Opinion
Civil Action No. 3:02-CV-0587-R
July 11, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's Order of Reference, filed April 1, 2002, Plaintiffs' Motion to Remand, filed March 28, 2002, is before this Court for hearing, if necessary, and for recommendation. For the following reasons, the Court RECOMMENDS that the Plaintiffs' motion be GRANTED and that the case be REMANDED to the 192nd District Court, Dallas County, Texas.
I. Background
Plaintiffs Meirna Castillo, Willis Lockhart, and Kevin Bass filed their Original Petition against the Defendant, Texans Can!, in state court on October 2, 2001. (Jnt. Sub. Ex. El at 1.) On December 10, 2001, the Defendant filed special exceptions to the Original Petition, citing multiple deficiencies in the Plaintiffs' pleading. (Jnt. Sub. Ex. E3 at 1-4.) The state court ordered the Plaintiffs to replead, and, accordingly, the Plaintiffs filed their First Amended Original Petition on February 19, 2002. (Jnt. Sub. Ex. E2 at 1.) The Plaintiffs' amended pleading included three additional plaintiffs — Donnie Price, Momed Abdul, and Larry Mestas — and purported to assert causes of action arising under the common law, the Texas Minimum Wage Act, the federal Fair Labor Standards Act (FLSA), the Equal Rights Amendment of the Texas Constitution, and the Texas Commission on Human Rights Act (TCHRA). (Id. at 2-4.) On March 21, 2002, the Defendant removed the action to the Northern District of Texas.
The Plaintiffs now seek to remand the case back to the state court, contending that this Court lacks subject matter jurisdiction because: (1) the Defendant removed the action after the thirty-day removal period had expired; (2) the Plaintiffs have asserted a TCI-IRA cause of action, not a Title VII cause of action; and (3) the FLSA cause of action is not removable. (Jnt. Sub. Ex. B at 2, 4-5.) The Defendant counters that: (1) it removed the action within thirty days after the Plaintiffs had filed their amended pleading, (2) the Plaintiffs have asserted a Title VII cause of action, and (3) the FLSA cause of action is removable. (Jnt. Sub. Ex. C at 2-6.)
The Court now turns to the legal standards that will guide its analysis.
II. Legal Standards
28 U.S.C. § 1441(a) states, in relevant part, that:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.28 U.S.C. § 1441(a). See also Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 122 S.Ct. 1889, 1893 n. 2 (2002). However, a case must be removed within thirty days after the defendant receives an "initial pleading . . . [,] amended pleading, motion, order, or other paper from which it may first be ascertained that the case is or has become removable." 28 U.S.C. § 1446(b). Moreover, "[t]he removing party bears the burden of showing that federal jurisdiction exists and that removal was proper." Manguno v. Prudential Property and Casualty Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). Finally, "doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction." Acuna v. Brown Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000).
III. Analysis
As noted above, the parties dispute (1) whether the Defendant removed the action within the thirty-day removal period, (2) whether the Plaintiffs have asserted a TCHRA or Title VII cause of action, and (3) whether the FLSA cause of action is removable. The Court need not address the parties' first contention because, even if the Defendant did remove the action within the thirty-day removal period, the Court cannot exercise removal jurisdiction over the Plaintiffs' TCHRA or FLSA causes of action.
A. TCHRA or Tide VII?
The Defendant contends that the Plaintiffs have asserted a Title VII cause of action in everything but name, thereby creating federal jurisdiction pursuant to 28 U.S.C. § 1331. (Jnt. Sub. Ex. C at 6.) Although the Defendant recognizes that the Plaintiffs purport to bring this cause of action under the TCHRA — not under Title VII — the Defendant argues that the claims of discrimination in the Plaintiffs' First Amended Original Petition could only be "properly asserted under Title VII." (Id.) This argument is without merit. In their amended pleading, the Plaintiffs clearly invoke the TCHRA, not Title VII. (Jnt. Sub. Ex. E2 at 3.) Whether the Plaintiffs have properly pled a TCHRA cause of action is a matter of state law. Furthermore, this is not a case of "artful pleading," in which the Plaintiffs seek to avoid federal jurisdiction by disguising a federal cause of action as a state cause of action. Pointer v. Crown Cork Seal Co., 791 F. Supp. 164, 165, 166 (S.D. Tex. 1992) (recognizing that "artful pleading" applies in cases of federal preemption and that Title VII does not preempt the TCHRA). Moreover, the "artful pleading" doctrine does not apply where, as here, the Plaintiffs had "a choice between state and federal remedies and . . . merely ignored the federal cause of action." Brown v. Crop Hail Management, Inc., 813 F. Supp. 519, 523 (S.D. Tex. 1993). Although the Court concludes that the Plaintiffs' TCHRA cause of action does not "arise under" federal law for purposes of § 1331, the Court could nevertheless exercise supplemental jurisdiction over the TCIIRA cause of action if the Court next determines that it has jurisdiction over the FLSA cause of action. Pointer, 791 F. Supp. at 165.
In their First Amended Original Petition, the Plaintiffs assert that the applicable suit is brought "under the Equal Rights Amendment of the Texas Constitution, as well as under the [Texas] Commission on Human Rights Act." (Jnt. Sub. Ex. E2 at 3.) In their Reply, the Plaintiffs admit to making "certain technical errors" in their amended pleading. (Jnt. Sub. Ex. D at 7.) Specifically, they admit to mistakenly stating Title VII requirements in pleading their TCHRA cause of action. (Id.) However, in their briefing, the Plaintiffs represent that they have not asserted — and that they did not intend to assert — a Title VII cause of action. (Jnt. Sub. Ex. B at 5; Jnt. Sub. Ex. D at 1, 7-8.) Indeed, the Plaintiffs "paid particular attention to limiting their causes of action to those which could be maintained in state court." (Jnt. Sub. Ex. D at 1.)
B. FLSA
The Defendant contends that removal jurisdiction is proper in this case because the Plaintiffs have asserted a cause of action under FLSA. (Jnt. Sub. Ex. C at 4-5.) Contrary to the Plaintiffs' position that FLSA causes of action are not removable, the Defendant submits that "the greater number of cases have allowed removal of FLSA claims." (Id. at 4.) For the reasons that follow, the Court finds that it cannot exercise removal jurisdiction in this case.
Neither the United States Supreme Court nor the Fifth Circuit Court of Appeals has decided the issue of whether FLSA claims may be removed. Indeed, the Fifth Circuit has expressly declined to reach that issue. Baldwin v. Sears, Roebuck and Co., 667 F.2d 458, 460-61 (5th Cir. 1982) (holding that ADEA causes of action may be removed). Although there is a split in authority in the Northern District of Texas, the balance of binding precedent in this district weighs against removal of FLSA claims from state court. See Lloydv. Classic Chevrolet, Inc., 2002 WL 989470, at * 1 (N.D. Tex. Jan. 31, 2002) (deciding that claims under the Family Medical Leave Act, like claims under FLSA, may not be removed); Esquivel v. St. Andrews Construction, 999 F. Supp. 863, 864-65 (N.D. Tex. 1998) (deciding that FLSA claims may not be removed); Wilkins v. Renault Southwest, Inc., 227 F. Supp. 647, 648 (N.D. Tex. 1964) (deciding that FLSA claims may not be removed). But see Shaw v. CF Data Corp., 2001 WL 1326528 (N.D. Tex. Oct. 15, 2001) (deciding that FLSA claims may be removed); Lisai v. Chevron Stations, Inc., 1997 WL 694705 (N.D. Tex. Nov. 4, 1997) (deciding that FLSA claims may be removed). There is also a split in authority within the Circuit Courts of Appeals. of the three circuits that have expressly addressed the issue, two circuits have held that FLSA claims may be removed and one circuit has held that FLSA claims may not be removed. See Breuer v. Jim's Concrete of Brevard, Inc., 2002 WL 1204783, at *1-2 (11th Cir. 2002) (holding that FLSA claims may be removed); Cosme Nieves v. Deshler, 786 F.2d 445, 451 (1St Cir. 1986) (holding that FLSA claims may be removed). But see Johnson v. Butler Bros., 162 F.2d 87 (8th Cir. 1947) (holding that FLSA claims may not be removed). As this review of the relevant case law suggests, there is anything but certainty that FLSA claims may be removed from state court.
Other districts in the Fifth Circuit are also split on the issue of whether FLSA claims may be removed. See Lopez v. Wal-Mart Stores, Inc., 111 F. Supp.2d 865, 867 (S.D. Tex. Aug. 23, 2000) (deciding that FLSA claims may not be removed); Carter v. Hill Hill Truck Line, Inc., 259 F. Supp. 429, 430 (S.D. Tex. Oct. 12, 1966) (deciding that FLSA claims may not be removed). But see Ramos v. H.E. Butt Grocery Co., 632 F. Supp. 342, 343 (S.D. Tex. 1986) (deciding that FLSA claims may be removed). of the districts in the Fifth Circuit that have addressed the issue, only the Eastern District of Texas and the Northern District of Mississippi are unanimous that FLSA claims may be removed. See H R Block, Ltd v. Housden, 24 F. Supp.2d 703 (E.D. Tex. 1998); Chapman v. 8th Judicial Juvenile Probation Bd., 22 F. Supp.2d 583 (E.D. Tex. 1998); Hill v. Moss-American, Inc., 309 F. Supp. 1175 (N.D. Miss. 1970).
The Court notes that the Ninth Circuit has also implicitly addressed the issue of whether ELSA claims may be removed. Albertson's, Inc. v. United Food and Commercial Workers Union, 157 F.3d 758, 760 (9th Cir. 1998) (recognizing, though not holding, that the district court had jurisdiction over a removed FLSA claim under 28 U.S.C. § 1331).
When faced with uncertainty as to the existence of removal jurisdiction, doubts are to "be resolved against federal jurisdiction." Acuna, 200 F.3d at 339. In the instant case, there is no uniformity in the relevant case law that ELSA claims may be removed. Rather, there are two schools of thought as to whether FLSA claims may be removed, and each has its own extensive and well reasoned body of precedent to support it. "[B]ecause the removal statute should be strictly construed in favor of remand," the Court declines to find that it has jurisdiction over a FLSA claim that has been removed without clear authority to do so. Manguno, 276 F.3d at 723.
IV. Conclusion
For the foregoing reasons, the Court RECOMMENDS that the Plaintiffs' Motion to Remand be GRANTED and that the case be REMANDED to the 192nd District Court, Dallas County, Texas.
SO RECOMMENDED.