Hakeem v. Denver Public Schools

          ORDER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.

         The Court takes up this matter sua sponte on defendant's Notice of Removal [Docket No. 1]. Because removal was improper, the case is remanded to the state court for all further proceedings.

         I. BACKGROUND

         On June 12, 2019, plaintiff Ahmed A. Hakeem filed a complaint against defendant Denver Public Schools in the District Court for the City and County of Denver. Docket No. 2. Defendant was served with the complaint on June 18, 2019. Docket No. 1-5 at 1. Plaintiff then filed an amended complaint^[1] on July 8, 2019. Docket No. 4. Defendant was served with the amended complaint that same day. Docket No. 1-9 at 1. On July 30, 2019, defendant filed a notice of removal, asserting that the Court has jurisdiction over this case under 28 U.S.C. § 1331. Docket No. 1 at 2, ¶ 1.^[2]

         II. LEGAL STANDARD

         Generally, a defendant may remove “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). There are two basic statutory grounds for original jurisdiction in federal district courts: federal-question jurisdiction under 28 U.S.C. § 1331 and diversity jurisdiction under 28 U.S.C. § 1332. Nicodemus v. Union Pac. Corp., 318 F.3d 1231, 1235 (10th Cir. 2003). As noted above, defendant alleges that the Court has federal-question jurisdiction over this case.

         “Federal courts must strictly construe their removal jurisdiction.” Envtl. Remediation Holding Corp. v. Talisman Capital Opportunity Fund, L.P., 106 F.Supp.2d 1088, 1092 (D. Colo. 2000). It is well settled that “[t]he party invoking federal jurisdiction bears the burden of establishing such jurisdiction as a threshold matter.” Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1224 (10th Cir. 2004). There is a presumption against removal jurisdiction. MPVF Lexington Partners, LLC v. W/P/V/C, LLC, No. 15-cv-0467-WJM-KMT, 2016 WL 8234667, at *6 (D. Colo. Sept. 13, 2016) (citing Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974)). “[A]ll doubts are to be resolved against removal.” Fajen v. Foundation Reserve Ins. Co., Inc., 683 F.2d 331, 333 (10th Cir. 1982). Thus, the Court presumes that no jurisdiction exists absent an adequate showing by the party invoking federal jurisdiction. Lorentzen v. Lorentzen, No. 09-cv-00506-PAB, 2009 WL 641299, at *1 (D. Colo. Mar. 11, 2009).

         If, at any time, “a federal court determines that it is without subject matter jurisdiction, the court is powerless to continue.” Cunningham v. BHP Petroleum Great Britain PLC, 427 F.3d 1238, 1245 (10th Cir. 2005). Where a case has been removed from state court and a court determines any time prior to final judgment that jurisdiction is lacking, 28 U.S.C. § 1447(c) mandates that the case be remanded to state court. See McPhail v. Deere & Co., 529 F.3d 947, 951 (10th Cir. 2008).

         III. ANALYSIS

         “The 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. “Under the longstanding well-pleaded complaint rule, however, 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.R. Co. v. Mottley, 211 U.S. 149, 152 (1908)) (internal quotation marks and alteration marks omitted). In other words, “[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). To find removal jurisdiction, “the required federal right or immunity must be an essential element of the plaintiff's cause of action, and . . . the federal controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal.” Fajen, 683 F.2d at 333 (internal quotation marks omitted).

         In the present case, plaintiff's state court complaint raises claims of breach of contract, “discrimination, ” and wrongful termination. Docket No. 4 at 2, ¶¶ 2-3. Plaintiff alleges that, “[a]fter an investigation by the Colorado Department of Labor and Employment, the City Attorney's office[, ] . . . the Denver Police Department and the EEOC[, ] all of which have ruled in the Plaintiff's favor . . . [defendant] has done nothing to overturn [plaintiff's] discharge.” Docket No. 2 at 1, ¶ 6. In its notice of removal, defendant states that “it is apparent that Plaintiff's ‘discrimination' claim arises under federal anti-discrimination statutes” because (1) plaintiff's original complaint references the EEOC; (2) plaintiff's amended complaint sets forth a “discrimination” cause of action; and (3) plaintiff filed a charge with the EEOC and received a right to sue letter. Docket No. 1 at 3.

         The Court disagrees. Plaintiff's complaint does not, on its face, demonstrate that his claims are grounded in federal law. First, the fact that the EEOC is mentioned in plaintiff's complaint has no bearing on whether the Court has subject matter jurisdiction over plaintiff's lawsuit. Plaintiff alleges that the EEOC conducted some investigation and subsequently “ruled in [his] favor.” Docket No. 2 at 1, ¶ 6. Such an allegation is too ambiguous for the Court to construe as a basis for a federal claim. See Lees v. RMCI Inc., 2011 WL 13284660, at *2 (D.N.M. July 13, 2011) (finding that “reference to an appeal of the EEOC's determination is insufficient to establish federal question jurisdiction” where there is “no reference or citation to Title VII or other federal laws”); cf. Olivas v. Las Cruces Medical Center, LLC, 2011 WL 13277504, at *3 (D.N.M. Dec. 8, 2011) (finding removal after amended complaint timely because “[a] mere reference to a plaintiff's filing of an EEOC Charge of Discrimination and/or attachment of an EEOC Right to Sue letter to an initial pleading does not signal that a plaintiff is asserting a federal cause of action.”). Further, while plaintiff mentions an EEOC investigation in his complaint, he also references investigations by three state entities - the Colorado Department of Labor and Employment, the City Attorney's Office, and the Denver Police Department. Docket No. 2 at 1, ¶ 6. Thus, the mere mention of the EEOC, along with these other entities, does not demonstrate that plaintiff has based his claim in federal law.

         Second, although plaintiff has added a “discrimination” claim to his complaint, it does not necessarily follow that this claim arises under federal law. Plaintiff's complaint does not affirmatively allege a federal claim and makes no reference to federal law. Thus, it is not clear from plaintiff's complaint that removal is available. See Lees, 2011 WL 13284660, at *2; see also Warner Bros. Records, Inc. v. R. A. Ridges Distrib. Co., Inc., 475 F.2d 262, 264 (10th Cir. 1973) (no right to removal on face of plaintiff's complaint, which “[did] not invoke any federal laws, ” “[made] no mention of a federal law, ” and did not “allege that the cause [arose] under any such law”).

         “For a case to arise under federal law within the meaning of § 1331, the plaintiff's ‘well-pleaded complaint' must establish one of two things: ‘either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.'” Firstenberg v. City of Santa Fe, N.M., 696 F.3d 1018, 1023 (10th Cir. 2012) (quoting Nicodemus v. Union Pac. Corp., 440 F.3d 1227, 1232 (10th Cir. 2006)). Plaintiff's claim of discrimination could properly be brought under the Colorado Anti-Discrimination Act. See Colo. Rev. Stat. § 24-34-402 (prohibiting employment discrimination). Because plaintiff's cause of action was not created by federal law, and ...