Asfour v. DOW Chemical Company et al
Filing
9
OPINION AND ORDER denying 5 Motion to Remand.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
NADAL ASFOUR,
Plaintiff,
VS.
DOW CHEMICAL COMPANY AND ROHM
AND HAAS TEXAS, INCORPORATED,
Defendants.
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CIVIL ACTION NO. H-14-1856
OPINION AND ORDER
Pending before the Court in the above referenced cause,
removed from state court on federal question jurisdiction, alleging
employment discrimination based on national origin, religion, and
age and retaliation, are Plaintiff Nadal Asfour’s (“Asfour’s”)
opposed motion to remand (instrument #5) and Asfour and Defendants
The
Dow
Chemical
Company
(“Dow”)and
Rohm
and
Haas,
Texas,
Incorporated’s subsequently filed joint stipulation on removal and
motion to remove (instrument #7).
In the latter document the
parties stipulate that Asfour does not now and never will assert a
claim under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §
2601, et seq., that the facts do not support an FMLA claim, and
that upon remand Asfour will amend his Original Petition to remove
all references to the FMLA and to drop Dow as a party Defendant
because it was not Asfour’s employer.
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Asfour’s discrimination in
employment claims are otherwise grounded in Chapter 21 of the Texas
Labor Code.
It is black letter law that “a plaintiff may not precipitate
a remand of an action by amending the complaint to eliminate the
basis for removal.”
St. Paul Mercury Indemnity Co. v. Red Cab Co.,
303 U.S. 283 (1938).
contrary,
the
“Although there is older authority to the
majority
view
is
that
a
plaintiff’s
voluntary
amendment to a complaint after removal to eliminate the federal
claim upon which removal was based will not defeat jurisdiction.”
Boelens v. Redman Homes, Inc., 759 F.2d 504, 507 (5th Cir. 1985).
In Boelens, id.,citing Austwick v. Bd. of Educ., 555 F. Supp. 840,
842 (N.D. Ill. 1983), the Fifth Circuit warned lower courts against
manipulation by a party seeking to delete all federal claims from
his complaint in order to obtain a remand:
When a plaintiff chooses a state forum, yet also elects
to press federal claims, he runs the risk of removal. A
federal forum for federal claims is certainly a
defendant’s right. If a state forum is more important to
the plaintiff than his federal claims, he should have to
make that assessment before the case is jockeyed from
state court to federal court and back to state court.
The jockeying is a drain on the resources of the state
judiciary, the federal judiciary and the parties
involved; tactical manipulation [by the] plaintiff . . .
cannot be condoned.
See also Enochs v. Lampasas County, 641 F.3d 155, 167 (5th Cir.
2011)(quoting same passage for same rule).
It further explained
that “[t]he rule that a plaintiff cannot oust removal jurisdiction
by voluntarily amending the complaint to drop all federal questions
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serves the salutary purpose of preventing the plaintiff from being
able to destroy the jurisdictional choice that Congress intended to
afford a defendant in the removal statute.”
507.
Boelens, 759 F.2d at
The district court retains the discretion whether to remand
pendent state law claims “after the plaintiff drops the federal
cause of action on which removal was originally based.”
Jones v.
Houston ISD, 979 F.2d 1004, 1007 (5th Cir. 1992).
Asfour
does
conclusorily
argue
that
the
“two
fleeting
references” to 29 U.S.C. § 2601, et seq., on page 25 of his
Original Petition (copy attached to Notice of Removal (#1)) were
“made in error,” that Section 7 of the Original Petition proclaims
that “Plaintiff does not cite and does not seek relief under any
federal law,” and that he has not alleged any facts that would
support a FMLA cause of action. This third contention has not been
briefed by the parties.
Since Defendants did enter into the
stipulation to remand, if they file a motion to dismiss the FMLA
claim for failure to state a claim under Federal Rule of Civil
Procedure and if they prevail and the FMLA claim is dismissed, the
Court has the discretion to remand the state law claims.
However,
given the law that the propriety of removal is based on the
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plaintiff’s pleadings at the time the motion to remove is filed1
and the rule of Boelens and progeny, the Court
ORDERS that the motions to remand are currently DENIED.
SIGNED at Houston, Texas, this
25th
day of
August , 2014.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
1
Pullman Co. v. Jenkins, 305 U.S. 534, 537-38 (1939);
Cavallini v. State Farm Mutual Auto Ins., 44 F.3d 256, 264 (5th Cir.
1995); Ford v. Property & Cas. Ins. Co. of Hartford, No. Civ. A. H09-1731, 2009 WL 4825222, *2 (S.D. Tex. Dec. 9, 2009).
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