United States District Court, D. New Mexico
BONNIE AMBROSE, TIFFANY SELLECK, and JOANN PORTILLO-GARCIA, Plaintiffs,
GRINDELL & ROMERO INSURANCE, INC., and ROBERT ABERCROMBIE, Defendants.
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
STEPHAN M. VIDMAR, United States Magistrate Judge
MATTER is before me on Plaintiffs' Motion to Remand,
filed on July 3, 2017.
8]. Defendants responded on July 17, 2017. [Doc. 11].
Plaintiffs replied on July 26, 2017. [Doc. 12]. The Honorable
Martha Vázquez, United States District Judge, referred
this matter to me for analysis and a recommended disposition.
[Doc. 14]. Having considered the briefing, relevant portions
of the record, and relevant authorities, and being otherwise
fully advised in the premises, I recommend that
Plaintiff's Motion to Remand be granted and that the case
be remanded to the Third Judicial District Court, Doña
Ana County. I further recommend that Plaintiffs be awarded
reasonable expenses in connection with their motion.
are former employees of Defendant Grindell & Romero
Insurance, Inc. (“GRI”), of which Defendant
Abercrombie is the CEO. Plaintiff Ambrose filed the instant
action in state court in the Third Judicial District,
Doña Ana County, on May 22, 2017. [Doc. 1-3] at 1. The
Complaint alleged that Defendants engaged in pervasive sexual
harassment and discrimination against “several”
of their female employees, including Plaintiff Bonnie Ambrose
and Tiffany Selleck. Id. The Complaint set forth two
counts of gender discrimination and retaliation in violation
of the New Mexico Human Rights Act (“NMHRA”),
NMSA 1978, § 28-1-7(A). Id. at 16-19.
Plaintiffs filed their First Amended Complaint on June 2,
2017. [Doc. 1-2]. The First Amended Complaint adds as parties
Plaintiffs Selleck and Portillo-Garcia and adds four
additional counts. As to Plaintiff Portillo-Garcia, it
alleges NMHRA claims based on age discrimination,
race/national origin discrimination, and wrongful
termination. [Doc. 1-2] at 29-33. And as to Plaintiff
Selleck, it alleges failure to pay due wages pursuant to NMSA
1978, § 50-4-4. In total, the First Amended Complaint
alleges six counts under the NMHRA and § 50-4-4.
removed the case to this Court on June 28, 2017, citing the
existence of federal-question jurisdiction under 28 U.S.C.
§ 1331. [Doc. 1]. Though Plaintiffs allege violations of
state law only, Defendants argued their claims “raise
issues that are necessarily ones of federal law, ”
namely Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e, and the
Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621. Id. at 3.
filed the instant motion to remand on July 3, 2017. [Doc. 8].
Plaintiffs contend that the case was wrongfully removed
because it involves no federal claims. As an initial matter,
Plaintiffs argue that Defendants are not subject to Title VII
or the ADEA because they do not employ at least fifteen
people. Therefore, Plaintiffs suggest, they could not have
asserted those federal claims in the first instance.
Id. at 1, 5. Moreover, the plaintiff is
“master of his or her complaint” and may avoid
federal jurisdiction by relying exclusively on state law.
Id. at 7 (internal quotations omitted). Plaintiffs
argue they have done just that-they have asserted only
state-law claims and expressly disavowed any federal claims.
They argue that merely citing to federal case law in a
pleading, as they have done, does not confer federal
jurisdiction. Id. at 5-7. At bottom, they have
stated claims under state law alone, and their right to
relief does not “necessarily depend on resolution of
a substantial question of federal law.” Id. at
3 (internal quotations omitted). Plaintiffs further request
attorney's fees in connection with their motion.
Id. at 8-9.
response, Defendants maintain that recent Supreme Court case
law makes clear that having fewer that fifteen employees does
not create a bar to federal jurisdiction. [Doc. 11] at 1- 3
(citing Arbaugh v. Y&H Corp., 546 U.S. 500
(2006)). The thrust of their argument, though, is that
Plaintiffs' numerous references to federal case law
interpreting Title VII and the ADEA confer federal
jurisdiction. See Id. at 4-10. They argue that
Plaintiffs should not be permitted to seek “all of the
presumptions and potential benefits that could only be
conferred upon them by federal law, ” on the one hand,
while still avoiding federal jurisdiction on the other.
Id. at 9. Defendants rely on the so-called
“artful pleading” doctrine, which provides that a
party cannot defeat federal question jurisdiction by couching
his or her complaint in terms of state law, where the claims
are actually federal in nature or necessarily depend on
federal law for their resolution.
to 28 U.S.C. § 1441, an action may be removed from state
to federal court when the federal court has “original
jurisdiction” over the action because it is founded on
a claim or right “arising under” federal law.
“Only state-court actions that originally could have
been filed in federal court may be removed to federal court
by the defendant. Absent diversity of citizenship,
federal-question jurisdiction is required.”
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392
determine whether an action “arises under”
federal law-i.e., whether federal-question jurisdiction
exists-courts follow the “well-pleaded complaint”
rule. Id.; Devon Energy Prod. Co. v. Mosaic
Potash Carlsbad, Inc., 693 F.3d 1195, 1202 (10th Cir.
2012). That is, courts determine whether a federal question
is presented “on the face of the plaintiff's
properly pleaded complaint.” Caterpillar, 482
U.S. at 392. “A case ‘arises under' federal
law under two circumstances: ‘a well-pleaded complaint
establishes either that federal law creates the cause of
action or that the plaintiff's right to relief
necessarily depends on resolution of a substantial question
of federal law.'” Gilmore v. Weatherford,
694 F.3d 1160, 1170 (10th Cir. 2012) (quoting Empire
Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677,
690 (2006)). “Th[is] rule makes the plaintiff the
master of the claim; he or she may avoid federal jurisdiction
by exclusive reliance on state law.”
Caterpillar, 482 U.S. at 392. “[T]he plaintiff
may, by eschewing claims based on federal law, choose to have
the cause heard in state court.” Id. at 400.
well-pleaded complaint rule is not absolute. Under the
so-called “artful pleading” doctrine, “a
plaintiff may not defeat removal by failing to plead federal
questions that are essential elements of the plaintiff's
claim.” Turgeau v. Admin. Review Bd., 446 F.3d
1052, 1060-61 (10th Cir. 2006) (internal quotation marks
omitted); see also Franchise Tax Bd. v. Constr. Laborers
Vacation Trust, 463 U.S. 1, 22 (1983). When the artful
pleading doctrine is invoked, the court must determine
whether the state-law claims are completely preempted by
federal law or implicate substantial, disputed federal
questions. Devon Energy, 693 F.3d at 1203-04.
federal courts are courts of limited jurisdiction, there is a
presumption that no federal jurisdiction exists “absent
an adequate showing by the party invoking federal
jurisdiction.” United States ex. rel. Hafter v.
Spectrum Emer. Care, Inc., 190 F.3d 1156, 1160 (10th
Cir. 1999). Thus, in a removed case, the burden is on the
defendant to demonstrate the propriety of removal from state
to federal court. See Id. Federal courts strictly