Treadway v. Walgreen Co.
Filing
15
MEMORANDUM OPINION AND ORDER: The Court ORDERS that the Defendants' 9 MOTION to Strike Plaintiff's Untimely Response to Defendants' Motion to Dismiss and Supporting Memorandum of Law (Dkt. Nos. 6 & 7) be DENIED; the Court finds t hat it lacks subject matter jurisdiction over this matter and ORDERS that this case be REMANDED to the Circuit Court of Raleigh County, WV, for further proceedings; the Court ORDERS that all pending motions be TERMINATED AS MOOT. Signed by Judge Irene C. Berger on 6/29/2015. (cc: Clerk, Raleigh County Circuit Court; attys; any unrepresented party) (slr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
STACEY J. TREADWAY,
Plaintiff,
v.
CIVIL ACTION NO. 5:15-cv-04109
WALGREEN CO. and
RUANN FEILDER,
Defendants.
MEMORANDUM OPINION AND ORDER
The Court has reviewed the Plaintiff’s Complaint (Document 1-1), the Defendants’ Notice
of Removal (Document 1), the Defendants’ Motion to Dismiss (Document 4), the Memorandum in
Support of Defendants’ Motion to Dismiss (Document 5), the Plaintiff’s Response to Motion to
Dismiss (Document 6), the Plaintiff’s Memorandum of Law in Opposition of Defendants’ Motion
to Dismiss (Document 7), and the Defendants’ Reply in Support of Motion to Dismiss (Document
10). In addition, the Court has reviewed the Defendants’ Motion to Strike Plaintiff’s Untimely
Response to Defendants’ Motion to Dismiss and Supporting Memorandum of Law [Dkt. Nos. 6
&7] (Document 9) and the Plaintiff’s Reply to Court Order Entered June 1, 2015 (Document 12),
providing an explanation for the untimely response to the motion to dismiss. For the reasons
stated herein, the Court finds that the Defendants’ motion to strike should be denied and the
Plaintiff’s response considered. Nevertheless, the Court finds that it lacks jurisdiction and that
this matter must be remanded to the Circuit Court of Raleigh County, West Virginia.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Plaintiff, Stacy J. Treadway, asserts that she was employed at Walgreens in Beaver,
West Virginia, until her hours were reduced enough that she had to leave to find other
employment. (Compl. at ¶¶ 4, 18.) In August of 2011, she provided a written statement and
testimony for an employee who had been dismissed. (Id. ¶ 6.) Ms. Treadway received four
reprimands or warnings in 2012 and 2013 for various reasons, and alleges that Defendant Ruann
Fielder, her manager, ridiculed her and harassed her. (Id. ¶¶ 11–12.) She began experiencing
health problems and stress in the summer of 2013. (Id. ¶ 13.) A transfer from the beauty
department to the photo department required more hours and increased her stress. (Id. at ¶ 13–
14.) Ms. Treadway was reprimanded for taking time off for medical care, and ultimately left for
other employment after her hours were decreased.
(Id. ¶¶ 15–18.)
She alleges that the
Defendants’ actions “violated the West Virginia Human Rights Act.” (Id. at ¶ 23.)
Ms. Treadway initiated this case by filing her complaint in the Circuit Court of Raleigh
County, West Virginia, on February 19, 2015. The Defendants removed the matter to this Court
on April 6, 2015, asserting federal question jurisdiction. They filed their motion to dismiss on
April 13, 2015. The Plaintiff filed her response on May 5, 2015—several days late. On May 13,
2015, the Defendants both filed their reply, and moved to strike the Plaintiff’s untimely response.
The Court directed the Plaintiff to provide an explanation for the untimeliness of her response.
Her attorney explained that he had failed to properly calendar the response deadline, and promptly
filed a response when his assistant noticed that the deadline had passed.
2
MOTION TO STRIKE
As an initial matter, the Court finds that the Defendants’ motion to strike should be denied.
The Court does not condone late filings. When a party needs an extension or has missed a
deadline, it is proper to file a motion for an extension or for leave to file late together with the
untimely document. However, the Plaintiff’s response was less than two weeks late. The
Defendants were able to file a prompt reply and are not prejudiced in any way by the Court’s
consideration of the response.1 The Plaintiff’s attorney’s error did not result in any significant
delay, and it was not attributable to intentional disregard of the deadlines or intent to
inconvenience opposing counsel. Thus, the Court will consider the Plaintiff’s untimely response.
JURISDICTION
This matter was removed to federal court on the basis of federal question jurisdiction. The
Defendants read the Plaintiff’s complaint to include allegations that the Defendants violated the
Family and Medical Leave Act (FMLA) and the Employee Retirement Security Act (ERISA).
Although the Plaintiff did not file a motion to remand, the Court must be satisfied that it has
jurisdiction prior to any consideration of the merits.
A. Standard of Review
An action may be removed from state court to federal court if it is one over which the
district court would have had original jurisdiction. 28 U.S.C. § 1441(a).2 This Court has original
1 The Court notes that the Defendants requested that the Court grant their motion to dismiss “as conceded.”
Regardless of whether the Court accepted the late response, the Court must apply the applicable pleading standard to
the complaint to determine whether dismissal is warranted.
2 Section 1441 states in pertinent part:
Except as otherwise expressly provided by Act of Congress, any civil action
brought in a State court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or the defendants, to
3
jurisdiction over “all civil actions arising under the Constitution, laws or treaties of the United
States.” 28 U.S.C. § 1331. “It is long settled law that a cause of action arises under federal law
only when the plaintiff’s well-pleaded complaint raises issues of federal law.” Metro. Life Ins.
Co. v. Taylor, 481 U.S. 58, 63 (1987). Under the substantial federal question doctrine, a cause of
action raises issues of federal law if “a disputed question of federal law is an essential element of
one of the well-pleaded state claims.” Pinney v. Nokia, Inc., 402 F.3d 430, 445 (4th Cir. 2005).
The well-pleaded complaint rule “makes the plaintiff the master of the claim; he or she may avoid
federal jurisdiction by exclusive reliance on state law.” Caterpillar Inc. v. Williams, 482 U.S.
386, 392 (1987); see also Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 831 (1986)
(“Jurisdiction may not be sustained on a theory that the plaintiff has not advanced.”); Spaulding v.
Mingo Cnty. Bd. of Educ., 897 F. Supp. 284, 287 (S.D.W. Va. 1995) (Haden, J.) (“The rule is
designed to allow the plaintiff the right to choose the forum. . . The plaintiff either may assert state
causes of action or include federal causes of action, thereby leaving the action vulnerable to
removal by the defendant.”).
However, the “artful pleading” doctrine provides an exception to the well-pleaded
complaint rule. Spaulding, 897 F. Supp. at 288. Thus, a case with no express federal claim may
be removed to federal court if the plaintiff failed “to plead necessary federal questions” or “where
federal law completely preempts a plaintiff’s state-law claim”
Rivet v. Regions Bank of
Louisiana, 522 U.S. 470, 475 (1998) (internal quotation marks and citations omitted).
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).
4
Section 1446 provides the procedure by which a defendant may remove a case to a district
court under Section 1441. Section 1446 requires that “[a] defendant or defendants desiring to
remove any civil action from a State court shall file . . . a notice of removal signed pursuant to Rule
11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the
grounds for removal.” 28 U.S.C. § 1446(a). Additionally, Section 1446 requires a defendant to
file a notice of removal within thirty days after receipt of the initial pleading. It is a long-settled
principle that the party seeking to adjudicate a matter in federal court, through removal, carries the
burden of alleging jurisdiction in its notice of removal and, if challenged, demonstrating the
court’s jurisdiction over the matter. Strawn et al. v. AT &T Mobility, LLC et al., 530 F.3d 293,
296 (4th Cir. 2008); Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994)
(“The burden of establishing federal jurisdiction is placed upon the party seeking removal.”)
(citation omitted). In deciding whether to remand, because removal by its nature infringes upon
state sovereignty, federal courts must “resolve all doubts about the propriety of removal in favor of
retained state jurisdiction.” Hartley v. CSX Transp., Inc., 187 F.3d 422, 425 (4th Cir. 1999).
B. Discussion
The Plaintiff asserts in her complaint that she “was retaliated against for ‘blowing the
whistle.’” (Compl., ¶ 19.) She alleges the Defendants “violated the West Virginia Human
Rights Act entitling the Plaintiff to attorney’s fees and costs pursuant to W. Va. Code § 5-11-13
and/or the decisions of the West Virginia Supreme Court of Appeals.” (Id. at ¶ 23.) The
complaint does not include multiple counts for violations of separate statutes or alternative
theories of recovery. Her allegations regarding her FMLA leave and the denial of her short-term
disability claim appear to be incidents in which the Defendants allegedly retaliated against her for
5
providing testimony for a former manager, rather than separate claims for relief.
As the
Defendants point out in their motion to dismiss, the complaint falls far short of stating a claim for
relief under either federal statute.
In her response to the motion to dismiss, the Plaintiff states that she pled that she: (1) was a
former Walgreen’s employee; (2) suffered a hostile work environment; (3) was forced to leave her
employment; (4) suffered lost wages; and (5) had been annoyed, aggravated, embarrassed, and
humiliated. (Mem. in Supp. of Resp. at 3–4.) She further noted that she cited West Virginia
Code § 5-11-13 “as being the code sections allegedly violated by the Defendant.” (Id. at 4.) Ms.
Treadway does not argue that her complaint stated a claim for relief pursuant to the FMLA or
ERISA. Although the complaint is not a model of clarity, the Plaintiff’s legal theory does not
appear to require proof of violation of a federal statute as an element of her claim for relief. Thus,
the Court finds that the complaint does not raise questions of federal law or otherwise support
federal question jurisdiction. This Court, therefore, lacks jurisdiction over this matter and cannot
reach the issues raised in the motion to dismiss. Accordingly, remand is appropriate.
CONCLUSION
Following thorough review and careful consideration, the Court ORDERS that the
Defendants’ Motion to Strike Plaintiff’s Untimely Response to Defendants’ Motion to Dismiss and
Supporting Memorandum of Law [Dkt. Nos. 6 &7] (Document 9) be DENIED. The Court finds
that it lacks subject matter jurisdiction over the above-styled matter. Accordingly, the Court
hereby ORDERS that this case be REMANDED to the Circuit Court of Raleigh County, West
Virginia, for further proceedings. The Court further ORDERS that all pending motions be
TERMINATED AT MOOT.
6
The Court DIRECTS the Clerk to send a certified copy of this Order to the Clerk of the
Circuit Court of Raleigh County, West Virginia, to counsel of record, and to any unrepresented
party.
ENTER:
7
June 29, 2015
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?