United States District Court, D. Maryland
L. RUSSELL, III UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Plaintiff Anthony Gomer's
Motion for Leave to File Second Amended Complaint (ECF No.
25) and Motion to Remand (ECF No. 35). Also pending before
the Court are Defendants', Home Depot U.S.A., Inc.
(“Home Depot”) and Christopher Cote
(collectively, “Defendants”), Motions to Dismiss
(ECF Nos. 17, 38) and Home Depot's Motion to Compel
Discovery Responses and for an Order Deeming Facts in
Defendant's First Requests for Admission to be Admitted
as True (ECF No. 31). The Motions are ripe for
disposition. No hearing is necessary. See Local Rule
105.6 (D.Md. 2016).
reasons outlined below, the Court will deny Gomer's
Motion to Remand; grant in part and deny in part Gomer's
Motion for Leave to File Second Amended Complaint; accept
Gomer's proposed Second Amended Complaint, but only with
respect to Counts III and IV; grant in part and deny in part
as moot Home Depot's Motion to Dismiss; and grant
Cote's Motion to Dismiss.
a middle-aged African-American male, is a former Home Depot
employee. (First Am. Compl. ¶¶ 13, 21, 34, ECF No.
11-1). He began as a part-time associate, but later obtained
a full-time position. (Id. ¶ 13). Home Depot
promoted Gomer to the role of supervisor, and in this role,
Gomer earned $14 per hour and supervised two departments
between 2012 and 2014. (Id. ¶¶ 13, 34,
53). Defendants Bradley Ferraro and Cote were Gomer's
most senior supervisors at the Home Depot store where Gomer
worked maintained a practice of granting lower-level
supervisors the privilege of carrying keys to open and close
the store. (Id. ¶ 47).The senior supervisors
extended this privilege based on seniority of the lower-level
supervisors. (Id.). On several occasions during his
employment, Gomer attained the seniority necessary to earn
the privilege of carrying keys. (Id. ¶ 48).
Nonetheless, Gomer's supervisors withheld the privilege
from Gomer, while extending it to white supervisors, even
those who had less seniority than Gomer. (Id.). On
multiple occasions, Gomer demanded that his supervisors
permit him to carry keys, but they refused, explaining that
Gomer would have to successfully complete probation before
they would extend that privilege. (Id. ¶ 49).
Gomer was the only supervisor who was required to serve
alleges that after he “protest[ed]” his
supervisors' refusal to allow him to carry keys, his
supervisors and another employee “retaliat[ed]”
against him by “conspir[ing]” to carry out an
elaborate plot that would culminate in Gomer's
termination. (Id. ¶ 35). First, Defendants
Ferraro and Cote, as well as Criss Butterbaugh, Mike
Fillipone, and Gary Templar, “conspired” to
transfer Gomer to the Tools Rental Department.
(Id.). These individuals knew Gomer had no
experience in this department, and they refused to provide
him training or a staff to help him run the department.
Gomer was supervising the Tools Rental Department, Templar
brought some customers to Gomer and introduced them as
“gentlemen from the church nearby” (the
“Church Customers”) who needed to rent a
generator. (Id. ¶ 37). Templar asked Gomer to
perform the rental. (Id.). Because Gomer had never
received training on how to rent a generator, Ryan Kane, a
veteran of the department, executed the rental contract.
(Id. ¶ 38). The Church Customers did not return
the generator to the store by the deadline identified in the
rental contract. (Id. ¶ 39). “[I]n
playing out their script, ” Gomer's supervisors
chose not to pursue recovery of the generator through law
enforcement agents, instead electing to accuse Gomer of
stealing the generator. (Id.). Gomer's
supervisors then used the false allegation of theft to
terminate Gomer's employment. (Id. ¶ 40).
Gomer's termination, on December 31, 2012 and November
19, 2014, Defendants “said and wrote a statement to the
hearing of several persons that [Gomer] has shoplifted a
generator” from the store. (Id. ¶ 14).
Defendants transmitted this false allegation to their
corporate attorneys and the staff of the store and corporate
office. (Id. ¶¶ 15, 16). After learning of
this allegation, Home Depot's corporate attorneys
contacted Gomer, demanding payment for the generator and
threatening legal action, including criminal prosecution.
(Id. ¶ 15).
prior to his termination, in October 2014, Gomer's
department and the entire store were short-staffed, causing
Gomer to work “several overtime hours.”
(Id. ¶ 54). Gomer demanded payment, but he was
“ignored” and “never paid.”
(Id. ¶ 55).
November 2014, Gomer filed a charge of discrimination with
the Howard County Office of Human Rights and the United
States Equal Employment Opportunity Commission. (Id.
¶ 11). After receiving a right to sue letter, Gomer
filed suit in the Circuit Court for Baltimore City, Maryland
on November 20, 2015. (ECF No. 2). Gomer named only Home
Depot as a defendant and raised claims for defamation (Count
I) and civil conspiracy (Count II). (Id.). Home
Depot timely removed the matter to this Court on February 8,
2016. (ECF No. 1).
February 16, 2016, Home Depot filed a Motion to Dismiss
Plaintiff's Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). (ECF No. 8). Gomer filed a First Amended
Complaint on March 8, 2016, in which he added Ferraro and
Cote as defendants and raised new claims for (1) disparate
treatment in violation of Title VII of the Civil Rights Act
of 1964 (“Title VII”), as amended, 42 U.S.C.
§§ 2000e et seq. (2012) (Count III), and
(2) unpaid overtime in violation of the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. §§ 201 et
seq. (2012), and the “Maryland Fair Labor
Practices Act” (Count IV). (First Am. Compl.). Gomer
asserts Count I against Home Depot, Ferraro, and Cote; Count
II against Ferraro and Cote; and Counts III and IV against
Home Depot. (Id.). On March 18, 2016, the Court
denied Home Depot's Motion to Dismiss as moot without
prejudice. (ECF No. 16).
March 22, 2016, Home Depot filed a Motion to Dismiss
Plaintiff's First Amended Complaint. (ECF No. 17). On
April 30, 2016, Gomer filed a Motion for Leave to File Second
Amended Complaint, maintaining his four claims, but adding
new factual allegations. (ECF No. 25). After serving several
discovery requests on Gomer, on June 7, 2016, Home Depot
filed a Motion to Compel Discovery Responses and for an Order
Deeming Facts in Defendant's First Requests for Admission
to be admitted as True. (ECF No. 31). Gomer filed a Motion to
Remand on July 19, 2016 (ECF No. 35), and Cote filed a Motion
to Dismiss Amended Complaint on July 26, 2016 (ECF No. 38).
All pending Motions are fully briefed and ripe for
Motion to Remand
Court begins with the threshold issue of whether it has
subject-matter jurisdiction over this case. The Court will
deny Gomer's Motion to Remand because the Court had
diversity jurisdiction over the action when Home Depot
removed it to this Court.
argues remand is warranted because the Court no longer has
diversity jurisdiction over this case. He contends his First
Amended Complaint defeats the complete diversity of
citizenship required under 28 U.S.C. § 1332 (2012)
because it adds Cote and Ferraro, who, like Gomer, are
party seeking removal carries the burden of establishing
federal jurisdiction. Mulcahey v. Columbia Organic Chems.
Co., 29 F.3d 148, 151 (4th Cir. 1994) (citing Wilson
v. Republic Iron & Steel Co., 257 U.S. 92 (1921)).
The Court must strictly construe removal jurisdiction because
removal jurisdiction raises significant federalism concerns.
Id. (citing Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100 (1941)). Accordingly, if federal
jurisdiction is doubtful, the Court should grant a motion to
remand. Id. (citation omitted).
defendant may remove a state court action to federal court if
the federal court would have original subject-matter
jurisdiction over the action. 28 U.S.C. § 1441(a)
(2012). Federal district courts have original jurisdiction
over civil actions that arise under federal law, 28 U.S.C.
§ 1331, or have an amount in controversy exceeding $75,
000, exclusive of interests and costs, and complete diversity
of citizenship, 28 U.S.C. § 1332(a). There is complete
diversity of citizenship if “no party shares common
citizenship with any party on the other side.”
Cunningham v. Twin City Fire Ins. Co, 669 F.Supp.2d
624, 627 (D.Md. 2009) (quoting Mayes v. Rapoport,
198 F.3d 457, 461 (4th Cir. 1999)).
purposes of diversity jurisdiction, a corporation is a
citizen of every State in which it is incorporated or
maintains its principal place of business. 28 U.S.C. §
1332(c)(1). A corporation's principal place of business
is “the place where [the] corporation's officers
direct, control, and coordinate the corporation's
activities. Hertz Corp. v. Friend, 559 U.S. 77,
92-93 (2010). In practice, a corporation's principal
place of business “should normally be the place where
the corporation maintains its headquarters.”
Id. at 93. An individual is a citizen of the state
of his domicile, “i.e. the state he considers
his permanent home.” Dyer v. Robinson, 853
F.Supp. 169, 172 (D.Md. 1994).
plaintiff amends his complaint after removal, the court
considers the original complaint rather than the amended
complaint in determining whether removal was proper.
Pinney v. Nokia, Inc., 402 F.3d 430, 443 (4th Cir.
2005); see Pullman Co. v. Jenkins, 305 U.S. 534, 537
(1939) (explaining that in determining whether removal was
proper, the court considers the plaintiff's pleading at
the time of the removal petition). This rule “is
grounded not only in well over a half-century of precedent,
but also in sound policy. If parties were able to defeat
jurisdiction by way of post-removal [amendments], they could
unfairly manipulate judicial proceedings.” Dotson
v. Elite Oil Field Servs., Inc., 91 F.Supp.3d 865, 874
(N.D.W.Va. 2015) (quoting Hatcher v. Lowe's Home
Centers, Inc., 718 F.Supp.2d 684, 688 (E.D.Va. 2010)).
the Court concludes it would have original jurisdiction over
this matter under 28 U.S.C. § 1332. In his original
Complaint, Gomer names only Home Depot as a Defendant, and he
alleges Home Depot is headquartered in Atlanta, Georgia.
(Compl. ¶ 3, ECF No. 2). Because Gomer alleges he lives
only in Maryland, (id. ¶ 2), Gomer and Home
Depot are completely diverse. And, Gomer alleges an amount in
controversy of $435, 000. (Id. ¶¶ 22, 33).
The Court, therefore, concludes removal was proper and the
Court has subject-matter jurisdiction over this case.
Accordingly, the Court will deny Gomer's Motion to