Opinion
Civil Action No. 1:04-CV-170-C.
August 17, 2004
ORDER
ON THIS DAY THE COURT CONSIDERED Plaintiff JULIE SQUIRES's Motion to Abstain and to Remand, filed on July 14, 2004, and Defendant FLYING STAR TRANSPORT, LLC's Response, filed on August 2, 2004.
Plaintiff filed suit against Defendant on December 16, 2003, in the 32nd Judicial District Court in and for Nolan County, Texas, alleging a cause of action "under Chapter 21 of the Texas Labor Code, Section 21.055, et. seq. Texas Labor Code [sic], as amended, to correct unlawful employment practices on the basis of retaliatory discharge." (Pl.'s Orig. Pet. ¶ 7). Specifically, Plaintiff alleged that Defendant "instituted a campaign of retaliation which included termination. This retaliation was and is due to Plaintiff requesting a decrease in her work hours as required by the Federal Labor Standards Act and Texas Labor Code. Plaintiff suffered damages for which Plaintiff herein sues." (Pl.'s Orig. Pet. ¶ 13). As damages, Plaintiff sought "back pay from the date that Plaintiff was denied equal pay for equal work and interest on the back pay . . . as provided by the Texas Labor Code section 21.258." (Pl.'s Orig. Pet. ¶ 14.c). Defendant was served on January 5, 2004. On May 17, 2004, Plaintiff's attorney sent a settlement-offer letter to Defendant's attorney in which he stated that his client "seeks redress for violations under the following: retaliation and violations of the Fair Labor Standards Act." Defendant filed its Notice of Removal to this Court on June 14, 2004, on the basis that Plaintiff's settlement letter constituted "`other paper from which it may be ascertained that the case is one which is or has become removable' pursuant to 42 U.S.C. § 1446." (Def.'s Resp. ¶ 1.4).
Under 28 U.S.C. § 1446(b), a notice of removal must be filed within thirty days of when a defendant receives, through service or otherwise, a copy of the initial pleading, or if the case stated in the initial pleading is not removable, then within thirty days after defendant receives, "through service or otherwise, a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b). Plaintiff argues that the case was no longer removable on June 14, 2004, because her Original Petition stated her intention to seek recovery of damages for Defendant's violation of the federal Fair Labor Standards Act ("FLSA"), thus beginning the running of the thirty days on January 5, 2004, the date Defendant was served. Defendant argues that its Notice of Removal, filed on June 14, 2004, was timely because the thirty-day period began to run on May 17, 2004, the date it received the letter from Plaintiff's attorney, on the basis that Plaintiff's settlement letter constituted "`other paper from which it may be ascertained that the case is one which is or has become removable' pursuant to 42 U.S.C. § 1446," (Def.'s Resp. ¶ 1.4).
Plaintiff also argues that claims brought under FLSA are not removable to federal court, but this contention is clearly incorrect. See Breuer v. Jim's Concrete of Brevard, Inc., 538 U.S. 691, 123 S. Ct. 1882 (2003).
A federal court only has original or removal jurisdiction if the federal question appears on the face of the plaintiff's well-pleaded complaint and there is generally no federal jurisdiction if the plaintiff properly pleads only a state law cause of action. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-11, 103 S. Ct. 2841, 2846-47, 77 L. Ed. 2d 420 (1983); MSOF Corp. v. Exxon Corp., 295 F.3d 485, 490 (5th Cir. 2002), cert. denied, NPC Serv., Inc. v. MSOF Corp., 537 U.S. 1046 (2002). Even if a plaintiff has a federal cause of action, he "may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 2429, 96 L. Ed. 2d 318 (1987). Plaintiff's Original Petition clearly pleads a cause of action solely for retaliatory discharge under Texas Labor Code § 21.055. Contrary to Plaintiff's claim that her Original Petition stated her intention to seek damages under FLSA, she clearly seeks in it only damages under Texas Labor Code § 21.258.
Section 21.055 of the Texas Labor Code provides a cause of action for retaliation or discrimination against a person who exercises her rights under the provisions of Chapter 21, which only makes unlawful certain employment practices based on a person's race, color, disability, religion, sex, national origin, or age. TEX. LABOR CODE ANN. § 21.055; TEX. LABOR CODE ANN. § 21.051 (West. 1996). Section 21.055 does not provide for a claim of retaliation based on a person's exercise of her rights under FLSA unless perhaps it is based on Chapter 21's general prohibition of discrimination. Because Plaintiff's Original Petition does ask for damages in that "Plaintiff was denied equal pay for equal work," it is possible that she is bringing a cause of action for wage differential as a form of sex discrimination, though the petition is devoid of any facts in support of such a claim. Whereas the exact nature of Plaintiff's claim may be uncertain at this point in the litigation, this Court is certain from the face of her petition that she has determined to rely exclusively on her state-law remedies, pleading only a state-law cause of action pursuant to §§ 21.055 and 21.051 of the Texas Labor Code. Although Plaintiff could have made a claim for retaliation under the FLSA pursuant to 29 U.S.C. § 215(a)(3), for violations of the Equal Pay Act of 1963, she has not done so. Consequently, Plaintiff's initial pleading does not set forth a claim that is removable and service of her Original Petition on Defendant did not begin the thirty-day period within which Defendant must have filed a notice of removal.
Codified as part of the FLSA at 29 U.S.C. § 206(d).
Plaintiff's argument that the "artful pleading" doctrine requires this Court to look beyond the labels used by Plaintiff to see if the substance of the complaint is one in which federal law preempts Plaintiff's state-law claims is likewise unavailing. The artful pleading doctrine is an "independent corollary" to the well-pleaded complaint rule outlined supra. See MSOF Corp. v. Exxon Corp., 295 F.3d 485, 490 (5th Cir. 2002). If a plaintiff's state-law claim is completely preempted by federal statute, the plaintiff cannot, by "artful pleading," avoid removal by attempting to characterize his claim as a state-law claim only. See id. The FLSA does not completely preempt Plaintiff's state-law cause of action for retaliation based on an underlying incident involving discrimination.
Having determined that Defendant's Notice of Removal was not untimely filed based on the date Defendant was served with Plaintiff's Original Petition, the Court must next determine whether Defendant's Notice of Removal was properly and timely filed based on its receipt of the settlement letter from Plaintiff's attorney. Defendant argues that Plaintiff's settlement letter constituted "`other paper from which it may be ascertained that the case is one which is or has become removable' pursuant to 42 U.S.C. § 1446." "Other paper" for the purposes of § 1446(b) may include correspondence between the parties and their counsel or between counsel for the parties. Addo v. Globe Life Acc. Ins. Co., 230 F.3d 759, 761 (5th Cir. 2000). Also, other paper "must result from the voluntary act of a plaintiff which gives the defendant notice of the changed circumstances which now support federal jurisdiction." Id. at 762; S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996).
The "other paper" in this case clearly is correspondence between the counsel for the parties and is sufficient to come within the meaning of the statute. See Sunburst Bank v. Summit Acceptance Corp., 878 F. Supp. 77, 81-82 (S.D. Miss. 1995) ("Although notice must be in writing, the statute does not require `service' of that notice in some formal legal sense. . . . [A]ctual notice may be communicated in a formal or informal manner. Accordingly, this court holds that a demand letter under proper circumstances may be accorded `other paper' status under § 1446(b)"). Furthermore, the letter clearly is the product of a voluntary act of the Plaintiff. However, the Court is not of the opinion that the substance of the letter gives Defendant notice of a change in circumstances which would support federal jurisdiction and make the case removable. Although the letter states that Plaintiff "seeks redress for violations under the following: retaliation and violations of the Fair Labor Standards Act," such language does not override the language on the face of Plaintiff's initial, and heretofore unamended, petition that unequivocally states that she is making a claim and seeking damages exclusively under the Texas Labor Code. Therefore, this Court is of the opinion that until such time as Plaintiff might amend her petition to include a cause of action under FLSA, her attorney's letter characterizing her claim as one arising under FLSA is not sufficient to put Defendant on notice of a change in circumstances that would support federal jurisdiction. Consequently, the case is not removable at this time and under the current circumstances, and remand is appropriate.
The language of a plaintiff's lawsuit specifically limiting her claims to particular state statutory causes of action and remedies is qualitatively different, in this Court's opinion, from cases where a plaintiff has not clearly stated a demand for damages that falls within a court's jurisdictional amounts. In the latter case, a subsequent demand letter that states an amount within a federal court's jurisdictional limits might trigger notice that the case has become removable. See Addo, 230 F.3d at 762. There is no question about this Court's jurisdiction in the instant case as indicated on the face of Plaintiff's initial pleading that is altered or clarified by Plaintiff attorney's subsequent demand letter to Defendant's counsel.
Of course, Defendant may seek a second removal after remand provided it rests on different grounds. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir. 1996). The same theory of federal jurisdiction may be pleaded in the second notice, provided that a different factual basis supports it. Id. at 493. An amended pleading stating a cause of action under FLSA would provide an appropriately different basis from the settlement-demand letter on which to base another notice of removal.
CONCLUSION
After considering all the relevant arguments and evidence, this Court finds, for the reasons set forth above, that removal is improper as this Court is without subject matter jurisdiction to adjudicate this action, and remand to state court is proper in accordance with 28 U.S.C. § 1447(c). Therefore, this Court GRANTS Plaintiff's Motion to Remand and all claims asserted in this case are hereby REMANDED to the 32nd Judicial District Court in and for Nolan County, Texas. The parties shall bear their own costs.The Clerk of the Court shall transmit a certified copy of this Order to the Clerk of the 32nd Judicial District Court in and for Nolan County, Texas.
SO ORDERED.