United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge
MATTER is before the Court on Defendant's Motion to
Dismiss Plaintiff's First Through Fourth and Sixth Causes
of Action (Doc. No. 11) and Plaintiff's Motion to Remand
(Doc. No. 14). Both motions are fully briefed and ripe for
review. Having fully considered the arguments, the record,
and the applicable authority, the Court GRANTS
Plaintiff's Motion to Remand and DENIES AS MOOT
Defendant's Motion to Dismiss.
filed her original Complaint on December 20, 2016, in the
General Court of Justice, Superior Court Division,
Mecklenburg County, North Carolina, asserting that Defendant,
her employer, failed to pay her “Separation
Payments” and “Incentive Compensation” as
required by her employment agreement. (Doc. No. 1-2).
Plaintiff asserted four state law causes of action for: (1)
breach of contract; (2) violation of the North Carolina Wage
and Hour Act (NCWHA) based on Defendant's denial of
Separation Payments; (3) anticipatory breach of contract; and
(4) violation of the NCWHA based on Defendant's denial of
Incentive Compensation. (Id.) Plaintiff served
Defendant with a copy of the Summons and Complaint on
December 29, 2016.
filed its initial Answer to Plaintiff's Complaint on
March 1, 2017. (Doc. No. 1-7). Defendant filed an Amended
Answer on March 30, 2017, in which it asserted that
“each of [Plaintiff's] causes of action is
preempted by ERISA as a matter of law.” (Doc. No. 1-9,
p. 9). Thereafter, on April 13, 2017, Defendant filed a
Motion for Judgment on the Pleadings, arguing that each of
Plaintiff's claims were subject to dismissal because they
were preempted by ERISA. (Doc. No. 1-11).
then filed a Motion for Leave to Amend Complaint to allege
two alternative causes of action based on ERISA in the event
that the court found ERISA preempted her state law claims.
(Doc. No. 1-17). The court granted Plaintiff's motion in
a Consent Order, (Doc. No. 1-19), and Plaintiff filed and
served Defendant with a copy of her Amended Complaint on June
15, 2017, (Doc. No. 1-21). Defendant removed the case to this
Court on June 30, 2017, pursuant to 28 U.S.C. §§
1446, 1331, and 1441, (Doc. No. 1), and filed a motion to
dismiss arguing essentially that Plaintiff's state law
claims are preempted by ERISA. Plaintiff subsequently filed
the instant Motion to Remand, arguing that (1)
Defendant's removal was untimely and (2) ERISA does not
apply to her claims.
Court first considers whether Defendant's removal was
timely. Under 28 U.S.C. § 1446, a defendant has a narrow
window of time-thirty days-to remove a case to federal court.
Defendant contends the thirty-day clock started on June 15,
2017, when Plaintiff filed her Amended Complaint asserting
two alternative claims under ERISA. Plaintiff, on the other
hand, argues that the thirty-day clock started upon
Defendant's receipt of the original Complaint on December
29, 2016, or at the latest, on March 30, 2017, when Defendant
amended its answer to assert that Plaintiff's claims were
preempted by ERISA.
28 U.S.C. § 1446, which establishes the procedure for
removal of a civil action from a state court:
The notice of removal of a civil action or proceeding shall
be filed within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial
pleading . . . .
[I]f 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, through service or otherwise,
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)(1), (3). Thus, “only where an
initial pleading reveals a ground for removal will the
defendant be bound to file a notice of removal within 30
days.” Lovern v. Gen. Motors Corp., 121 F.3d
160, 162 (4th Cir. 1997). When “the case
‘stated by the initial pleading' [is] not
removable, . . . the defendant will have 30 days from the
revelation of grounds for removal in an amended pleading,
motion, order, or other paper to file its notice of
removal.” Id. Courts are not required
“to inquire into the subjective knowledge of the
defendant” but may “rely on the face of the
initial pleading and on the documents exchanged in the case
by the parties to determine when the defendant had notice of
the grounds for removal, requiring that those grounds be
apparent within the four corners of the initial pleading or
subsequent paper.” Id.; see also Andrews
v. Daughtry, 994 F.Supp.2d 728, 734 (M.D. N.C. 2014)
(concluding the defendant's notice of removal was
untimely when he represented to the court that he knew he had
grounds for removal earlier in the case).
assuming without deciding that ERISA preempts Plaintiff's
state law claims, the Court concludes that Defendant's
Amended Answer and Motion for Judgment on the Pleadings
provide objective evidence that Defendant knew this case was
removable as of March 30, 2017, when Defendant filed its
Amended Answer. In its Amended Answer and Motion for Judgment
on the Pleadings, Defendant asserted that Plaintiff's
state law claims were preempted by ERISA. Logically, then,
Defendant had ascertained that the case was removable at that
time. Arguably, the fact that Defendant asserted in its
Amended Answer that Plaintiff's claims are preempted by
ERISA demonstrates that Defendant knew the case was removable
as early as December 29, 2016, when it received service of
the original Complaint. Regardless of whether Defendant had
notice of the grounds for removal on December 29, 2016, or
March 30, 2017, its thirty-day deadline for removal expired
well before it filed its Notice of Removal on June 30, 2017.
nevertheless argues that the Court should deny
Plaintiff's Motion to Remand because this Court has
exclusive jurisdiction over Plaintiff's sixth cause of
action for breach of fiduciary duty under ERISA, and
Plaintiff only asserted that claim in her Amended Complaint.
Exclusive federal jurisdiction, however, is not a basis for
ignoring the procedural requirements of the removal statutes.
See, e.g., Malone v. Malone, No. CIV
06-1629-AS, 2007 WL 789449, at *5 (D. Or. Mar. 13, 2007)
(“Even if Plaintiff stated [an ERISA] claim clearly
falling under exclusive federal court jurisdiction, . . .
this case would still be remanded because the
removal was defective.”). Moreover, Plaintiff's
Amended Complaint did not change the nature of her original
claims for removal purposes. See Rolan v. New W. Health
Servs., No. CV 15-51-H-CCL, 2016 WL 829914, at *9 (D.