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Verbal v. Giant of Maryland, LLC

United States District Court, D. Maryland

September 6, 2016




         Presently pending and ready for resolution in this case is the motion to dismiss filed by Defendant Giant of Maryland, LLC ("Defendant"). (ECF No. 11). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to dismiss will be granted in part.

         I. Background

         Unless otherwise noted, the following facts are set forth in the amended complaint (ECF No. 5), and construed in the light most favorable to Plaintiff Tontee Verbal ("Plaintiff"). Plaintiff was working as the front-end manager of a Bethesda, Maryland, Giant store on or about February 25, 2015, when she saw two six-packs of beer at the customer service desk while closing the store for the night. (Id. ¶¶ 6-7) . Plaintiff was the only manager on duty. Because the store was not licensed to sell alcoholic beverages and she did not want the store to be in violation of state law, Plaintiff removed the beer from the store and put it in the trunk of her car. (Id. ¶¶ 8-10, 26-28). Plaintiff believed a customer had left the beer, and in accordance with her training on lost customer items, she took the beer in order to return it to the customer personally. (Id. ¶¶ 8-9) . She informed a customer service associate that if a customer contacted the store about the beer, Plaintiff would deliver the beer to him or her. The following day, Plaintiff informed the store manager that she had found beer in the store and placed it in the trunk of her car. (Id. ¶ 10, 29) . Later that day, the store's non-perishable manager informed Plaintiff that he had purchased the beer for a "company presentation." (Id. ¶ 11) . Plaintiff retrieved the beer from her car and returned it to the non-perishable manager the same day. (Id. ¶¶ 12-13).

         Plaintiff was suspended by the store manager and the non-perishable manager on or about March 2, 2015, following a meeting during which she explained that she had removed the beer because the store did not have an exception under Maryland state law to have beer in the store. (Id. ¶¶ 15-17) . The store manager informed Plaintiff on or about March 13 that she had been terminated for her "theft" of the beer. (Id. ¶ 20).

         Plaintiff was a member of the United Food & Commercial Workers Union Local 400 ("Union"), and a collective bargaining agreement ("CBA") governed her employment. The CBA provides that Defendant has "the right to discharge or discipline any employee for good cause, including but not limited to, proven or acknowledged dishonesty[.]"[1] (ECF No. 11-4, at 17). It also establishes a grievance and arbitration process for the resolution of controversies, disputes, and disagreements. (Id. at 31) . On or about March 4, Plaintiff filed a formal grievance through her union to appeal her suspension. (ECF Nos. 5 ¶ 19; 11-3, at 1) . Plaintiff participated in two grievance meetings with Defendant's employees and her union representatives, but was not reinstated. (Id. ¶¶ 21-23). The last grievance meeting occurred on or about June 11, 2015. (Id. ¶ 22) . Her union did not pursue arbitration on her behalf. Plaintiff alleges that she has exhausted the grievance process of the CBA. (Id. ¶ 23).

         Plaintiff filed an action in the Circuit Court for Prince George's County, Maryland, on July 21, 2015 (ECF No. 2), and an amended complaint on September 10 (ECF No. 5). Plaintiff claims wrongful discharge against public policy and intentional infliction of emotional distress. Defendant removed the action to this court, asserting federal preemption based on § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a). (ECF No. 1). Defendant then moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). (ECF No. 11). In her response in opposition, Plaintiff requested remand. (ECF No. 13).

         II. Dismissal of Count II

         Plaintiff provided no argument with respect to Defendant's motion to dismiss Count II, her intentional infliction of emotional distress claim, because she "intends to move for nonsuit of Count II of her complaint." (ECF No. 13-1, at 3 n.l) . Plaintiff has not filed a separate motion, but because Plaintiff wishes to dismiss only one count of a multi-count suit, her request will be considered a motion to amend pursuant to Fed.R.Civ.P. 15. Iraheta v. United of Omaha Life Ins. Co., 353 F.Supp.2d 592, 595 (D.Md. 2005) ("Fed. R. Civ. P. 15 is the technically proper rule under which to consider a plaintiff's request to drop some, but not all, of the claims asserted in an action [.]" (citing Skinner v. First Am. Bank of Va. , No. 93-2493, 1995 WL 507264, at *2-3 (4th Cir. 1995))).

         "A party may amend its pleading once as a matter of course, " but subsequently "may amend its pleading only with the opposing party's written consent or the court's leave." Fed.R.Civ.P. 15(a) (1)-(2) . Plaintiff previously amended her complaint (ECF No. 5), and Defendant opposes dismissal of this claim without prejudice (ECF No. 14, at 2-3) . Accordingly, leave of court is required for amendment. "The court should freely give leave when justice so requires, " Fed.R.Civ.P. 15(a) (2), taking into consideration undue prejudice to the opposing party, undue delay, bad faith, and futility of amendment, Foman v. Davis, 371 U.S. 178, 182 (1962) . In the United States Court of Appeals for the Fourth Circuit, "absence of prejudice, though not alone determinative, will normally warrant granting leave to amend." Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir. 1980).

         There is little risk of undue prejudice or delay here. Defendant has not answered Plaintiff's complaint, much less commenced discovery, expended substantial time defending this claim, or moved for summary judgment. See Shilling v. Nw. Mut. Life Ins. Co., 423 F.Supp.2d 513, 518-19 (D.Md. 2006) (granting leave to amend). Plaintiff's response was filed within a month of removal and therefore has not caused undue delay. See Id. There is no evidence of bad faith or that Plaintiff intended to force Defendant to incur the expense of the removal process. Id. Defendant suggests that Plaintiff is dismissing this claim in an attempt to destroy federal subject matter jurisdiction so her case may be remanded, but even if Defendant is correct, such "jurisdictional maneuvering" is not evidence of bad faith. Id. "[I]t is not bad faith for a plaintiff to bring both State and federal claims in State court and then, upon removal, seek dismissal of the federal claims and remand to State court." Ramotnik v. Fisher, 568 F.Supp.2d 598, 603 (D.Md. 2008). Especially where, as here, Plaintiff only brought state law claims in state court, seeking dismissal to secure remand is not evidence of bad faith. Plaintiff will be granted leave to amend her complaint to remove her claim for intentional infliction of emotional distress.

         III. Preemption of Count I

         Plaintiff has not filed a separate motion for remand to state court, but has requested the court remand this matter in denying Defendant's motion to dismiss. Whether removal is proper here depends on whether Plaintiff's state law claim is preempted by § 301 of the LMRA.

         A. ...

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