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1 in the UNITED STATES DISTRICT COURT for the DISTRICT of MONTANA BILLINGS DIVISION Before the Court Are Two Motions Case 1:17-cv-00009-SPW Document 18 Filed 08/14/17 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BILLINGS DIVISION SCOTT LEE, CV 17-9-BLG-SPW-TJC Plaintiffs, FINDINGS AND vs. RECOMMENDATIONS OF UNITED STATES BNSF RAILWAY COMPANY, a MAGISTRATE JUDGE Delaware Corporation, Defendants. Before the Court are two motions: (1) Defendant BNSF Railway Company’s (“BNSF”) Rule 12(b)(6) Motion to Dismiss (“12(b)(6) Motion”) (Doc. 3); and (2) Plaintiff Scott Lee’s Motion to Remand (“Remand Motion”) (Doc. 9). Having reviewed the motions and attendant briefing, the Court makes the following findings and recommendations. I. Pertinent Facts The Court accepts as true the facts contained in Lee’s Complaint and Jury Demand (“Complaint”) (Doc. 6) for the purposes of the instant motions. See Kearney v. Direct Buy Associates, Inc., 2014 WL 12588636, *5 (C.D. Cal. Oct. 23, 2014) (citations omitted) (“Because a motion to remand is analogous to a motion to dismiss…the court accepts the allegations of plaintiff’s complaint as true.”). 1 Case 1:17-cv-00009-SPW Document 18 Filed 08/14/17 Page 2 of 14 Lee has been an employee of BNSF since 1976. (Doc. 6 at ¶ 6.) On or about August 12, 2013, while working as a hostler, Lee suffered an injury when he attempted to release a locomotive handbrake. (Id. at ¶ 13.) Lee contends that “[t]he handbrake was unsafe, defective, not in proper working order or failed to work as intended.” (Id. at ¶ 14.) Lee reported the defective handbrake to BNSF. (Id. at ¶ 15.) Lee’s injuries turned out to be more severe than he originally thought, and he ultimately was unable to perform his job. (Id. at ¶¶ 16 and 17.) Lee attempted unsuccessfully to settle with BNSF prior to filing suit, and BNSF thereafter refused to compensate him for his injury and lost wages. (Id. at ¶ 53.) Lee filed suit in the Montana Thirteenth Judicial District Court on August 4, 2016. (Id.) Counts I through IV of Lee’s Complaint allege various violations of the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51, et seq. (Id. at ¶¶ 13-51.) The sole remaining claim, Count V, is a state law claim alleging violations of the Montana Unfair Trade Practices Act, Mont. Code Ann. § 33-18-201, et seq., and a Montana statute governing railway corporations’ liability to their employees, Mont. Code Ann. § 39-2-703. (Id. at ¶¶ 52-61) BNSF removed the case on January 18, 2017, citing this Court’s jurisdiction over claims presenting federal questions. (Doc. 1.) BNSF filed its 12(b)(6) Motion contemporaneously. (Doc. 3.) On February 8, 2017, Lee submitted his Memorandum in Opposition to Defendant’s Motion to Dismiss (“12(b)(6) 2 Case 1:17-cv-00009-SPW Document 18 Filed 08/14/17 Page 3 of 14 Response”) (Doc. 11) and his Remand Motion. Both motions are now fully briefed and suitable for disposition. (See Docs. 14, 16.) II. Parties’ Arguments Because the Court finds that this case should be remanded, the Court does not reach the merits of BNSF’s 12(b)(6) Motion. The parties’ arguments with respect to the Remand Motion are as follows. Lee argues first that his FELA claims (Counts I through IV) are not removable according to 28 U.S.C. § 1445, which states in pertinent part that “[a] civil action in any State court against a railroad or its receivers or trustees, arising under sections 1-4 and 5-10 of the [FELA] may not be removed to any district court of the United States.” (Doc. 10 at 4.) Next, Lee argues that his Montana statutory claims (Count V) do not present a federal question, and therefore cannot serve as the sole basis for removal. (Id. at 5-6.) Lee maintains that, pursuant to the “well-pleaded complaint rule,” he may avoid federal jurisdiction by relying exclusively on state law, and that BNSF’s federal preemption affirmative defense, even if meritorious, cannot serve as the basis for removal. (Id. at 6.) Finally, Lee argues that the Court should award him costs and attorney’s fees. (Id. at 11.) BNSF agrees that Lee’s FELA claims (Counts I through IV) are not removable and therefore must be remanded. (Doc. 13 at 9-11.) With respect to Lee’s state law claims, BNSF argues that Congress intended the FELA to 3 Case 1:17-cv-00009-SPW Document 18 Filed 08/14/17 Page 4 of 14 completely preempt state law in the area contemplated by Count V of Lee’s Complaint, and therefore the well-pleaded complaint rule is not controlling. (Id. at 4-6.) Due to the doctrine of “complete preemption,” argues BNSF, this case presents a federal question and removal was proper. (Id. at 7-10.) Finally, BNSF argues that costs and fees are inappropriate in light of the fact that the removal statutes specifically provide for the “remove-and-sever” tack contemplated by BNSF. (Id. at 11-12 (citing Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005)).) III. Legal Standard BNSF removed this action pursuant to 28 U.S.C. § 1441. The “removal statute is strictly construed, and any doubt about the right of removal requires resolution in favor of remand.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). Courts must “strictly construe the removal statute against removal jurisdiction” and must reject federal jurisdiction “if there is any doubt as to the right of removal in the first instance.” Gaus, 980 F.2d at 566 (citations omitted). There is a “strong presumption” against removal, and the defendant has the burden to establish that removal is proper. Id. at 566-67. Any doubts are to be resolved in favor of remand. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1118 (9th Cir. 2004) 4 Case 1:17-cv-00009-SPW Document 18 Filed 08/14/17 Page 5 of 14 (citing Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003)). IV. Discussion A. Remand of Count V The parties agree that Counts I through IV of Lee’s Complaint must be remanded. (See Docs. 10 at 4-5 and 13 at 9; see also 28 U.S.C. § 1445(a).) Accordingly, the sole issue before the Court is whether Count V of Lee’s Complaint also must be remanded. BNSF removed the case on the basis of this Court’s jurisdiction over federal questions. (Doc. 1 at ¶ 6.) The Ninth Circuit Court of Appeals explained the standard a court must follow when considering whether it has federal-question jurisdiction: As a general rule, 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 plaintiff’s properly pleaded complaint. A case may not be removed to federal court on the basis of a federal defense, even if the defense is anticipated in the plaintiff’s complaint, and even if both parties admit that the defense is the only question truly at issue in the case. Put simply, the existence of federal jurisdiction depends solely on the plaintiff’s claims for relief and not on anticipated defenses to those claims. ARCO Envtl. Remediation, L.L.C. v. Dep’t of Health and Envtl. Quality of Mont., 213 F.3d 1108, 1114 (9th Cir. 2000) (quotations and citations omitted). 5 Case 1:17-cv-00009-SPW Document 18 Filed 08/14/17 Page 6 of 14 Notably, the defense of federal preemption is among the defenses that cannot serve as the basis for federal-question jurisdiction. Franchise Tax Bd. of State of Cal. v. Const. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 14 (1983) (“…[S]ince 1887 it has been settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiff’s complaint, and even if both parties admit that the defense is the only question truly at issue in the case.”) Count V of Lee’s Complaint pleads exclusively state law claims, so the Court cannot say – and BNSF does not argue – that a federal question is “presented on the face of [Lee’s] properly pleaded complaint.” Any defenses BNSF may have to Count V, even if grounded in federal preemption, cannot serve as the sole basis for removal. Accordingly, in order to find federal-question jurisdiction, the Court must be satisfied that this case presents an exception to the well-pleaded complaint rule. One recognized exception to the well-pleaded complaint rule is the doctrine of “complete preemption,” which “posits that there are some federal statutes that have such extraordinary pre-emptive power that they convert an ordinary state common law complaint into one stating a federal claim for purposes of the well- pleaded complaint rule.” Retail Property Trust v. United Broth. of Carpenters & Joiners of America, 768 F.3d 938, 947 (9th Cir. 2014) (quotations omitted). 6 Case 1:17-cv-00009-SPW Document 18 Filed 08/14/17 Page 7 of 14 “Complete preemption…arises only in extraordinary situations.” Id. (quotations omitted). “The United States Supreme Court has identified only three federal statutes that satisfy this test: (1) [§] 301 of the Labor–Management Relations Act, 29 U.S.C. § 185; (2) [§] 502 of the Employee Retirement Income Security Act of 1974, 29 U.S.C.
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