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JRV Services, LLC v. Doster Construction Company, Inc.

United States District Court, M.D. Louisiana

September 19, 2019

JRV SERVICES, LLC
v.
DOSTER CONSTRUCTION COMPANY, INC. ET. AL

          NOTICE

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE

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

         In 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.

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

         MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         Before the court is Plaintiffs' Motion to Remand. (R. Doc. 20). The motion is opposed. (R. Doc. 30).

         Also 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).

         I. Background

         On or 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).

         On 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).

         On 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).

         Doster, 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, 18, 19).

         Plaintiffs 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).

         II. Arguments of the Parties

         In 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).

         In 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).

         III. Law and Analysis

         A. ...


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