Farooq v. Nucor Bus. Tech.

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TARIQ FAROOQ, Plaintiff, v. NUCOR BUSINESS TECHNOLOGY INC. and CAPGEMINI AMERICA, INC., Defendants.

No. 3:24-cv-920-N-BN

United States District Court, N.D. Texas, Dallas Division

April 25, 2024

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

DAVID L. HORAN, UNITED STATES MAGISTRATE JUDGE

Plaintiff Tariq Farooq filed a pro se lawsuit against his former employer, Defendant Nucor Business Technology Inc. (“Nucor”), and Defendant Capgemini America, Inc. (“Capgemini”) in a Dallas County state court which Nucor removed to federal court, invoking federal question jurisdiction. See Dkt. No. 1.

Chief United States District Judge David C. Godbey referred the removed lawsuit to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference.

Seven days after removal, Farooq filed Plaintiff's Objections and Response to Defendant's Notice of Removal [Dkt. No 6], which the Court should construe as a motion to remand under 28 U.S.C. § 1447(c).

And the undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should deny the construed motion to remand.

Legal Standards

A defendant may remove an action filed in state court to federal court if the action is one that could have originally been filed in federal court. See 28 U.S.C. § 1441(a). The federal courts' jurisdiction is limited, and they generally may only hear a case of this nature if it involves a question of federal law or where diversity of citizenship exists between the parties. See 28 U.S.C §§ 1331 & 1332.

“A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under [28 U.S.C. §] 1446(a).” 28 U.S.C. § 1447(c). But, “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” Id.

As this statutory text reflects, Section 1447 “differentiates between removals that are defective because of lack of subject matter jurisdiction and removals that are defective for some other reason, e.g., because the removal took place after relevant time limits had expired.” Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381, 392 (1998) (cleaned up).

So, for removals that are defective based on violations of the removal statute's provisions and limitations - that is, where “removal was improper, [but] the exercise of subject matter jurisdiction was not,” Cox, Cox, Filo, Camel & Wilson, L.L.C. v. Sasol N. Am., Inc., 544 Fed.Appx. 455, 456 n.6 (5th Cir. 2013) - “there must be a motion to remand filed no later than 30 days after the filing of the removal notice,” but, for “removals that are defective because of lack of subject matter jurisdiction,” “remand may take place without such a motion and at any time.” Schacht, 524 U.S. at 392 (cleaned up; citing 28 U.S.C. § 1447(c)); accord Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1543-44 (5th Cir. 1991) (“The plaintiffs have confused improper removal (i.e., lack of removal jurisdiction) with lack of original subject matter jurisdiction. The former is waivable ... the latter is not.” (cleaned up)).

Analysis

As always, the Court must start with jurisdiction. And “[a]s a general rule, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim.” Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003).

An alleged federal claim is the jurisdictional basis for removal here. See Dkt. No. 1, ¶ 7 (“This action could have originally been brought in federal court as Plaintiff has brought a claim against Nucor pursuant to Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, as amended, and the Fair Labor Standards Act, each a federal statute.”).

But Farooq asserts that “[t]he vast majority of [his] claims arise under Texas statutory and common law, completely independent of any federal issues” and that, while he does cite Title VII and the ADA in his state court petition, Nucor's “reliance on [his] citations to Title VII and the ADA is similarly misplaced. Plaintiff has not asserted any causes of action under these federal statutes. He merely mentions them to support his allegations that Defendant's actions were discriminatory and violated Texas law.” Dkt. No. 6 at 15-16; see also, e.g., id. at 17 (“Finding federal jurisdiction here merely because the employer is alleged to have violated some federal regulations while mistreating its employees would sweep an enormous volume of quintessential state law cases into federal court.”).

There can be no dispute that “[t]he plaintiff is the master of his complaint. If he chooses to rely solely on state law, he may do so even if his allegations might also support a claim for relief under federal law.” Preston v. Mossbarger, No. 3:15-cv-1903-N, 2015 WL 4742549, at *3 (N.D. Tex. Aug. 10, 2015) (quoting Leach v. Indiana, No. 1:07-cv-1376-DFH-JMS, 2007 WL 4256440 (S.D. Ind. Nov. 30, 2007)); accord Medina v. Ramsey Steel Co., 238 F.3d 674, 680 (5th Cir. 2001).

And, where the party asserting federal jurisdiction “must locate [its] basis ... in those allegations necessary to support the plaintiff's claim,” Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 366 (5th Cir. 1995), the mere citation to a federal statute in a plaintiff's state court petition absent allegations to support a claim under federal law will not provide for removal jurisdiction under Section 1331.

But a plaintiff's citing a federal statute and alleging facts to support a violation of that statute is enough to carry a removal defendant's burden to show a foundation for a nonfrivolous and not insubstantial violation of federal law. See, e.g., Chapman v. ADT LLC, No. 3:22-cv-2188-D-BN, 2023 WL 6299861, at *2 (N.D. Tex. Aug. 25, 2023) (“Chapman expressed at the outset of her state court petition that ‘[t]his is an action at law and in equity to redress violations of Title VII of the Civil Rights Act of 1964,' Chapman II, Dkt. No. 1-1, ¶ 4, and then alleged facts to show how Title VII applies to her claims, see id., ¶¶ 6-17. And, by including factual allegations that ‘imply the applicability of the [federal] statute' cited in the state court petition, Harrington v. City of Shiner, Tex., No. 6:20-cv-00039, 2021 WL 4503013, at *5 (S.D. Tex. Sept. 30, 2021), Chapman alleged more than ‘the existence of a frivolous or insubstantial federal question,' Raymon v. Alvord Indep. Sch. Dist., 639 F.2d 257, 257 (5th Cir. Unit A Mar. 1981) (citation omitted), and thereby alleged a basis for jurisdiction under Section 1331.”), rec. adopted, 2023 WL 6300577 (N.D. Tex. Sept. 27, 2023).

That is what Farooq did here. See, e.g., Dkt. No. 1-1 at 4-14 (setting out facts over multiple pages and concluding that “[t]he workplace environment endured by Plaintiff can be characterized as constant ridicule related to the Plaintiff's religion, origin, and medical condition, including mocking the petitioner's work experience and books” and that “[t]his discrimination and harassment constitutes a clear violation of Title VII of the Civil Rights Act of 1964”). Compare id., with, e.g., Hudson v. Lincare, Inc., 58 F.4th 222, 229 (5th Cir. 2023) (“Hostile work environment is a specific discrimination claim under Title VII,” which “prohibits discrimination against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race[, color, religion, sex, or national origin].'” So, “[w]hen a workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated.” (cleaned up)).

Consequently, Farooq's case was removable under Section 1331. See Tobacco & Wine, Inc v. Cnty. of Dall., 456 F.Supp.3d 788, 791-92 (N.D. Tex. 2020) (“Whether an action is removable based on federal question jurisdiction is determined by the allegations in the plaintiff's ‘well-pleaded complaint' at the time of removal.” (citing Medina, 238 F.3d at 680)).

Moving past jurisdiction, Farooq further alleges that “it is important to note that [Capgemini] has not joined or consented to [Nucor's] Notice of Removal.” Dkt. No. 6 at 18.

“To effectuate proper removal, ‘all defendants who have been properly joined and served must join in or consent to the removal of the action.'” Bailey v. Blue Cross & Blue Shield of Tex., 504 F.Supp.3d 591, 594 (S.D. Tex. 2020) (quoting 28 U.S.C. § 1446(b)(2)(A)). “This is referred to as the ‘rule of unanimity' and requires ‘that all defendants to an action either sign the original [notice of] removal or timely file written consent to the removal ... within thirty days of services of the state-court petition.'” Id. (quoting Powers v. United States, 783 F.3d 570, 576 (5th Cir. 2015)). And “[t]he defendants who remove the case ‘bear the burden of establishing compliance with the rule of unanimity.'” Id. (quoting Breitling v. LNV Corp., 86 F.Supp.3d 564, 570 (N.D. Tex. 2015)).

“[T]he failure to join in the removal petition is procedural and ‘not a jurisdictional defect.'” Mauldin v. Allstate Ins. Co., 757 Fed.Appx. 304, 309 (5th Cir. 2018) (per curiam) (quoting Johnson v. Helmerich & Payne, Inc., 892 F.2d 422, 423 (5th Cir. 1990)). But Farooq has raised this alleged defect in a timely motion. So the Court may consider it as a basis for remand.

“In the Fifth Circuit, a removing defendant's mere representation that the remaining defendants have consented does not, by itself, satisfy § 1446(b)(2)(A).” Grand Tex....