Bivins v. Glanz et al

Filing 19

OPINION AND ORDER by Judge Terence Kern - PARTIAL REMAND ; remanding case ; granting in part and denying in part 10 Motion to Remand (vah, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
STEVEN BIVINS,
Plaintiff,
v.
STANLEY GLANZ, and
BOARD OF COUNTY COMMISSIONERS
OF TULSA COUNTY,
Defendants.

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Case No. 12-CV-103-TCK-FHM

OPINION AND ORDER
Before the Court is Plaintiff’s Motion to Remand (Doc. 10).
I.

Background
On January 9, 2012, Plaintiff filed a Petition in District Court for Tulsa County against Tulsa

County Sheriff Stanley Glanz (“Glanz”) and the Board of County Commissioners of Tulsa County
(“Board”). Plaintiff alleges that (1) Defendants discriminated against him due to his disability, in
violation of the Americans with Disability Act (“ADA”) (“ADA claim”); (2) Defendant Glanz, in
his individual capacity, failed to remedy disability discrimination and subjected him to unlawful
discipline based on his disability, in violation of 42 U.S.C. § 1983 (“1983 claim”); (3) Defendants
discharged Plaintiff in retaliation for filing a workers’ compensation claim, in violation of title 85,
section 341 of the Oklahoma Statutes (“workers’ compensation retaliation claim”); and (4)
Defendants intentionally inflicted emotional distress upon Plaintiff (“IIED claim”). Defendants
removed the action, asserting that the Court has subject matter jurisdiction under 28 U.S.C. § 1331
pursuant to the federal questions presented by the ADA claim and § 1983 claim.
Plaintiff moved to remand, pursuant to 28 U.S.C. § 1445(c), based on the presence of the
non-removable workers’ compensation retaliation claim and this Court’s decision in Pulley v.

Bartlett-Collins Co., 2006 WL 3386909, at *3 (N.D. Okla. Nov. 21, 2006) (discussing absence of
Tenth Circuit authority, considering other circuit decisions and relevant policy considerations, and
concluding that remand of all claims joined with non-removable workers’ compensation claim was
required by § 1445(c)). Defendant argues that Pulley has been overruled by statute and that, under
the revised statute, federal courts must sever and remand the workers’ compensation retaliation
claim and retain all other claims. Plaintiff did not file a reply.
III.

Analysis
Effective January 6, 2012, the federal removal statutes were amended by the Federal Courts

Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112–63, § 203(b), 125 Stat. 785. The
amended statute provides:
Removal of Civil Actions
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(c) Joinder of Federal law claims and State law claims. – (1) If a civil action includes
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(A) a claim arising under the Constitution, laws, or treaties of the United States
(within the meaning of section 1331 of this title), and
(B) a claim not within the original or supplemental jurisdiction of the district court
or a claim that has been made nonremovable by statute, the entire action may be
removed if the action would be removable without the inclusion of the claim
described in subparagraph (B).
(2) Upon removal of an action described in paragraph (1), the district court shall
sever from the action all claims described in paragraph (1)(B) and shall remand the
severed claims to the State court from which the action was removed. Only
defendants against whom a claim described in paragraph (1)(A) has been asserted are
required to join in or consent to the removal under paragraph (1).
28 U.S.C. § 1441(c) (emphasis added). Under the amendment, the Court has no discretion to
remand federal claims that are joined with a statutorily nonremovable claim, such as a workers’
compensation retaliation claim. Instead, the Court must sever and remand the nonremovable claim
and retain all other removed claims that are within the Court’s original or supplemental jurisdiction.
Therefore, this Court’s decision in Pulley has been overruled by statute.
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The Petition in this case was filed January 9, 2012 and is subject to the amendment. Pursuant
to 28 U.S.C. § 1441(c), as amended effective January 6, 2012, the Court must (1) sever and remand
the workers’ compensation retaliation claim because it has been made nonremovable by statute, see
28 U.S.C. § 1441(c)(1)-(2); (2) retain the ADA claim and § 1983 claims because they are within the
original jurisdiction of the Court pursuant to 28 U.S.C. § 1331, see id.; and (3) retain the IIED claim
because it forms part of the same case or controversy as the federal claims and is within the
supplemental jurisdiction of the Court pursuant to 28 U.S.C. § 1367(a), see id.; see also People’s
Legislature v. Miller, No., 12-CV-272, 2012 W L 1119239, at * 4-5 (D. Nev. Apr. 3, 2012)
(severing and remanding state law claims that did not arise from same operative facts as federal
claims and were therefore not within the court’s supplemental jurisdiction, retaining federal claims
and state law claims that did arise from same operative facts and were therefore within the court’s
supplemental jurisdiction).
III.

Conclusion
Plaintiff’s Motion to Remand Action (Doc. 10) is GRANTED in part and DENIED in part.

The motion is granted as to the workers’ compensation retaliation claim, and such claim is hereby
REMANDED to the District Court for Tulsa County, State of Oklahoma. The motion is denied as
to the ADA claim, the § 1983 claim, and the IIED claim.
SO ORDERED this 1st day of August, 2012.

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