United States District Court, W.D. Virginia, Danville Division
JACKSON L. KISER, SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on Defendant Branch Banking &
Trust Company's (“BB&T”) Motion to
Dismiss [ECF No. 8], and Plaintiff Mytreccia Stockton's
Motion to Remand [ECF No. 13]. The matters were briefed by
the parties, and I held oral arguments on the motions on
September 24, 2019. For the reasons stated herein, I will
grant Plaintiff's Motion to Remand and deny
BB&T's Motion to Dismiss. Insofar as Plaintiff sets
forth state causes of action as opposed to federal ones,
those claims will be remanded to the Henry County General
STATEMENT OF FACTS AND PROCEDURAL
Mytreccia Stockton (“Plaintiff”) began working
for BB&T as an on-call teller at its Collinsville,
Virginia, location; she eventually settled as a part-time
teller at its Ridgeway, Virginia, branch. She contends that,
during her employment at BB&T, she was forced to endure
harassment and ridicule almost from the outset, including
“constant” harassment about her “outfit
choices, style of hair, and makeup.” She alleges that
she was singled out regarding when she reported for work,
even though she “was never late.” She also
alleges that she was “talked about” by other
employees, and that she was constantly criticized for minor
annoyances, such as the speed with which she counted the
money in her drawer. Plaintiff contends she was wrongfully
terminated on June 13, 2017.
filed a Warrant in Debt in the Henry County General District
Court on April 5, 2019. She was ordered to file a Bill of
Particulars and filed the same on or about June 3, 2019.
Based on her representations in the Bill of Particulars,
BB&T removed the case to this court on June 14, alleging
jurisdiction under 28 U.S.C. §§ 1331 & 1441.
BB&T thereafter filed a motion to dismiss, contending
that Plaintiff failed to identify the bases for her claims to
relief, that she failed to file a timely charge with the
Equal Employment Opportunity Commission for any colorable
claim under Title VII or the Americans with Disabilities Act,
and that she was not entitled, as a matter of law, to
benefits under the Family Medical Leave Act. Plaintiff
responded, asking that her case be remanded to state court
and disclaiming the federal causes of action BB&T gleaned
from her pleadings. I heard oral argument on the motions on
September 24, making the matter ripe for disposition.
STANDARD OF REVIEW
28 U.S.C. § 1441(a), an action may be removed to federal
district court if the action is one over which the district
court would have had original jurisdiction. “Because
removal jurisdiction raises significant federalism concerns,
[federal courts] must strictly construe removal jurisdiction.
If federal jurisdiction is doubtful, a remand is
necessary.” Mulcahey v. Columbia Organic Chems.
Co., 29 F.3d 148, 151 (4th Cir. 1994) (internal
citations omitted). This presumption against removal places
the “burden of establishing federal jurisdiction . . .
upon the party seeking removal.” Id.
survive a Rule 12(b)(6) motion to dismiss, a complaint must
contain “sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. In determining facial plausibility, the court
must accept all factual allegations in the complaint as true.
Id. The Complaint must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief” and sufficient “[f]actual
allegations . . . to raise a right to relief above the
speculative level . . . .” Twombly, 550 U.S.
at 555 (internal quotation marks omitted). Therefore, the
Complaint must “allege facts sufficient to state all
the elements of [the] claim.” Bass v. E.I. Dupont
de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003).
Although “a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations,
” a pleading that merely offers “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555.
asserts that, even if her Complaint can be read to assert
federal causes of action, she has disclaimed them in an
effort to remain in her chosen forum, the Henry County
General District Court. To be sure, this court's
jurisdiction is “determined from what necessarily
appears in the plaintiff's statement of [her] own claim
in the bill or declaration.” Taylor v.
Anderson, 234 U.S. 74, 75 (1914). And, as has often been
said, “plaintiff is the ‘master of the
claim.'” Pinney v. Nokia, Inc., 402 F.3d
430, 442 (4th Cir. 2005) (quoting Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987)).
event a case is not properly removed to federal court,
remanding the case to the state court is the required course
of action. See 28 U.S.C. § 1447 (2019);
State of W.Va. ex rel. Morrisey v. McKesson Corp.,
No. 16-1772, 2017 WL 357307, at *5 (S.D. W.Va. Jan. 24,
2017). When removal jurisdiction is asserted, the defendant
bears the burden of “demonstrating the court's
jurisdiction over the matter.” Strawn v. AT&T
Mobility LLC, 530 F.3d 293, 296 (4th Cir. 2008). Courts
generally disfavor removal jurisdiction, “particularly
when a case involves substantial questions of state
law.” W.Va. ex rel. Morrissey, 2017 WL 357307,
at *5. Indeed, “state law complains usually must stay
in state court when they assert what appear to be state law
claims.” Lontz v. Tharp, 413 F.3d 435, 440
(4th Cir. 2005). Moreover, state courts are often
“competent to apply federal law, to the extent it is
relevant.” Empire Healthchoice Assur., Inc. v.
McVeigh, 547 U.S. 677, 701 (2006)
Complaint can be read to assert both state and federal
claims, but by no means are federal claims necessarily pled.
The most that can be said about Plaintiff's Complaint is
that she alleges discrimination. She makes no
reference, express or implied, to Title VII, the Americans
with Disabilities Act, or the Family and Medical Leave Act.
Obviously, claims of discrimination, including pregnancy
discrimination, can arise under Virginia's
antidiscrimination laws as well as Title VII. See
Va. Code Ann. § 2.2-3900 et seq.
(“Virginia Human Rights Act”). Nothing in
Plaintiff's Complaint, however, establishes that she is
seeking relief under Title VII as opposed to, or in addition
to, the Virginia Human Rights Act. Coupled with
Plaintiff's declarations that she does not wish
to pursue any remedies she has under federal law, I cannot
conclude that a federal claim is raised in Plaintiff's
Complaint, and therefore I must remand this case to the state
court for prosecution of Plaintiff's state law claims, as
she intended. Accord W.Va. ex rel. Morrissey, 2017
WL 357307, at *5 & 8 (“Aside from these scattered
references [to ‘United States laws and
regulations'], however, plaintiffs' complaint does
not appeal to recourse under federal law. It neither alleges
a federal cause of action nor refers to specific federal
statutes or regulations . . . . [T]he exercise of removal
jurisdiction is improper.”).
attempts to avoid this conclusion by asserting, among other
arguments, that the Virginia Human Rights Act does not apply
to it because it has too many employees. See Va.
Code Ann. § 2.2-3903 (2019) (“No employer
employing more than five but less than 15 persons shall
discharge any such employee on the basis of race, color,
religion, national origin, sex, pregnancy, childbirth or
related medical conditions, including lactation.”). If
that is so, it will certainly be a boon to BB&T when it
defends against this action in state court. But it is no
grounds for removal to say, “The defendant cannot win
in state court, therefore the federal court must hear her
case, even those claims she does not wish to pursue.”
Jurisdiction is determined based on what the plaintiff
alleges in the complaint, not on the defenses raised. Cf.
Rivet v. Regions Bank of Louisiana, 522 U.S. 470 (2016)
(“The basis for such jurisdiction must be present in
the complaint, rather than in any affirmative defenses raised
by the defendant.”). Accordingly, I will remand this
case to the state court from whence it came.