Opinion
Case No. 5:06-cv-136-Oc-10GRJ.
February 22, 2007
ORDER
On November 22, 2005, the Plaintiff filed her complaint in the Circuit Court of the Fifth Judicial Circuit, in and for Marion County, Florida, alleging claims against the Defendant of hostile work environment and sexual harassment under the Civil Rights Act of 1964 (Title VII), as amended by the Civil Rights Act of 1991, 42 U.S.C. §§ 2000e et seq. On February 6, 2006, before the Defendant's notice of removal was filed, the Plaintiff filed an amended complaint in state court. The amended complaint dropped the Plaintiff's Title VII claims, and added claims under the Florida Civil Rights Act and Florida tort law. The Plaintiff then served the Defendant on March 14, 2006 with both the original and amended state court complaints.
On April 13, 2006, the Defendant filed its Notice of Removal (Doc. 1), alleging federal question jurisdiction, pursuant to 28 U.S.C. § 1331, as the basis for removal. On December 4, 2006, after engaging in various pretrial proceedings, the Plaintiff moved to remand this case to state court. On January 24, 2007, the United States Magistrate Judge issued a Report (Doc. 29) recommending that the Plaintiff's Motion to Remand (Doc. 21) be granted. The Defendant has filed Objections (Doc. 30), and the Plaintiff has responded to the Objections (Doc. 31).
Upon an independent review of the file and upon due consideration, the Court concludes that the Magistrate's report and recommendation is due to be adopted, confirmed, and made a part hereof. The Magistrate Judge found, and the Court agrees, that the "initial pleading" which determines federal jurisdiction is the pleading which is in effect at the time of removal — in this case the amended complaint. The Magistrate Judge did not ignore the plain and unambiguous language of 28 U.S.C. § 1446, when read in its entirety. Because the amended complaint does not contain any claims premised on federal law, the Court is without subject matter jurisdiction to adjudicate this case.
The Court also declines to exercise pendent jurisdiction over the Plaintiff's state law claims, particularly given the fact that the Defendant had not even been served in this case until after all federal claims had been deleted.
Accordingly, and upon due consideration, it is hereby ordered and adjudged that:
(1) The Report and Recommendation of the Magistrate Judge (Doc. 29) is adopted, confirmed, and made a part hereof;
(2) The Defendant Kash n' Karry Food Store, Inc.'s Objections (Doc. 30) are OVERRRULED;
(3) The Plaintiff's request for attorney's fees and expenses under 28 U.S.C. § 1447(c) is DENIED; and
(3) The Plaintiff's Motion to Remand (Doc. 21) is GRANTED. The Clerk is directed to remand this case to the Circuit Court of the Fifth Judicial Circuit, In and For Marion County, Florida., terminate all pending motions, and close the file.
IT IS SO ORDERED.
DONE and ORDERED at Ocala, Florida.