Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nicely v. Safeway, Inc.

United States District Court, Fourth Circuit

December 12, 2013



DEBORAH K. CHASANOW, District Judge.

On September 27, 2012, Plaintiff Diana M. Nicely commenced this action against her former employer, Defendant Safeway, Inc., by filing a complaint in the Circuit Court for Prince George's County, Maryland, alleging wrongful discharge in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. ("the FMLA claim"), and Md. Code Ann., Lab. & Empl. § 9-1105 ("the workers' compensation claim").[1] Defendant was served on December 3, 2012, and timely filed an answer on February 1, 2013. On July 24, 2013, following discovery, Defendant moved for summary judgment as to both claims. Plaintiff filed opposition papers on September 18, 2013, and separately filed a notice of dismissal of the workers' compensation claim.

On September 25, 2013, Defendant removed to this court, citing federal question and diversity of citizenship as the jurisdictional bases. According to Defendant, "[a]lthough [it] was served with the [c]omplaint on December 3, 2012, removal was clearly improper under 28 U.S.C. § 1445(c) until Plaintiff's workers' compensation claim was voluntarily dismissed on September 18, 2013." (ECF No. 4 ¶ 8).[2] Thus, Defendant asserted, its notice of removal was timely because it was filed "within thirty (30) days after receipt by Safeway of Plaintiff's Notice of Dismissal of Count Two (Wrongful Discharge) of the Complaint, from which it was first ascertainable that the case is removable." ( Id. ).

Plaintiff timely filed the pending motion to remand on October 11, 2013, arguing that because the workers' compensation claim was never dismissed by court order prior to removal, Defendant's removal was barred by § 1445(c). (ECF No. 69). Shortly after Defendant filed its opposition papers (ECF No. 70), the court issued a paperless order directing supplemental briefing regarding the potential application of 28 U.S.C. § 1441(c) (ECF No. 72). Plaintiff filed a supplemental brief on November 14, 2013 (ECF No. 73), and Defendant responded on November 22, 2013 (ECF No. 74).

When the plaintiff challenges the propriety of removal, the defendant bears the burden of proving that removal was proper. See Greer v. Crown Title Corp., 216 F.Supp.2d 519, 521 (D.Md. 2002) (citing Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994)). On a motion to remand, the court must "strictly construe the removal statute and resolve all doubts in favor of remanding the case to state court." Richardson v. Philip Morris Inc., 950 F.Supp. 700, 702 (D.Md. 1997) (internal quotation marks omitted). This standard reflects the reluctance of federal courts "to interfere with matters properly before a state court." Id. at 701.

"The federal removal statute allows a defendant to remove to federal district court any civil action brought in a State court of which the district courts of the United States have original jurisdiction.'" Davis v. North Carolina Dep't of Corrections, 48 F.3d 134, 138 (4th Cir. 1995) (quoting 28 U.S.C. § 1441(a)). As noted, Defendant invokes federal jurisdiction based on the presentation of a federal question and diversity of citizenship. Title 28, section 1331, provides that "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." The court also has original jurisdiction, pursuant to 28 U.S.C. § 1332(a), "of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between... citizens of different States."

Generally, a notice of removal must be "filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based." 28 U.S.C. § 1446(b)(1). Where "the case stated by the initial pleading is not removable, " however, "a notice of removal may be filed within 30 days after receipt by the defendant... of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b)(3). Here, the parties agree that Plaintiff's workers' compensation claim arose under Maryland workers' compensation law such that § 1445(c) applies. See Sandlass v. Sears, Roebuck and Co., 462 F.Supp.2d 701, 704 (D.Md. 2006) (finding identical claim "arises under the workmen's compensation laws of Maryland and is a non-removable action under 28 U.S.C. § 1445(c)"). Defendant contends, based on § 1446(b)(3), that its notice of removal was timely insofar as it filed a notice of removal within thirty days from which the case first became removable, namely when Plaintiff filed her notice of dismissal of the workers' compensation claim.

The question posed by the court relates to the potential effect of the 2011 amendment to 28 U.S.C. § 1441(c). Prior to amendment, that section provided:

Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise nonremovable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.

28 U.S.C. § 1441(c) (2011). Thus, where a nonremovable claim was "separate and independent" from a claim presenting a federal question, the court had considerable discretion in deciding whether remand was appropriate. On December 7, 2011, however, Congress passed the Federal Court Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-63, §§ 103(b), 104, 125 Stat. 758, 760, 762, which took effect on January 7, 2012, and amended, in part, several of the removal statutes, including 28 U.S.C. § 1441(c).[3] Section 1441(c) now provides:

(c) Joinder of Federal law claims and State law claims. - (1) If a civil action includes -
(A) a claim arising under the Constitution, laws, or treaties of the United States (within the meaning of section 1331 of this title), and
(B) a claim not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute, the entire action may be removed if the action would be removable without the inclusion of the claim described in subparagraph (B).
(2) Upon removal of an action described in paragraph (1), the district court shall sever from the action all claims described in paragraph (1)(B) and shall remand the severed claims to the State court from which the action was removed. Only defendants against whom a claim described in paragraph (1)(A) has been ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.