Jacobowitz et al v. YMCA of Greater Providence Bayside YMCA Branch et al

Filing 7

ORDER denying 5 Motion to Remand; Reset Deadlines: Responses to 4 Defendants' Partial Motion to Dismiss due by 11/30/2015. So Ordered by Chief Judge William E. Smith on 10/27/2015. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
YMCA of GREATER PROVIDENCE;
)
BAYSIDE YMCA BRANCH;
)
JOE MARTINO, Executive Director;
)
JOHN and JANE DOE,
)
)
Defendants.
)
___________________________________)
IRWIN JACOBOWITZ on behalf of,
MJ, and
DJ, and
AJ; and
PEARL H. JACOBOWITZ,

C.A. No. 15-345 S

ORDER
WILLIAM E. SMITH, Chief Judge.
Before the Court is Plaintiffs’ Motion to Remand (ECF No.
5) 1 and Defendants’ Opposition to that motion (ECF No. 6).

For

the reasons that follow, this Court DENIES Plaintiffs’ Motion
and orders Plaintiffs to respond to Defendants’ Partial Motion
to Dismiss (ECF No. 4) within 30 days of this Order.
I.

Background
Plaintiffs filed a Complaint in Rhode Island Superior Court

on July 28, 2015, alleging that Defendants violated Plaintiffs’

1

Although Plaintiffs titled their document “Notice of
Remand,” it is effectively a motion to remand and the Court is
treating it as such.

statutory, constitutional, and contractual rights by failing to
accommodate their autistic child, and by suspending Plaintiffs
from using the Bayside Branch of the YMCA.
ECF No. 1-1.)

(See Pls.’ Compl.,

On August 17, 2015, Defendants filed a notice of

removal, asserting that this Court had jurisdiction pursuant to
28 U.S.C. § 1331 because Plaintiffs’ Complaint raised claims
arising under Title III of the Americans with Disabilities Act
(“ADA”).

(See Defs.’ Notice of Removal, ECF No. 1.)

In their

Motion to Remand, Plaintiffs contend that their Complaint only
raised state law claims.
II.

Discussion
A state court action may only be removed “if the federal

court has original jurisdiction.”

Sheehan v. Broadband Access

Servs., 889 F. Supp. 2d 284, 287 (D.R.I. 2012) (citing 28 U.S.C.
§ 1441 (2006); Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987); Grubbs v. Gen. Elec. Credit Corp., 405 U.S. 699, 702
(1972)).

“Under the well-pleaded complaint rule the question of

jurisdiction must be determined from Plaintiffs’ statement of
claim in the complaint.”

Rhode Island Fishermen’s Alliance,

Inc., ex rel. Fuka v. Dep’t of Envtl. Mgmt., C.A. No. 07-230ML,
2007 WL 7328831, at *4 (D.R.I. Nov. 5, 2007) aff’d sub nom.
Rhode Island Fishermen’s Alliance, Inc. v. Rhode Island Dep’t Of
Envtl. Mgmt., 585 F.3d 42 (1st Cir. 2009).

The question is

“whether the plaintiff[s’] claim to relief rests upon a federal
2

right, and the court is to look only to plaintiff[s’]complaint
to

find

the

answer.”

Id.

(emphasis

in

original)

(quoting

Rosello–Gonzalez v. Calderon–Serra, 398 F.3d 1, 10 (1st Cir.
2004)).
The

party

that

removed

the

establishing federal jurisdiction.

case

has

the

burden

of

Sheehan, 889 F. Supp. 2d at

288 (citing BIW Deceived v. Local S6. Indus. Union of Marine &
Shipbuilding Workers of Am., IAMAW Dist. Lodge 4, 132 F.3d 824,
831 (1st Cir. 1997)).

“Ambiguities ‘as to the source of law

relied upon by the . . . plaintiffs ought to be resolved against
removal.’”
398

F.3d

Id.
1,

(quoting

11

(1st

Rossello-Gonzalez

Cir.

2004)).

v.

However,

Calderon-Serra,
“this

Court

is

without discretion with regard to the removal of claims from the
state

courts,

where

this

Court

would

have

had

original

jurisdiction over the claims had plaintiff brought suit here
initially.”
LEXIS

Horton v. Portsmouth Police Dep’t, 2005 U.S. Dist.

29041,

*9

(D.R.I.

Sept.

12,

2005)

(quoting

Shepard

v.

Egan, 767 F. Supp. 1158, 1161 (D. Mass. 1990)).
Here, Plaintiffs clearly state in paragraph 28 of their
Complaint

that

accommodations

“[t]he
for

Bayside

individuals

YMCA
with

has

failed

special

to

needs,

provide
such

as,

autism, in accordance to Title III of the American Disabilities
Act [sic] (ADA).”

(Pls.’ Compl. ¶ 28, ECF No. 1-1.)

the only allegation in paragraph 28.
3

This is

In a section entitled

“Legal Claims,” Plaintiffs state that “Paragraphs 1 through 31
are referenced, incorporated and re-alleged.”
Additionally,

Count

I

of

Plaintiffs’

Complaint

(Id. at ¶ 32.)
–

Disability-

Based Discrimination - states that:
Defendants discriminated against Plaintiffs individually
and vis-a-vis their association with a another [sic] person
with disabilities, by suspending Plaintiff’s membership at
the Bayside YMCA indefinitely, by not fulfilling the
Bayside YMCA mission, by not providing accommodations as
required by Title III of the American Disabilities Act
[sic], in violation of the R.I. Constitution, and the Civil
Rights of People with Disabilities Act, on or about August
19, 2013 to the present.
(Id. at ¶ 33 (emphasis added).)

Thus, Plaintiffs’ Complaint

plainly contains a “claim to relief” that “rests upon a federal
right,” Rhode Island Fishermen’s Alliance, 2007 WL 7328831, at
*4, namely, protection under the ADA.
III. Conclusion
For the foregoing reasons, Plaintiffs’ Motion to Remand is
hereby DENIED.

Plaintiffs are ordered to respond to Defendants’

Partial Motion to Dismiss within 30 days of this Order.

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: October 27, 2015

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