United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, UNITHD STATES DISTRICT JUDGE.
before the Court is Plaintiff's Motion to Remand and
Brief in Support (Dkt. # 7). Plaintiff Bruce Davis argues
that the notice of removal was filed more than 30 days after
defendant BOKF NA (BOKF) received a copy of the second
amended petition, and he argues that the notice of removal
fails to state that all defendants consented to the removal.
Dkt. # 7, at 2-3. Plaintiff also argues that his second
amended petition does not state a claim under federal law and
removal on the basis of federal question jurisdiction was
improper. Id. at 4. BOKF responds that plaintiff
failed to properly serve the second amended petition on BOKF,
and the 30 day time period to remove the case did not begin
to run when plaintiff's counsel e-mailed a courtesy copy
of the second amended petition to BOKF's counsel. Dkt. #
17, at 10-12. BOKF also argues that plaintiff's second
amended petition plainly states a claim arising under federal
law, and all defendants that have appeared have consented to
the removal of this case to federal court.
March 6, 2017, plaintiff filed a petition in Tulsa County
District Court alleging a breach of contract claim and a
Burk tort against BOK Financial Corporation,
American Fidelity Assurance Company (American Fidelity), and
Dearborn National Absence Management Services. Dkt. # 1-2.
Plaintiff alleges that he was employed as an information
security risk consultant and vice president of BOKF, and he
claims that his employment was wrongfully terminated after he
took leave for a serious medical condition. Id. at
2-3. Plaintiff served BOK Financial Corporation, American
Fidelity, and Dearborn National Absence Management Services
with a copy of the petition and a summons, and BOK Financial
Corporation and American Fidelity filed answers. Dkt. # 1-11,
at 5-6. Plaintiff dismissed BOK Financial Corporation as a
party and filed an amended petition (Dkt. # 1-6) substituting
BOKF as a defendant. Plaintiff also added FMLA Source, Inc.
as a party, but the amended petition did not add any new
claims. The parties appeared for a scheduling conference and
the state court granted plaintiff leave to file a second
amended petition. Dkt. # 1-11, at 9. Plaintiff filed a second
amended petition (Dkt. # 1-1) adding a claim under the Family
and Medical Leave Act, 29 U.S.C. § 2601 et seq.
October 20, 2017, plaintiff's counsel sent an e-mail to
counsel for BOKF, and a copy of the second amended petition
was attached to the e-mail. Dkt. # 17-3, at 1. BOKF asserts
that it had not consented to receive service of documents by
electronic means, and there is no evidence that the second
amended petition was mailed or delivered by other means to
BOKF's counsel. On November 21, 2017, BOKF filed a notice
of removal (Dkt. # 1) removing the case to this Court on the
basis of federal question jurisdiction, because plaintiff
alleged a claim arising under federal law in his second
amended petitition. Counsel for FMLA Source, Inc. and
American Fidelity have consented to the removal. Dearborn
National Absence Management Services did not file an answer
to the original petition or otherwise appear in this case,
and there is no evidence that Dearborn National Life
Insurance Company had been served with a summons and copy of
the second amended petition at the time of removal. Dkt. #
17-6, at 3-4.
to federal court is authorized for “any civil action
brought in a State court of which the district courts of the
United States have original jurisdiction.” 28 U.S.C.
§ 1441. To exercise this right, a defendant must file a
notice for removal “within thirty days after the
receipt by the defendant, through service or otherwise, of a
copy of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based . . .
[or] 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). It has
long been acknowledged that all defendants must join in
removal. See Chicago, R.I. & P. Ry. Co. v.
Martin, 178 U.S. 245, 248 (1900). “[G]iven the
limited scope of federal jurisdiction, there is a presumption
against removal, and courts must deny such jurisdiction if
not affirmatively apparent on the record.” Okla.
Farm Bureau Mut. Ins. Co. v. JSSJ Corp., 149 Fed.Appx.
775, 778 (10th Cir. 2005).
argues that the case should be remanded to state court,
because BOKF did not file a notice of removal within 30 days
of the date that it received his second amended petition.
Dkt. # 7, at 2. Plaintiff also argues that all defendants did
not consent to the removal, and he claims that the Court
lacks subject matter jurisdiction over the case. Id.
at 3-5. BOKF responds that plaintiff failed to properly serve
the second amended petition on BOKF and the 30 day time
period for removal did not begin to run when BOKF's
counsel received an e-mail from plaintiff's counsel on
October 20, 2017. BOKF also argues that the Court has subject
matter jurisdiction over the case, and all defendants that
have been served have consented to the removal.
argues that the case was improperly removed to this Court,
because the Court lacks subject matter jurisdiction over this
case. In his motion to remand, plaintiff argues that the
second amended petition does not contain a claim under the
FMLA, and his state law employment discrimination claims do
not raise a substantial issue of federal law. Dkt. # 7, at 4.
In his reply, plaintiff plainly states that he has alleged an
FMLA claim in his second amended petition, but he argues that
the state court has concurrent jurisdiction over FMLA claims
and removal of the case was improper. Dkt. # 29, at 3.
Defendant responds that plaintiff has alleged a claim arising
under federal law and removal of the case was proper. Dkt. #
17, at 3.
has advanced contradictory and equally meritless arguments in
attempt to show that the Court lacks subject matter
jurisdiction over the case. The Court has reviewed the second
amended petition and it clearly alleges a claim under the
FMLA. Therefore, plaintiff's argument that the Court
lacks subject matter jurisdiction under Grable & Sons
Metal Products, Inc. v. Darue Eng'g & Mfg., 545
U.S. 308 (2005), is irrelevant,  because he has clearly
alleged a claim arising under federal law. Plaintiff also
argues that state and federal courts have concurrent
jurisdiction over FMLA claims, and his FMLA claim was
properly filed in state court. Dkt. # 29, at 3. A defendant
may remove a case from state court if the case falls within
the original jurisdiction of the federal courts, and an FMLA
claim arises under federal law and may be heard in federal
court under 28 U.S.C. § 1331. Craycroft v. Dakkota
Integrated Systems, LLC, 2016 WL 6780351 (W.D. Ky. Feb.
8, 2016). Even though FMLA claims can be filed in state
court, this does not prevent a defendant from removing a case
asserting an FMLA claim to federal court. Plaintiff has not
shown that the case should be dismissed for lack of subject
asserts that his attorney e-mailed a copy of the second
amended petition to BOKF's counsel on October 20, 2017
and this e-mail triggered BOKF's 30 day period to file a
notice of removal. Dkt. # 7, at 2. He claims that BOKF was
required to file a notice of removal no later than November
20, 2017, and he argues that the notice of removal filed on
November 21, 2017 was untimely. BOKF responds that the 30 day
period to file a notice of removal was not triggered when
plaintiff's counsel sent an e-mail to BOKF's ...