King v. Cardinal Health 411, Inc. et al

Filing 31

MEMORANDUM OPIONION AND ORDER Granting Pla's #21 Motion To Allow The Filing Of A Second Amended Complaint And Denying Motion For Remand. Pla's is DIRECTED to file a signed copy of the second amended complaint. Signed by Senior Judge Frederick P. Stamp, Jr on 9/7/11. (mji)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
NICOLE KING,
Plaintiff,
v.

Civil Action No. 5:10CV112
(STAMP)

CARDINAL HEALTH 411, INC.
and TESS GREY,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S MOTION TO ALLOW THE FILING
OF A SECOND AMENDED COMPLAINT AND
DENYING MOTION FOR REMAND
I.

Procedural History

The plaintiff, Nicole King (“King”), filed this civil action
in the Circuit Court of Ohio County, West Virginia against the
above-named defendants alleging that she was wrongfully terminated
from her job at Cardinal Health 411, Inc. (“Cardinal Health”).
Specifically, the plaintiff’s original complaint alleges that her
termination was based in whole or in part on discriminatory
motives, in violation of West Virginia Code Section 5-11-9 and West
Virginia public policy.1

The defendants filed a motion to dismiss

the plaintiff’s complaint in the Circuit Court of Ohio County,
which was denied on September 13, 2010 at a hearing before Judge
Ronald E. Wilson.

The plaintiff later filed an amended complaint,

which includes an allegation that her termination violated the
Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.

1

The

The plaintiff’s original complaint contains no reference to
the FMLA and no alleged violation of federal law.

defendants then filed a notice of removal in this Court based upon
28 U.S.C. § 1331 and 29 U.S.C. § 2617(a)(2).

On December 1, 2010,

the plaintiff filed a motion to remand, which this Court denied on
January 6, 2011, finding that the plain language on the face of the
plaintiff’s amended complaint presents a federal question.
Following the denial of the motion to remand, the plaintiff
filed a pleading titled “Notice of Plaintiff’s Voluntary Dismissal
of FMLA Claim, Motion to Allow the Filing of a Second Amended
Complaint, and Motion for Remand.”

This motion is now fully

briefed and pending before this Court.

Having reviewed the

parties’ pleadings and the relevant law, this Court finds that the
plaintiff’s

motion

to

allow

the

filing

of

a

second

amended

complaint can be granted, and the motion to remand must be denied.
II.

Facts2

King began working for Cardinal Health in April 2007.

On

March 14, 2010, King suffered complications from her pregnancy and
was

taken

to

Wheeling

Hospital’s

Emergency

Room.

Upon

her

discharge from Wheeling Hospital on March 14, 2010, King obtained
a doctor’s slip prohibiting her from working that day.

King then

called her supervisor, Tess Grey (“Grey”), and advised her of her
recent hospital visit and her inability to attend work that day.
King’s fiancé, Patrick MacFarland, hand-delivered her doctor’s
excuse to Grey.

When King called Grey on the morning of March 15,

2

For the purposes of this opinion, this Court adopts the facts
as set forth by the plaintiff in her amended complaint.
2

2010, Grey fired her.

The plaintiff filed complaints with the

corporate human resources department, Craig Baranski, the director
of Cardinal Health’s Wheeling facility, and Cardinal Health’s
Ethics Board, but she received no response.
plaintiff

filed

an

incident

report

Additionally, the

regarding

her

wrongful

termination via Cardinal Health’s Incident Reporting System, but
she received no response.
III.
A.

Applicable Law

Motion to File Amended Complaint
Federal

Rule

of

Civil

Procedure

15(a)(1)(A)

states,

in

pertinent part, that “[a] party may amend its pleading once as a
matter of course . . . before being served with a responsive
pleading.”

If a party seeks to amend its pleadings in all other

cases, it may only do so “with the opposing party’s written consent
or the court’s leave.
justice so requires.”
Rule

15(a)

The court should freely give leave when
Fed. R. Civ. P. 15(a)(2).

grants

the

district

court

broad

discretion

concerning motions to amend pleadings, and leave should be granted
absent some reason “such as undue delay, bad faith or dilatory
motive

on

the

part

of

the

movant,

repeated

failure

to

cure

deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment, [or]
futility of amendment.”

Foman v. Davis, 371 U.S. 178, 182 (1962);

see also Ward Elec. Serv. v. First Commercial Bank, 819 F.2d 496,

3

497 (4th Cir. 1987); Gladhill v. Gen. Motors Corp., 743 F.2d 1049,
1052 (4th Cir. 1984).
B.

Motion for Remand
A defendant may remove a case from state court to federal

court in instances where the federal court is able to exercise
original jurisdiction over the matter.

28 U.S.C. § 1441.

Federal

courts have original jurisdiction over primarily two types of
cases: (1) those involving federal questions under 28 U.S.C.
§ 1331, and (2) those involving citizens of different states where
the

amount

in

controversy

exceeds

$75,000.00,

exclusive

interests and costs pursuant to 28 U.S.C. § 1332(a).
seeking

removal

jurisdiction.

bears

the

burden

of

establishing

of

The party
federal

See Mulcahey v. Columbia Organic Chems. Co., Inc.,

29 F.3d 148, 151 (4th Cir. 1994).

In cases removed from state to

federal court, the district court must look at the case at the time
of removal to determine whether it has subject matter jurisdiction.
Later changes to the pleadings do not impact removal jurisdiction.
See Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 n.2
(11th Cir. 2007).
A district court may exercise its discretion in retaining
jurisdiction over state law claims made in the case through
supplemental jurisdiction pursuant to 28 U.S.C. § 1367 when there
is a federal basis for jurisdiction.
F.3d 106, 109 (4th Cir. 1995).

See Shanaghan v. Cahill, 58

“The district court exercises its

discretion by considering factors that include: ‘convenience and

4

fairness to the parties, the existence of any underlying issues of
federal policy, comity, and considerations of judicial economy.’”
Semple v. City of Moundsville, 195 F.3d 708, 714 (4th Cir. 1999)
(quoting Shanaghan, 58 F.3d at 110).
IV.
A.

Discussion

Motion to File Amended Complaint
In support of her motion to allow the filing of a second

amended

complaint,

the

plaintiff

first

notes

that

she

is

voluntarily dismissing her federal cause of action against the
defendants under the FMLA.

Citing to Rule 15 of the Federal Rules

of Civil Procedure, the plaintiff next argues that no prejudice to
the defendants results from the filing of the second amended
complaint, because the second amended complaint merely dismisses a
cause of action.

The plaintiff claims that she is not acting in

bad faith because she never intended to assert a cause of action
against the defendants under the FMLA.

The plaintiff further

asserts that her motion for leave to file an amended complaint was
filed prior to the deadline for amended pleadings set forth in this
Court’s scheduling order.3
In response, the defendants argue that leave to amend the
complaint

pursuant

Specifically,

the

to

Rule

defendants

15(a)(2)
contend

should
that

the

be

denied.

plaintiff’s

motivation for seeking leave to amend is not because justice so

3

According to the scheduling order of December 13, 2010,
motions to amend pleadings were to be filed on or before July 29,
2011.
5

requires, but because she is attempting to avoid being in federal
court. Further, the defendants contend that allowing the plaintiff
to file a third complaint would cause them substantial prejudice.
However, the defendants concede that granting the motion for leave
to amend and denying the motion for remand would not cause them
prejudice.
Because the defendants concede that granting the motion for
leave to file an amended complaint while simultaneously denying the
motion for remand would not prejudice them, and because this Court
finds that the plaintiff’s purpose in filing an amended complaint
is to delete any reference to a cause of action under the FMLA,
leave to amend should be granted pursuant to Rule 15(a)(2).

Fed.

R. Civ. P. 15(a)(2) (“The court should freely give leave [to amend]
when justice so requires.”).

This Court notes, however, that

voluntary dismissal of the FMLA claim pursuant to Rule 41 of the
Federal Rules of Civil Procedure is not the proper vehicle to
accomplish partial dismissal.

See Skinner v. First Am. Bank of

Virginia, 64 F.3d 659 (4th Cir. 1995) (“Because Rule 41 provides
for the dismissal of actions, rather than claims, Rule 15 is
technically the proper vehicle to accomplish partial dismissal.”).
Instead, filing an amended complaint pursuant to Rule 15 is the
appropriate method by which the plaintiff can eliminate her FMLA
claim.

Therefore, this Court makes no ruling on the notice of the

plaintiff’s voluntary dismissal.
B.

Motion for Remand

6

In support of the motion for remand, the plaintiff argues that
because the sole basis for this Court to assert federal subject
matter jurisdiction over this case is the Court’s finding that the
plaintiff stated a federal cause of action under the FMLA, and
because the plaintiff has voluntarily dismissed that claim, this
Court should exercise its discretionary powers and remand this case
to the Circuit Court of Ohio County.
In response, the defendants argue that regardless of whether
the plaintiff is permitted to amend her complaint or otherwise
dismiss

her

FMLA

claim,

this

Court

retains

subject

matter

jurisdiction over the entire lawsuit. According to the defendants,
28 U.S.C. § 1367(c)(3) provides this Court with authority to retain
remaining state law claims after having dismissed all federal
claims. Thus, the defendants argue that this Court should deny the
plaintiff’s second motion to remand and retain this case.
After considering the factors set forth in Shanaghan v.
Cahill, this Court finds it appropriate to exercise supplemental
jurisdiction

in

this

case.

When

making

this

discretionary

determination, this Court first considers convenience and fairness
to the parties.

Shanaghan, 58 F.3d at 110.

As noted above, a

scheduling order is currently in place in this case.
this

scheduling

order,

the

parties

have

conducted

Pursuant to
discovery.

Specifically, interrogatories have been propounded and answered,
and depositions have been taken.

Trial in this matter is not

scheduled to begin until January 10, 2012. Because the plaintiff’s

7

proposed amended complaint removes a claim, but does not add any
claims, it is unlikely that the parties will need additional time
to complete discovery.

Given the steady progression of this case,

it is both fair and convenient to the parties for this case to
remain in this Court and proceed pursuant to the deadlines set
forth in the December 13, 2010 scheduling order.
Although this case presents no underlying issues of federal
policy, comity and considerations of judicial economy do play a
part in this Court’s decision to retain jurisdiction.

Remanding

this case to the state court after the parties have completed a
significant amount of discovery would only delay the progression of
this case.

Given the amount of time and energy that has already

been expended, it is more efficient simply to retain jurisdiction.
See Washington v. Union Carbide Corp., 870 F.2d 957, 962 (4th Cir.
1989).

Further, remand could place an unnecessary burden on the

state court by requiring deadlines and trial dates to be re-set.
Supplemental jurisdiction is “a doctrine of flexibility, designed
to allow courts to deal with cases involving pendent claims in the
manner that most sensibly accommodates a range of concerns and
values.”

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350

(1988). Retaining jurisdiction over this case is the most sensible
and efficient way to ensure that discovery continues uninterrupted.
For

these

reasons,

this

Court

finds

that

the

exercise

of

supplemental jurisdiction is appropriate and the plaintiff’s motion
for remand must be denied.

8

V.

Conclusion

For the reasons stated above, the plaintiff’s motion to allow
the filing of a second amended complaint is GRANTED. The plaintiff
is DIRECTED to file a signed copy of the second amended complaint,
which is attached as exhibit one to the motion (Doc. 21).

The

plaintiff’s motion for remand is DENIED.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this order to
counsel of record herein.
DATED:

September 7, 2011

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

9