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Cisneros v. Dakm, Inc.

United States District Court, Fifth Circuit

January 23, 2014

ROLANDO CISNEROS, Plaintiff,
v.
DAKM, INC., Defendant.

ORDER DENYING REMAND

MICAELA ALVAREZ, District Judge.

The Court now considers the self-styled "Plaintiff Rolando Cisneros' Motion to Remand Proceedings to State Court, "[1] filed by Rolando Cisneros ("Plaintiff"). DAKM, Inc., d/b/a The Best Little Warehouse in Texas ("Defendant") has responded.[2]

After considering the motion, response, record, and relevant authorities, the Court DENIES the motion. Plaintiff's original petition did not affirmatively plead a federal cause of action. Since the cause of action could not be discerned from the face of that petition, the federal cause of action became evident only in the letter between counsel, which constitutes an "other paper" under § 1446. Defendant therefore timely removed to this Court under federal question jurisdiction.

I. Standards for Removal

Removability

Although "doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction, "[3] district courts possess original federal jurisdiction over claims that arise under the laws of the United States.[4] "A federal court only has original or removal jurisdiction if the federal question appears on the face of the plaintiff's well-pleaded complaint and there is generally no federal jurisdiction if the plaintiff properly pleads only a state law cause of action."[5] Thus, "[e]ven if a plaintiff has a federal cause of action, " he "may avoid federal jurisdiction by exclusive reliance on state law."[6] Defendants usually have 30 days from service of the pleading to remove to federal court, [7] unless "the case stated by the initial pleading is not removable, " in which case defendants have 30 days from, among other things, an "other paper from which it may first be ascertained" that the case is removable.[8] A letter between counsels can in some circumstances constitute an "other paper, "[9] as long as it is the plaintiff's voluntary act and unequivocally clear.[10]

Standard for Pleading a Federal Cause of Action

When a plaintiff asserts a claim based upon federal question, but the plaintiff does not clearly plead the cause of action, then a "timeliness dispute" over the case's initial removability may arise.[11] In the touchstone case on timeliness dispute, the Fifth Circuit held that the initial complaint starts the 30-day removal clock "only when that pleading affirmatively reveals on its face" the basis for diversity or federal question jurisdiction.[12] As the Fifth Circuit later pointed out, the Chapman court "specifically declined to adopt a rule" which required defendants to "ascertain[ ] from the circumstance[s] and the initial pleading'" that the plaintiff's claim satisfied federal jurisdiction requirements.[13]

Most timeliness disputes relate to diversity jurisdiction, and the circumstances in which an "other paper" can establish federal question jurisdiction are limited.[14] This limitation results from the well-pleaded complaint rule, "which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint."[15] Circumstances in which a well-pleaded complaint creates federal jurisdiction by showing a federal question on its face, but fails to affirmatively plead the federal cause of action and to trigger the 30-day removal period, will be few and far between.[16] Those circumstances may resemble, without becoming, a case of "artful pleading, " when a plaintiff pleads an exclusively federal claim in state law language.[17] In such circumstances the "other paper" will not be used "to establish a new federal claim, but to clarify the nature of the existing claim."[18]

II. Federal and State Law on Administrative Exhaustion of Employment Claims

Because Plaintiff argues that the nature of the claim obviously showed it was brought pursuant to federal law rather than state law, a brief review of the relevant administrative procedures is in order. Before bringing suit for workplace discrimination under Title VII, the ADA, the ADEA, [19] or under the Texas Human Rights Act, [20] aggrieved parties must exhaust administrative remedies. The Equal Employment Opportunity Commission ("EEOC") and the Texas Workforce Commission Civil Rights Division[21] ("TWC") address claims under federal and state law, respectively. Due to a "Worksharing Agreement" between the two agencies, filing a complaint with one agency also satisfies the requirement to file with the other.[22] Both agencies require that a complainant file within 180 days after the alleged violation, [23] but the Worksharing Agreement expands the EEOC time to file to 300 days.[24] Though expanding the federal time limit by means of nominal filing with the state agency seems odd, this means a complaint filed from 180-300 days after the violation falls under the exclusive jurisdiction of the federal agency.[25]

Both agencies will notify a complainant whether it has elected to pursue or to dismiss the complaint. Along with the notice of dismissal, the federal agency will mail the "right to sue" letter, and the letter is required to sue. The EEOC letter then triggers a 90-day period in which the complainant must sue.[26] The Texas agency will not automatically mail the "right to sue" letter, [27] but the letter is not required to sue as long as the complainant has either received notice of dismissal or waited 180 days after filing the complaint.[28]

If the TCHR determines that there is reasonable cause, it shall issue a right to sue letter informing the employee that she has exhausted her administrative remedies and may proceed to suit in a civil court. Tex. Lab.Code Ann. § 21.206. If the TCHR dismisses or fails to resolve the complaint within 180 days of filing, it shall inform the complainant of that decision in writing by certified mail. Id . § 21.208. Upon receipt of this notice, the complainant is entitled to request, in writing, a right to sue letter. [] If the complainant has waited the required 180 days, however, neither the lack of a notice of dismissal or a right to sue letter "affect the complainant's right... to bring a civil action." Tex. Lab.Code Ann. § 21.252(d); []. Although an employee is not required to obtain a right to sue letter prior to filing suit, if the employee has received one, it evidences that she has exhausted her administrative remedies before the TCHR."[29]

This brief review of administrative exhaustion, filing requirements, and status to sue suffices to evaluate whether Plaintiff's original petition affirmatively ...


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