United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
accordance with 28 U.S.C. § 636(b)(1), you have fourteen
(14) days after being served with the attached Report to file
written objections to the proposed findings of fact,
conclusions of law and recommendations 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 of the Magistrate Judge which
have been accepted by the District Court.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
the court is Plaintiffs' Motion to Remand. (R. Doc. 20).
The motion is opposed. (R. Doc. 30).
before the Court are Doster Construction Company, Inc's
(“Doster”) Motion to Sever and Remand (R. Doc.
17), Liberty Mutual Insurance Company's (“Liberty
Mutual”) Motion to Sever and Remand (R. Doc. 18), and
The Lemoine Company, LLC's (“Lemoine”) Motion
to Sever and Remand. (R. Doc. 19). The motions are opposed.
(R. Doc. 32).
about March 29, 2018, JRV Services, LLC (“JRV”)
initiated this action in the 19th Judicial District, East
Baton Rouge, Louisiana alleging breach of construction
subcontracts and seeking enforcement of rights with respect
to certain liens under the Louisiana Private Works Act, La.
R.S. 9:4801 et seq. (“LPWA”) (R. Doc.
1-2 at 3-13). The First Supplemental and Amending Petition
removed various defendants, leaving as the sole defendants
Doster, Liberty Mutual, Lemoine, and Federal Insurance
Company (“FIC”). (R. Doc. 1-2 at 19-20).
January 28, 2019, the state court judge entered
Plaintiffs' Second Supplemental and Amending Petition
into the record. (R. Doc. 1-5 at 61). Plaintiffs' Second
Supplemental and Amending Petition added the individual
plaintiffs Juana Vargas, Wendy Herrera, Bertha Arelis
Izaguirre, and Desyi Rivera. (R. Doc. 1-5 at 54-58).
Plaintiffs' Second Supplemental and Amending Petition
asserts that Doster's employees and subcontractors
sexually harassed and discriminated against the individual
plaintiffs, who are Hispanic female employees and supervisors
of JRV. (R. Doc. 1-5 at 54-56). Plaintiffs assert that the
conduct violates Louisiana Employment Discrimination Law, La.
R.S. 23:302 (“LEDL”) and the Louisiana Uniform
Trade Practices and Consumer Protection Law, La. R.S.
51:1401-26 (“LUPTA”). (R. Doc. 1-5 at 56). In
Paragraph 47E, Plaintiffs assert, among other things, that
the alleged “discrimination and harassment perpetrated
by Doster constituted unlawful practices in violation of
public policy as set forth in federal and state
anti-discrimination statutes, including La. R.S. 23.301 et
seq. and Title VII of the 1964 Civil Rights Act, 42 U.S.C.
2000e et seq. and was immoral, unethical, unscrupulous, and
substantially injuries to JRV's female employees and
supervisors and was in furtherance of Doster's unfair
trade practices to take advantage of JRV's labor and
services without paying for them.” (R. Doc. 1-5 at 57).
February 15, 2019, Doster filed a notice of removal asserting
that the court has federal question subject matter
jurisdiction under 28 U.S.C. § 1331 in light of the
harassment and discrimination claims in Plaintiffs'
Second Supplemental and Amending Petition. (R. Doc. 1). More
specifically, Doster asserts that Paragraph 47E explicitly
raises a claim under Title VII of the 1964 Civil Rights Act,
42 U.S.C. § 2000e et seq. (“Title
VII”). (R. Doc. 1 at 3).
Liberty Mutual, and Lemoine filed Motions to Sever and
Remand, which all seek an order severing the individual
Plaintiffs' discrimination claims and remanding to state
court the breach of contract and LPWA claims. (R. Docs. 17,
filed a Motion to Remand seeking remand of the entire action
on the basis that the Court lacks federal question
jurisdiction over the discrimination claims. (R. Doc. 20).
Arguments of the Parties
support of severance, Doster argues that the action was
properly removed because the Court has federal question
jurisdiction over Plaintiffs' Title VII claim under 28
U.S.C. § 1331, and supplemental jurisdiction over
Plaintiffs' LEDL and LUPTA claims under 28 U.S.C. §
1367(a). (R. Doc. 17-1 at 8-9). Doster argues that the breach
of contract and LPWA claims must be severed and remanded
under 28 U.S.C. § 1441(c)(2) because there is no
original or supplemental jurisdiction over those claims. (R.
Doc. 17-1 at 9-14). To the extent the Court finds that it
could exercise supplemental jurisdiction over those claims,
Doster asserts that the Court should decline to exercise
supplemental jurisdiction under 28 U.S.C. § 1337(c). (R.
Doc. 17-1 at 14-17). Liberty Mutual and Lemoine adopt the
arguments made by Doster in support of severance and remand.
(R. Docs. 18-1, 19-1). In opposition, Plaintiffs argue that
the Court should first determine whether remand of the whole
action is proper on the basis that the Court lacks subject
matter jurisdiction. (R. Doc. 32).
support of remand of the whole action, Plaintiffs argue that
the discrimination claims added under Plaintiffs' Second
Supplemental and Amending Petition were brought solely under
the LEDL and LUPTA, and the reference to Title VII in
Paragraph 47E was pled solely in support of Plaintiffs'
LUPTA claim. (R. Doc. 20-1 at 1-8). Plaintiffs assert that
Doster concedes that there is no Title VII claim to support
federal question jurisdiction because Doster has moved for
dismissal of the Title VII claim for failure to state a
claim. (R. Doc. 20-1 at 8-9). Finally, Plaintiffs seek
recovery of attorney's fees under 28 U.S.C. §
1447(c) on the basis that Doster had no objectively
reasonable basis for seeking removal. (R. Doc. 20-1 at 8-10).
In opposition, Doster argues that Plaintiffs expressly raised
a claim under Title VII and Plaintiffs' argument that the
Title VII allegations were made solely in support of a LUPTA
claim are invalid as no court has ever found that a
discrimination claim can support a LUPTA claim. (R. Doc. 30
at 5-12). Doster further asserts that a finding of federal
question jurisdiction with respect to the Title VII
allegations is proper even though any attempted Title VII
claim is subject to dismissal for failure to state a claim.
(R. Doc. 30 at 12-14). Finally, Doster argues that the
removal was objectionably reasonable even if the Court
determines that federal question jurisdiction is lacking. (R.
Doc. 30 at 14-15).
Law and Analysis