United States District Court, M.D. Louisiana
WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the U.S. District Court.
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.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
the court is a Motion to Remand 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.
reasons set forth herein, the undersigned
RECOMMENDS that the Motion to Remand be DENIED.
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
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. In her Complaint, as well as her
“Motion for Amended Complaint, ” 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….” 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,
that she was harassed and subjected to “unfair
treatment, ” that she sought some sort of accommodation
for an asserted disability,  and that she was retaliated
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]
Law and Analysis
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. The party seeking removal bears the
burden of demonstrating that federal subject matter
jurisdiction exists. “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
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.'”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
This Court Has Subject Matter Jurisdiction Pursuant to 28
U.S.C. § 1331
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.” Likewise, an action for employment
discrimination pursuant to Title VII raises a federal
question. Plaintiff contends that remand is
appropriate because she is asserting “sex
discrimination” rather than “race
discrimination.” However, Plaintiff clearly states in
support of the Motion to Remand that she “claims Title
VII for sex related violations and
violence” and her pleadings repeatedly reference
federal claims. Regardless of the basis of the alleged
discrimination, Plaintiff's Petition raises federal
claims. Accordingly, this Court has federal
subject matter jurisdiction pursuant to 28 U.S.C. § 1331
over Plaintiff's federal claims.
Plaintiff's Arguments Regarding Procedural ...