Rockey v. High Mountain Oil Services, LLC et al

Filing 32

OPINION AND ORDER by Magistrate Judge Steven P. Shreder granting 11 Motion to Remand to State Court (case terminated) (Documents Terminated: 30 MOTION for Default Judgment against High Mountain Oil Services, LLC and Mark McAlister as Sanctions; 8 MOTION to Dismiss and 29 MOTION for Summary Judgment) (dma, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
MELVIN ROCKEY,
Plaintiff,
v.
HIGH MOUNTAIN OIL
SERVICES, LLC and
MARK MCALISTER,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-13-187-SPS

OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND
The Plaintiff Melvin Rockey sued the Defendants, High Mountain Oil Services,
LLC and Mark McAlister, alleging wrongful termination and asserting claims pursuant to
Oklahoma statutes and common law in the District Court of Carter County. Arguing that
the Plaintiff’s claims require interpretation of federal law, the Defendants removed the
case to this Court pursuant to 28 U.S.C. § 1441. The Plaintiff seeks remand to the state
court for lack of federal jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons set
forth below, the Court finds that the Plaintiff’s Motion to Remand and Brief in Support
[Docket No. 11] should be granted and that the case should be remanded to the District
Court of Carter County.
In his petition filed in state court, the Plaintiff alleged that his termination by the
Defendants was “in violation of Oklahoma public policy, specifically the Federal Motor
Carrier Safety Administration hours of service regulations as incorporated in the

Oklahoma Administrative Code at § 595.35-1-4(17) and the common law protection from
retaliatory discharge[.]” See Docket No. 2, Ex. 2, ¶ 4. The Plaintiff also alleged that his
“hours of service during the period of August 16, 2012 through August 23, 2012
exceeded the hours-of-service limits imposed by 49 CFR § 395.1 et seq. and Okla.
Admin. Code § 595.35-1-4(17).” See id. at ¶ 12. The Defendants contend that these
allegations will require interpretation of federal law and that a federal question as defined
by 28 U.S.C. § 1331 therefore exists in this case. See, e. g., Smith v. Kansas City Title &
Trust Co., 255 U. S. 180, 199 (1921) (“The general rule is that, where it appears from the
bill or statement of the plaintiff that the right to relief depends upon the construction or
application of the Constitution or laws of the United States, and that such federal claim is
not merely colorable, and rests upon a reasonable foundation, the District Court has
jurisdiction under this provision.”). The Plaintiff, on the other hand, contends that the
question here is one of state law, i. e., whether incorporation of federal regulations under
the administrative code creates an Oklahoma public policy violation which gives him an
otherwise-unavailable claim for wrongful discharge.
The Court finds that the references to federal regulations in the Plaintiff’s petition
do not raise a federal question for purposes of removal. As the Defendants themselves
acknowledge in their Motion to Dismiss Plaintiff’s First Cause of Action [Docket No. 8],
the crucial issue in this case is whether Oklahoma law recognizes a wrongful discharge
claim on the facts of this case, i. e., whether the Plaintiff may assert a claim under Burk v.
K-Mart Corp., 1989 OK 22, 770 P.2d 24 given the availability of a federal remedy under
applicable regulations, see, e. g., Vasek v. Board of County Commissioners of Noble
-2-

County, 2008 OK 35, ¶ 27, 186 P.3d 928, 932 (“The question is whether ‘a statutory
remedy exists that is sufficient to protect the Oklahoma public policy goal.’”), quoting
McCrady v. Oklahoma Department of Public Safety, 2005 OK 67, ¶ 9, 122 P.3d 473, 475,
not how to interpret any particular federal regulations. The Plaintiff’s Motion to Remand
is accordingly hereby GRANTED, and the case REMANDED to the District Court of
Carter County.
DATED this 25th day of March, 2014.

-3-