United States District Court, E.D. Louisiana
DIANA T. BROOKS
UPTOWN HEALTHCARE CENTER, LLC, SECTION:
ORDER AND REASONS
JAY C. ZAINEY, District Judge.
Before the Court is a Motion to Dismiss (Rec. Doc. 4) filed by defendant Uptown Healthcare Center, LLC. Pro se plaintiff, Diana T. Brooks, opposes the motion. The motion, noticed for submission on March 4, 2015, is before the Court on the briefs without oral argument.
Diana T. Brooks has filed this action against her former employer, defendant Uptown Healthcare Center, LLC. Brooks is a resident of New Orleans and she filed suit in Civil District Court for the Parish of Orleans. Uptown Healthcare removed the action to this Court based on its interpretation of Brooks' petition as having asserted a claim under the Americans with Disabilities Act, thereby triggering federal question jurisdiction. Brooks' claims against Uptown Healthcare arise out of it decision to terminate her employment on January 21, 2014. From what the Court can glean from the petition, Brooks was employed by Uptown Health as a licensed practical nurse ("LPN"). The company had recently undergone a change in ownership and management and several employees were terminated. Brooks complains that she was accused of patient abuse and as a result she was investigated by the Louisiana State Board of Practical Nurse Examiners. Brooks complains that because of the false allegations against her she was left without a means of support and ultimately destitute and homeless.
Uptown Healthcare now moves to dismiss this action arguing 1) that Brooks' did not serve the registered agent for service of process, and 2) that the petition fails to meet the pleading requirements of Iqbal and Twombly. 
Brooks requested service on Uptown Healthcare via the Baker, Donelson firm and the attorneys who had previously represented Uptown Healthcare in Civil Action 14-1419. Apparently those same attorneys are representing Uptown Healthcare in this action, which Uptown Healthcare removed to federal court and now seeks to dismiss. The motion to dismiss for failure to serve the registered agent is DENIED.
Uptown Healthcare's arguments regarding Iqbal and Twombly give the Court pause for two reasons. First, Iqbal and Twombly are federal cases that govern pleading standards in federal court. Brooks filed her action in state court. Thus, it would be patently unfair for this Court to rely on Iqbal and Twombly to dismiss her case for failure to state a claim without at least giving Brooks the opportunity to amend her petition to state her best case.
Second, and perhaps even more problematic, is that the very same pleading deficiencies that Uptown Healthcare identifies in support of its Rule 12(b)(6) challenge, leave the Court questioning whether the case was properly removed from state court. Uptown Healthcare's sole basis to remove was federal question jurisdiction hinged on what appears to be an oblique reference to "the Civil Disabilities ADA laws" that Brooks made in the narrative that formed her petition. (Rec. Doc. 1-2). Yet as Uptown Healthcare points out, the pleading is bereft of any factual allegations that could arguably flesh out an ADA claim, including any type of statement alluding to a nexus between any disabilities on Brooks' part and Uptown Healthcare's termination of her employment. As Uptown Healthcare notes in its reply (Rec. Doc. 10 at 2), Brooks' opposition seems to confirm that Brooks' dispute with Uptown Healthcare is not based on any claim cognizable under federal law but rather on Uptown Healthcare's allegedly false accusation of patient abuse that ultimately led to revocation of her nursing license. (Rec. Doc. 6).
Some general principles must guide the Court's next course of action. A Rule 12(b)(6) dismissal is one on the merits and with prejudice. See Cox, Cox, Camel & Wilson, LLC v. Sasol N. Am., Inc., 544 Fed.Appx. 455 (5th Cir. 2013) (unpublished). Therefore, a federal court must have subject matter jurisdiction over an action before it can dispose of any claims under Rule 12(b)(6). Further, the federal claim that serves as the basis for federal jurisdiction cannot be so "wholly insubstantial or frivolous" so as to fail to provide a basis for original federal question jurisdiction. See Arbaugh v. Y&H Corp., 546 U.S. 500, 513 n.10 (2006) (quoting Bell v. Hood, 327 U.S. 678, 682-83 (1946)). Finally, the plaintiff is the master of her complaint and as such she has the choice to forego federal law claims and rely solely on state law for her claims. Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 366 (5th 1995). Jurisdiction may not be sustained on a legal theory that the plaintiff has not advanced. Id. (quoting Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 809 (1986)).
Based on the foregoing, Uptown Healthcare's motion to dismiss is DENIED. On the current record the Court cannot confirm that it has subject matter jurisdiction. If Brooks is relying on federal law, thereby conferring original federal question jurisdiction on this Court, then by Friday, May 22, 2015, Brooks must file an amended complaint to properly allege her federal claims. If Brooks amends her complaint to clarify that there are federal claims being asserted, then Uptown Healthcare will have fifteen (15) days from the filing of that amended pleading to respond, whether via an answer or another Rule 12(b)(6) motion.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion to Dismiss (Rec. Doc. 4) filed by defendant Uptown ...