Leslie v. BancTec Service Corp., 95 Civ. 9382 (DAB).

• Decision Date: 10 June 1996
• Docket Number: No. 95 Civ. 9382 (DAB).,95 Civ. 9382 (DAB).
• Citation: 928 F. Supp. 341
• Parties: Colin LESLIE, Plaintiff, v. BANCTEC SERVICE CORP., Defendant.
• Court: U.S. District Court — Southern District of New York

928 F. Supp. 341

Colin LESLIE, Plaintiff, v. BANCTEC SERVICE CORP., Defendant.

No. 95 Civ. 9382 (DAB).

United States District Court, S.D. New York.

June 10, 1996.

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Gareth W. Stewart, New York City (Gareth W. Stewart, of counsel), for Plaintiff.

McFall Law Firm, Dallas, Texas (John E. McFall, of counsel), Jackson, Lewis, Schnitzler & Krupman, New York City (Elise M. Bloom, Jennifer B. Courtian, of counsel), for Defendant.

MEMORANDUM & ORDER

BATTS, District Judge.

Plaintiff brings this cause of action against the Defendant for employment discrimination pursuant to the New York State Human Rights Law, Executive Law §§ 290 et seq. Defendant removed the action to federal court. Plaintiff now moves to remand and Defendant moves for summary judgment.

I. BACKGROUND

A. Factual Background

Plaintiff was employed by Defendant as a Senior Customer Engineer ("SCE"). (Def.'s 3(g) Statement ¶ 1; Pl.'s Dep. at 54.) On January 1, 1992, Defendant implemented a Drug and Alcohol Abuse Policy ("Drug Policy") to maintain a program for an environment free from the influence of illegal drugs, controlled substances and alcohol abuse. (Def.'s 3(g) Statement ¶¶ 2-3; MacFarlane Aff. Attachment B.) The Drug Policy applied to all applicants for employment, current employees, and employees of contractors and subcontractors, and copies of the Drug Policy were given to all such individuals. (Def.'s 3(g) Statement ¶¶ 4-5.) Plaintiff read the Drug Policy and understood it. (Def.'s 3(g) Statement ¶ 6; Pl.'s Dep. at 12-13.) The Drug Policy provided that all employees were subject to unannounced preventive testing by an independent contractor, ASB Meditest ("ASB"), and that any employee with a positive drug test result was subject to immediate suspension leading to termination. (Def.'s 3(g) Statement ¶¶ 7-8, 11.)¹

In May 1994, twenty-six of the Defendant's employees in the United States were randomly selected for unannounced preventive drug screening.² (Def.'s 3(g) Statement ¶ 20.) Plaintiff was one of the employees randomly selected. (Def.'s 3(g) Statement ¶ 26.) Twenty-two of the employees selected were Caucasian, one was African-American, one was Hispanic and two were Asian. (Def.'s 3(g) Statement ¶ 27.) Plaintiff was given a drug screening packet and directed to be tested at the ASB center; once there he completed the necessary paperwork and provided ASB personnel with his specimen.³ (Def.'s 3(g) Statement ¶¶ 29-33; Pl.'s Dep. at 9-20.) The first test was positive for marijuana. (Def.'s 3(g) Statement ¶ 37; MacFarlane Aff. Attachment F.) The second test confirmed the first one. (Def.'s 3(g) Statement ¶¶ 38-39; MacFarlane Aff. Attachment F.) As a result, Plaintiff's manager informed him he was suspended and subsequently Plaintiff was terminated on May 23, 1994. (Def.'s 3(g) Statement ¶¶ 41-42.)

None of the other twenty-five samples were positive. (Def.'s 3(g) Statement ¶ 43.) Since the Drug Policy was adopted, nine individuals have been discharged for violation of the Drug Policy and six of those as a result of a positive drug test. (Def.'s 3(g) Statement ¶ 47.) Of the six terminations four were Caucasian and two were African-American. (Def.'s 3(g) Statement ¶ 48.)

Plaintiff failed to respond to the Defendant's 3(g) Statement. Local Rule 3(g) states, "the papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party." The Court's individual Rules also set forth detailed instructions for 3(g) Statements and Plaintiff was specifically directed to the Rules in a letter from Chambers dated January 10, 1996. Plaintiff has failed to comply with these rules. Therefore, pursuant to Local Rule 3(g) all Defendant's material facts not in dispute are deemed admitted.

B. Procedural Background

This Court has had a rather involved history with these parties, not reflected by the 1995 filing date of the present federal action.

Plaintiff first filed its Complaint in the Supreme Court for the County of New York on August 1, 1994. In that Complaint Plaintiff alleged state causes of action as well as an action pursuant to 42 U.S.C. § 1981. Defendant timely⁴ filed a notice of removal, based on federal question jurisdiction, and the action was assigned to this Court. No. 94 Civ. 6498 (DAB). On September 13, 1994, Plaintiff filed an Amended Complaint, no longer claiming relief pursuant to 42 U.S.C. § 1981. On October 5, 1994, Defendant filed an Amended Notice of Removal, based on diversity jurisdiction, and served an Amended Answer. Plaintiff took no action regarding these notices of removal. On February 3, 1995, the Court met with the parties and issued a Scheduling Order. The parties proceeded in discovery and on August 24, 1995, a motion to remand was filed. On September 6, 1995, the Court endorsed a stipulation between the parties, which was agreed to by telephone conference with Chambers and subsequently put into writing. The Stipulation stated that Plaintiff was not proceeding against the Defendant pursuant to 42 U.S.C. § 1981 or any other federal claim, and that his damages would not exceed $50,000.00.⁵ The case was then remanded to state court.

On November 3, 1995, after Defendant believed Plaintiff did not agree to limit his damages to $50,000.00, it filed a third Notice of Removal. Before the Court can rule on the Defendant's Motion for Summary Judgment, Defendant must show that the Court has subject matter jurisdiction over the Complaint. The Court will turn its attention first to the Removal Notice and subject matter jurisdiction.

II. DISCUSSION

A. Motion to Remand

1. Notice of Removal; timeliness

Plaintiff argues that the Defendant's Removal Notice was untimely filed because it was filed more than one year after the filing of the Complaint, and hence barred by 28 U.S.C. § 1446(b), which states "a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action." Plaintiff argues that the third notice of removal filed in November of 1995, occurred more than one year after the commencement of this action in August 1994.

On its face Plaintiff argument is correct, however, the facts presented here are unusual. The Court finds the statute was meant to apply to those litigants, who for the first time, file a notice of removal after one year. Here, Defendant filed three notices of removal. Only upon agreement, that the damages would not exceed the jurisdictional amount, did the Defendant agree to remand. Hence, it would be unfair to penalize the Defendant, who timely filed three removal notices⁶ by denying its statutory right to removal based on untimeliness. Defendant would never have had to file its third notice, outside the one-year scope of 28 U.S.C. § 1446, had it not been for the Plaintiff's tactics.

The Court finds the Defendant's notice of removal was timely filed.

2. Subject Matter Jurisdiction

However, although the Court finds that the removal notice was timely filed, the Defendant still has the burden of showing the grounds upon which removal is based and which confer subject matter jurisdiction. Defendant alleges that this Court has jurisdiction based on diversity.⁷ Plaintiff is a citizen of New York. Defendant is incorporated in Delaware and maintains its principal place of business in Texas. Diversity of citizenship clearly exists, however, the issue in this case is whether the jurisdictional amount of $50,000.00 is met.

The party seeking to assert federal jurisdiction has the burden of proving that diversity exists. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 183, 56 S.Ct. 780, 782, 80 L.Ed. 1135 (1936); United Food & Commercial Workers Union, Local 919 v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir.1994); Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269, 273 (2d Cir.1994); Chappelle v. Beacon Communications Corp., 863 F.Supp. 179, 181 (S.D.N.Y.1994); Mopaz Diamonds, Inc. v. Institute of London Underwriters, 822 F.Supp. 1053, 1055 (S.D.N.Y.1993). Removal statutes are to be "strictly construed against removal and all doubts should be resolved in favor of remand." Boyer v. Snap-On Tools Corp., 913 F.2d 108 (3d Cir.1990) (quoting Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006, 1010 (3d Cir.1987), cert. denied, 484 U.S. 1021, 108 S.Ct. 739, 98 L.Ed.2d 756 (1988)), cert. denied, 498 U.S. 1085, 111 S.Ct. 959, 112 L.Ed.2d 1046 (1991); Irving Trust Co. v. Century Export & Import, S.A., 464 F.Supp. 1232, 1236 (S.D.N.Y. 1979); see Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941) ("Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the (removal) statute has defined.").

The Supreme Court set the standard used to review the complaint to determine whether subject matter jurisdiction exists:

The rule governing dismissal for want of jurisdiction is that ... the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really less than the jurisdictional amount to justify dismissal. Saint Paul Mercury Indem. Co. v. Red Cab. Co., 303 U.S. 283, 288-89 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938).

See A.F.A. Tours, Inc. v. Whitchurch, 937 F.2d 82, 87 (2d Cir.1991); Williams v. NYS Livery Serv., Inc., No. 95 Civ. 0401, 1995 WL 491485, at *2 (S.D.N.Y. Aug. 17, 1995); Pirenne Python Schifferli Peter & Associes v. Wyndham Partners, L.P., No. 92 Civ. 9252,

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