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ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

KERRY A. FRANKS,

Plaintiff,

v.

CIVIGENICS, INC., a corporation doing

business in Washington,

Defendant.

Case No. C05-5637RJB

ORDER DENYING PLAINTIFF’S

MOTION TO REMAND

This matter comes before the court on the plaintiff’s Motion to Remand to Pierce County

Superior Court (Dkt. 7). The court has reviewed the motion, the response, and the file herein.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 1, 2005, the plaintiff filed suit in Pierce County Superior Court for wrongful

discharge. Dkt. 1-2 at 5-7. The suit named CiviGenics, Inc. as defendant, a private corporation

headquartered in Massachusetts. Dkt. 1-1 at 2. On September 16, 2005, the plaintiff amended the

complaint, re-characterizing her claims as breach of contract, breach of promise of specific

treatment in a specific situation, promissory estoppel, violation of public policy, and negligence.

Dkt. 1-2 at 12. 

On September 29, 2005, the defendant removed the suit to federal court on the basis of

diversity jurisdiction. Dkt. 1-1 at 2. The defendant also based removal upon federal question

jurisdiction, contending that the plaintiff’s suit raised a federal question by asserting that the

public policy of the Family and Medical Leave Act, 29 U.S.C. 2611, had been violated. Dkt. 1-1

at 2-3.

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ORDER - 2

The plaintiff now moves to remand the case to state court, contending that the notice of

removal was untimely and that the complaint does not state a “claim” arising under the Family and

Medical Leave Act but merely refers to the Act as an example of the public policy the defendant

allegedly violated. Dkt. 7. The plaintiff also contends that “in the interest of economy and

efficiency, plaintiff is prepared to strike its [the complaint’s] sole reference to the Family and

Medical Leave Act.” Dkt. 7 at 5 n.2. 

In its response, the defendant contends that the notice of removal was timely, that the case

meets the requirements for diversity jurisdiction, and that the case “will require resolution of

substantial questions of federal law, including whether Congress intended to clearly mandate a

public policy when enacting the FMLA that could form a basis for plaintiff’s claim.” Dkt. 9 at 4.

The defendant also contends that it would not oppose the motion to remand if the plaintiff agreed

to file an amended complaint striking all references to the Family and Medical Leave Act but has

received no response from the plaintiff to this offer. Dkt. 9 at 4. 

The court conferred, by conference call, with counsel for both parties; and counsel for the

plaintiff stated that the plaintiff was no longer amenable to removing the reference to the Family

and Medical Leave Act from the complaint. 

II. DISCUSSION

A. DIVERSITY JURISDICTION 

This court has original jurisdiction over all cases where the amount in controversy exceeds

$75,000 and the suit is between citizens of different states. 28 U.S.C. § 1332. The parties

acknowledge that they are citizens of different states and that the matter in controversy exceeds

$75,000. See, e.g., Dkt. 7 at 4, Dkt. 9 at 3. The plaintiff contends that the notice of removal, filed

on September 29, was untimely because it was not filed within thirty days of the defendant’s

receipt of the initial complaint. The defendant contends that the thirty day time limit did not

commence until the filing of the amended complaint on September 16 because the complaint was

legally deficient. Dkt. 9 at 2. 

The procedure for removal to federal court is set forth in 28 U.S.C. § 1446 as follows:

The notice of removal of a civil action or proceeding shall be filed within thirty days after

the receipt by the defendant, through service or otherwise, of a copy of the initial pleading

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ORDER - 3

setting forth the claim for relief upon which such action or proceeding is based . . . .

If the case stated by the initial pleading is not removable, a notice of removal may be filed

within thirty days after receipt by the defendant, through service or otherwise, of a copy of

an amended pleading . . . from which it may first be ascertained that the case is one which

is or has become removable.

28 U.S.C. § 1446(b). Whether the court should grant the motion therefore turns in part upon

whether the “case stated by the initial pleading [was] removable.” 

The relevant paragraphs of the initial and amended complaints state as follows: 

1.1 At all times relevant hereto, Plaintiff was a resident of Pierce County, and employed by

the defendant Civigenics. 

1.2 The defendant Civigenics is a private corporation, headquartered in Massachusetts,

and maintains an office in, and conducts business within, Pierce County Washington. 

Dkt. 1-2 at 5, 12. The plaintiff contends that this language put the defendant on notice that

diversity jurisdiction was present. 

The time limit for removal commences only when the initial pleading affirmatively reveals

that the case is removable on its face, irrespective of subjective knowledge. Harris v. Bankers Life

and Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005). There is no duty to make a further inquiry into

whether the case is removable. Id. The defendant does not contend that the initial complaint was

insufficient notice that the parties were diverse but instead contends that the initial complaint was

legally deficient as a whole and therefore cannot justify commencing the time limit for removal.

See Dkt. 9 at 2 (“Because plaintiff’s July 1, 2005, Complaint was legally deficient, the time for

filing a notice of removal did not begin running on that date. Rather the time for filing a notice of

removal began running on September 16, 2005, when plaintiff first filed a legally sufficient

complaint.”). The language employed by the plaintiff in both the initial and amended complaint

was sufficient to apprise the defendant of the basis for jurisdiction, notwithstanding the

complaint’s other legal inadequacies. The court should therefore hold that the time limit for

removal commenced with the defendant’s receipt of the initial complaint and that the notice of

removal on the basis of diversity jurisdiction was untimely.

B. FEDERAL QUESTION JURISDICTION 

Notwithstanding the court’s finding that the notice of removal was untimely with respect

to diversity jurisdiction, the motion should be granted only if the removal on the basis of federal

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ORDER - 4

question jurisdiction was also untimely or if the court lacks federal question jurisdiction. This

court has original jurisdiction over all cases arising under the Constitution, laws, or treaties of the

United States. 28 U.S.C. § 1331. The plaintiff contends that this case does not present a federal

question because she has not brought a “claim” under the Family and Medical Leave Act, as

contended by the defendant. Dkt. 7 at 4, Dkt. 9 at 4. 

As a threshold matter, the parties do not appear to dispute whether removal on the basis

of federal question jurisdiction was timely. Reference to the Family and Medical Leave Act first

appeared in the amended complaint, which was filed on September 16, 2005, and the defendant

filed notice of removal on September 29.

Under Article III, federal courts may assert jurisdiction over federal questions, extending

to all cases “arising under this Constitution, the Laws of the United States, and Treaties made, or

which shall be made, under their Authority.” U.S. Const. Art. III, § 2. Merely a federal ingredient

may satisfy the requirements of Article III, but jurisdiction under 28 U.S.C. § 1331 requires more,

even though the same language (“arising under”) appears in both provisions. Verlinden B.V. v.

Central Bank of Nigeria, 461 U.S. 480, 494-95 (1983). The well-pleaded complaint rule provides

that removal is proper only where the complaint demonstrates that the case “arises under” federal

law. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-10 (1983). In

other words, a right created by the Constitution or the laws of the United states must be an

essential element of the plaintiff’s cause of action. Id. at 10. 

The well-pleaded complaint rule, “for reasons involving perhaps more history than logic,”

Franchise Tax Bd., 463 U.S. at 4, makes the plaintiff the master of her claims; she can avoid

federal jurisdiction merely through exclusive reliance on state law. Ethridge v. Harbor House

Restaurant, 861 F.2d 1389, 1394 (9th Cir. 1988). 

Reading the “essential element” requirement in conjunction with the well-pleaded

complaint rule, remand of this case would be inappropriate. In making a claim for wrongful

discharge in violation of public policy, the plaintiff was entitled to refer to only state laws creating

or illustrating the public policy at issue. Rather than relying solely upon Washington’s laws against

discrimination, the plaintiff amended the complaint to add a reference to the Family and Medical

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ORDER - 5

Leave Act and is unwilling to remove this reference. See, e.g., Griffith v. Boise Cascade, Inc.,

111 Wn. App. 436, 444-45 (2002). This reference makes the policy of the Family and Medical

Leave Act an essential element of the plaintiff’s claim of wrongful discharge in violation of public

policy. The court should therefore hold that removal on the basis of federal question jurisdiction

was proper and deny the motion to remand.

III. ORDER

Therefore, it is hereby

ORDERED that the plaintiff’s Motion to Remand to Pierce County Superior Court (Dkt.

7) is DENIED.

The Clerk of the Court is instructed to send uncertified copies of this Order to all counsel

of record and to any party appearing pro se at said party’s last known address. 

DATED this 29th day of November, 2005.

ARobert J. Bryan

United States District Judge 

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