Terrazas v. NCS Pearson, Inc.

Filing 12

ORDER DENYING 8 Motion to Remand to State Court; DENYING 8 Motion to Enter Sua Sponte. Signed by Judge Xavier Rodriguez. (ga)

In the United States District Court for the Western District of Texas
C E C IL IA M. TERRAZAS P l a i n t i f f, v. N C S PEARSON, INC. A/K/A P E A R S O N ASSESSMENT D efen d an t. § § § § § § § §

Civil No.: SA-09-CV-202-XR

ORDER

O n this date, the Court considered Plaintiff's "motion to remand and a lt e r n a t iv e motion to enter sua sponte order"(docket no. 8), as well as D e fe n d a n t's response and supporting brief (docket no. 10). For the reasons s ta te d herein, the Court DENIES Plaintiff's motion in all respects. I. Background A. P la in t i f f 's Original Petition P la in t if f Cecilia M. Terrazas originally filed this lawsuit in Bexar County C o u rt at Law Number 2. In her original petition filed in state court, Plaintiff a s s e r ts that she was hired in 1999 by Defendant Pearson Assessment as a t e m p o r a r y employee and then in August 2002 as a permanent employee.1

The petition does not state Plaintiff's exact position title, but it is implied in her p e t i t i o n and corroborated by her EEOC Intake Questionnaire (Exhibit A to the Appendix in S u p p o r t of Defendant's Response) that she was employed as a Shift Supervisor.

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P l a in t iff alleges that "from or around July 2007 and thereafter, the Scanning D e p a r t m e n t Manager subjected Plaintiff to terms and conditions of employment d iffe r e n t from those which the male Shift Supervisors enjoyed." She alleges that s h e was forced to reschedule her vacation, was not provided a laptop or computer s o ft w a r e necessary to perform her job duties, and was not included in lunch m e e tin g s between the Department Manager and the male Shift Supervisors. Plaintiff alleges that in January 2008, the Department Manager wrote her u p for incidents that had occurred in the previous four months, and that Plaintiff h a d not received prior notice of problems and was not given opportunities to r e s o lv e concerns prior to the disciplinary action. Plaintiff alleges that the male S h ift Supervisors, who had the proper equipment to perform their jobs, were not d isciplin e d for similar issues for which Plaintiff was disciplined. Plaintiff asserts t h a t on or about February 20, 2008, the Scanning Department Manager told her t h a t she was being discharged because he had "lost confidence in her as a le a d e r ." Plaintiff alleges that she was replaced with a less experienced and/or le s s qualified male employee. S e c tio n VII of Plaintiff's petition has the heading "Tex. Labor Code § 2 1 .0 5 1 et seq." In this section, Plaintiff alleges that "the acts committed by the a g e n ts , servants and/or employees of Defendant in discriminating and r e ta lia tio n against Plaintiff constitute violations of Tex. Labor Code §§ 21.051, 2

2 1 .0 5 5 , 21.056, and any other applicable provisions." However, Plaintiff further a lle g e s that "she was wrongfully terminated and treated differently based on her s e x , female, in violation of Title VII of the Civil Rights Act of 1964, as amended." P la in tiff then alleges that "Defendant generally violated the spirit of and intent o f the Labor Code, including § 21.051, in that Defendant discharged or otherwise d is c r im in a te d against Plaintiff." Plaintiff's petition seeks damages for past and fu t u r e mental anguish, suffering and emotional distress, past and future lost w a g e s , "pecuniary and pecuniary losses, past and future," punitive damages, and r e a s o n a b le attorneys' fees and costs. B. N o t i c e of Removal O n March 18, 2009, Defendant timely removed the case on the grounds o f both federal question jurisdiction and diversity jurisdiction. Defendant bases fe d e r a l question jurisdiction on Plaintiff's allegation that Defendant violated T it le VII. With regard to diversity jurisdiction, Defendant states on information a n d belief that Plaintiff is a citizen of Texas, and Defendant asserts that it was a n d is a corporation organized and chartered in the State of Minnesota and with its principal place of business there. Defendant alleges that it is facially

a p p a r e n t that the amount in controversy exceeds $75,000, exclusive of interests a n d costs.

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C . Plaintiff's Motion to Remand 2 I n her motion, Plaintiff contends that she brings only state law claims and t h a t Defendant has not properly demonstrated that the amount in controversy e x c e e d s $75,000. Plaintiff states that her original petition alleged only state ca u se s of action, specifically only claims under the Texas Labor Code. Plaintiff a ls o attaches an affidavit dated March 27, 2009, in which she states that she is n o t currently asserting, and will not assert in the future, any federal causes of a c t io n , and that she is not seeking more than $75,000 in damages. I I . Standard of Review T h e party seeking to invoke the jurisdiction of a federal court carries the b u r d e n of establishing the existence of federal jurisdiction. Stockman v. Fed. E le c ti o n Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). When a case is removed to fe d e r a l court, the removing party must prove that federal jurisdiction existed at th e time of removal. Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2 0 0 1 ). When the amount in controversy is at issue, and a complaint does not a lle g e a specific amount of damages, the party invoking federal jurisdiction must

Plaintiff requests in the alternative that the Court enter a sua sponte order remanding the case. As th e Court is already considering a motion to remand, the Court does not see the need to separately address w h e th e r the case should be remanded sua sponte. In any event, there is no basis for a sua sponte re m a n d .

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p r o v e by a preponderance of the evidence that the amount in controversy exceeds t h e jurisdictional amount. See White v. FCI USA, Inc., 319 F.3d 672, 675 (5th C ir . 2003). To satisfy this burden, the Defendant must either (1) demonstrate t h a t it is facially apparent from the petition that the claim likely exceeds $ 7 5 ,0 0 0 or (2) set forth facts in controversy that support a finding of the r e q u is ite amount. Tovar v. Target Corp., 2004 WL 2283536 (W.D. Tex. 2004). I f the Defendant meets this burden, the Plaintiff must be able to show that, as a matter of law, it is certain that he will not be able to recover more than the d a m a g e s for which he has prayed in the state court complaint. De Aguilar v. B o e in g Co., 47 F.3d 1404, 1411 (5th Cir. 1995). Plaintiff's "legal certainty" o b li g a t io n [may] be met by filing a binding stipulation or affidavit with their c o m p la in t ." Id. at 1412. I I I . Analysis A . Federal Question Jurisdiction F e d e r a l district courts have jurisdiction over cases "arising under the C o n s t it u t io n , laws, or treaties of the United States." 28 U.S.C. § 1331. In d e t e r m in in g whether a case "arises under federal law" we look to whether the " p l a i n t if f's well-pleaded complaint raises issues of federal law." A lls ta t e Ins. Co., 243 F.3d 912, 916 (5thCir. 2001). P la in t iff's assertion in her response that she brings "claims strictly under 5 Howery v.

t h e Texas Labor Code" is contradicted on the face of her petition. As noted, the p e tit io n clearly alleges that she was wrongfully terminated in violation of Title V I I . As Defendant notes, coupled with the alleged facts, this is sufficient to state a claim under Title VII. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). P la i n t iff has described the alleged wrongful termination and plainly asserted t h a t her termination violated Title VII. Plaintiff's petition expressly invokes T it le VII, a federal law, and expressly alleges a violation of that law. It does not in d i c a t e that the alleged violation of federal law was intended only to establish a violation of the Texas Labor Code. Compare Howery, 243 F.3d at 917-18 (fin d in g no federal question presented when plaintiff's inclusion of federal law r e fe r e n c e s merely served to describe types of conduct that violated the Texas D T P A , but plaintiff did not explicitly allege a violation of a federal law). Thus, fe d e r a l question jurisdiction is apparent on the face of the complaint, and r e m o v a l was proper, Plaintiff's affidavit to the contrary notwithstanding. Even if this allegation was a mistake, it states a federal claim and the Court cannot r e m a n d for lack of federal question jurisdiction. Barron v. Clay Cooley, 2009 WL 1 9 0 4 6 7 7 (N.D. Tex. 2009); Franks v. East, 2008 WL 4057078 (N.D. Miss. 2008). B . Diversity Jurisdiction I n this case, diversity of citizenship appears undisputed. Plaintiff's

p e tit io n alleges that she is a resident of Texas, and Defendant's notice of removal 6

a lle g e s that she is a citizen of Texas, which Plaintiff has not challenged. D e fe n d a n t's assertion that it is a citizen of Minnesota is also unchallenged. P la in tiff does, however, challenge the amount-in-controversy requirement. D e fe n d a n t asserts that the fact that the amount in controversy exceeds $75,000 is apparent from the face of the petition based on her requested damages ­ past a n d future mental anguish, past and future lost wages, past and future p e c u n i a r y losses, punitive damages, and reasonable attorney's fees. As noted by D e fe n d a n t , this Court has previously held that similar damages requests were s u ff ic ie n t to reach the amount-in-controversy threshold. See, e.g., Tovar v. T a r g et Corp., Civ. A. No. 04-CV-557, 2004 WL 2283536 (W.D. Tex. 2004). I n addition to relying on the face of the petition, however, Defendant p r o v id e s evidence regarding the amount in controversy. Defendant points to an in ta k e questionnaire prepared for the EEOC, in which Plaintiff listed her annual s a la r y as $38,700 with a 3% 401(k) match. Plaintiff has not challenged this e v id e n c e . Considering the amount of Plaintiff's annual salary, the Court finds t h a t Defendant has proved by a preponderance of the evidence that Plaintiff's r e q u e s t e d damages, including front and back pay, punitive damages and a t t o r n e y 's fees,3 meet the amount-in-controversy requirement. E v e n when a defendant has satisfied its burden to show by a

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Plaintiff's motion for remand indicates that her attorney charges $300 per hour.

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p r e p o n d e r a n c e of the evidence that the amount in controversy exceeds $75,000, t h e Plaintiff may defeat removal by showing that it is legally certain that the a m o u n t in controversy does not exceed $75,000. A party seeking to prevent r e m o v a l may file a binding stipulation or affidavit with their petition. See De A g u ila r v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 2005). Thus, if a Plaintiff a tt a ch e s an affidavit to her petition before removal, it will be binding and b e c o m e incorporated as part of the petition to limit recovery. The Fifth Circuit a n d this Court both recognize that "a Plaintiff who does not desire to try his case in federal court . . . may [in good faith] . . . sue for less than the jurisdictional a m o u n t , [even though] he would justly be entitled to more." De Aguilar, 47 F3d. a t 1410. However, it is equally clear that post-removal affidavits limiting the a m o u n t in controversy will not defeat removal. St. Paul Mercury Indem. Co. v. R e d Cab Co., 303 U.S. 283, 292 (1983); Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 8 8 0 , 883 (5th Cir. 2000). Here, Plaintiff's affidavit is dated March 27, 2009, which post-dates D e fe n d a n t 's March 18, 2009 notice of removal. Accordingly, the Court finds that t h e affidavit cannot defeat removal based on diversity jurisdiction. C o n c lu s io n P l a in t iff's motion to remand and alternative motion to enter sua sponte o r d e r (docket no. 8) is in all things DENIED. If Plaintiff genuinely erred in 8

in c lu d in g language asserting a Title VII claim in her state court petition, P la in t iff is given leave to amend to remove the Title VII claim because the Court w ill not force Plaintiff to pursue a claim that she does not desire to pursue. Even if Plaintiff chooses to amend to remove the Title VII claim, however, the Court h a s diversity jurisdiction over this case such that remand would not be w a rr a n te d . I t is so ORDERED. S I G N E D this 16th day of September, 2009.

_________________________________ X A V IE R RODRIGUEZ U N I T E D STATES DISTRICT JUDGE

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