IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10188

Summary Calendar

ROSE MARY CLEWIS,

Plaintiff - Appellant

v.

MEDCO HEALTH SOLUTIONS, INCORPORATED; KEVIN COCHENER; 

TREY GORDON; DENNIS CLIFFORD,

Defendants - Appellees

Appeals from the United States District Court

for the Northern District of Texas, Dallas

USDC No. 3:12-CV-5208

Before KING, JOLLY, and HAYNES, Circuit Judges.

PER CURIAM:*

In October 2012, Rose Mary Clewis filed suit against Medco Health 

Solutions, Inc. (Medco), alleging that it violated the “American Disability Act, 

(ADA), and the Texas Commission on Human Rights Act (TCHRA), by denying, 

and or failing to reasonably accommodate” her disability. Medco timely 

removed the case to federal court, asserting that the court had federal question 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 21, 2014

Lyle W. Cayce

Clerk

 

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jurisdiction over Clewis’s ADA claim and supplemental jurisdiction over her 

state law claims. Clewis filed a motion to remand in which she asserted that 

her claims did not present a federal question. The district court denied the 

motion, holding that Clewis’s ADA claim presented a federal question and that 

it had supplemental jurisdiction over her state law claim which arose from the 

same facts as the ADA claim. The district court explained that Clewis’s filing 

of an amended complaint that appeared to delete her ADA claim was of no 

consequence because it was filed in state court after the case had already been 

removed to federal court, and federal subject matter jurisdiction is determined 

at the time of removal.

On March 28, 2013, Clewis filed an Amended Complaint in which she 

sought relief only under state law. The district court granted Medco’s motion 

to strike the Amended Complaint because it was filed more than three months 

after Medco filed its answer, without Medco’s consent or leave of court, in 

violation of Federal Rule of Civil Procedure 15(a)(1).1

In July 2013, with leave of court, Clewis filed an Amended Complaint

which Medco answered on August 5. On September 12, Clewis filed a “Second 

Amended Complaint” in which she alleged that Medco violated the Texas 

Labor Code. The district court denied Medco’s motion to strike the Second 

Amended Complaint, and Medco filed its answer on October 23.

On December 6, 2013, Clewis filed a Third Amended Complaint in which 

she added Kevin Cochener as a defendant and asserted a claim against him for 

intentional infliction of emotional distress. On December 16, she filed another 

1 Rule 15(a)(1) provides:

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 

Rule 12(b), (e), or (f), whichever is earlier.

2

 

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motion to remand to state court, alleging that the district court lacked subject 

matter jurisdiction because she had deleted her ADA claim, and that diversity 

of citizenship was lacking because Medco and Cochener were citizens of Texas. 

Medco moved to strike the Third Amended Complaint on the ground that 

it was filed in violation of Rule 15(a). Medco argued alternatively that, even if 

the court were to allow the amendment, the intentional infliction of emotional 

distress claim against Cochener “would have to be struck under Rule 12(f) 

because it is facially time-barred and serves only to inject immaterial and 

impertinent allegations that have nothing to do with this disabilitydiscrimination case.”

On December 31, Clewis filed a Fourth Amended Complaint in which she 

added two new defendants, Dennis Clifford and Trey Gordon. She asserted 

that she did not need consent or leave of court to file the amendment because 

it was in response to Medco’s Rule 12(f)2 motion to strike and was therefore 

authorized by Rule 15(a). 

On January 15, 2014, the district court granted Medco’s motion to strike 

Clewis’s Third Amended Complaint because she filed it without leave of court 

and without Medco’s consent. The court sua sponte struck the Fourth 

Amended Complaint for the same reasons.

On March 4, 2014, the district court denied Clewis’s motion to remand 

and granted Medco’s motion to dismiss. In its order, the district court 

explained that when a defendant removes a case to federal court because of the 

presence of a federal claim, a later amendment eliminating the federal claim 

that was the original ground for federal jurisdiction generally does not divest 

the federal court of jurisdiction. Concluding that issues of comity, convenience, 

2 Rule 12(f) provides that “[t]he court may strike from a pleading an insufficient 

defense or any redundant, immaterial, impertinent, or scandalous matter.”

3

 

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fairness, and judicial economy all weighed in favor of not remanding the case 

to state court, the district court concluded that it was appropriate to exercise 

supplemental jurisdiction over Clewis’s state law disability discrimination 

claim. See 28 U.S.C. § 1367; Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 

350 (1988). The district court dismissed Clewis’s claims with prejudice under 

Federal Rule of Civil Procedure 41(b) because Clewis had failed to comply with 

its order that she provide a signed social security release form to Medco, 

despite having been warned that failure to comply would be viewed as willful 

and contumacious conduct resulting in dismissal of her complaint with 

prejudice. The court described at length the basis for its finding that Clewis’s 

refusal to comply with its orders was willful and contumacious and that any 

lesser sanctions would not alter Clewis’s conduct.

On appeal, Clewis argues that she had a right to file her Fourth 

Amended Complaint without consent and without leave of court and that the 

district court erred by denying her motion to remand because it lacked subject 

matter jurisdiction after she added non-diverse defendants in her Fourth 

Amended Complaint.

In support of her contention that she had a right to file her Fourth 

Amended Complaint without first obtaining Medco’s consent or leave of court, 

Clewis relies on Medco’s motion to strike her Third Amended Complaint. In 

that motion to strike, Medco argued that the entire complaint should be struck

because it had been filed without consent or leave of court. Contrary to 

Clewis’s contention, Medco’s alternative request that the court strike the 

intentional infliction of emotional distress claim against Cochener under Rule 

12(f) did not authorize her to file her Fourth Amended Complaint without first 

obtaining either Medco’s consent or leave of court. But even if Medco’s 

alternative request were construed as a Rule 12(f) motion which allowed the 

filing of the Fourth Amended Complaint, Clewis’s addition of non-diverse 

4

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defendants in that complaint did not divest the district court of subject matter 

jurisdiction. Medco removed the case to federal court on the basis of federal 

question jurisdiction. As the district court explained repeatedly to Clewis, 

jurisdiction is determined at the time of removal. See Manguno v. Prudential 

Prop. & Cas. Ins. Co., 276 F.3d 720, 733 (5th Cir. 2002) (“To determine whether 

jurisdiction is present . . . we consider the claims in the state court petition as 

they existed at the time of removal.”). When the case was removed to federal 

court, Clewis’s state court petition contained a federal claim for violation of the 

Americans with Disabilities Act. Thus, the district court had subject matter 

jurisdiction. Clewis does not challenge, and has therefore waived, any 

argument regarding the district court’s discretionary decision to exercise 

supplemental jurisdiction over her state law claims, as well as the district 

court’s findings of willful and contumacious conduct and its dismissal of her 

claims with prejudice under Rule 41(b). The judgment of the district court is 

therefore AFFIRMED.3

3 Clewis’s motion for judicial notice is DENIED.

5

 

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