United States District Court, D. Maryland
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
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.
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.
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).
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[.]" (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).
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).
Dismissal of Count II
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.
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).
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.
Preemption of Count I
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.