Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Durham v. Amikids, Inc.

United States District Court, M.D. Louisiana

September 25, 2018

MELISSA DURHAM
v.
AMIKIDS, INC., ET AL.

          NOTICE

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         REPORT AND RECOMMENDATION

         Before the court is a Motion to Remand[1] filed by pro se plaintiff, Melissa Durham (“Plaintiff”). Defendants, AMIKids, Inc. and AMIKids Baton Rouge, Inc. (“Defendants”) have filed an Opposition to Plaintiff's Motion to Remand.[2]

         For the reasons set forth herein, the undersigned RECOMMENDS[3] that the Motion to Remand be DENIED.

         In the event this recommendation is adopted, the undersigned finds that good cause exists to defer entry of a scheduling order pending resolution of the pending Motions to Dismiss.[4]

         I. Background

         On May 17, 2018, Defendants filed a Notice of Removal asserting that this Court has federal subject matter jurisdiction over Plaintiff's claims pursuant to 28 U.S.C. § 1331.[5] In her Complaint, as well as her “Motion for Amended Complaint, ”[6] Plaintiff alleges that Defendants have “violated the rights of [Plaintiff] under the Title VII of the Civil Rights Act of 1964, Americans with Disability Act of 1990 and the Americans with Disabilities Act Amendments of 2008, and LSA R.S. 23:301….”[7] Although Plaintiff's pleadings are not a model of clarity, Plaintiff alleges that she was employed by Defendants as a 6-12th grade science teacher, [8] that she was harassed and subjected to “unfair treatment, ”[9] that she sought some sort of accommodation for an asserted disability, [10] and that she was retaliated against.[11]

         On May 30, 2018, Plaintiff filed the instant Motion to Remand. Plaintiff states that “[t]he ground for this motion is that Defendant's [sic] erroneously listed race discrimination instead of sex discrimination, preservice removal, the notice of removal to the state court must also be filed within 30 days or the removal is not effected 28 USC 1446(d), and the Violence Against Women's [sic] Act.”[12]

         II. Law and Analysis

         A. Legal Standard

         28 U.S.C. § 1441(a) provides that “[e]xcept as otherwise expressly provided by Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant….” The removal statute, 28 U.S.C. § 1441, is strictly construed and any doubt as to the propriety of removal should be resolved in favor of remand.[13] The party seeking removal bears the burden of demonstrating that federal subject matter jurisdiction exists.[14] “Because removal raises significant federalism concerns, the removal statute is strictly construed ‘and any doubt as to the propriety of removal should be resolved in favor of remand.'”[15]

         28 U.S.C. § 1331 provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treatises of the United States.” “[A] defendant may remove to the federal courts ‘[a]ny civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States,' i.e., those actions presenting a federal question. A federal question exists when there ‘appears on the face of the complaint some substantial, disputed question of federal law.'”[16]Whether a case is removable based on federal question jurisdiction is “determined by the allegations of plaintiff's ‘well-pleaded complaint' as of the time of removal.”[17]

         B. This Court Has Subject Matter Jurisdiction Pursuant to 28 U.S.C. § 1331

         “The United States Court of Appeals for the Fifth Circuit has held that when a plaintiff's ‘petition contained a claim for violation of the American with Disabilities Act…the district court [has] subject matter jurisdiction.”[18] Likewise, an action for employment discrimination pursuant to Title VII raises a federal question.[19] Plaintiff contends that remand is appropriate because she is asserting “sex discrimination” rather than “race discrimination.”[20] However, Plaintiff clearly states in support of the Motion to Remand that she “claims Title VII for sex related violations and violence”[21] and her pleadings repeatedly reference federal claims. Regardless of the basis of the alleged discrimination, Plaintiff's Petition raises federal claims.[22] Accordingly, this Court has federal subject matter jurisdiction pursuant to 28 U.S.C. § 1331 over Plaintiff's federal claims.[23]

         C. Plaintiff's Arguments Regarding Procedural ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.