Opinion
No. C 04-4690 SI.
February 18, 2005
Defendant's motion to dismiss plaintiff's state tort claims against defendants Silk and Pruitt; and plaintiff's motion to remand this action to state court and for the award offees and costs, came on for hearing on February 18, 2005. Having considered the papers and pleadings of the parties, and the arguments of counsel, the Court hereby DENIES the motion to dismiss; GRANTS the motion to remand to state Court; DENIES the request for fees and costs; and REMANDS this action to the Superior Court for the County of Alameda where it was filed.
BACKGROUND
Plaintiff and defendants Silk and Pruitt were FAA employees at the Oakland Air Route Traffic Control Center in 2002. Plaintiff contends that Silk brought nude photographs to work and Silk said these were photographs of plaintiff. Silk copied the photographs onto a disk and gave that disk to Pruitt, his supervisor. Pruitt viewed the nude photographs in his office, returned the disk and told Silk to dispose of the photographs. Plaintiff also alleges that a number of FAA employees viewed, disseminated and commented upon the nude photographs.
As a result, plaintiff filed a complaint against defendants Silk and Pruitt in Alameda County Superior Court on May 10, 2004, alleging invasion of privacy, intentional infliction of emotional distress and negligent infliction of emotional distress. On July 28, 2004, plaintiff filed a separate complaint against the Secretary of Transportation in federal district court alleging employment discrimination based on sexual harassment under Title VII of the Civil Rights Act and section 504 of the Rehabilitation Act. Plaintiff's Title VII allegations centered on the FAA's failure to prevent and respond to the sexual harassment by Silk and Pruitt.
On November 5, 2004, defendants Silk and Pruitt removed the state action to this Court, and on November 9, 2004, moved to dismiss the state law claims against them. On December 6, 2004, plaintiff filed motions to remand the case to state court for improper removal and for costs and attorney's fees. Both motions are now before the Court for resolution.
LEGAL STANDARD
1. Motion to dismiss
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. In deciding whether to dismiss, a court must assume that the plaintiff's allegations are true and must draw all reasonable inferences in the plaintiff's favor.Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Even if the face of the pleadings suggests that the chance of recovery is remote, a court must allow the plaintiff to develop the case at this stage of the proceedings. See United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981).
A motion to dismiss may be appropriate where a statute precludes the types of relief that can be granted. Section 717 of Title VII, 42 U.S.C. § 2000(e)-16, prohibits discrimination based on sex in federal employment. The statute provides the "exclusive, pre-emptive administrative and judicial scheme" for the remedy of federal employment discrimination. Brown v. General Services Administration, 425 U.S. 820, 829-32 (1976). Under Title VII, a plaintiff is precluded from bringing employment discrimination claims against individual federal employees other than the head of the agency. 42 U.S.C. § 2000(e)-16(c); Williams v. United States General Services Administration, 905 F.2d 308, 311 (9th Cir. 1990). Title VII, however, does not preclude claims against individual federal employees that are highly personal in nature extending beyond mere discrimination. Brock v. United States, 64 F.3d 1421, 1423 (9th Cir. 1995).
2. Motion to remand
A party may challenge removal to federal court by filing a motion to remand. Remand to state court may be ordered either for lack of federal subject matter jurisdiction or for any defect in the removal procedure. 28 U.S.C. § 1447(c). The existence of federal jurisdiction must be determined on the face of the plaintiff's complaint.Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425 (1987). A "cause of action arises under federal law only when the plaintiff's well pleaded complaint raises issues of federal law." Metropolitan Life Ins. Co v. Taylor, 481 U.S. 58, 63 (1987).
A federal defense, even the defense of preemption, does not generally support removal. Caterpillar, Inc., 482 U.S. at 393. However, the doctrine of complete preemption applies "if the pre-emptive force of a [federal] statute is so extraordinary" that it "converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule." Id. (internal citation omitted).
DISCUSSION
1. Motion to dismiss
Defendants contend that plaintiff's state court action effectively seeks a remedy for sexual harassment and hostile work environment caused by the conduct of defendants. Defendants argue that the exclusive remedy for claims of discrimination in federal employment is section 717 of Title VII of the Civil Rights Act and requests this Court to dismiss the state claims against the defendants. However, as defendants concede, Title VII does not preclude tort claims against federal employees that are highly personal nature. Defendants argue that their alleged actions do not rise to the level of highly personal conduct recognized by the courts such as rape, assault, harassing phone calls at home, and stalking.
Plaintiff argues that defendants' conduct constituted harms that were highly personal in nature. Plaintiff contends that invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress are highly personal claims that are beyond an allegation of hostile work environment.
Title VII does not preclude claims against federal employees that are highly personal in nature extending beyond mere discrimination. Brock v. United States, 64 F.3d 1421, 1423 (9th Cir. 1995). A coworker bringing nude photographs allegedly of the plaintiff to work and then viewing, disseminating and discussing those photos could certainly be a highly personal violation beyond a claim of employment discrimination. In Otto v. Heckler, 781 F.2d 754, 758 (9th Cir. 1986). the Ninth Circuit found that a supervisor's defamatory remarks, harassing phone calls at home and stalking the plaintiff could constitute highly personal harms beyond discrimination, and was unwilling to dismiss the tort claims at the pleading stage.
As pled, the privacy violations plaintiff suffered here could be as personal as those suffered by the plaintiff in Otto. Therefore, the Court DENIES defendant's motion to dismiss.
2. Motion to remand
Plaintiff requests the Court to remand this case because it was improperly removed. Plaintiff argues that defendants failed to remove within 30 days of the receipt of the complaint as required by 28 U.S.C. § 1446(b). Plaintiff argues that it was obvious from the face of the complaint that there was a possible Title VII claim and a possible issue of federal preemption. Therefore, defendants should have known the action was removable.
Defendants argue that removal was timely because they removed the action two days after learning they had grounds for removal, as the original complaint only alleged state tort claims. Defendants contend that they only learned that the state action was removable when they saw that plaintiff's Title VII claim in federal court alleged identical facts as plaintiff's claim in state court.
Regardless of whether defendants failed to timely remove under 28 U.S.C. 1446(b), the Court finds that the case should not have been removed from state court. A defendant can generally remove a case to federal court as a matter of right if the case could have originally been filed there. Snow v. Ford Motor Co., 561 F.2d 787, 789 (9th Cir. 1977). The existence of federal jurisdiction must be determined on the face of the plaintiff's complaint.Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425 (1987). Plaintiff's complaint only alleges state tort claims: invasion of privacy, intentional infliction of emotional distress and negligent infliction of emotional distress. Plaintiff has not alleged any federal claims against the defendants in the complaint.
Although 28 U.S.C. § 1367 allows a plaintiff to bring state law claims along with federal claims into federal court, the statute is not an independent source of removal jurisdiction. 14B Wright and Miller, Federal Practice and Procedure § 3722 (3d 2004). A district court does not have jurisdiction over a case merely because a related case is pending in federal court. 32A Am. Jur. 2d Federal Courts § 1612 (2004). A plaintiff is entitled to choose the forum in which to bring a claim; when the plaintiff has the option to sue either on federal or state grounds, the plaintiff may avoid removal by relying exclusively on state law claims. Etheridge v. Harbor House Restaurant, 861 F.2d 1389, 1395 (citing Sullivan v. First Affiliated Sec., Inc., 813 F.2d 1368, 1371 (9th Cir. 1987)). Even though the facts involved in the state tort claims against defendants also gave rise to the Title VII claim against the Secretary of Transportation pending in district court, this Court cannot assert jurisdiction over a case that invokes no federal claim. Therefore, the Court GRANTS plaintiff's motion to remand.
3. Plaintiff's motion for costs and attorneys' fees
Plaintiff requests the award of costs and attorneys' fees in bringing this motion to remand to state court, if the Court finds this case was improperly removed pursuant to 28 U.S.C. § 1447(c). The Court has broad discretion in awarding costs and attorney's fees under the above statute. Moore v. Permanent Medical Group, Inc., 981 F.2d 443, 447-48 (9th Cir. 1992). Given that there was a non-trivial issue concerning Title VII preemption of the state tort law claims against the individual defendants and that this case is related to a pending federal case, it was not unreasonable for defendants to remove. Consequently, the Court DENIES plaintiff's motion for attorneys' fees and costs.
CONCLUSION
For the foregoing reasons, the Court hereby DENIES defendants' motion to dismiss the state causes of action against the defendants; GRANTS plaintiff's motion to remand to state court; DENIES plaintiff's motion for attorneys' fees and costs; and REMANDS this action to Alameda County Superior Court. [Docket ## 5, 9, 10, 14]