Thompson v. Bert Wolfe Ford, Inc.

Filing 19

MEMORANDUM OPINION AND ORDER granting plaintiff Marcus D. Thompson's 9 MOTION to remand; directing that this action is remanded to the Circuit Court of Kanawha County. Signed by Judge John T. Copenhaver, Jr. on 4/26/2013. (cc: attys) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
MARCUS D. THOMPSON,
Plaintiff,
v.

Civil Action No. 2:13-04205

BERT WOLFE FORD, INC.,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending is plaintiff Marcus D. Thompson's motion to
remand, filed March 18, 2013.

I.

Mr. Thompson is a Florida citizen and an AfricanAmerican.

Defendant Bert Wolfe Ford, Inc. ("Bert Wolfe") is a

West Virginia citizen.
follows.

The allegations of the complaint are as

On June 17, 2010, Bert Wolfe hired Mr. Thompson as a

customer service advisor.

Mr. Thompson performed all of his

duties satisfactorily and met Bert Wolfe's performance
expectations.

Some of his fellow employees, however, uttered

racially offensive remarks in his presence.

Mr. Thompson asserts

that this misconduct created a hostile work environment, of which

Bert Wolfe was aware.

On February 25, 2011, Mr. Thompson was

terminated without good cause.
On February 25, 2013, Mr. Thompson instituted this
action in the Circuit Court of Kanawha County.

The four claims

asserted by Mr. Thompson in the original complaint are framed as
follows:
COUNT ONE: Employment discrimination alleged to be "in
violation of the West Virginia Human Rights Act, and
The Civil Rights Act of 1866 - 42 U.S.C. § 1981"
(Compl. ¶ 18);
COUNT TWO: Hostile workplace alleged to be "in
violation of the West Virginia Human Rights Act. W. Va.
Code § 5-11-1 et seq." and "the public policies of the
State of West Virginia" (Id. ¶ 25);
COUNT THREE: Wrongful termination alleged to be "in
violation of West Virginia public policy and in
retaliation which is a violation of the W.V. Human
Rights Act" (Id. ¶ 28); and
COUNT FOUR: Intentional or reckless infliction of
emotional distress.1

1

The court notes two other components of the original
complaint. First, at the outset of each of the four counts
appears the stock and customary statement "realleg[ing] each and
every allegation contained in the paragraphs" preceding. The
court attributes no substantive significance to this boilerplate
language. For example, Counts Two and Three are not construed
to allege, like Count One, a violation of Section 1981 inasmuch
as they explicitly only identify the West Virginia Human Rights
act and state public policy as the laws offended. Second,
"Count 5" and "Count 6" purport to allege independent claims for
"Damages" and "Punitive Damages." The court does not treat
these two damages requests as separate counts.
2

On March 5, 2013, Bert Wolfe answered and removed,
alleging that the reference in Count One to Section 1981 gave
rise to removal jurisdiction pursuant to 28 U.S.C. § 1441(a).
The next day, on March 6, 2013, Mr. Thompson's counsel advised
defense counsel in writing as follows:
I was reviewing Mr. Thompson's file and noticed that a
typographical error was contained within the Complaint.
Said typographical error is as follows:
(18) The acts and/or omission of the Defendant as
herein alleged constitute discrimination in violation
of the West Virginia Human Rights Act, and The Civil
Rights Act of 1866 -- 42 U. S. C. § 1981 . . . .["] It
was never my intention to cite a federal claim in this
action.
Therefore, I respectfully request that you allow
me to correct said typographical error and allow this
case to remain in the Circuit Court of Kanawha
County, West Virginia.
(Ex. A., Pl.'s Reply).

Counsel for Bert Wolfe declined the

request.
On March 12, 2013, Mr. Thompson promptly amended his
original complaint as of right pursuant to Federal Rule of Civil
Procedure 15(a)(1)(B).

See Fed. R. Civ. P. 15(a)(1)(B) ("A party

may amend its pleading once as a matter of course within[,] . . .
if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading . . .
.").

The first amended complaint alleges the same state law

claims as found in the predecessor pleading but omits the former
Count-One reference to Section 1981.

3

On March 18, 2013, Mr. Thompson moved to remand.

He

asserts, as his lawyer suggested in her March 6, 2013, letter to
opposing counsel, that the isolated invocation of Section 1981
"was in error."

(Pl.'s Reply at 2).

II.

A.

The Governing Standard

Title 28 U.S.C. § 1441(a) governs federal removal
jurisdiction.

The statute provides pertinently as follows:

[A]ny civil action brought in a State court of which
the district courts of the United States have original
jurisdiction, may be removed by the . . . defendants .
. . to the district court of the United States for the
district and division embracing the place where such
action is pending. . . .
28 U.S.C. § 1441(a).

One source of original jurisdiction is 28

U.S.C. § 1331, which provides “The district courts shall have
original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”

Id.

Accordingly, “removal is appropriate if the face of the complaint
raises a federal question.”

Lontz v. Tharp, 413 F.3d 435, 439

(4th Cir. 2005).
The well-pleaded complaint rule often comes into play
in assessing the presence of a federal question:

4

In determining whether a plaintiff's claim arises under
federal law, we apply the well-pleaded complaint rule,
which holds that courts “ordinarily . . . look no
further than the plaintiff's [properly pleaded]
complaint in determining whether a lawsuit raises
issues of federal law capable of creating federalquestion jurisdiction under 28 U.S.C. § 1331.” Custer
v. Sweeney, 89 F.3d 1156, 1165 (4th Cir. 1996). Thus,
in examining the complaint, our first step is to
“discern whether federal or state law creates the cause
of action.” Mulcahey, 29 F.3d at 151; see also Dixon v.
Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004)
(“The vast majority of lawsuits ‘arise under the law
that creates the cause of action.’ ”) (quoting Am. Well
Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36
S.Ct. 585, 60 L.Ed. 987 (1916)). If federal law creates
a plaintiff's claim, then removal is proper. Mulcahey,
29 F.3d at 151. The general rule, of course, is that a
plaintiff is the “master of the claim,” and he may
“avoid federal jurisdiction by exclusive reliance on
state law” in drafting his complaint. Caterpillar Inc.
v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96
L.Ed.2d 318 (1987).
Pinney v. Nokia, Inc., 402 F.3d 430, 442 (4th Cir. 2005); see
also Mid Atlantic Med. Servs., LLC v. Sereboff, 407 F.3d 212, 218
n.5 (4th Cir. 2005) (“Section 1331 of Title 28 provides the
federal courts with jurisdiction over ‘all civil actions arising
under the Constitution, laws, or treaties of the United States.”
A case arises under the laws of the United States within § 1331
only if it is apparent from the face of a well-pleaded complaint
that the plaintiff's cause of action was created by federal law,
‘unaided by anything alleged in anticipation or avoidance of
defenses which it is thought the defendant may interpose.’”)
(quoted authority omitted).

5

In Harless v. CSX Hotels, Inc., 389 F.3d 444 (4th Cir.
2004), our court of appeals encountered a plaintiff whose state
action was removed on complete preemption grounds.

Plaintiff

moved to amend in an attempt to eliminate the original basis for
federal subject matter jurisdiction.

The district court allowed

the amendment, but retained the case on the grounds that the
amended pleading yet contained completely preempted claims.
In response, plaintiff moved anew to amend, which the
district court allowed.

The second amended complaint contained

four purely state law claims, which ultimately resulted in
remand.

Defendant appealed:

[Defendant contends] . . . that the district court
abused its discretion by permitting Harless to make
repeated amendments to her pleadings for the sole
purpose of avoiding federal preemption and federal
jurisdiction. The Greenbrier further maintains that,
even without Harless's claim for breach of duty of good
faith and fair dealing, the other state law claims are
federally preempted. The Greenbrier reasons that
Harless's only evidence in support of her claims of age
and disability discrimination will necessarily consist
of an attempt to discredit The Greenbrier's application
of the absenteeism provisions of the CBA.
Id. at 447.
The court of appeals, cognizant of plaintiff’s at-best
mixed intent in seeking multiple amendments, nevertheless
observed as follows:
This Court reviews a district court's ruling on a
motion to amend for abuse of discretion. Davis v. VCU,
6

180 F.3d 626, 628 (4th Cir.1999), citing Foman v.
Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222
(1962). The language of Federal Rule of Civil
Procedure 15(a) has been construed to counsel a liberal
reading of its application. Motions to amend are
typically granted in the absence of an improper motive,
such as undue delay, bad faith, or repeated failure to
cure a deficiency by amendments previously allowed. See
Ward Elec. Serv., Inc. v. First Commercial Bank, 819
F.2d 496, 497 (4th Cir.1987). The Greenbrier argues
that the district court abused its discretion in
granting the successive motions to amend because their
specific articulated objective was to defeat federal
jurisdiction and avoid federal preemption. The
Greenbrier also challenges the district court's finding
that Harless's successive motions to amend were not
made in bad faith. . . .
. . . .
In the immediate case, the district court stated
that Harless had mixed motives in moving to amend the
Complaint. While Harless clearly wanted to avoid
federal court, she also had substantive reasons for
amending the pleadings. Her counsel candidly
represented to the Court that in drafting the
Complaint, he never intended to allege a federal claim.
It was his intention to allege a claim based solely on
state law. Counsel confirmed that position in his
argument before this Court.
Here, Harless had a substantive and meritorious reason
to amend the Complaint other than simply defeating
federal jurisdiction. Once the district court found the
amendment to be made in good faith, the decision to
remand to state court resided within the discretion of
the trial court. When a district court relinquishes
jurisdiction over a removed case involving pendent
claims, the Court has the discretion to remand the case
to the state court in which the action was initially
filed.
Id. at 447-48.

The court in Harless, referencing the analysis in

United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966),
7

suggested that a remand decision under the circumstances here
presented ought to consider several factors, including fairness
to litigants, comity, convenience, and judicial economy.2

B.

Analysis

Respecting fairness to the litigants, it is noteworthy
that Mr. Thompson's counsel immediately, and quite candidly,
confessed error to her opponent within a day of removal,
asserting the singular reference to Section 1981 was a mistake.
There is independent corroboration for counsel's insistence that
inadvertence was in play.

That is, had she truly desired to

plead a Section 1981 claim, there is no plausible explanation for
specifically invoking that statutory protection as to Count One - which alleged employment discrimination -- but not Count Two -which alleged a hostile work environment.

See White v. BFI Waste

Services, LLC, 375 F.3d 288, 292 (4th Cir. 2004) (noting the
availability of relief under Section 1981 for claims alleging a

2

The court notes as well that 28 U.S.C. § 1367(c)(4)
permits the declination of supplemental jurisdiction "in
exceptional circumstances, [where] there are other compelling
reasons for declining jurisdiction." Id. Essentially the same
factors apply to the section 1367(c)(4) analysis. See, e.g.,
Parker v. Scrap Metal Processors, Inc., 468 F.3d 733, 745 (11th
Cir. 2006) ("The Gibbs factors of judicial economy, convenience,
fairness to the parties, and whether all claims would be
expected to be tried together are evaluated under section
1367(c)(4).").
8

racially hostile work environment).

Fairness thus suggests a

mistake resulted in removal and that remand is appropriate.
Comity and judicial economy likewise weigh in favor of
remand.

Following the first amended complaint, purely state law

claims remain.

It is well-settled that "[t]he highest court of

each State . . . remains 'the final arbiter of what is state
law.'"

Montana v. Wyoming, 131 S. Ct. 1765, 1773 (2011) (quoting

West v. American Tele. & Tele. Co., 311 U.S. 223, 236 (1940)).
In the event that an unresolved legal issue appears at some later
point in the case, both parties will benefit by litigating in a
forum that more frequently deals with, and may authoritatively
construe, the West Virginia Human Rights Act and the decisional
law growing out of Harless v. First National Bank in Fairmont,
162 W. Va. 116, 246 S.E.2d 270 (1978), the case which outlawed
the termination of at-will employment when the employer
motivation offends a substantial state public policy.
Having considered the applicable factors, and based
upon the foregoing discussion, the court exercises its discretion
under Harless and section 1367(c)(4) and ORDERS that Mr.
Thompson's motion to remand be, and hereby is, granted.

It is

further ORDERED that this action be, and hereby is, remanded to
the Circuit Court of Kanawha County.

9

The Clerk is directed to forward copies of this written
opinion and order to all counsel of record.
DATED:

April 26, 2013

John T. Copenhaver, Jr.
United States District Judge

10