Davis v. Panda Express, Inc.

MEKENNA DAVIS Plaintiff v. PANDA EXPRESS, INC. and PANDA EXPRESS RESTAURANT GROUP, INC. Defendants

Civil Action No. 3:20-cv-728-RGJ

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION

July 7, 2021

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MEMORANDUM OPINION AND ORDER

Plaintiff Mekenna Davis ("Davis") sued Panda Express, Inc. and Panda Express Restaurant Group, Inc. ("Panda Express") in Jefferson County Circuit Court alleging multiple violations of the Kentucky Civil Rights Act, constructive discharge, and negligent hiring, training, and supervision. [DE 1-2 at 17-26]. Panda Express removed to this Court on diversity of citizenship jurisdiction. [DE 1]. Panda Express moved to stay and compel arbitration. [DE 5]. While that motion was pending, Davis moved to remand [DE 7], and Panda Express responded [DE 10]. Panda Express then filed a motion for leave to file amended notice of removal. [DE 11]. These matters are ripe. Having considered the parties' filings and applicable law, the Court GRANTS Panda Express's Motion for Leave to File Amended Notice of Removal [DE 11], DENIES Davis's Motion to Remand [DE 7], and DENIES Panda Express's Motion to Stay and Compel Arbitration [DE 5].

I. BACKGROUND

Panda Express hired Davis, an African-American woman, when she was sixteen years old. [DE 1-2 at 11]. Once hired, Panda Express required Davis to "onboard" by reviewing and completing forms and documentation related to her employment, including the Associate Handbook and the My V.O.I.C.E. Matters Program ("MVMP"). [DE 5-1 at 35]. The MVMP documentation contained an arbitration provision, which Davis electronically acknowledged and signed:

Except as otherwise limited, all employment-related legal disputes, controversies, or claims arising out of, or relating to, employment or cessation of employment, whether arising under federal, state or local decisional or statutory law ("Employment-Related Claims"), shall be settled exclusively by final and binding arbitration. Arbitration is administered by the American Arbitration Association ("AAA") under this Agreement and the employment arbitration portion of the AAA's Employment Arbitration Rules and Mediation Procedures that does not conflict with this Agreement . . .

Arbitration shall apply to any and all such disputes, controversies or claims whether asserted by the Associate against the Company and/or against any employee, officer, director or alleged agent of the Company. Arbitration shall also apply to any and all such civil disputes, controversies or claims asserted by the Company against the Associate.

All "Employment-Related Claims," as defined below, as of the Effective Date arising under federal, state or local statutory or common law, shall be subject to arbitration. Merely by way of example, Employment-Related Claims include, but are not limited to, claims arising under . . . Title VII of the Civil Rights Act of 1964, . . . including amendments to all of the foregoing statutes, . . . state anti-discrimination and anti-harassment statutes . . . and/or common law regulating employment termination, misappropriation, breach of the duty of loyalty, the law of contract or the law of tort, including, but not limited to, claims for malicious prosecution, wrongful discharge, wrongful arrest/wrongful imprisonment, intentional/negligent infliction of emotional distress or defamation.

[DE 5-1 at 36; DE 5-2 at 48].

Davis worked for Panda Express from August of 2017 until September 2019 when she alleges that she was constructively discharged. [DE 1-2 at 11; DE 5-2 at 48]. Davis claims that she was subjected to harassment and discrimination while working at Panda Express. Id. at 11-17. And Davis alleges that management at Panda Express retaliated against her after she complained about how she was being treated. Id. at 23. While employed at Panda Express, Davis turned eighteen. [DE 9 at 121].

In September of 2020, Davis sued in Jefferson County Circuit Court. [DE 1-2 at 9]. Davis seeks damages for "substantial mental anguish and emotion[al] distress, humiliation and personal indignity, loss of enjoyment of life, damage to her reputation, lost wages and benefits, and other pecuniary and non-pecuniary losses." Id. at 20. Davis also seeks her "costs and expenses expended herein including reasonable attorneys' fees." Id. at 26. Less than thirty days after receiving Davis's complaint, Panda Express removed to this Court on diversity of citizenship jurisdiction. [DE 1].

II. DISCUSSION

Before the Court can address Panda Express's motion to compel arbitration, it must resolve the jurisdictional issue raised in Davis's motion to remand. See Hamilton v. Voxeo Corp., No. 3:07CV404, 2008 WL 11352591, at *2 (S.D. Ohio Sept. 30, 2008) ("Because the existence of jurisdiction is a threshold issue which this Court must resolve prior to considering any other matters pending in this case, the jurisdictional challenge raised by Plaintiff's motion to remand must be addressed first"; see also American Telecom Co. v. Republic of Lebanon, 501 F.3d 534, 537 (6th Cir. 2007) ("Subject matter jurisdiction is always a threshold determination").

A. Jurisdiction

Removal to federal court is proper for "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). Diversity jurisdiction gives "[t]he district courts . . . original jurisdiction [over] all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different states." 28 U.S.C. § 1332(a), (a)(1). A defendant removing a case has the burden of proving jurisdiction. See Wilson v. Republic Iron & Steel Co., 257 U.S. 92,97 (1921). The determination of federal jurisdiction in a diversity case should be made at the time of removal. Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 872 (6th Cir. 2000).

1. Amendment of Removal Notice

Panda Express moved to amend its notice of removal to address the purported defects raised in Davis's motion to remand. [DE 11]. Davis did not respond to Panda Express's motion to amend.

"Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." 28 U.S.C.A. § 1653. A notice of removal may be amended "under the same considerations governing the amendment of any other pleading containing jurisdictional allegations." Gafford v. General Electric Co., 997 F2.d 150, 164 (6th Cir. 1993) (quoting Stanley Electric Contractors, Inc. v. Darin & Armstrong Co., 486 F. Supp. 769, 772-73 (E.D. Ky. 1980)) (internal quotation marks omitted). Allowing amendment of a notice of removal is "consistent with the general liberal attitude toward pleading amendments found in Federal Civil Rule 15, and with [28 U.S.C. § 1653.]" 14C Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Juris. § 3733 (Rev 4th ed.). Thus, a notice of removal "may be amended freely before the initial 30-day removal period expires, but after the period ends, the notice may be amended only to set out more specifically the grounds for removal that already have been stated in the original notice." Courtney Southers v. Appalachian Reg'l Healthcare, Inc., No. 7:20-CR-126-REW-EBA, 2021 WL 1250315, at *2 (E.D. Ky. Apr. 5, 2021) (quoting Hahn v. Rauch, 602 F. Supp.2d 895, 909 n.6 (N.D. Ohio 2008)) (internal quotation marks omitted).

Here, Davis filed her complaint in September of 2020 and Panda Express moved to amend in December of 2020, more than thirty days later. [DE 1; DE 11]. Nonetheless, the Court willallow amendment¹ because the motion to amend sets out "more specifically the grounds for removal that already have been stated in the original notice." Courtney Southers, No. 7:20-CR-2021 WL 1250315 at *2. Panda Express's initial notice of removal stated both how the parties were diverse and how the amount in controversy exceeded $75,000. Panda Express's amended notice of removal provides additional support for these existing grounds for removal. [DE 11-1 at 159-62]. As a result, the Court grants Panda Express's amended notice. See Attentus of Scott Cty., LLC v. Lauer, No. 3:07-CV-276, 2007 WL 3047124, at *1 (E.D. Tenn. Oct. 17, 2007) (granting motion to amend notice of removal where "Defendant's amended notice of removal aim[ed] to include greater specificity with regards to the facts related to his allegations of diversity of citizenship").

2. Remand

In her motion to remand, Davis argues that this Court lacks jurisdiction because Panda Express failed to: 1) establish her Kentucky citizenship; 2) establish that the amount in controversy is more than $75,000; and 3) include a copy of all documents in the state court records with the notice of removal. [DE 7-1 at 101-07]. For the reasons discussed below, the Court finds that it has jurisdiction over this case.

a. Citizenship

Citing only non-binding authority, Davis first contends that Panda Express "failed to offer any proof to establish that Ms. Davis is domiciled in Kentucky" because it did "not offer sufficient proof that diversity of citizenship exists in this case." Id. at 101-02 (emphasis in original).

To establish diversity jurisdiction under 28 U.S.C. § 1332(a)(1), the opposing parties must be citizens of different states. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829 (1989). "For purposes of diversity jurisdiction, citizenship means domicile: the state where a party both physically resides and intends to remain." Fritz Dairy Farm, LLC v. Chesapeake Exploration, LLC, 567 F. App'x 396, 398 (6th Cir. 2014). "Domicile is not necessarily synonymous with residence, and one can reside in one place but be domiciled in another." Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989) (internal quotation marks and citations omitted). "For adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there." Id.

Here, Panda Express...