United States District Court, D. New Mexico
HAILEY ATYANI, NICOLE CDE BACA, BIANCA GARCIA, HANNAH JIRON, CESELIA MERRYMAN, ANDREA VARELA, WHITNEY WHITSON, JAEDA CHAVEZ, JENNA ESPINOZA, SAMANTHA HAWLEY, KRISTEN HERRERA, EMILEE JEPHSON, GENEVIEVE REILLY, KELSI SHARP, SARA SCANNAPIECO, and ALLYNA BOWSHER, on behalf of themselves and all others similarly situated, Plaintiffs,
DENNIS BONFANTINE, JANICE BONFANTINE, D.B. KELLY, INC., d/b/a KELLY'S BREW PUB AND RESTAURANT, and DB BREWERY LLC, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS'
MOTION TO REMAND, ORDER REMANDING CASE TO STATE COURT AND
AWARDING PLAINTIFFS' REQUEST FOR SANCTIONS FOR IMPROPER
MATTER comes before the Court upon Plaintiffs' Motion for
Remand to State Court and for Sanctions, filed August 22,
2017 (Doc. 3). Having reviewed the
parties' briefs and applicable law, the Court finds that
Plaintiffs' motion is meritorious and, therefore, is
granted. In addition, the Court is granting Plaintiffs'
request for sanctions in the form of attorney fees and costs
incurred as a result of Defendants' removal, subject to
the proper filing submissions as described below.
are servers at Kelly's Brew Pub & Restaurant in
Albuquerque, New Mexico and are suing their employer for work
performed off-the-clock and enforcing an illegal tip-out
policy. This is a putative class action case under NMRA Rule
1-023(A). Plaintiffs filed this lawsuit on November 11, 2016
in the Second Judicial District Court, County of Bernalillo;
and Defendants removed the case to federal court on August
seek to remand the case on the ground that there was no
objectively reasonable basis for federal removal because it
is clear from the complaint and other pleadings that this
case does not allege a federal claim. Defendants contend that
words used by Plaintiffs' counsel in other pleadings in
this case indicate that Plaintiffs “seek to engraft the
remedies under the Fair Labor Standards Act -lock, stock and
barrel-into this case, establishing federal question
jurisdiction. . . .” Doc. 6 at 1.
28 U.S.C. §1331, federal district courts have original
jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.
However, federal courts are courts of limited jurisdiction;
they are empowered to hear only those cases “authorized
and defined in the Constitution which have been entrusted to
them under a jurisdictional grant by Congress.”
Henry v. Office of Thrift Supervision, 43 F.3d 507,
511 (10th Cir.1994) (citations omitted).
Whether Remand is Appropriate
order to establish federal question jurisdiction, the federal
question must be “presented on the face of the
plaintiff's properly pleaded complaint.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987). Except for narrow circumstances not present here, a
case may not be removed to federal court solely because of a
defense or counterclaim arising under federal law. Topeka
Housing Auth. v. Johnson, 404 F.3d 1245, 1247 (10th
Cir.2005); see also Holmes Group, Inc. v. Vornado Air
Circulation Sys., Inc., 535 U.S. 826, 830-31 & n.2
(2002). Generally, the presumption is “against removal
jurisdiction.” Laughlin v. Kmart Corp., 50
F.3d 871, 873 (10th Cir. 1995). The removing party has the
burden to demonstrate the appropriateness of removal from
state to federal court. McNutt v. General Motors
Acceptance Corp., 298 U.S. 178, 189 (1936); Martin
v. Franklin Capital Corp., 251 F.3d 1284, 1290 (10th
Cir. 2001) (a party seeking to remove a case to federal court
has the burden of demonstrating the existence of federal
jurisdiction). Thus, doubtful cases must be resolved in favor
of remand. “If at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction, it shall be remanded.” 28 U.S.C. §
1447(c) (emphasis added).
do not dispute that Plaintiffs' Second Amended Complaint
is based entirely upon the Albuquerque Minimum Wage Ordinance
(“MWO”), §13-12-1. The MWO has its own
remedial scheme which enables an aggrieved employee to
recover the “balance of the wages owed, ”
including interest, as well as “an additional amount
equal to twice the wages owed . . .” in addition to
“other appropriate legal or equitable relief.”
See, e.g., Ordinance §5(B), 13-12-5(B), Civil
Enforcement. The sole basis for Defendants' claim
of federal jurisdiction is that in an August 2, 2017,
Response to Defendants' latest Motion to Dismiss,
Plaintiffs argued that the state court should look to
judicial decisions interpreting the FLSA to interpret the
similarly worded MWO. See Doc. 1-11 at
is no fair reading of Plaintiffs' complaint which would
suggest that this lawsuit contains a federal question,
see Doc. 1-5 (Second Am. Compl.), nor did Plaintiff
ask the state court to apply federal law to Plaintiffs'
claims. Plaintiffs' comments in the pleadings referenced
by Defendants were obviously meant to demonstrate the
parallel nature between remedies under the Fair labor
Standards Act (“FLSA”), 29 U.S.C. §201 et
seq. and those provided by the MWO, and Plaintiffs are
seeking relief solely under the MWO, §13-12-5(B). Doc.
1-5 at 21. Merely noting that a question of purely
local law is informed by federal precedent does not convert
the question of municipal law into a federal question.
Salman v. Arthur Andersen LLP, 375 F.Supp.2d 1233,
1237 (D. N.M. 2005); Merrell Dow Pharmaceuticals Inc. v.
Thompson, 478 U.S. 804, 813 (1986) (“the mere
presence of a federal issue in a state cause of action does
not automatically confer federal-question
case to arise under federal law, and thus come within federal
question jurisdiction, the federal question must be apparent
on the face of a well-pleaded complaint, and plaintiff's
cause of action must be created by federal law, or, if it is
a state-law cause of action, its resolution must necessarily
turn on a substantial question of federal law. 28 U.S.C.A.
§ 1331. Rice v. Office of Servicemembers' Grp.
Life Ins., 260 F.3d 1240 (10th Cir. 2001). Resolution of
Plaintiff's claims asserted under the MWO does not turn
on any question of federal law, and looking to an analogous
federal statute for interpretive guidance does not inject a
federal cause of action into the lawsuit. See Nicodemus
v. Union Pac. Corp., 318 F.3d 1231 (10th Cir. 2003),
opinion reinstated in part, 440 F.3d 1227 (10th Cir.
2006) (Federal-question jurisdiction exists where it appears
that some substantial, disputed question of federal law is a
necessary element of one of well-pleaded state claims, but
the mere presence of a federal issue in a state cause of
action does not automatically confer federal-question
jurisdiction); cmp. Rains v. Criterion Systems, Inc. et
al, 80 F.3d 339 (9th Cir. 1996) (where plaintiff filed
claim in state court for wrongful discharge, and fact that
same facts could have been basis for Title VII claim, did not
make claim into federal cause of action for purposes of
Whether Sanctions are Warranted
seeks sanctions because Defendants lacked any objectively
reasonable basis to remove this case.
the federal remand statute, Plaintiffs may recover attorney
fees and costs associated with the removal and subsequent
remand, should the Court determine that removal was improper.
“An order remanding the case may require payment of
just costs and any actual expenses, including attorney fees,
incurred as a result of the removal.” 28 U.S.C. §
1447(c). The standard for awarding fees turns on the
reasonableness of the removal, and “absent unusual
circumstances, attorney's fees should not be awarded
under § 1447(c) when the removing party has an
objectively reasonable basis for removal. Conversely, where
no objectively reasonable basis exists, fees should be
awarded.” Martin v. Franklin Capital Corp.,
546 U.S. 132, 132 (2005). A showing of bad faith is not a
prerequisite to an award ...