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Perry v. Sasol USA Corp.

United States District Court, W.D. Louisiana, Lake Charles Division

May 10, 2018

COBY PERRY
v.
SASOL USA CORPORATION, ET AL

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE

         Before the court is a Motion to Remand [doc. 12] filed by plaintiff Coby Perry. In his motion plaintiff also asks for relief in the form of all costs, expenses, and attorney fees associated with the removal of this case. Doc. 12, p. 2. Sasol (USA) Corporation, Sasol Chemicals North America LLC, and Sasol Chemicals (USA) LLC (collectively “defendants”) oppose the motion. Doc. 15. For the reasons stated below, IT IS RECOMMENDED that plaintiff's motion be DENIED.

         I.

         Background

         On October 25, 2017, plaintiff filed suit against Sasol (USA) Corporation (hereafter “Sasol (USA)”) in Louisiana state court, alleging that the company discriminated against him because of his national origin. Doc. 1, att. 1. Particularly plaintiff alleges that he is an American citizen by birth and that defendant, “an energy and chemical company based in South Africa … openly gave and indicated their intent to give preferential treatment to South African employees and job applicants over similarly situated Americans.” Id. at p. 2, ¶¶ 11-12. He demands to be reinstated and seeks to recover “past, present and future damages” including punitive damages. Id. at p. 3.

         Sasol (USA) was served with the original complaint on November 20, 2017. Doc. 1, p. 1. Sasol (USA) removed the original action to this court on December 5, 2017. Id. In its Notice of Removal defendant alleges this court has subject matter jurisdiction because it is a civil action arising under the Constitution, laws, or treaties of the United States insofar as the complaint refers to having filed a charge of discrimination with the Equal Employment Opportunity Commission (hereafter “EEOC”) which thereafter issued a notice of plaintiff's right to file. Id. at p. 2.

         On November 9, 2017, which is before Sasol (USA) was served with the original complaint, plaintiff amended his complaint to add Sasol Chemicals North America LLC (hereafter “Sasol Chemicals NA”) and Sasol Chemicals (USA) LLC (hereafter “Sasol Chemicals (USA)”) as defendants. Doc. 5, att. 1, p. 8.[1] According to the Amended and Supplemental Notice of Removal filed by Sasol (USA) on December 15, 2017, it learned after the filing of the original Notice of Removal that the amended complaint had been filed and that it and the new defendants had been served with the amended petition on December 1, 2017. Doc. 5, p. 2. The newly added defendants, represented by the same counsel as Sasol (USA), consented to removal through the amended notice. Id. at p. 5. The amended notice of removal alleges, as did the original, that plaintiff's claims arise under federal law because he pleaded facts necessary to establish a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., but those facts have no relevance under Louisiana employment discrimination law. Id. at pp. 3-4.

         In his Motion to Remand plaintiff argues that the removal is defective because, at the time of removal, both Sasol Chemicals NA and Sasol Chemicals (USA) had been served with the amended complaint but had not consented. Doc. 12, p. 2. In his memorandum in support of his motion plaintiff also suggests that defendants have not established a valid basis for federal question jurisdiction. Doc. 12, att. 1, pp. 2-4.

         II.

         Law and Analysis

         Federal courts are courts of limited jurisdiction, possessing “only that power authorized by Constitution and by statute.” Gunn v. Minton, 133 S.Ct. 1059, 1064 (2013) (quotation omitted). Generally, a defendant may remove a civil action to federal court if the federal court has original jurisdiction over the action. 28 U.S.C. § 1441(a). The burden of establishing federal subject matter jurisdiction rests with the party seeking to invoke it. St. Paul Reinsur. Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998). Thus, a removing defendant bears that burden on a motion to remand. DeAguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). Because of the limited nature of federal jurisdiction, removal statutes are construed strictly and in favor of remand. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

         A. The notice of removal was timely filed and procedurally proper.

         All properly joined and served defendants must consent to removal within thirty days of service of the petition. 28 U.S.C. § 1466(a)-(b); see also Humphries v. Elliott Co., 760 F.3d 414, 417 (5th Cir. 2014). Here, Sasol (USA) filed for removal well within thirty days of service of the original and amended petitions. Sasol Chemicals NA and Sasol Chemicals (USA) consented to removal. Therefore, removal was timely and procedurally proper.

         B. This court has federal ...


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