Brown v. K-Mac Enters.

• Decision Date: 19 September 2012
• Docket Number: Case No. 12–CV–55–TCK–FHM.
• Parties: Evelyn BROWN, Plaintiff, v. K–MAC ENTERPRISES, Taco Bell of America, LLC, Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

897 F.Supp.2d 1098

Evelyn BROWN, Plaintiff,

v.K–MAC ENTERPRISES, Taco Bell of America, LLC, Defendants.

Case No. 12–CV–55–TCK–FHM.

United States District Court, N.D. Oklahoma.

Sept. 19, 2012.

Daniel E. Smolen, David Arthur Warta, Donald Eugene Smolen, II, Smolen Smolen & Roytman PLLC, Tulsa, OK, for Plaintiff.

Stephanie Terry Gentry, Steven Anthony Broussard, Hall Estill Hardwick Gable Golden & Nelson, Tulsa, OK, for Defendants.

OPINION AND ORDER

TERENCE C. KERN, District Judge.

Before the Court are Plaintiff's Motion to Remand (Doc. 12) and Defendants' Motion for Reconsideration and Motion to Dismiss (Doc. 11).

I. Background

On July 6, 2011, Plaintiff filed a Petition in the District Court for Tulsa County against Defendants K–MAC Enterprises, Inc. (“K–MAC”) and Taco Bell of America, Inc. (“Taco Bell, Inc.”). Plaintiff failed to issue a summons or file a waiver within 90 days of filing suit. On October 24, 2011, the court entered an order dismissing the case pursuant to Rule 9(a) of the Oklahoma Supreme Court Rules for the District Courts (“Rule 9(a) Order”), which permits a court to dismiss an action for failure to issue summons within 90 days after filing of the petition. See Okla. Stat. tit. 12, Ch. 2, App., Rule 9. On January 13, 2012, Plaintiff filed a motion to vacate the dismissal order (“Motion to Vacate”) in state court, arguing that “at the time of filing, Plaintiff was unsure of the proper defendant in the action due to the complexities of the relationship between K–MAC Enterprises and Taco Bell of America, Incorporated.” (Ex. F to Am. Not. of Removal.) Plaintiff also argued:

This Court dismissed Plaintiff's Petition without prejudice on October 24, 2011 for failure to issue a summons, pursuant to its discretionary power under Rule 9(a) of the Rules for District Courts of Oklahoma. Plaintiff's claims under the ADA, Title VII and ADEA do not allow for Plaintiff to simply re-file her claims, as said claims must be brought within ninety (90) days of the EEOC's issuance of a Right to Sue letter.¹ Plaintiff's original Petition was filed within ninety (90) days from the EEOC's Right to Sue letter. It appears that this Court's intention was to dismiss Plaintiff's Petition without prejudice. However, the practical effect of the dismissal is with prejudice as it relates to Plaintiff's Title VII, ADA and ADEA claims, as those claims may not be re-filed more than 90 days after receipt of the EEOC's Right to Sue letter. Plaintiff's counsel now seeks to have the dismissal vacated. Dismissal of the present matter will cause tremendous hardship to the Plaintiff, as Plaintiff will be precluded from re-filing her Title VII, ADA and ADEA claims.

( Id. (footnote added).) As legal authority for the Motion to Vacate, Plaintiff cited Okla. Stat. tit. 12, § 1031, which sets forth enumerated grounds for vacating orders, decrees, and judgments. Plaintiff did not specify which ground upon which she relied but vaguely argued that “in certain circumstances it is appropriate for the courts to vacate certain orders.” ( Id.) The state court granted Plaintiff's Motion to Vacate (“Vacation Order”) on the date it was filed “for good cause shown,” thereby permitting Plaintiff to file an Amended Petition and avoid the running of certain limitation periods. (Ex. G to Am. Not. of Removal.)

On January 17, 2012, Plaintiff filed an Amended Petition against K–MAC and Taco Bell, LLC (“Taco Bell, LLC”) alleging the following causes of action: (1) disability discrimination, in violation of the Americans with Disabilities Act (“ADA claim”); (2) race and gender discrimination in violation of Title VII (“Title VII claim”); (3) age discrimination in violation of the Age Discrimination in Employment Act (“ADEA claim”); (4) termination in violation of the public policy of Oklahoma (“ Burk claim”), (5) denial and interference with the right to exercise Family and Medical Leave Act benefits (“FMLA claim”); (6) retaliation for filing a workers' compensation claim, in violation of title 85, section 341 of the Oklahoma Statutes (“workers' compensation retaliation claim”); and (7) intentional infliction of emotional distress (“IIED claim”). On February 9, 2012, Defendants removed the action, asserting that this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, based upon the claims arising under federal law.

Plaintiff filed a motion to remand all claims based on the presence of the statutorily non-removable workers' compensation retaliation claim, see28 U.S.C. § 1445(c), and this Court's decision in Pulley v. Bartlett–Collins Co., 2006 WL 3386909, at *3 (N.D.Okla. Nov. 21, 2006) (concluding that all claims joined with non-removable workers' compensation retaliation claim must be remanded). In response to the motion to remand, Defendant argues that (1) Pulley has been overruled by the Federal Courts Jurisdiction and Venue Clarification Act of 2011 (“FCJVCA”), Pub. L. No. 112–63, § 203(b), 125 Stat. 785, which made relevant changes to 28 U.S.C. § 1441(c) and took effect January 6, 2012; and (2) the revised version of 28 U.S.C. § 1441(c) applies because the Court should consider this action commenced as of January 17, 2012 (date of filing Amended Petition) rather than July 6, 2011 (date of filing original Petition).

II. Motion to Remand (Doc. 11)

This Court's decision in Pulley has been overruled by statute. See Bivins v. Glanz, No. 12–CV–103, 2012 WL 3136115, at *2 (N.D.Okla. Aug. 1, 2012). As this Court recently explained:

Under the amended 28 U.S.C. § 1441(c)(2), the Court has no discretion to remand federal claims that are joined with a statutorily nonremovable claim, such as a workers' compensation retaliation claim. Instead, the Court must sever and remand the nonremovable claim and retain all other removed claims that are within the Court's original or supplemental jurisdiction.

Id. at *2. Thus, if the revised version of 28 U.S.C. § 1441(c) applies in this case, the Court must sever the workers' compensation retaliation claim and retain all other claims. If the revised version of the statute does not apply, the Court would presumably be free to follow its original reasoning in Pulley and remand all claims.

The Court need not decide whether the case was “commenced” before or after the FCJVCA's effective date. Based on the reasoning and policy considerations explained in the legislative history of the FCJVCA, the Court has reconsidered its decision in Pulley and would now decide the question in a manner consistent with the federal statute. Specifically, this Court reconsiders its conclusion that “the policy considerations of judicial economy and Plaintiff's choice of forum for the entire case outweigh the right to remove the federal claim under these specific circumstances.” See Pulley, 2006 WL 3386909, at *3. The Court now concludes, consistent with the legislative history of the FCJVCA, that “preserving the defendant's right to remove claims arising under Federal law” outweighs other competing considerations. SeeH.R.Rep. No. 112–10 at 12 (2011), 2011 U.S.C.C.A.N. 576, 580. Therefore, the Court will (1) sever and remand the workers' compensation retaliation claim; (2) retain the Title VII, ADA claim, ADEA claim, and FMLA claim because they are within the Court's original jurisdiction; and (3) retain the Burk claim and IIED claim because they form part of the same case or controversy as the federal claims and are within the Court's supplemental jurisdiction. See Bivins, 2012 WL 3136115, at *2 (applying amended version of 28 U.S.C. § 1441(c) and reaching same result in case involving similar claims).²

III. Motion to Reconsider and Dismiss (Doc. 12)

In the currently pending motion, Defendants move the Court to (1) reconsider and vacate the Vacation Order, (2) deem the action commenced as of the date of filing the Amended Petition, and (3) dismiss the Title VII, ADA, and ADEA claims as untimely filed. Alternatively, if the Court determines that the action was commenced on the date of filing the original Petition, K–MAC moves to dismiss all claims against it based on Plaintiff's failure to effect timely service. Taco Bell, LLC moves to dismiss all claims against it for failure to state a claim because Plaintiff was never employed by Taco Bell, LLC.³

For reasons explained below, the Court (1) denies Defendants' motion to reconsider and vacate the Vacation Order; (2) deems the action commenced as of the filing date of the original Petition; and (3) finds that all claims were timely asserted. However, the Court nonetheless finds dismissal proper because Plaintiff failed to effect timely service upon K–MAC prior to removal and because Plaintiff has failed to state a claim for relief against Taco Bell, LLC.

A. Motion to Reconsider Vacation Order

After removal of an action to federal district court, “[a]ll injunctions, orders, and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved or modified by the district court.” 28 U.S.C. § 1450. “A prior state court order in essence is federalized when the action is removed to federal court, although the order remains subject to reconsideration just as it had been prior to removal.” Laney ex rel. Laney v. Schneider Nat'l Carriers, Inc., 259 F.R.D. 562, 564 (N.D.Okla.2009) (internal citations omitted). “Thus, a federal court is free to reconsider a state court order and to treat the order as it would any interlocutory order it might itself have entered.” Id. “Further, the state court order is not entitled to deference in federal court, and because federal procedure governs the enforcement of a prior state court order removed to federal court, the federal court should ensure that the order is consistent with the federal rules....” See id. (internal citation omitted). Federal law governs the course of proceedings following removal. Wallace v. Microsoft Corp., 596 F.3d 703, 706 (10th Cir.2010) (“After removal, federal rather than...