United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
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.
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.
(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.
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. 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.
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.
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).
The notice of removal was timely filed and procedurally
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.
This court has federal ...