Shanks v. International Union of Bricklayers and Allied Craftworkers

• Court: District Court, District of Columbia
• Decided: July 18, 2023
• Docket: Civil Action No. 2023-0311
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SAMUEL SHANKS, Plaintiff, v. INTERNATIONAL UNION OF Civil Action No. 23-311 (CKK) BRICKLAYERS AND ALLIED CRAFTWORKERS, Defendant.

MEMORANDUM OPINION (July 18, 2023)

Plaintiff Samuel Shanks (“Shanks” or “Plaintiff”) brought an action in the Superior Court

of the District of Columbia against Defendant International Union of Bricklayers and Allied

Craftworkers (“BAC” or “Defendant”), alleging that Defendant violated the District of Columbia

Human Rights Act, the Americans with Disabilities Act of 1990, Title VII of the Civil Rights Act

of 1964, and “other applicable Civil Rights Acts.” See generally Compl. Defendant removed

this action from D.C. Superior Court to federal court based on federal question jurisdiction. Now

pending before the Court is Plaintiff’s [11] Motion to Remand, in which Plaintiff argues that

Defendant’s removal was improper for three reasons: first, that Defendant’s notice of removal

was not timely; second, that this court lacks subject matter jurisdiction; and third, that

Defendant’s removal before being served was inappropriate. See Pl.’s Mot. at 1–5. Upon

consideration of the briefing,1 the relevant legal authorities, and the record as a whole, the Court

shall DENY Plaintiff’s Motion to Remand.

1 The Court’s consideration has focused on the following documents: • Plaintiff’s Complaint, ECF No. 1-1 (“Compl.”); • Defendant’s Notice of Removal, ECF No. 1 (“Notice of Removal”); • Plaintiff’s Motion to Remand, ECF No. 11 (“Pl.’s Mot.”); • Defendant’s Opposition to Motion for Remand, ECF No. 12 (“Def.’s Opp’n”); 1 I. BACKGROUND

Plaintiff Samuel Shanks, who is proceeding pro se, worked for Defendant until October

2021. Compl. ¶ 1. Prior to his termination, Plaintiff alleges he experienced “bouts of

harassment, retaliation, targeting, systemic discrimination, excessive discipline, pay disparity,

denied promotional opportunities, vilification and bullying by upper management….” Id.

Plaintiff was ultimately terminated for failing to comply with Defendant’s COVID-19

Vaccination Policy, which Plaintiff maintains was wrongful in nature. See id.; Notice of

Removal ¶ 2.

In response to these events, Plaintiff filed a Complaint in D.C. Superior Court on

December 30, 2022, alleging that Defendant violated the District of Columbia Human Rights

Act, the Americans with Disabilities Act of 1990, Title VII of the Civil Rights Act of 1964, and

“other applicable Civil Rights Acts.” Compl. ¶ 1. On February 3, 2023, Defendant removed the

complaint to this Court pursuant to 28 U.S.C. § 1441(a). See Notice of Removal ¶ 3. Defendant

then filed a [8] Motion to Dismiss on February 21, 2023, pursuant to Federal Rule of Civil

Procedure 12(b)(6). See generally ECF No. 8. On March 6, 2023, prior to the deadline to

respond to Defendant’s Motion to Dismiss, Plaintiff filed the pending Motion to Remand. The

Court then vacated the briefing schedule and held in abeyance the Motion to Dismiss pending the

resolution of Plaintiff’s Motion to Remand. See Minute Order, Mar. 8, 2023. Plaintiff’s Motion

to Remand is now fully briefed and ripe for resolution.

• Plaintiff’s Reply Brief to Support Motion to Remand, ECF No. 12 (“Pl.’s Reply”). In an exercise of its discretion, the Court finds that holding oral 13 in this action would not be of assistance in rendering a decision. See LCvR 7(f). 2 II. LEGAL STANDARD

“Only state-court actions that originally could have been filed in federal court may be

removed to federal court by the defendant.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392

(1987). Upon filing a notice of removal, the defendant “bears the burden of proving that

jurisdiction exists in federal court.” Downey v. Ambassador Dev., LLC, 568 F. Supp. 2d 28, 30

(D.D.C. 2008) (JDB). Similarly, “[w]hen a plaintiff seeks to have a case that has been removed

to federal court remanded back to state court, the party opposing a motion to remand bears the

burden of establishing that subject matter jurisdiction exists in federal court.” Mizell v. SunTrust

Bank, 26 F. Supp. 3d 80, 84 (D.D.C. 2014) (KBJ) (quotation omitted). Courts in this jurisdiction

“construe[] removal jurisdiction strictly, favoring remand where the propriety of removal is

unclear.” Ballard v. D.C., 813 F. Supp. 2d 34, 38 (D.D.C. 2011).

III. DISCUSSION

Plaintiff argues that Defendant’s removal was improper for three reasons: first, that

Defendant’s notice of removal was not timely; second, that this court lacks subject matter

jurisdiction; and third, that Defendant’s removal before being served was inappropriate. See Pl.’s

Mot. at 1–5. The Court now addresses these arguments in turn.

A. Timeliness of Filing

First, Plaintiff argues that Defendant filed its Notice of Removal after the deadline to do

so had passed. Pl.’s Mot. ¶¶ 6–9; 18. Pursuant to statute, a defendant has thirty days after

receipt of the initial pleading, through service or otherwise, to file a notice of removal. 28

U.S.C. § 1446(b). Here, Defendant filed its Notice of Removal on February 3, 2023. Therefore,

to be timely filed, Defendant must have received a copy of the Complaint no earlier than January

4, 2023.

3 Defendant contends that it first gained access to a copy of the Complaint on January 4,

2023, see Notice of Removal ¶ 1, which it supports through sworn declarations from both its

outside counsel of record and General Counsel, see ECF No. 12-1 (“Kekacs Decl.”); ECF No.

12-2 (“O’Connor Decl.”). On December 28, 2022, Defendant received in the mail a Notice of

Remote Initial Scheduling Conference in D.C. Superior Court for a case brought by Taylor

Lambert, which was notated as a related action to the present one brought by Plaintiff Shanks.

Kekacs Decl. ¶ 3; O’Connor Decl. ¶ 2. On January 3, 2023, Defendant’s General Counsel

reached out to its outside counsel of record, Bredhoff & Kaiser P.L.L.C., with this information.

Kekacs Decl. ¶ 2; O’Connor Decl. ¶ 4. The following day, January 4, 2023, a paralegal at

Bredhoff & Kaiser contacted the office of the Clerk at D.C. Superior Court and requested a copy

of Ms. Lambert’s complaint. Kekacs Decl. ¶ 4. The paralegal also inquired about whether any

other complaints had been filed against Defendant. Id. A deputy clerk emailed a copy of Ms.

Lambert’s complaint and the Complaint filed by Plaintiff Shanks to the paralegal that same day.

Id.; Kekacs Decl. at 7 (email from clerk to paralegal sent on January 4, 2023, with subject line

including case number and text “eCopy of Complaint”); see also O’Connor Decl. ¶ 5.

Plaintiff suggests that Defendant obtained a copy of the Complaint prior to January 4,

2023. Pl.’s Mot. ¶¶ 6–8. To support this, he points to Defendant’s Notice of Removal, in which

Defendant attached said “Notice of Remote Initial Scheduling Conference” that was stamped

with “Received Dec 28 2022”. See id. ¶¶ 7–8; Pl.’s Mot. Ex. 1 at 12. Defendant admits that they

received the Notice of Remote Initial Scheduling Conference on December 28, 2022, as

discussed previously, and, furthermore, this does nothing to support Plaintiff’s assertion that

Defendant received the Complaint at that time or any time before January 4, 2023. Next, in his

reply brief, Plaintiff states that “BAC searched the Court dockets for this case upon receiving

4 [the] Notice on December 28, 2022.” Pl.’s Reply at 2. While Plaintiff is correct that, per

Defendant’s own words, as included in a previous [6] Motion for Extension of Time to Respond

to Plaintiff’s Complaint, “[a]fter BAC received [the Notice] in the mail from the Superior Court

in a related case, BAC searched the Superior Court docket to determine whether Plaintiff had

filed a Complaint and then requested a copy of the Complaint from the Superior Court clerk’s

office,” ECF No. 6 at 1, nowhere does Defendant specify on which date they conducted that

docket search or, further, whether they accessed the Complaint on that date. Rather, the next

sentence states that Defendant “received the Complaint on January 4, 2023.” Id. Plaintiff’s only

other proffered support is a declaration from an ex-employee of International Union of

Bricklayers and Allied Craftworkers suggesting that they had been “persuaded by” or “pressured

by” their employer “to falsify” certain information. ECF No. 13-1 ¶¶ 7–8. This does not do

anything to confirm, let alone suggest, that Defendant received the Complaint prior to January 4,

2023.

Accordingly, without more concrete evidence to support Plaintiff’s position that

Defendant received the Complaint prior to January 4, 2023, this Court finds that Defendant

timely filed its notice of removal.

B. Subject Matter Jurisdiction

Next, Plaintiff makes a jurisdictional argument. Pursuant to 28 U.S.C. § 1441, a

defendant may properly remove a civil action filed in state court to a federal district court that

has original subject matter jurisdiction. 28 U.S.C. § 1441(a). Accordingly, a defendant in a state

court action may remove a case on the basis of the federal court’s diversity jurisdiction, see 28

U.S.C. § 1332(a) (providing for original subject matter jurisdiction over cases between citizens

of different states, where the amount in controversy exceeds $75,000), or because the case raises

5 a cognizable question of federal law, see id. § 1331 (providing for original subject matter

jurisdiction over “civil actions arising under the Constitution, laws, or treaties of the United

States”), among other bases.

Here, Plaintiff argues that the case should be remanded to D.C. Superior Court because

Defendant’s Notice of Removal “elevat[ed] the federal question jurisdiction while purposely

minimizing the State Law even though the state law was listed first in the Complaint.” Pl.’s Mot.

¶ 3. But regardless of the emphasis or order of Plaintiff’s claims, this Court has subject matter

jurisdiction over his action pursuant to federal question jurisdiction. See Def.’s Opp’n at 2;

Notice of Removal ¶ 3.

“The presence or absence of federal question jurisdiction is governed by the ‘well-

pleaded complaint rule,’” Caterpillar, 482 U.S. at 392, which provides that “a suit ‘arises under’

federal law ‘only when the plaintiff’s statement of his own cause of action shows that it is based

upon [federal law],’” Vaden v. Discover Bank, 556 U.S. 49, 60 (2009) (quoting Louisville &

Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908)). In the instant case, Plaintiff raised

violations of two federal laws: the Americans with Disabilities Act of 1990 and Title VII of the

Civil Rights Act of 1964. See Compl. ¶ 1. The fact that Plaintiff also included state law claims,

or that he listed state laws prior to listing federal laws, is inconsequential to the inquiry of

whether federal question jurisdiction exists. Therefore, because a federal question clearly

appears on the face of Plaintiff’s Complaint, Defendant’s removal of the case to federal court

pursuant to federal question jurisdiction was unquestionably proper.

Next, the Court finds that it has supplemental jurisdiction over Plaintiff’s state law claims

pursuant to 28 U.S.C. § 1367. In certain circumstances where “a federal court has an

independent basis for exercising federal jurisdiction,” it may also exercise

6 “supplemental jurisdiction over related claims under state law.” Women Prisoners of D.C. Dep’t

of Corr. v. District of Columbia, 93 F.3d 910, 920 (D.C. Cir. 1996). First, the court must

determine “whether the state and the federal claims ‘derive from a common nucleus of operative

fact.’” Id. (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966)); see also

Lindsay v. Gov’t Employees Ins. Co., 448 F.3d 416, 423–24 (D.C. Cir. 2006). If so, the court then

has the power under Article III of the Constitution to hear the state claims, Women Prisoners, 93

F.3d at 920; see also 28 U.S.C. § 1367(a); if the claims do not derive from a common nucleus of

operative fact, the court cannot exercise supplemental jurisdiction and the state claims must be

dismissed, Wisey’s #1 LLC v. Nimellis Pizzeria LLC, 952 F. Supp. 2d 184, 188 (D.D.C. 2013)

(JDB). Next, even if the court has the power to adjudicate the state law claims, it must consider

certain bases for declining to exercise supplemental jurisdiction as enumerated by

28 U.S.C. § 1367(b) and (c). See Lindsay, 448 F.3d at 421.

Here, Plaintiff’s federal and state law claims derive from a common nucleus of operative

fact: the “harassment, retaliation, targeting, systemic discrimination, excessive discipline, pay

disparity, denied promotional opportunities, vilification and bullying by upper management” that

Plaintiff allegedly experienced while employed by Defendant, and his subsequent termination

pursuant to Defendant’s COVID-19 Vaccination Policy. See Compl. ¶ 1. None of the factors that

may lead courts to decline to exercise supplemental jurisdiction are present. Therefore, at this

time and on the present record, this Court chooses to assert supplemental jurisdiction over

Plaintiff’s state law claims.

C. Improper Procedure

Finally, Plaintiff argues that Defendant engaged in “snap removal” by removing the

action to federal court prior to service of the Complaint. Pl.’s Mot. ¶ 2.

7 Case law is clear that “[f]ederal courts have held that formal service is not required

before removing a case.” See Middlebrooks v. Godwin Corp., 279 F.R.D. 8, 11 (D.D.C. 2011)

(BAH) (collecting cases). One exception is the forum defendant rule, under which “[a] civil

action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this

title may not be removed if any of the parties in interest properly joined and served as defendants

is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b)(2). That rule is

not applicable here, where the case was properly removed based on federal question jurisdiction.

See Notice of Removal ¶ 3. The Court therefore finds that Defendant’s removal of the action

prior to service of the Complaint was not improper.

IV. CONCLUSION

For the foregoing reasons, the Court DENIES Plaintiff’s [11] Motion to Remand. An

appropriate order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge