Opinion
Civil Action No. 3:02-CV-1218-D
August 2, 2002
MEMORANDUM OPINION AND ORDER
Plaintiff Cynthia Smith ("Smith") moves for leave to file amended pleading. The court grants the motion. Because the court concludes that the parties are diverse citizens, it retains jurisdiction over all claims except part of her wrongful discharge claim (count two), which it remands to county court based on the Fifth Circuit's decision in Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1118-19 (5th Cir. 1998).
I
Smith filed this suit in Texas county court, and defendant Fujicolor Processing, Inc. ("Fujicolor") removed it based only on federal question jurisdiction. See Not. Rem. at 2, ¶ 2 ("Removal of this action is proper pursuant to federal question jurisdiction."). Smith moved the court to remand the case, contending that her suit did not involve any federal claims and that she relied only on state-law causes of action. Without awaiting a response from Fujicolor, the court on June 24, 2002 issued an order holding that "[u] part, the motion clearly lacks merit and. . [i]n part, the motion raises a non-removability issue that is supported by settled Fifth Circuit law." Order at 1. The court held that the case was removable because Smith had asserted a federal question claim by alleging in count one of her complaint "that Fujicolor" intentionally discriminated against Plaintiff because of Plaintiff's disability in violation of the Texas Labor Code and Americans with Disabilities Act."' Id. at 1-2 (quoting P. Pet. at 4 (emphasis added)). The court stated:
This is sufficient to state a federal claim and make this case removable based on federal question jurisdiction. (Of course, if plaintiff promptly seeks and obtains leave to amend in order to delete any federal claim, the court would likely grant the motion and remand the case to state court.)
Id. at 2.
The court also ordered Fujicolor to show cause why Smith's wrongful discharge claim (count two) should not be remanded to county court based on the Fifth Circuit's decision in Sherrod, which held inter alia that a claim under Tex. Labor Code Ann. § 451.001 (Vernon 1996), was not removable even though the district court had federal question jurisdiction based on a federal-law cause of action that was also present in the case.
Smith now moves for leave to amend for the purpose of deleting any federal question claims. Fujicolor has filed a combined response to Smith's motion and to the court's show cause order. It maintains that leave should be denied because she should not be permitted to manipulate the court system, and because, absent a stipulation that she will not seek damages in excess of $75,000, there is federal jurisdiction based on diversity of citizenship. Fujicolor also maintains that the wrongful discharge claim should not be remanded, essentially arguing that Sherrod was wrongly decided. Smith has not filed a reply brief in support of her motion, which is now ripe for decision.
Fujicolor also complains that Smith did not comply with N.D. Tex. Civ. R. 7.1(a), which requires that counsel confer before such a motion is filed and that the motion contain a certificate of conference. The court declines to deny the motion on this basis. As the court states in an opinion filed today in Obregon v. Melton, Civil Action No. 3:02-CV-1009-D (N.D. Tex. Aug. 2, 2002) (Fitzwater, J.), "the failure to file a certificate of conference presents no basis to deny the motion where, as here, it is clear that the motion is opposed and that a conference would neither have eliminated nor narrowed the parties' dispute." Id. at 3 n. 3.
II
The court grants Smith's motion for leave to amend. Fujicolor contends that Smith cannot drop her federal-law claim after electing to bring it initially. This is an incorrect statement of the law. Although the court can deny leave to amend where a plaintiff is seeking to manipulate the system, it has the discretion to grant such leave, and it often does so.
Moreover, in the present case, granting leave to amend will not result in remanding the entire case. Although Fujicolor removed this case based on federal question jurisdiction — thus prompting the court to state in its June 24, 2002 order that, if Smith promptly sought and obtained leave to amend in order to delete any federal claim, the court would likely grant the motion and remand the case to county court — Fujicolor has shown that it is a Delaware corporation whose principal place of business is New York. See D. Resp. 4. Accordingly, the court has subject matter jurisdiction even after Smith has deleted all federal-law claims, provided the amount in controversy exceeds the sum of $75,000, exclusive of interest and costs. See 28 U.S.C. § 1332 (a). Smith has not replied to Fujicolor's suggestion that she stipulate that she will not seek in excess of $75,000 in damages. The court therefore holds that the case should not be remanded, even after Smith amends her complaint.
Accordingly, the court grants Smith's motion for leave to amend.
The court directed Fujicolor to show cause why count two of Smith's county court petition should not be remanded to county court. In that count, Smith alleges in part that Fujicolor terminated her on August 23, 2001 in retaliation for filing a workers' compensation claim regarding her injury on February 24, 2000. See Pet. at 2. In its response to the show cause order, Fujicolor essentially argues that Sherrod was wrongly decided. To the extent it intends to argue that Sherrod is distinguishable, the court concludes that it is not. Sherrod holds that a "claim of retaliatory termination under § 451.001 is a claim arising under Texas worker's compensation laws." Sherrod, 132 F.3d at 1118.
Because Sherrod is binding on this court and clearly precludes removal, the court will remand to county court the part of count two that asserts a retaliation claim. One aspect of count two (as alleged in her petition and in her proposed first amended complaint) does not appear to assert retaliation under the Texas workers' compensation law. See Prop. 1st Am. Compl. ¶ 19. The court is not remanding that component of count two.
* * *
The court grants Smith's July 3, 2002 motion for leave to file amended pleading. The clerk of court shall file plaintiff's first amended complaint today. The court remands to the County Court at Law of Kaufman County, Texas the part of Smith's wrongful discharge claim that alleges unlawful retaliation under the Texas workers' compensation law. The clerk of court shall effect the remand according to the usual procedure. Smith's other claims remain pending in this court.
SO ORDERED.