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Ybanez v. Miner Fleet Management Group, LLC

United States District Court, W.D. Texas, San Antonio Division

April 18, 2019

STEPHANIE YBANEZ, Plaintiff,
v.
MINER FLEET MANAGEMENT GROUP, LLC, Defendant.

          FRED BIERY JUDGE

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE

         This Report and Recommendation concerns Plaintiff Stephanie Ybanez's Motion to Remand. See Dkt. No. 5. The District Court referred this case to the undersigned pursuant to Western District of Texas Local Rule CV-72 and Appendix C. See Dkt. No. 8. The undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

         Ybanez's Motion to Remand, Dkt. No. 5, should be GRANTED.

         I. Factual and Procedural Background

         Plaintiff Ybanez initiated this is employment-discrimination action on March 12, 2015 in the Bexar County 408th Judicial District Court. See Dkt. No. 1-2 at 2-11. In her Original and Amended Petitions filed in state court, Ybanez claimed that Defendant Miner Fleet discriminated against her on the bases of her sex, pregnancy, and a disability arising out of her pregnancy. She further alleged that Miner Fleet retaliated against her after she voiced opposition to Minor Fleet's allegedly discriminatory employment practices. Ybanez brought only state law claims under Chapter 21 of the Texas Labor Code and the common law on intentional infliction of emotional distress. See Id. at 2-11; 28-33.

         Ybanez now alleges, and Minor Fleet does not dispute, that the parties have since conducted extensive written and oral discovery regarding the nature of Ybanez's claims. See Mot. at 2 & Exs. A & B to Mot. At no point during discovery did Ybanez claim she intended to assert any federal causes of action.

         On July 5, 2018-over three years after this litigation initiated in state court-Ybanez filed a “Motion to Set for Jury Trial and in the Alternative Dispute Resolution Docket.” See Dkt. No. 1-2 at 39-41. In a paragraph regarding the “Nature and Length of Trial, ” Ybanez explained that “[t]his suit is for money damages resulting from a wrongful termination as a result of a violation of the Pregnancy Discrimination Act and other related causes of action.” Id. In a short one sentence order entered that same day, the Bexar County Court Monitoring Judge granted Ybanez's motion and set the case for Alternative Dispute Resolution (“ADR”) on December 12, 2018 and for a jury trial on April 8, 2019. See Dkt. No. 1-3 at 4.

         On August 1, 2018, Miner Fleet removed this action, alleging that removal is proper because Ybanez asserted-for the first time in her July 5 Motion-that Miner Fleet violated the federal Pregnancy Discrimination Act. See Dkt. No. 1 ¶ 3. On August 31, 2018, Ybanez filed the instant Motion to Remand. See Dkt. No. 5. Ybanez requests remand to the Bexar County District Court and an award of attorney's fees and costs incurred in connection with the remand motion. This District Court referred the case to the undersigned on April 8, 2019.

         II. Analysis

         At issue is whether Ybanez's single reference to a federal statute in her state court motion requesting an ADR setting and a jury setting is sufficient to confer federal-question jurisdiction. See 28 U.S.C. §§ 1331; 1446(b). It is not. Remand to state court therefore is required.

         There is no dispute that Ybanez's live petition doesn't raise a federal claim. Miner Fleet concedes this in its Notice of Removal and elsewhere. See Dkt. No. 1 ¶ 2; Defendant's Response to Plaintiff's Motion for Remand, Dkt. No. 6 at 5 (“Defendant acknowledges that up until Plaintiff filed her Motion to Set for Jury Trial and in the Alternative Dispute Resolution Docket, Plaintiff exclusively pleaded state law claims.”). Nor is there any allegation that the parties are diverse, such that there could be federal diversity jurisdiction. The thrust of Miner Fleet's argument is instead that this action became removable only once Ybanez filed her motion for jury trial and ADR settings. Minor Fleet invokes §1446(b)(3) to support this contention, and § 1446(b)(3) provides, in pertinent part, that

if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant . . . of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

28 U.S.C. § 1446(b)(3). Thus, according to Minor Fleet, Ybanez's motion and its fleeting reference to the Pregnancy Discrimination Act and other related causes of action is a “motion” or “other paper” “from which [Minor Fleet] first . . . ascertained ...


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