Mountain Projects Inc. v. Boyd
| Decision Date | 23 September 2022 |
| Docket Number | 1:22 CV 100 MOC WCM |
| Parties | MOUNTAIN PROJECTS, INC. Plaintiff, v. HEATHER BOYD, Defendant. |
| Court | U.S. District Court — Western District of North Carolina |
MOUNTAIN PROJECTS, INC. Plaintiff,
v.
HEATHER BOYD, Defendant.
No. 1:22 CV 100 MOC WCM
United States District Court, W.D. North Carolina, Asheville Division
September 23, 2022
MEMORANDUM AND RECOMMENDATION
W. Carleton Metcalf United States Magistrate Judge.
This matter is before the court on Plaintiff's Motion to Remand (Doc. 9), which has been referred to the undersigned pursuant to 28 U.S.C. §636 for the entry of a recommendation.
I. Procedural Background
On April 21, 2022, Plaintiff Mountain Projects, Inc. (“Plaintiff”) filed suit against Defendant Heather Boyd (“Defendant”) in the Superior Court of Haywood County, North Carolina. Doc. 1-2 at 4-25.
At the time the Complaint was filed, Plaintiff also propounded its First Set of Interrogatories and Request for Production of Documents to Defendant. Id. at 26-41.
In addition, Plaintiff issued subpoenas to various third parties (the “Subpoenas”). See Doc. 1-2 at 42-28; 55-58; 65-70; 71-77; 84-88; 89-94; 101-105; 112-116; 132-137.
Thereafter, Defendant filed motions seeking to quash some of the Subpoenas (“Motions to Quash”). See Doc. 1-2 at 51-54; 61-64; 80-83; 108-111; 119-121. Similarly, certain of the third parties objected to the Subpoenas, see Doc. 1-2 at 127-131 (objection by Telamon Corporation), or filed a Motion to Quash. See Doc. 1-2 at 97-100 (Motion to Quash filed by Tara Abshire).
Plaintiff contends that the Motions to Quash were scheduled to be heard by the state court on the morning of Monday, May 23, 2022; a notice of hearing and calendar request to that effect, with certificates of service showing that they were served on May 13, 2022, appears in the record. Id. at 146-149. These documents do not bear a file-stamp from the state court, however.
On Friday, May 20, 2022, Defendant removed the case to this court. Doc. 1.
On May 27, 2022, Plaintiff filed the Motion to Remand and a supporting memorandum. Docs. 9, 10. Defendant responded in opposition and Plaintiff advised that it did not intend to file a reply. Docs. 12, 13.
Defendant subsequently filed two amendments to her response, both on June 30, 2022. Docs. 16, 17. Sur-replies are not allowed under the Local Rules of this district without leave of court. LCvR 7.1(e). However, considering Defendant's pro se status and as Plaintiff has not moved to strike Defendant's
additional submissions, the undersigned has considered all of Defendant's filings related to the Motion to Remand.[1]
II. Plaintiff's Allegations and Claims
In its Complaint, Plaintiff alleges that Defendant was hired as Plaintiff's Executive Director on or about October 20, 2020. Doc. 1-2 at 5.
Approximately one year later, on October 19, 2021, Defendant attended a meeting with her direct supervisor, Patsy Davis, to discuss Defendant's declining job performance. Doc. 1-2 at 7. Plaintiff alleges that Defendant “was belligerent, unprofessional, insubordinate, and rude” during that meeting, and that she was placed on paid administrative leave shortly thereafter. Id.
On Saturday, October 23, 2021, Defendant sent an email to Plaintiff requesting leave pursuant to the Family and Medical Leave Act (“FMLA”). Id. Plaintiff asked for additional information regarding Defendant's request, but that information was not provided. Id. at 8. Nevertheless, Plaintiff granted Defendant leave pursuant to the FMLA from October 25, 2021 through January 27, 2022. Id.
Plaintiff alleges that during the time Defendant was on FMLA leave, Plaintiff became aware that Defendant may be engaging in outside employment and other activities that were inconsistent with her employment
by Plaintiff and the stated basis for her FMLA leave request. Consequently, Plaintiff sought additional information from Defendant regarding these activities. Id. at 8; 11-12.[2]
Plaintiff further alleges that while on FMLA leave, Defendant submitted fraudulent applications to the “HOPE Program,” thereby subjecting Plaintiff to “potential legal liability” and engaged in business activities with other entities. Id. at 13-14.
Additionally, Plaintiff alleges that Defendant made false and defamatory statements regarding Plaintiff to third-parties, including an entity that had awarded a grant to Plaintiff, and that because of those statements, the entity canceled “the contract” with Plaintiff. Id. at 14-17.
Finally, Plaintiff alleges that Defendant made false and defamatory statements regarding Plaintiff to the North Carolina State Bureau of Investigation. Id. at 17-18.
Defendant resigned from her employment with Plaintiff in February of 2022. Id. at 10.
Plaintiff's Complaint asserts claims under state law for fraud; defamation, slander, and libel; malicious and tortious interference with contract; malicious prosecution; breach of contract; and punitive damages.
III. Discussion
A. The Parties' Positions on the Motion to Remand
In her Notice of Removal, Defendant asserted that this court has federal subject matter jurisdiction because “Defendant is protected through 5 U.S.C. § 2302(b)(8).” Doc. 1 at 2. She further stated:
Under the [Whistleblower Protection Act], certain federal employees may not take or fail to take, or threaten to take or fail to take, any personnel action against an employee or applicant for employment because of the employee or applicant's protected whistleblowing. FLSA as defined by Regulations, 29 C.F.R. Part 541, as applied to executive employees, 29 U.S. Code Chapter 28 - Family and Medical Leave Act.
Plaintiff alleges claims of Whistle Blowing, Violation of FMLA and Wages, which are Federal causes of action over which this Court has original federal question jurisdiction. 28 U.S.C. §1331.
Doc. 1 at 2.
Plaintiff argues that this matter should be remanded to state court because the Complaint “includes no Federal question” and because “there is no diversity of citizenship.” Doc. 10 at 2.[3] Plaintiff further contends that Defendant removed the case to avoid and delay the state court hearing, scheduled for May 23, 2022, on the Motions to Quash the Subpoenas. Id.
Plaintiff also contends that Defendant should be taxed with the costs of the removal and remand, including attorneys' fees. Doc. 10 at 7.
In response, Defendant argues that she properly removed the case because “not only does the complaint discuss federal question, it was filed in retaliation to federally protected rights of the defendant.” Doc. 12 at 1; see also Doc. 17 at 3 (“Plaintiff references FMLA, FLSA, Whistle Blower rights etc., all of which are federally protected rights”); Doc. 17 at 12. Defendant additionally requests that the court tax Plaintiff with costs, impose sanctions, or dismiss the case “for ethical violations and lack of competence for council.” Doc. 12 at 1.
B. Federal Subject Matter Jurisdiction
Pursuant to 28 U.S.C. §1447(c), “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” The burden of establishing jurisdiction lies with the removing party. Mulcahey v. Columbia Organic Chemicals Co., 29 F.3d 148, 151 (4th Cir. 1994) (citing Wilson v....
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