Opinion
Civil No. 3:03-CV-2376-H
November 14, 2003
MEMORANDUM OPINION AND ORDER
Before the Court are Plaintiff's Motion to Remand, filed October 22, 2003, and Defendant's Response to Plaintiff's Motion to Remand, filed November 10, 2003. For the following reasons, Plaintiff's motion to remand is GRANTED in part and DENIED in part.
I. Background
On August 29, 2003, Plaintiff Bobbie Johnson filed the instant suit against Defendant Dai-Tile Corporation in County Court at Law No. 2, Dallas County, Texas, alleging state law claims of disability discrimination, retaliation, retaliation for filing a workers' compensation claim, age discrimination, negligent supervision, and intentional infliction of emotional distress. (P.'s Orig. Pet. at 4-8.) Plaintiff also alleged a violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., (Id. at 9.) On October 10, 2003, Defendant removed the case to this Court on the basis of diversity jurisdiction and, alternatively, federal question jurisdiction. (D.'s Not. of Removal at
I, 2-3.) Plaintiff now moves to remand the case to state court.
II. Analysis
Plaintiff contends that this case must be remanded to state court because: (1) the state workers' compensation claim is not removable; (2) the state court has concurrent jurisdiction to decide the Family and Medical Leave Act claim; and (3) choice of forum lies with Plaintiff. (P.'s Br. at 1, 2, 3, 4.) Defendant appears to concede that the state workers' compensation claim is not removable under Fifth Circuit precedent. (D.'s Resp. at 3-4.) However, Defendant contends that it properly removed the other claims and that those claims should remain in this Court on the basis of diversity jurisdiction or, alternatively, federal question jurisdiction. (Id. at 2-4.)
The Court concludes that it has subject matter jurisdiction over this case on either of two grounds. First, Plaintiff's Original Petition asserts a claim under the Family and Medical Leave Act, which raises a federal question for purposes of establishing subject matter jurisdiction pursuant to 28 U.S.C. § 1331. Second, there is no dispute that complete diversity among the parties exists, as well as an amount in controversy in excess of the minimum jurisdictional requirement, for purposes of establishing subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a). Thus, Defendant properly invoked its right to remove pursuant to 28 U.S.C. § 1441. See Baldwin v. Sears, Roebuck and Co., 667 F.2d 458, 459 (5th Cir. 1982) (noting that "§ 1441 creates a broad right of removal which can be limited only by an act of Congress expressly prohibiting it. The statutory right of removal provides the defendant with an opportunity to substitute his choice of forum for the plaintiff's original choice.").
Nonetheless, Congress has expressly prohibited removal of state workers' compensation claims. See 28 U.S.C. § 1445(c) ("A civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States."). Wrongful removal of a state workers' compensation claim is not a jurisdictional defect, however, but a procedural defect that can be waived by the plaintiff. See Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1117 (5th Cir. 1998). Where, as in the instant case, a plaintiff has not waived the procedural defect and the district court has subject matter jurisdiction over the remaining causes of action, the district court must sever and remand the state workers' compensation claim. See id. at 1119. Accordingly, Plaintiff's claim alleging retaliation for filing a workers' compensation claim must be severed and remanded.
III. Conclusion
For the foregoing reasons, Plaintiff's claim alleging retaliation for filing a workers' compensation claim is SEVERED from the instant case, ASSIGNED the following civil case
number —, and REMANDED to the County Court at Law
No. 2, Dallas County, Texas. Plaintiff's remaining causes of action shall proceed in this Court under civil case number 3:03-CV-2376-H. Accordingly, Plaintiff's motion to remand is GRANTED in part and DENIED in part.
SO ORDERED.