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 by plaintiff, Julius Dickens.
Doc. 7. Defendant CB&I LLC (“CB&I”)
opposes the motion. Doc. 10. This motion has been referred to
the undersigned for review, report, and recommendation in
accordance with the provisions of 28 U.S.C. § 636. For
the reasons stated below, IT IS RECOMMENDED
that the motion be GRANTED.
August 15, 2018, plaintiff filed suit in the 14th Judicial
District Court, Calcasieu Parish, against his former
employer, CB&I. Doc. 1, att. 1. Plaintiff alleges he was
terminated from his position as a Piperfitter Journeyman I
because of his obesity, and that such termination was
unlawfully discriminatory under Louisiana law. Id.
CB&I then removed the suit pursuant to 28 U.S.C. §
1331. Doc. 1. It argues that this court has subject matter
jurisdiction because plaintiff's petition includes a
claim that CB&I violated the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12101, et
seq. Id. at 3. Plaintiff now moves to remand,
denying that his petition asserts any claims under federal
law. Doc. 7, p. 2. CB&I opposes the motion. Doc. 10.
courts are courts of limited jurisdiction, possessing
“only that power authorized by Constitution and
statute.” Gunn v. Minton, 133 S.Ct. 1059, 1064
(2013) (internal 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). However, the federal district court must
remand the action to state court if it finds that it lacks
subject matter jurisdiction. 28 U.S.C. § 1447(c). The
removing party bears the burden of showing that removal was
procedurally proper, and that federal jurisdiction exists.
See De Aguilar v. Boeing Co., 47 F.3d 1404, 1408
(5th Cir. 1995).
28 U.S.C. § 1331, federal courts have original
jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States.”
To determine whether a cause of action arises under federal
law, courts apply the well-pleaded complaint rule.
Bernhard v. Whitney Nat'l Bank, 523 F.3d 546,
551 (5th Cir. 2008). This rule recognizes the axiom
“that a plaintiff is master of his complaint and may
generally allege only a state law cause of action even where
a federal remedy is also available.” Id.
the well-pleaded complaint rule, “a federal court has
original or removal jurisdiction only if a federal question
appears on the face of the plaintiff's well-pleaded
complaint; generally, there is no federal jurisdiction if the
plaintiff properly pleads only a state law cause of
action.” Id. A federal cause of action can be
asserted inadvertently, however, and the court should read
the pleading independently of the plaintiff's subjective
intent. Leaumont v. City of Alexandria, 582
Fed.Appx. 407, 410 (5th Cir. 2014). In Leaumont,
plaintiff cited in his state-court petition “a
violation of [the Louisiana Employment Discrimination Law
(“LEDL”)] and . . . [the Americans with
Disabilities Act (“ADA”), ] 42 USC § 12101,
et seq., particularly § 12114.”
Id. at 409. This was the only time the ADA was
mentioned in his complaint and he argued that his citation to
that statute “was intended merely as a reference to aid
in the analysis of his claims under the [LEDL].”
Id. at 410. The Fifth Circuit disagreed; it reasoned
federal question jurisdiction existed because “the
petition, fairly read, assert[ed] independent claims under
both the LEDL and the ADA.” Id.
when a federal claim is not asserted, a state law claim
supports federal subject matter jurisdiction when the claim
nonetheless “turn[s] on substantial questions of
federal law.” Grable & Sons Metal Prods., Inc.
v. Darue Eng'g & Mfg., 125 S.Ct. 2363 (2005).
This can occur in cases where “claims created by state
law . . . ‘incorporate federal standards or require the
interpretation of federal law.'” French v. EMC
Mortgage Corp., 566 Fed.Appx. 285, 287 (5th Cir. 2014)
(quoting Howery v. Allstate Ins. Co., 243 F.3d 912,
917 (5th Cir. 2001). However, a mere reference in a petition
to a federal standard is not enough to confer jurisdiction.
See Howery, 243 F.3d at 918 (5th Cir. 2001)
(plaintiff's mention of Fair Credit Reporting Act
provisions and associated regulations “merely served to
describe types of conduct that violated the [Texas Deceptive
Trade Practices Act], not to allege a separate cause of
action” under federal law). Rather, federal question
jurisdiction based on such state law claims is only
appropriate when “it appears that some substantial,
disputed question of federal law is a
necessary element of one of the well-pleaded
state claims, or that . . . the claim is ‘really'
one of federal law.” Franchise Tax Bd. of
Cal v. Construction Laborers Vacation Trust for Southern
California, 103 S.Ct. 2841, 2848 (1983) (emphasis
added). As noted by the Supreme Court,
The general rule is that, where it appears from the bill or
statement of the plaintiff that the right to relief depends
upon the construction or application of the Constitution or
laws of the United States, and that such federal claim is not
merely colorable, and rests upon a reasonable ...