Southern District of Ohio on March 1,
2017. (Doc. 1). Relying on the proposed Second Amended Complaint, removal was premised upon
federal question jurisdiction under 28 U.S.C. §1331 as a result of Plaintiff’s claims for discrimination
and retaliation in violation of Title VII of the Civil Rights Act of 1963. (Doc. 1 at 3).

II.

DISCUSSION
“[A] defendant may remove a state court case to federal court only if it could have been

brought there in the first place; that is, if the federal court would have original jurisdiction over
the case.” Strong v. Telectronics Pacing Sys., Inc., 78 F.3d 256, 259 (6th Cir. 1996) (citing 28
U.S.C. § 1441(a)). The removing party has the burden of establishing that original federal
jurisdiction exists. Eastman v. Marine Mech. Corp., 438 F.3d 544, 549 (6th Cir. 2006). “While
personal jurisdiction may be waived in some circumstances, subject-matter jurisdiction cannot be
conferred upon the court by the parties, can never be waived, and can be raised at any stage of
the proceedings. Furthermore, the court may raise the issue of subject-matter jurisdiction sua
sponte.” B & B Enters. of Wilson Cty., LLC v. City of Lebanon, 422 F. Supp. 2d 903, 904–05
(M.D. Tenn. 2006) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278,
97 S.Ct. 568, 50 L.Ed.2d 471 (1977)).
In this case, Defendants assert federal subject-matter jurisdiction based upon federal
question jurisdiction (see Doc. 9 at 3), which requires that a complaint state a claim for relief
“arising under the Constitution, laws, or treatise of the United States.” 28 U.S.C. 1331; see also
B&B Enters. of Wilson County, LLC, 422 F. Supp. 2d at 905.
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Yet, neither the original

Complaint, nor the Amended Complaint, stated a federal claim. Accordingly, Defendants’ only
basis for removal in this case was based upon Plaintiff’s Second Amended Complaint, which
sought to add additional federal discrimination claims. As mentioned above, however, although
Plaintiff had filed for leave to amend, the state court had not yet ruled. Thus, the question for
this Court is whether a pending motion to amend may provide the jurisdictional hook for
removal.
The federal removal statute, in relevant part, states:
[I]f the case stated by the initial pleading is not removable, a notice of removal
may be filed within 30 days after receipt by the defendant, through service or
otherwise, of a copy of an amended pleading, motion, order or other paper from
which it may first be ascertained that the case is one which is or has become
removable.
28 U.S.C. § 1446(b)(3). Thus, “this action was properly removed to federal court only if
plaintiff’s motion to amend constituted ‘an amended pleading, motion, order or other paper from
which it may first be ascertained that the case is one which is or has become removable.’”
Douklias v. Teacher’s Ins. and Annuity Ass’n, 35 F.Supp. 2d 612, 615 (W.D. Tenn. 1999)
(emphasis in original). Other courts have interpreted this statute and “[m]ost . . . agree that the
thirty-day time frame for filing a notice of removal begins to run either upon the granting of the
motion to amend or the actual filing of the amended complaint.” B&B Enters. of Wilson County,
LLC, 422 F. Supp. 2d at 905 (citing Douklias, 35 F.Supp. 2d at 615) (collecting cases adopting
this view). Accordingly, under this majority view, “the mere filing of the motion to amend when
there is no ability to amend as a matter of right does not make an otherwise removable case
removable.” Id. This interpretation is consistent with the idea that “the removal statute should
be strictly construed and all doubts resolved in favor of remand.” Eastman v. Marine Mech.
Corp., 438 F.3d 544, 550 (6th Cir. 2006).
One court succinctly explained the jurisdictional effect in a case such as this:
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[A]t the time Defendants’ notice of removal was filed, Plaintiffs’ state court
lawsuit did not yet contain a federal question. While it was clear from the motion
to amend and the proposed amended complaint that the case might at some point
become removable, there also remained a strong possibility that the motion might
be denied. Because the motion had not yet been granted, the case was not yet
removable and Defendants’ notice of removal was premature. See Douklias, 35
F.Supp.2d at 615 (finding removal was premature under similar circumstances).
Subject-matter jurisdiction therefore does not exist in this case, as a result of
which this Court lacks even the discretion to grant (or deny) the still pending
motion to amend. See Hicks v. Universal Housing, Inc., 792 F.Supp. 482, 484
(S.D.W.Va.1992) (“If the court lacks jurisdiction over an improvidently removed
case, how can it legitimately assume jurisdiction to consider an amendment which
would create the very jurisdiction the court lacks? Any rule so allowing would
render the concept of jurisdiction a mutable chameleon which the court could
transform at will to fit circumstances.”); 28 U.S.C. § 1447(c) (“If at any time
before final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”).
B&B Enters. of Wilson County, LLC, 422 F. Supp. 2d at 905–06.
This Court agrees with the majority approach and concludes that at the time of removal,
the operative complaint was the Amended Complaint, not the Second Amended Complaint.
Because the Amended Complaint provides no basis for federal jurisdiction, remand is required.
See Caterpillar Inc. v. Lewis, 519 U.S. 61, 69, 117 S. Ct. 467, 473, 136 L. Ed. 2d 437 (1996) (“If
at any time before final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”).
Finally, it should be noted that this Court’s lack of subject-matter jurisdiction was not
remedied by the state court’s grant of leave for Plaintiff to amend her complaint on March 10,
2017. (See Doc. 14). “After the removal of an action from state court, the federal district court
acquires full and exclusive subject-matter jurisdiction over the litigation. The case will proceed
as if it originally had been brought in federal court.” Preferred Rehab., Inc. v. Allstate Ins. Co.,
No. 09-CV-11409, 2010 WL 3488673, at *6 (E.D. Mich. Sept. 1, 2010) (citation omitted).
Because full and exclusive subject-matter jurisdiction was acquired by this Court upon removal
on March 1, 2017, Plaintiff’s pending Motion for Leave to File a Second Amended Complaint
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(Doc. 9) was properly before this Court for a ruling, not the state court. Thus, the Second
Amended Complaint is not the operative complaint at this time.
III.

CONCLUSION
For the reasons stated above, it is RECOMMENDED that this case be REMANDED TO

STATE COURT for lack of subject-matter jurisdiction. In addition, the Preliminary Pretrial
Conference Scheduled for March 22, 2017 (Doc. 10) is VACATED.
Procedure on Objections to Report and Recommendation
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s).

A Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.
§ 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.
Date: March 21, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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