United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S
MOTION TO REMAND
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's Motion to
Remand [Doc. 12], filed on August 8, 2019. Defendant Liberty
Iron & Metal, Inc. (“Liberty”) responded on
August 22, 2019. [Doc. 15]. Plaintiff replied on September 5,
2019. [Doc. 16]. Defendant Kalischatarra Iron & Metal NM,
LLC (“Kalischatarra”) never responded, and no
response from it is needed. The parties consented to have the
undersigned conduct dispositive proceedings in this matter.
[Doc. 10]. The Court has considered the briefing, the
relevant portions of the record, and the relevant law. Being
otherwise fully advised in the premises, the Court finds that
the Motion is well-taken and shall be GRANTED.
8, 2019, Plaintiff, a 54-year-old Mexican-American man, sued
two alleged employers (Liberty and Kalischatarra) for
unlawfully firing him. [Doc. 1-1] at 12-14. He brings three
causes of action against Defendants. First, he alleges in
Count I of his Complaint that Defendants (a) discriminated
against him based on his race, national origin, and age, and
(b) retaliated against him. Id. at 14. Count I does
not indicate whether Plaintiff is suing under federal or
state employment laws. See Id. In Count II, he
brings a claim for breach of an implied contract of
employment. Id. at 14-15. In Count III, he brings a
claim for prima facie tort. Id. at 15.
moved to dismiss the Complaint in state court on June 12,
2019, arguing, inter alia, that Plaintiff had failed
to exhaust administrative remedies related to his
employment-discrimination claims. [Doc. 3-1] at 26-29.
Plaintiff responded in state court on June 27, 2019,
id. at 39, arguing that he had exhausted all
administrative remedies. He attached a copy of his Equal
Employment Opportunity Commission (“EEOC”) charge
of discrimination to his Response. Id. at 42, 51.
His EEOC charge alleged that he “was discriminated
against . . . in violation of [two federal laws:] the Age
Discrimination in Employment Act [ADEA] . . . and . . . Title
VII of the Civil Rights Act of 1964.” Id. at
51. He did not mention any state laws in his EEOC charge.
Before filing a reply, Liberty removed the case to federal
court on July 9, 2019, on the basis of federal-question
jurisdiction. [Doc. 1] at 2. Liberty argues that the EEOC
charge “now makes clear Plaintiff's complaint is
for alleged violations of federal discrimination
statutes.” Id. Plaintiff filed the instant
Motion to Remand on August 8, 2019. [Doc. 12].
argues that no federal-question jurisdiction exists because
he never pleaded any federal cause of action. Id. at
1-2. He claims, “This is, and always has been, an
employment suit under Chapter 21 of the Texas Labor Code and
other common[-]law causes of action.” Id. at
also argues that Defendant failed to timely remove the case
because it filed the notice of removal more than 30 days
after Plaintiff served the Complaint. Id.
argues that federal-question jurisdiction exists because
Plaintiff's EEOC charge confirms that he sued Defendants
under two federal employment laws (the ADEA and Title VII),
and because he references “neither federal [n]or state
law in his Complaint.” [Doc. 15] at 6-7.
further argues that it timely removed the case because it was
unaware that Plaintiff was pursuing a federal claim until
Plaintiff filed a copy of the EEOC charge as an exhibit to
his Response to the Motion to Dismiss. Id. at 7-8.
Because the Court agrees with Plaintiff that federal-question
jurisdiction does not exist, it need not decide whether
Liberty timely removed the case.
The Court will remand the case because the EEOC charge does
not provide a basis for removal and
Plaintiff's Complaint presents no federal question on its
district courts have federal-question jurisdiction over all
actions arising under federal law. 28 U.S.C. § 1331
(2018). If an action filed in state court arises under
federal law, the defendant may remove the case to federal
court. Id. § 1441(a). In removed cases, the
defendant bears the burden to establish jurisdiction.
United States ex rel. Hafter D.O. v. Spectrum
Emergency Care, Inc., 190 F.3d 1156, 1160 (10th
Cir. 1999). Because federal courts are courts of limited
jurisdiction, “[r]emoval statutes are to be strictly
construed, and all doubts are to be resolved against
removal.” Fajen v. Found. Reserve Ins. Co.,
683 F.2d 331, 333 (10th Cir. 1982) (citation omitted).
jurisdiction exists “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 a resolution of a
substantial question of federal law.'” Gilmore
v. Weatherford, 694 F.3d 1160, 1170 (10th Cir. 2012)
(quoting Empire Healthcare Assurance, Inc. v.
McVeigh, 547 U.S. 677, 690 (2006)). The
well-pleaded-complaint rule provides that federal-question
jurisdiction exists only when the federal question “is
presented on the face of the plaintiff's properly pleaded
complaint.” Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987). A court may consider only “the
plaintiff's statement of his own cause of
action” when determining whether a federal question
exists. Louisville & Nashville R.R. v. Mottley,
211 U.S. 149, 152 (1908) (emphasis added). “[The
p]laintiff is the master of his complaint, and he ‘may
avoid federal jurisdiction by exclusive reliance on state
law.'” Indahl v. Modrall, Sperling, Roehl,
Harris & Sisk, P.A., No. 18-cv-0540 KBM/KRS, 2018 WL
6478608, at *3 (D.N.M. Dec. 10, 2018) (quoting
Caterpillar Inc., 482 U.S. at 392). In determining
whether to remand a case to state court, a court may properly
consider whether the “[p]laintiff disavows any federal
claims” in later briefing. Id. at *3.
no federal question appears on the face of Plaintiff's
Complaint. There is no reference to federal law in any part
of the Complaint. See [Doc. 1-1] at 12-16.
Plaintiff's Complaint therefore fails the
well-pleaded-complaint rule. At best, the Complaint is
ambiguous; both federal and state law could provide a remedy
for employment-discrimination claims. Yet, “[f]ederal
courts have repeatedly held that vague, ambiguous, or passing
references to federal law in a complaint are not sufficient
to support removal based on federal[-]question
jurisdiction.” Ambrose v. Grindell & Romero
Ins., Inc., No. 17-cv-0681 MV/SMV, 2018 WL 1033201, at
*4 (D.N.M. Feb. 23, 2018) (quoting Shelley's ...