Shipkovitz v. Barr

SAMUEL SHIPKOVITZ, Plaintiff, v. WILLIAM BARR, in his official capacity as Attorney General,United States Department of Justice, et al., Defendants.

Civil Action No. 18-1264 (RBW)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

March 7, 2019

MEMORANDUM OPINION

The plaintiff, Samuel Shipkovitz, proceeding pro se, originally filed this civil action against the defendants, Jeff Sessions,¹ in his official capacity as the Attorney General of the United States Department of Justice (the "Department"); Advanced Discovery, Inc. ("Advanced Discovery"); Philip Carrillo ("Carrillo"); June Burton ("Burton"); and Kirkland & Ellis LLP ("Kirkland & Ellis"), in the Superior Court of the District of Columbia ("Superior Court"), alleging "reverse racial discrimination, age discrimination, national origin discrimination[,] and religious discrimination . . . [by] the defendants," as well as "intentional business and contractual opportunities interference by [ ] Carrillo and Advanced Discovery." Complaint ("Compl.") ¶ 1. Currently before the Court are (1) Defendant Advanced Discovery, Inc.'s Motion to Dismiss Plaintiff's Complaint ("Advanced Discovery's Mot. to Dismiss"); (2) the Plaintiff's Motion to File First Amended Complaint[ ](If Required) and Motion for Remand (the "Rule 15(a)(1) Motion" or "Pl.'s 15(a)(1) Mot."); (3) the Plaintiff's Motion for Leave to File Revised First Amended Complaint and Opposition to Motion for Remand (the "Rule 15(a)(2) Motion" or"Pl.'s 15(a)(2) Mot."); and (4) the Plaintiff's Request for Status—As to Previously Filed Motion to Serve Defendant Carrillo by Publication (the "Request for Status" or "Pl.'s Req."). Upon careful consideration of the parties' submissions,² the Court concludes for the reasons set forth below that it must deny the plaintiff's request for an order instructing Advanced Discovery not to file an answer or motion for summary judgment raised in the context of his purported limited appearance, deny as moot the plaintiff's request for leave to File the First Amended Complaint raised in his Rule 15(a)(1) Motion, deny as moot Advanced Discovery's motion to dismiss, hold in abeyance the plaintiff's Rule 15(a)(2) Motion, and deny as moot the plaintiff's Request for Status.

I. BACKGROUND

The plaintiff initiated this civil action against the defendants in Superior Court on March 15, 2018. See Compl. at 1. The Department attempted to remove the case to this Court on May 30, 2018. See Dep't's Not. at 1. After being "informed by the [Department] that [the Department's Notice] in [the] Superior Court was rejected," Advanced Discovery's Not. ¶ 6, Advanced Discovery filed its own Notice with this Court on June 18, 2018, see id. ¶¶ 6-8. The plaintiff then filed: (1) his Notice in this Court, stating that "he had dismissed [the AttorneyGeneral] from his [ ] Superior Court case" prior to Advanced Discovery's removal of the case to this Court, Pl.'s Not. at 1; and (2) a request for a limited appearance in this Court to oppose removal, see Pl.'s Limited Appearance at 1, and a request that "this Court order Advanced Discovery to not file an [a]nswer nor [m]otion [f]or [s]ummary [j]udgment until a further order of this Court," id. at 4. Construing the plaintiff's Notice and request for a limited appearance together as a motion for remand, on June 29, 2018, Advanced Discovery filed an opposition to the plaintiff's motion for remand, as well as a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Advanced Discovery's Remand Opp'n at 1; Advanced Discovery's Mot. to Dismiss at 1. Thereafter, on July 18, 2018, the plaintiff filed a motion to amend his Complaint pursuant to Federal Rule of Civil Procedure 15(a)(1) and to remand this case to Superior Court. See Pl.'s 15(a)(1) Mot. at 1-2. Then, on December 31, 2018, the plaintiff filed a second motion to amend his Complaint, this time pursuant to Rule 15(a)(2). See Pl.'s 15(a)(2) Mot. at 2. As of the date of this Memorandum Opinion, the only defendants currently before the Court in this lawsuit are the Department and Advanced Discovery.³

II. STANDARDS OF REVIEW

A. Motions to Remand

A defendant may remove a civil case from a state court to the federal district court embracing the place where such action is pending when the district court has originaljurisdiction. See 28 U.S.C. § 1441(a) (2018). However, "[b]ecause federal courts are courts of limited jurisdiction, the removal statute is to be strictly construed," Kopff v. World Research Grp., LLC, 298 F. Supp. 2d 50, 54 (D.D.C. 2003), and "[t]he party opposing a motion to remand bears the burden of establishing that subject[-]matter jurisdiction exists in federal court," Int'l Union of Bricklayers & Allied Craftworkers v. Ins. Co. of the W., 366 F. Supp. 2d 33, 36 (D.D.C. 2005) (Walton, J.). As the District of Columbia Circuit has explained, "[w]hen it appears that a district court lacks subject matter jurisdiction over a case that has been removed from a state court, the district court must remand the case . . . ." Republic of Venezuela v. Philip Morris, Inc., 287 F.3d 192, 196 (D.C. Cir. 2002) (citing 28 U.S.C. § 1447(c)); see Int'l Union of Bricklayers, 366 F. Supp. 2d at 36 ("[T]he court must resolve any ambiguities concerning the propriety of removal in favor of remand." (quoting Johnson-Brown v. 2200 M. St., LLC, 257 F. Supp. 2d 175, 177 (D.D.C. 2003))).

B. Motions to Amend

Federal Rule of Civil Procedure 15(a)(1) provides that

[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under 12(b), (e), or (f), whichever is earlier.

Fed. R. Civ. P. 15(a)(1). "In all other cases, a party may amend its pleading only with the opposing party's written consent or the [C]ourt's leave." Fed. R. Civ. P. 15(a)(2). The Court should "freely give leave" to a party to amend a pleading "when justice so requires." Id. Although the Court has sole discretion to grant or deny leave to amend, "[l]eave to amend a complaint should be freely given in the absence of undue delay, bad faith, undue prejudice to the opposing party, repeated failure to cure deficiencies, or futility." Richardson v. United States, 193 F.3d 545, 548-49 (D.C. Cir. 1999) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). "Theburden is on the defendant to show that leave to file an amended complaint should be denied." Afram v. United Food & Commercial Workers Unions & Participating Emp'rs Health & Welfare Fund, 958 F. Supp. 2d 275, 278 (D.D.C. 2013).

III. ANALYSIS

A. The Plaintiff's Motion to Remand

The plaintiff requests in his Notice that the Court remand this case to Superior Court, that he be permitted to participate in the proceeding before the Court through a limited appearance, and that he be permitted to amend his Complaint pursuant to Rule 15(a)(1). See Pl.'s Not. at 1; Pl.'s Limited Appearance at 1; Pl.'s 15(a)(1) Mot. at 1. Due to the plaintiff's pro se status, the Court construes the plaintiff's Notice, his request for a limited appearance, and his Rule 15(a)(1) Motion collectively as his motion for remand. See Long v. Safeway, Inc., 842 F. Supp. 2d 141, 144 (D.D.C. 2012) ("A court must construe pro se filings liberally and, absent any indication of prejudice to the defendant, should read 'all of the plaintiff's filings together[.]'" (alteration in original) (quoting Richard v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999))). The plaintiff first argues that the Department's removal of the case was defective because the Department did not provide a copy of its Notice to Superior Court or to him. See Pl.'s 15(a)(1) Mot. at 2. He also argues that Advanced Discovery's removal of the case to this Court on June 18, 2018, was improper because "he [ ] dismissed . . . [the] Attorney General[] from his [ ] Superior Court case" prior to the Department's and Advanced Discovery's attempts to remove the case to this Court, Pl.'s Not. at 1, and the Attorney General's presence in this case was "the only federal basis [for] removal," id. at 3. Advanced Discovery responds that the "[p]laintiff's arguments overlook that Advanced Discovery, by its own initiative, successfully removed the [ ] Superior Court action to this Court on June 18, 2018 . . . [and] whatever purported defects were containedin the [Department's] Notice . . . do not alter Advanced Discovery's own successful removal of the case." Advanced Discovery's Remand Opp'n at 4. Advanced Discovery further argues that the "[p]laintiff's suggestion that the [Department's] presence in this case is the only basis for removing this action to federal court is incorrect . . . [b]ecause several of [the] [p]laintiff's this Court has original jurisdiction pursuant to 28 U.S.C. § 1331."⁴ Id. at 5. The Court agrees with Advanced Discovery that its removal of the case to this Court was appropriate.

Section 1331 provides that "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. "The presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). As Advanced Discovery correctly notes, see Advanced Discovery's Remand Opp'n at 5, the Complaint presents claims arising under Title VII of the Civil Rights Act of 1964, as amended, ("Title VII"), 42 U.S.C. §§ 2000e- through 2000e-17 (2018), see Compl. ¶¶ 41-49; the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-213, see Compl. ¶¶ 81-90; the Age Employment Act ("ADEA"), 29 U.S.C. §§ 621-34 (2018), see Compl. ¶¶ 81-90; and the False Claims Act ("FCA"), 31 U.S.C. §§ 3729-33 (2018), see Compl. ¶¶ 100-06. The...