United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER UNITED STATES DISTRICT JUDGE.
instant motion to remand presents the question whether the
court has federal question jurisdiction in this removed
action in which the plaintiff asserts a claim under the
Family and Medical Leave Act of 1993 (“FMLA”).
Concluding that FMLA claims can be removed under the
court's federal question jurisdiction, the court denies
the motion to remand.
an action by plaintiff Donna Franklin
(“Franklin”) against defendant City of Dallas
(“the City”) in which Franklin alleges that the
City violated, and retaliated against her in violation of,
the FMLA. Franklin was employed in the City's Office of
Risk Management from 2007 to 2016; she was appointed a Senior
Risk Analyst in 2012. In 2016 Franklin took off work from
July 20 until August 10 due to stress. Pertinent to her FMLA
claim, Franklin alleges that her supervisor discouraged her
from taking leave under the FMLA, so she instead used accrued
vacation and sick time. When Franklin returned to work, she
originally sued the City in state court, alleging in her
state-court petition claims under the FMLA and state law. The
City timely removed the case on the ground that this court
has federal question jurisdiction based Franklin's
assertion of an FMLA claim. In her first amended complaint,
which she filed in response to the City's motion to
dismiss her state-court petition, Franklin continues to
assert claims under the FMLA and state law.
party who removed this case, the City must overcome an
initial presumption against jurisdiction and must establish
that removal is proper. See, e.g., Carnes v. Data Return,
LLC, 2005 WL 265167, at *1 (N.D. Tex. Feb. 1, 2005)
(Fitzwater, J.) (citing Howery v. Allstate Ins. Co.,
243 F.3d 912, 916 (5th Cir. 2001)). The removal statute
implicates federalism concerns and therefore should be
strictly construed. Frank v. Bear Stearns & Co.,
128 F.3d 919, 922 (5th Cir. 1997). “[D]oubts regarding
whether removal jurisdiction is proper should be resolved
against federal jurisdiction.” Acuna v. Brown &
Root Inc., 200 F.3d 335, 339 (5th Cir. 2000).
the well-pleaded complaint rule governs federal question
jurisdiction. Under the rule, ‘[r]emoval is not
possible unless the plaintiff's “well pleaded
complaint” raises issues of federal law sufficient to
support federal question jurisdiction.'”
Trugreen Landcare, L.L.C. v. Scott, 512 F.Supp.2d
613, 619 (N.D. Tex. 2007) (Fitzwater, J.) (alteration in
original) (quoting Ervin v. Stagecoach Moving &
Storage, Inc., 2004 WL 1253401, at *2 (N.D. Tex. June 8,
2004) (Fitzwater, J.)); see Carpenter v. Wichita Falls
Indep. Sch. Dist., 44 F.3d 362, 366 (5th Cir. 1995)
(citing Louisville & Nashville R.R. Co. v.
Mottley, 211 U.S. 149, 152 (1908) (“A
determination that a cause of action presents a federal
question depends upon the allegations of the plaintiff's
well-pleaded complaint.”)). The well-pleaded complaint
rule makes the plaintiff “the master of the claim; he
or she may avoid federal jurisdiction by exclusive reliance
on state law.” Caterpillar Inc. v. Williams,
482 U.S. 386, 392 (1987). Therefore, even if federal claims
are available, a plaintiff may remain in state court by
relying exclusively on state law. See id.
federal claim does not exist simply because facts are
available in the complaint to suggest such a claim.”
Tex. Dep't of Protective & Regulatory Servs. v.
Mitchell-Davis, 2007 WL 4334016, at *2 (N.D. Tex. Dec.
11, 2007) (order) (Fitzwater, C.J.) (citing Gemcraft
Homes, Inc. v. Sumurdy, 688 F.Supp. 289, 292 (E.D. Tex.
1988)); Chavez v. McDonald's Corp., 1999 WL
814527, at *2 (N.D. Tex. Oct. 8, 1999) (Fitzwater, J.)
(holding that plaintiff had not alleged federal-law claim
even though he referred at one point to exhausting his
administrative remedies under federal law, where he otherwise
clearly alleged that his claims were based on Texas statutory
or common law)). Federal question jurisdiction “exists
only when a federal question is presented on the face of the
plaintiff's properly pleaded complaint” and not
merely by way of an anticipated defense. Rivet v. Regions
Bank of La., 522 U.S. 470, 475 (1998) (internal
quotation marks omitted); see also Hart v. Bayer
Corp., 199 F.3d 239, 244 (5th Cir. 2000) (“Yet the
mere fact that a given federal law might ‘apply' or
even provide a federal defense to a state-law cause of
action, is insufficient alone to establish federal question
jurisdiction.”). In other words, the
“plaintiff's petition must itself establish that
the case arises under federal law. This means that a right or
immunity created by the Constitution or laws of the United
States must be an essential element of a plaintiff's
cause of action.” Breathwit v. City of Terrell
Civil Serv. Comm'n, 2001 WL 1801174, at *1 (N.D.
Tex. Dec. 5, 2001) (Fitzwater, J.) (internal citation
contends that FMLA claims brought in state court cannot be
removed based on the statutory language that an action
asserting a violation of the FMLA “may be
maintained against any employer” in state court.
29 U.S.C. § 2617(a)(2) (emphasis added). She contends
that the Fifth Circuit has not yet decided whether removal of
FMLA claims should be automatic, and she asserts that there
is a split of authority in the Fifth Circuit regarding the
removability of FMLA claims, which should be construed as an
ambiguity. Franklin posits that because ambiguities are to be
construed against removal, this uncertainty supports granting
her motion to remand. See Butler v. Polk, 592 F.2d
1293, 1296 (5th Cir. 1979).
City maintains that it properly removed this case under the
court's federal question jurisdiction because Franklin is
bringing an FMLA claim that arises under the laws of the
United States. The City contends that Franklin's argument
for remand relies only on the proposition that FMLA lawsuits
cannot be removed from state court because of the use of the
word “maintained” in 29 U.S.C. § 2617(a)(2).
The City notes that the Fifth Circuit has affirmed judgments
in removed FMLA cases, and that in Breuer ...