Jones v. Miller, et al.
ORDER granting 8 Motion to Remand. This case is REMANDED to the 61st Judicial District Court of Harris County, Texas..(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
JAMES P. MILLER, et al,
April 06, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 4:17-CV-0588
ORDER FOR REMAND
Before the Court is the plaintiff’s, Joseph Jones, motion to remand his case to the 61st
Judicial District Court of Harris County, Texas [DE #8]. The defendant, James P. Miller and Golden
Rule Air Conditioning and Heating, LLC (“the Golden Rule”), has filed a response in opposition to
the plaintiff’s motion [DE# 11]. The Court has reviewed the motion, response and pleadings on file
and determines that the motion to remand is meritorious and should be granted.
The plaintiff filed suit in the 61st State District Court contending that his termination in May
2016 violated state common and statutory laws. He contends in his suit that he was employed, under
contract, as the General Manager of the Golden Rule.
His contract responsibilities primarily
involved recruiting and training management and sales staff. Nevertheless, after he was hired, he
like other, was required to create new accounts and bring in business, a chore that amounted to a
demotion in pay and status. When he did not cooperate, he was “self-terminated” because he was not
paid according to his contract. The plaintiff sued.
In his suit, the plaintiff asserts causes of action for fraud, fraud by non-disclosure, negligent
misrepresentation, defamation and disparagement, and tortious interference with his business
relationships. He also contends that he has been denied lost wages, lost profits, suffered mental
anguish and other damages. Because his claims are based in state law, he brought suit in state court.
The defendant asserts that remand is inappropriate because the plaintiff has “no private right
of action under Chapter 61 of the Texas Labor Code or the Texas Payday Loans.” The plaintiff
mentions these state statutes and the Fair Labor Standard Act, a federal statute in his pleadings.
According to the defendant mentioning the FLSA, reveals that the plaintiff’s “real” claim is an FLSA
claim. Therefore, the case should not be remanded.
The Court disagrees with the defendant’s assessment of the plaintiff’s pleadings. Nowhere in
the plaintiff’s pleadings does he seek relief under the FSLA. The fact that he points out that the
defendant’s conduct also violates the FSLA does not “trump” his stated causes of action in contract
and tort – all state law claims.
The burden is on the defendant to establish with a measure of certainty that the plaintiff
intends, by his pleadings, to assert a federal claim. See Wiley v. Coastal Corp., 855 F.2d 1160, 1164
(5th Cir. 1988). Therefore, whether the plaintiff’s claims arise under federal law is to be determined
from the plaintiff’s pleadings. Id. at 1165. The plaintiff’s pleadings are clear – they do not support
the defendant’s basis for removal of this case. Moreover, the documents before the Court do not
support removal. See Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.
Therefore, the plaintiff’s motion for remand, pursuant 28 U.S.C. § 1447 is Granted. It is
ORDERED that this case be and it is Hereby REMANDED to the 61st Judicial District Court of
Harris County, Texas.
SIGNED on this 6th day of April, 2017.
Kenneth M. Hoyt
United States District Judge
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