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Davis v. Oliver Street Dermatology Management, LLC

United States District Court, W.D. Missouri, Western Division

August 15, 2017

Deneise Davis, Plaintiff,
v.
Oliver Street Dermatology Management, LLC d/b/a Dermatology and Skin Cancer Specialist, and Tammy Brouse, Defendants.

          ORDER

          Fernando J. Gaitan, Jr. United States District Judge.

         Pending before the Court is Plaintiff's Motion to Remand (Doc. No. 6).

         I. BACKGROUND

         Plaintiff first filed a petition in state court on January 16, 2017. That petition mentioned the FMLA sixteen times, and made a claim for FMLA retaliation. Defendant removed that case, which because Case No. 17-0130-FJG. Plaintiff subsequently dismissed that lawsuit without prejudice.

         On February 24, 2017, plaintiff filed another Petition in the Circuit Court of Jackson County, Missouri. Thereafter, on April 5, 2017, defendant removed the second case to federal court, asserting that federal question jurisdiction was again present. On April 6, 2017, plaintiff filed an amended complaint as a matter of right in federal court. Plaintiff's Amended Complaint generally alleges that plaintiff is disabled because she suffers from depression and anxiety. Plaintiff alleges that her therapist suggested she take time off work in January 2016 to recover from her depression and anxiety, and for plaintiff to attend an intensive outpatient program. Plaintiff alleges she informed the defendant employer of these facts, but decided to delay the start of her outpatient program until February 2016 so that she could train her replacement. Plaintiff, an employee of defendant for many years, alleges that she received her first discipline from defendant in February 2016. Plaintiff began her outpatient program in late February 2016, and returned to work on March 29, 2016. On April 4, 2016, plaintiff was fired.

         In plaintiffs amended complaint, she makes three claims related to violations of the Missouri Human Rights Act: (1) Failure to Accommodate violation under Mo. Rev. Stat. 213.010 et seq.; (2) Disability Discrimination violation under Mo. Rev. Stat. 213.010 et seq.; and (3) Retaliation violation under Mo. Rev. Stat. 213.010 et seq. On April 10, 2017, plaintiff filed the present motion to remand, arguing that the amended complaint does not state a federal question, and given that diversity jurisdiction is not present, this Court has no jurisdiction over her complaint.

         Defendant argues, in response, that plaintiff has stated a claim for retaliation under the Family Medical Leave Act (FMLA), despite the act not being mentioned by name in the amended complaint.

         II. STANDARD

         A motion to remand will be granted if the district court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). The removing defendant bears the burden of showing that federal subject matter jurisdiction exists. Hale v. Cottrell, Inc., No. 11-CV-01273-SOW, 2012 U.S. Dist. LEXIS 189735, *3 (W.D. Mo. Apr. 17, 2012). Any doubts about federal jurisdiction should be resolved in favor of state court jurisdiction. Id Federal jurisdiction only exists “when a federal question is presented on the face of the plaintiffs properly pleaded complaint” or when a federal statute “preempt[s] a field of law so completely that state law claims are considered to be converted into federal causes of action.” Id. at *4 (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1997) and Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536, 543 (8th Cir. 1996)).

         Removal of a complaint setting forth state-law claims is proper under the well-pleaded complaint rule where (1) federal law completely preempts a plaintiffs state-law claim, or (2) an issue of federal law is a necessary and a central element of plaintiff's state law claims. Mabe v. Golden Living Ctr.-Bransom, No. 07-03268-CV-S-FJG, 2007 WL 3326857, at *3 (W.D. Mo. Nov. 6, 2007) (citing Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536, 542 (8th Cir. 1996), and Bellido-Sullivan v. American Int'l Group, Inc., 123 F.Supp.2d 161, 164 (S.D.N.Y. 2000)). “A plaintiff cannot thwart the removal of a case by inadvertently, mistakenly or fraudulently concealing the federal question that would necessarily have appeared if the complaint had been well pleaded.” Id. (citation omitted).

         III. DISCUSSION

         Plaintiff argues that this case should be remanded because plaintiff's claim arises solely under the MHRA. Specifically, plaintiff indicates that her request for time off to deal with her disability is a request for accommodation under the MHRA, not a claim under the FMLA. Plaintiff argues that the type of leave requested should not operate to convert a properly pled MHRA claim into a federal question claim.

         Defendant argues the plaintiff's original petition shows her true intention, to state a claim under the FMLA. Defendant argues that in one case from the Eastern District of Missouri, such an artful attempt to hide an FMLA claims was found to be improper. See Anderson v. Shade Tree Services, No. 4:12CV01066 ERW, 2012 WL 3288120, at *1 (E.D. Mo. Aug. 10, 2012). Defendant further argues that resolution of plaintiff's complaint requires interpretation of federal law, i.e., whether defendant violated the FMLA.

         This Court has already resolved this same issue nearly ten years ago. In Mabe v. Golden Living Ctr.-Bransom, No. 07-03268-CV-S-FJG, 2007 WL 3326857 (W.D. Mo. Nov. 6, 2007), this Court found that the mere mention of the word “FMLA” in the plaintiff's complaint did not convert plaintiff's otherwise well-pled state law causes of action into a federal question. As noted by several other courts addressing this issue, the language of the FMLA does not indicate an intent by congress to completely displace ordinarily applicable state law, and therefore the complete preemption exception does not apply. Id. at *3; Bellido-Sullivan v. Am. Int'l Grp., Inc., 123 F.Supp.2d 161, 162 (S.D. N.Y. 2000); Wulfekuhle v. Planned Parenthood ...


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