Decker v. BNSF Railway

• Court: District Court, D. Arizona
• Decided: March 5, 2024
• Docket: 3:23-cv-08550
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Michael A. Decker, No. CV-23-08550-PCT-DGC

10 Plaintiff, ORDER

11 v.

12 BNSF Railway Company,

13 Defendant. 14 15 16 Plaintiff Michael Decker commenced this action by filing a complaint against 17 Defendant BNSF Railway Company in Winslow Justice Court. Defendant removed the 18 case to this Court and filed a motion to dismiss Plaintiff’s amended complaint. Doc. 13. 19 Plaintiff filed a response to the notice of removal (Doc. 8), but has not responded to the 20 motion to dismiss. For reasons stated below, the Court finds that removal was proper, the 21 amended complaint fails to state a claim for relief, and leave to amend is appropriate. 22 I. Background. 23 Plaintiff worked for Defendant as a conductor for more than fifteen years. See Doc. 24 1-3 at 3. His employment with Defendant was terminated on December 30, 2016 due to 25 alleged attendance issues. Id. at 2, 4. On July 18, 2018, he was reinstated pursuant to a 26 settlement agreement between Defendant and Smart United Transportation Union (“Smart 27 UTU”). Id. at 2, 4-7. 28 1 Plaintiff took a medical leave of absence on February 6, 2023 and filed disability 2 paperwork with the Railroad Retirement Board. Id. at 2. Defendant investigated the matter 3 and terminated Plaintiff’s employment on May 12, 2023 due to alleged violations of 4 Defendant’s attendance policy. Id. 5 On June 20, 2023, Plaintiff filed a pro se complaint against Defendant in the small 6 claims division of the Winslow Justice Court. Id. at 1-8 (Case No. CV-2023-000107). He 7 sought $2,000 in retirement benefits for the period between his alleged wrongful 8 termination on December 30, 2016 and his reinstatement on July 18, 2018. Id. at 2-3. The 9 case was transferred to the civil division of the Winslow Justice Court on July 11, 2023. 10 Id. at 37. On August 21, 2023, Plaintiff filed an amended complaint seeking $296,080 for 11 healthcare insurance and back pay. Id. at 63-64. Defendant removed the case to this Court 12 on September 8, 2023. Doc. 1. 13 II. Removal Was Proper. 14 Pursuant to the federal removal statutes, 28 U.S.C. §§ 1441 and 1446, Defendant 15 removed the case based on diversity jurisdiction under 28 U.S.C. § 1332. Federal courts 16 possess diversity jurisdiction “where the matter in controversy exceeds the sum or value of 17 $75,000, exclusive of interest and costs, and is between . . . citizens of different States[.]” 18 28 U.S.C. § 1332(a)(1). 19 Plaintiff asserts that (1) the notice of removal was not timely filed, (2) no copy of 20 the notice was provided to Plaintiff or the Justice Court, (3) diversity of citizenship does 21 not exist, and (4) the amount in controversy is less than $75,000. Doc. 8. Each point is 22 incorrect. See Doc. 10. 23 A. The Notice of Removal Was Timely Filed. 24 The notice of removal was timely filed within one year of the filing of the original 25 complaint and within thirty days of the filing of the amended complaint that sought 26 damages exceeding $75,000. See 28 U.S.C. § 1446(b)(3), (c)(1); Freestyle Mktg. LLC v. 27 Seba Int’l Corp., No. CV-15-01770-PHX-GMS, 2015 WL 13122935, at *1 (D. Ariz. Dec. 28 22, 2015) (“[A] thirty-day removal period is triggered if the initial pleading does not 1 indicate that the case is removable, and the defendant receives ‘a copy of an amended 2 pleading, motion, order or other paper’ from which removability may first be ascertained”) 3 (citations omitted). 4 B. Notice to Plaintiff and the Justice Court. 5 Section 1446 provides that after filing the notice of removal, the defendant “shall 6 give written notice thereof to all adverse parties and shall file a copy of the notice with the 7 clerk of [the] State court, which shall effect the removal and the State court shall proceed 8 no further unless and until the case is remanded.” 28 U.S.C. § 1446(d). 9 When Defendant filed the notice of removal with the Court, it served a copy on 10 Plaintiff via U.S. mail and email. Doc. 1 at 7. Plaintiff clearly received the notice given 11 his objection to removal. Doc. 8. 12 Defendant states in the notice of removal that a copy would be filed promptly with 13 the Clerk of the Winslow Justice Court pursuant to § 1446(d). Doc. 1 at 3, ¶ 12. Plaintiff 14 presents no evidence that the filing did not occur, and does not claim that any proceedings 15 in the Justice Court have occurred after removal to this Court. See Dwyer v. Trinity Fin. 16 Servs., LLC, No. C20-1236-JLR-MAT, 2020 WL 7647047, at *2 (W.D. Wash. Nov. 17, 17 2020) (noting that the purpose of § 1446(d) “is to notify the state court it does not have 18 jurisdiction to proceed further in the matter”). Nor has Plaintiff shown that any failure or 19 delay in notifying the Justice Court warrants remand. See Koerner v. Aetna U.S. 20 Healthcare, Inc., 92 F. App’x 394, 396 (9th Cir. 2003) (“Koerner asserts the district court 21 should have remanded the action because Aetna failed to timely file a copy of the notice of 22 removal with the state court clerk as 28 U.S.C. § 1446(d) required. This contention is 23 unavailing. Procedural requirements for removal, such as the timely filing of the notice of 24 removal, are ‘formal and modal,’ not jurisdictional.”) (citation omitted). 25 C. Diversity of Citizenship Exists. 26 For purposes of diversity jurisdiction, “an individual is ‘citizen’ of the state in which 27 he or she resides and intends to remain, and a corporation is a citizen of every state by 28 which it has been incorporated and of the state in which it has its principal place of 1 business.” Ouma v. Asher, No. 3:18-CV-00888-AC, 2019 WL 2529556, at *3 (D. Or. May 2 30, 2019) (citing 28 U.S.C. § 1332(c)). Complete diversity exists in this case because 3 Plaintiff is a citizen of Arizona and Defendant is a citizen of Delaware, its state of 4 incorporation, and Texas, the state where it has its principal place of business. See Doc. 1 5 at 4-5, ¶¶ 14-18. 6 Plaintiff presents a document from the Arizona Corporation Commission (“ACC”) 7 purportedly showing that Defendant is incorporated in Arizona. Doc. 8 at 4. But the 8 document actually shows that Defendant is a foreign corporation with the domicile state of 9 Delaware and its principal place of business in Texas. Id.; see Doc. 10 at 3; ACC, Entity 10 Information, https://ecorp.azcc.gov/BusinessSearch/BusinessInfo?entityNumber= 11 F07944082 (last visited Feb. 23, 2024). Plaintiff also presents ACC documents showing 12 information for BNSF Railway Consulting LLC and BNSF Logistics LLC, but neither 13 entity is a defendant in this case. Doc. 8 at 3, 5. And BNSF Logistics is a Delaware LLC 14 with its principal place of business in Texas. Id. at 5. 15 D. The Amount in Controversy Exceeds $75,000. 16 The operative amended complaint seeks $296,080 in damages. Doc. 1-3 at 63; see 17 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (explaining that an amended 18 complaint supersedes the original complaint). Plaintiff proposes a modification to the 19 amended complaint to reduce his request for damages below the threshold amount. Doc. 9. 20 But when the amount in controversy is satisfied at the time of removal, as in this case, “any 21 subsequent amendment to the complaint . . . below the jurisdictional threshold does not 22 oust the federal court of jurisdiction.” Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 23 417 (9th Cir. 2018) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 24 292-93 (1938)). 25 E. Conclusion. 26 Diversity jurisdiction exists and removal was proper. The Court therefore will not 27 remand the case to Winslow Justice Court. 28 / / / 1 III. Defendant’s Motion to Dismiss. 2 Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant moves to dismiss 3 the amended complaint for failure to state a claim for relief. Doc. 7. The Court will grant 4 the motion. 5 A. Rule 8’s Pleading Requirements and the Rule 12(b)(6) Standard. 6 A complaint must contain a “short and plain statement of the claim showing that the 7 [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While Rule 8 does not require 8 detailed factual allegations, “it demands more than an unadorned, the-defendant- 9 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To 10 survive a motion to dismiss under Rule 12(b)(6), the complaint “must contain sufficient 11 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 12 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible 13 when the plaintiff “pleads factual content that allows the court to draw the reasonable 14 inference that the defendant is liable for the misconduct alleged.” Id. 15 B. Plaintiff’s Amended Complaint. 16 Plaintiff appears to assert a breach of contract claim in his amended complaint. He 17 alleges that he is owed 25 months of healthcare insurance “from the original contractual 18 agreement formed by BNSF and the Smart UTU on [his] behalf.” Doc. 1-3 at 63. He 19 further alleges that he is entitled to back pay because “BNSF has not followed through with 20 and has broken the Contract.” Id. at 63-64. 21 To state a breach of contract claim, a plaintiff must allege facts showing “the 22 existence of the contract, its breach and the resulting damages.” Graham v. Asbury, 540 23 P.2d 656, 657 (Ariz. 1975). Plaintiff has not sufficiently shown the existence of the 24 contract that Defendant allegedly breached. Plaintiff refers generally to “the terms of the 25 signed Agreement by BNSF[,]” but does not identify those terms or explain how Defendant 26 may have breached them. See Doc. 7 at 6. Plaintiff has not adequately pled a plausible 27 breach of contract claim. 28 1 IV. Leave to Amend. 2 Defendant asserts that Plaintiff’s grievance is with the representation he received 3 from his union and leave to amend would be futile because Plaintiff’s claim relates to his 4 attendance and back pay issues that were resolved through the settlement he references in 5 the original complaint. Doc. 7 at 5-8. But this assertion is not sufficient to show that 6 Plaintiff can assert no viable breach of contract claim against Defendant through 7 amendment. 8 The Court “should freely give leave [to amend] when justice so requires.” Fed. R. 9 Civ. P. 15(a)(2). The policy in favor of leave to amend must not only be heeded, see Foman 10 v. Davis, 371 U.S. 178, 182, (1962), it must be applied with extreme liberality, see Owens 11 v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 880 (9th Cir. 2001). Indeed, the 12 Court “should grant leave to amend even if no request to amend the pleading was made, 13 unless it determines that the pleading could not possibly be cured by the allegation of other 14 facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citations omitted). 15 On the present record, the Court cannot conclude that deficiencies in the amended 16 complaint could not possibly be cured. Given Plaintiff’s pro se status, and following Rule 17 15’s directive that leave to amend be freely granted, the Court will grant Plaintiff leave to 18 amend. Plaintiff shall have until April 1, 2024 to file a second amended complaint. 19 A second amended complaint supersedes the original complaint and the first 20 amended complaint. See Ferdik, 963 F.2d at 1262. After amendment, the Court will treat 21 the original and the first amended complaints as nonexistent. Id. Any purported claim that 22 was raised in the original or first amended complaints is waived if it is not raised in a second 23 amended complaint. See Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012); 24 Nailing v. Eskander, No. 2:20-CV-07559-AB-JC, 2021 WL 3930077, at *1 n.1 (C.D. Cal. 25 Sept. 2, 2021) (explaining that the amended complaint must “be complete in and of itself 26 and not refer in any manner to the original [c]omplaint – i.e., it must include all claims on 27 which plaintiff seeks to proceed”). 28 V. Plaintiff Must Follow the Rules and Court Orders. 1 “Pro se litigants must follow the same rules of procedure that govern other litigants.” 2 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986); see also Jacobsen v. Filler, 790 F.2d 3 1362, 1364-65 (9th Cir. 1986) (pro se litigants should not be treated more favorably than 4 parties represented by attorneys); United States v. Flewitt, 874 F.2d 669, 675 (9th Cir. 5 1989) (pro se litigants are subject to the same good faith limitations imposed on lawyers). 6 Plaintiff therefore is required to become familiar with and follow the Federal Rules of Civil 7 Procedure and the Rules of the United States District Court for the District of Arizona 8 (“Local Rules”), which may be obtained in the Clerk of Court’s office.1 9 For purposes of the second amended complaint, Plaintiff is directed to Rules 8 and 10 10 of the Federal Rules of Civil Procedure. Rule 8(a) requires “a short and plain statement 11 of the claim showing that the [plaintiff] is entitled to relief” and “a demand for the relief 12 sought.” Fed. R. Civ. P. 8(a)(2)-(3). Rule 8(d) provides that each allegation “must be 13 simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). Rule 10(b) requires the plaintiff to 14 state claims in “numbered paragraphs, each limited as far as practicable to a single set of 15 circumstances.” Fed. R. Civ. P. 10(b). And where doing so would promote clarity, “each 16 claim founded on a separate transaction or occurrence . . . must be stated in a separate 17 count.” Id.; see also Iqbal, 556 U.S. at 677 (explaining that the short and plain statement 18 of the claim required by Rule 8(a)(2) must designate the legal cause of action and include 19 relevant factual allegations to render the claim plausible); Nailing, 2021 WL 3930077, at 20 *1 n.1 (discussing the requirements of Rules 8 and 10).2 21 If Plaintiff fails to prosecute this action or to comply with the rules or any Court 22 order, the Court may dismiss this action with prejudice pursuant to Federal Rule of Civil 23 24 1 The rules also are available on this District Court’s website, along with a Handbook for Self-Represented Litigants that may help Plaintiff understand the litigation 25 process. See Doc. 3; U.S. District Court, District of Arizona, Proceeding Without an Attorney, https://www.azd.uscourts.gov/proceeding-without-attorney. 26 2 Local Rule 7.1(b) requires that “the body of all documents shall be typed double- 27 spaced and shall not exceed 28 lines per page[.]” LRCiv 7.1(b)(1). All pleadings and other original documents filed with the Clerk “shall be in a fixed-pitch type size no smaller than 28 ten (10) pitch (10 letters per inch) or in a proportional font size no smaller than 13 point, including any footnotes.” Id. 1}} Procedure 41(b). See Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962) (a district court has inherent power to dismiss a case for failure to prosecute); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (a district court may dismiss an action for failure to comply 4|| witha local rule); Ferdik, 963 F.2d at 1260-61 (the district court did not abuse its discretion 5 || in dismissing a pro se plaintiff’s complaint for failing to comply with a court order). 6 IT IS ORDERED: 7 1. This case will not be remanded to state court. 8 2. Defendant’s motion to dismiss the amended complaint (Doc. 7) is granted. 9 3. Plaintiff shall have until April 1, 2024 to file a second amended complaint.* 10 Dated this 5th day of March, 2024. 11 2 Dau 6 Cou Dank &. phth 4 David G. Campbell Senior United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26

DGC. Plaintill shall include this case number in the tle oF a second amended complain and every other document he files with the Court. See LRCiv 7.1(a)(3).