Opinion
CIVIL ACTION NO. 3:01-CV-1517-G.
October 15, 2001.
MEMORANDUM ORDER
Before the court is the motion of the plaintiff Stacy Shaw ("Shaw") to remand this case to the state court from which it was previously removed. For the reasons set forth below, the motion is denied.
I. BACKGROUND
Shaw was employed by the defendant CF Data Corporation ("CFD") on three occasions, the last of which lasted from April 4, 2000 until December 26, 2000. Defendant's Response to Plaintiff's Motion for Remand and Brief in Support Thereof ("Response") at 2. CFD granted Shaw a thirty day leave of absence to allow her to deal with pregnancy complications, with the understanding that she would return to work on December 22, 2000. Id. Shaw did not report to work on December 22, 2000. Id. CFD terminated her on December 26, 2000. Id.
On March 23, 2001, Shaw filed suit in state court asserting claims for gender discrimination under the Texas Commission on Human Rights Act, and for payment of overtime compensation under the Fair Labor Standards Act ("FLSA"). Response at 2; Plaintiff's Motion to Remand Case to County Court at Law No. 5 and Incorporated Memorandum ("Motion") at 2. CFD was served with Shaw's Original Petition on July 26, 2001. Response at 2. CFD removed this matter to federal court on August 6, 2001, pursuant to 28 U.S.C. § 1441, based on the federal question jurisdiction conferred by 28 U.S.C. § 1331. Id. Shaw did not consent to removal. Motion at 2.
Shaw also states that she intends to include an unremovable claim for retaliation under the Texas Workers Compensation Act. Plaintiff's Motion to Remand Case to County Court at Law No. 5 and Incorporated Memorandum ("Motion") at 2. Shaw has not, however, amended her Original Petition to include such a claim, thus this contention will not be considered.
II. ANALYSIS
Shaw maintains that remand is proper because violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., are not removable. Motion at 3. The issue of the removability of FLSA actions is not well settled. Baldwin v. Sears, Roebuck and Company, 667 F.2d 458, 460-61 (5th Cir. 1982). One line of authority holds that removal is improper. See Johnson v. Butler Bros., 162 F.2d 87 (8th Cir. 1947); Carter v. Hill and Hill Truck Line Inc., 259 F. Supp. 429 (S.D. Tex. 1966); Wilkins v. Renault Southwest, Inc., 227 F. Supp. 647 (N.D. Tex. 1964); Dando v. Stonhard Co., 93 F. Supp. 270 (W.D. Mo. 1950); Maloy v. Friedman, 80 F. Supp. 290 (N.D. Ohio 1948). Another line holds that removal is permissible. See, e.g., Cosme Nieves v. Deshler, 786 F.2d 445 (1st Cir.), cert. denied, 479 U.S. 824 (1986); Stephens v. LJ Partners, 852 F. Supp. 597 (W.D. Tex. 1994); Taylor v. Brown, 461 F. Supp. 559 (E.D. Tenn. 1987); Ralmos v. H.E. Butt Grocery Company, 632 F. Supp. 342 (S.D. Tex. 1986); Barrett v. McDonald's of Oklahoma City, 419 F. Supp. 792 (W.D. Ok. 1976); Hill v. Moss-American, Inc., 309 F. Supp. 1175 (N.D. Miss. 1970); Niswander v. Paul Hardeman, Inc., 223 F. Supp. 74 (E.D. Ark. 1963).
The controversy centers around the relationship between § 216(b) of the FLSA and the 1948 amendment to 28 U.S.C. § 1441(a). Section 216(b) provides, in relevant part:
An action to recover the liability prescribed in [this section] may be maintained . . . in any Federal or State court of competent jurisdiction. . . .
(emphasis added).
28 U.S.C. § 1441(a), on the other hand, provides in pertinent part (with the 1948 amendment in italics):
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. . . .
(emphasis added).
Courts which have held that removal is prohibited have concluded that § 216(b)'s use of the word "maintained" is an express provision by Congress that FLSA actions should not be removable. Baldwin v. Sears, Roebuck and Company, 667 F.2d 458, 460 (5th Cir. 1982); Cosme Nieves v. Deshler, 786 F.2d 445, 450-51 (1st Cir.), cert. denied, 479 U.S. 824 (1986). Courts allowing removal have opined to the contrary. Id..
Johnson can be distinguished on the basis that it was decided prior to the 1948 amendment of 28 U.S.C. § 1441(a).
The majority of courts to consider the question have permitted removal. Cosme Nieves, 786 F.2d at 451; Ramos, 632 F. Supp. at 343. In addition, based on the foregoing cases, it appears that the modern trend is to allow removal. This court will follow the majority and permit removal.
Additionally, Shaw claims that being forced to litigate her claims in federal court "will only serve to make [Shaw's] resort to the legal system more expensive and time consuming." Motion at 3-4. However, Shaw has provided no evidence that the fees and costs incurred in federal court are more substantial than those incurred in state court. Furthermore, Shaw has proffered no evidence that it would take her longer to vindicate her rights in federal court as opposed to state court.
III. CONCLUSION
Because Shaw's claim for overtime compensation falls under the FLSA, and because CFD's removal to this court was timely under 28 U.S.C. § 1446(b), Shaw's motion to remand this claim to the state court is DENIED.
The other state law claim asserted by Shaw, however, should not be heard in federal court. That claim, for gender discrimination in violation of the Texas Commission on Human Rights Act, would exist even if there were no FLSA. Allowing that claim to remain here would permit the federal tail to wag the state dog. Under 28 U.S.C. § 1441 (c), the court will exercise its discretion to remand this claim to the state court from which it was previously removed.
Accordingly, Shaw's claim for gender discrimination is REMANDED to the County Court at Law No. 5 of Dallas County, Texas. The clerk shall mail a certified copy of this order to the county clerk of Dallas County, Texas. 28 U.S.C. § 1447(c).