United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Plaintiff Timothy Fozard's
Motion to Remand (Doc. No. 5). For the reasons stated below,
Plaintiff's motion is DENIED.
filed this action on November 5, 2018 in the Mecklenburg
County General Court of Justice asserting fourteen causes of
action: (1) assault; (2) battery; (3) gross negligence; (4)
negligent supervision; (5) negligent infliction of emotional
distress; (6) intentional infliction of emotional distress;
(7) slander per quod; (8) false imprisonment; (9) 42
U.S.C. § 1983; (10) conspiracy to violate constitutional
rights - 42 U.S.C. § 1985; (11) Title VII Claims for
Relief - 42 U.S.C. § 1981; (12) unfair and deceptive
trade practices; (13) conversion; and (14) punitive damages.
(Doc. No. 1-2). With the consent of all Defendants, Defendant
Sytina Davis filed a Notice of Removal on April 10, 2019 on
the basis that Plaintiff stated claims for relief arising out
of federal law. (Doc. No. 1). Plaintiff now moves for remand.
(Doc. No. 5). Defendants have responded. (Doc. No. 7).
Plaintiff has not replied to the motion and the time for
filing a reply has expired. This motion is now ripe for
STANDARD OF REVIEW
subject matter jurisdiction of federal courts is limited[, ]
and the federal courts may exercise only that jurisdiction
which Congress has prescribed.” Chris v.
Tenet, 221 F.3d 648, 655 (4th Cir. 2000) (citing
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994)). Title 28, United States Code, Section
1441(a) (the “removal statute”), provides:
Except as otherwise expressly provided by Act of Congress,
any civil action brought in a State court of which the
district courts of the United States have original
jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending.
28 U.S.C. § 1441(a). As such, the removal statute
requires that this federal district court have
“original jurisdiction” over the matter.
Id. A federal court must “construe removal
jurisdiction strictly because of the ‘significant
federalism concerns' implicated.” Dixon v.
Coburg Dairy, 369 F.3d 811, 816 (4th Cir. 2004) (citing
Mulcahey v. Columbia Organic Chems. Co., 29 F.3d
148, 151 (4th Cir. 1994)). Thus, “[i]f federal
jurisdiction is doubtful, remand to state court is
subject matter jurisdiction to exist under 28 U.S.C. §
1331, a well-pleaded complaint must reveal a federal
question. See Caterpillar, Inc. v. Williams, 482
U.S. 286, 392 (1987); see also Lontz v.
Tharp, 413 F.3d 435, 439-40 (4th Cir. 2005). Under the
“well-pleaded complaint rule, ” federal courts
have jurisdiction to hear “only those cases in which a
well-pleaded complaint establishes either that federal law
creates the cause of action or that the plaintiff's right
to relief necessarily depends on resolution of a substantial
question of federal law.” Franchise Tax Bd. of Cal.
v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28
to 28 U.S.C. § 1367(a), “the district courts shall
have supplemental jurisdiction over all other claims that are
so related to claims in the action within such original
jurisdiction that they form part of the same case or
controversy under Article III of the United States
Constitution.” Nonetheless, 28 U.S.C. § 1367(c)
permits district courts to decline supplemental jurisdiction
over a claim under subsection (a) in certain circumstances.
28 U.S.C. §§ 1367(c)(1)-(4). If the district court
has only supplemental jurisdiction over Plaintiff's
claims, the district court has discretion to decide whether
to remand the case to state court, or permit the case to stay
in federal court. See Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 357 (1988).
courts have subject matter jurisdiction over cases
“arising under” the Constitution, statutes, or
treatises of the federal government. 28 U.S.C. § 1331.
To determine whether a cause of action “arises
under” federal law, the Court shall look to the
plaintiff's “well-pleaded complaint.” See
Franchise Tax Bd., 463 U.S. 1, 9-10. “[I]t must be
clear from the face of the complaint either that [(]1)
plaintiff's cause of action rises under federal law; or
[(]2) a federal law is an element, and an essential one of
plaintiff's cause of action.” ECR Software
Corp. v. Zaldivar, No. 5:12-cv-0039-RLV-DCK, 2013 WL
1742676, at *3 (W.D. N.C. Apr. 23, 2013). A party seeking
removal to federal court has the burden of establishing
federal subject matter jurisdiction exists. See
Kokkonen, 511 U.S. at 377 (citing McNutt v. Gen.
Motors Acceptance Corp. of Indiana, 298 U.S. 178, 183
(1936)). “The Court examines the subject matter
jurisdiction that existed at the time the notice of removal
was filed.” ECR Software, 2013 WL 1742676, at
*4 (internal quotations and citations omitted).
the Court finds that it has subject matter jurisdiction
pursuant to § 1331 because Plaintiff's Complaint
expressly alleges three federal causes of action,
see (Doc. No. 1-2, pp. 16- 23), within the literal
parameters of 28 U.S.C. § 1331, see generally
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)
(“The presence or absence of federal-question
jurisdiction is governed by the ‘well-pleaded complaint
rule,' which provides that federal question jurisdiction
exists only when a federal question is presented on the face
of the plaintiff's properly pleaded complaint. The rule
makes the plaintiff the master of the claim . . . .”);
Franchise Tax Bd., 463 U.S. at 8-9 (“The most
familiar definition of the statutory ‘arising
under' limitation is Justice Holmes' statement,
‘A suit arises under the law that creates the cause of
action.'”). This is not a case about the exception
to the rule-the “slim category” of cases,
Gunn v. Minton, 568 U.S. 251, 258 (2013), in which
state law supplies the cause of action but federal courts
have jurisdiction under § 1331 because “the
plaintiff's right to relief depends on resolution of a
substantial question of federal law, ” Franchise
Tax Bd., 463 U.S. at 28. Rather, this case falls under
the “vast majority of cases” where federal law
creates the cause of action. Merrell Dow Pharmaceuticals
Inc. v. Thompson, 478 U.S. 804, 808 (1986).
the Court finds that it possesses jurisdiction pursuant to 28
U.S.C. § 1331, see Simmons v. Wheeling Island
Gaming, Inc., 2012 WL 1752686, at * 1 (N.D.W.Va. May 16,
2012) (holding that because the plain language on the face of
plaintiff's complaint presents a federal question, the
court has federal question subject matter jurisdiction);
see generally Mulcahey, 29 F.3d at 151 (“In
cases where federal law creates the cause of action, the
courts of the United States unquestionably have federal
subject matter jurisdiction.”), and removal was proper,
see generally Woods v. Nissan North America, 2005 WL
1000089, at *2 (D. Md. Apr. 29, 2005) (“If federal law
creates a plaintiff's claim, then removal is
proper.”). The Court has supplemental jurisdiction over