United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
filed this case in Massachusetts Superior Court alleging
violations of the Family Medical Leave Act of 1993 (the
"FMLA"), 29 U.S.C. §2615, as well as
fraudulent and negligent misrepresentation under
Massachusetts law. Defendant timely removed the case to this
federal court. It alleged the court had federal question
jurisdiction over the FMLA claim under 28 U.S.C. §1331
and supplemental jurisdiction over the state law claims under
28 U.S.C. §1367. Plaintiff subsequently dismissed the
FMLA and fraud claims, and amended the complaint to allege
only one count of negligent misrepresentation under
Massachusetts law. For the reasons described below, the court
lacks subject matter jurisdiction to decide that claim.
Therefore, it is remanding this case to state court.
court is duty-bound to notice, and act upon, defects in its
subject matter jurisdiction sua sponte."
Spooner v. EEN, Inc., 644 F.3d 62, 67 (1st Cir.
2011) . On November 2, 2017, the court issued a Memorandum
and Order questioning whether it had subject matter
jurisdiction to decide the case. The court explained the
reasons it doubted the existence of jurisdiction, which are
amplified below, and ordered that "the parties shall, by
November 20, 2017, confer concerning the issues raised in
this Memorandum and Order and report whether this case should
be remanded to state court." Nov. 2, 2017 Memo, and
Order at 5, ¶ 1. It also ordered that " [i]f either
party asserts the case should proceed in this court, the
parties shall, by December 8, 2017, each submit a memorandum
addressing whether this court may properly exercise
jurisdiction over this case." Id. at ¶ 2.
See Fabrica de Muebles J.J. Alvarez, Incorporado v.
Inversiones Mendoza, Inc., 682 F.3d 26, 32-33 (1st Cir.
2012) (stating that when the court notices a defect in
subject-matter jurisdiction, the "party asserting
jurisdiction has the burden of demonstrating [its]
November 27, 2017, the parties had not filed the report
required by paragraph one of the November 2, 2017 Order.
Therefore, the court ordered the case remanded to state
court. See Dec. 27, 2017 Memo. and Order. The
parties promptly moved for reconsideration, explaining that
they incorrectly believed they were only required to report
by November 20, 2017 if they consented to have the case
remanded. The court allowed the motion and stayed the
December 27, 2017 Order requiring remand. The parties
subsequently filed a Joint Memorandum in Favor of Finding
Federal Jurisdiction, arguing that the case should remain in
parties agree, as the court found on November 2 and December
27, 2017, that the court cannot exercise supplemental
jurisdiction over the negligent misrepresentation claim under
28 U.S.C. §1367. See Wilber v. Curtis, 2017 WL
4159603, at *6 (1st Cir. Sept. 20, 2017); Rivera-Diaz v.
Humana Ins. of Puerto Rico, Inc., 748 F.3d 387, 392 (1st
Cir. 2014). They argue, however, that 28 U.S.C. §1331
confers federal question jurisdiction over the claim because
it alleges that defendant owed plaintiff a duty under two
federal statutes, the FMLA and the Americans with
Disabilities Act of 1990 (the "ADA"), 42 U.S.C.
§12112. See Compl. at ¶ 38.
U.S.C. §1331 authorizes the United States District
Courts to hear "all civil actions arising under the
Constitution, laws, or treaties of the United States."
"A case 'aris[es] under' federal law within the
meaning of §1331...if 'a well-pleaded complaint
establishes 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.'" Empire Healthchoice Assur.,
Inc. v. McVeigh, 547 U.S. 677, 689-90 (2006)(quoting
Franchise Tax Bd. Of Cal. v. Construction Laborers
Vacation Trust for Southern Cal., 463 U.S. 1, 27-28
(1983)). This means that "federal question jurisdiction
under 28 U.S.C. §1331 encompasses a narrow swath of
cases in which a state-law claim  necessarily raise[s] a
stated federal issue,  actually disputed and 
substantial,  which a federal forum may entertain without
disturbing any congressionally approved balance of federal
and state judicial responsibilities." Anversa v.
Partners Healthcare Sys., Inc., 835 F.3d 167, 175 (1st
Cir. 2016) (citing Grable & Sons Metal Prods., Inc.
v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005);
see also Gunn v. Minton, 133 S.Ct. 1059, 1065-67
requirement that a question of federal law embedded in a
state-law claim be "substantial" "demands that
[the] federal question must be not only important to the
parties, but important to the federal system."
Municipality of Mayaguez v. CPDO, 726 F.3d 8, 13
(1st Cir. 2013). A claim raises a "substantial"
federal question when (a) its outcome "could turn on a
new interpretation of a federal statute or regulation which
will govern a large number of cases" and "could be
settled once and for all" if adjudicated in a federal
forum; or (b) presents an issue of federal law whose
resolution "has broader significance for the federal
government, " such as a claim that "directly
challenges the propriety" of a federal administrative
action. Id. at 13-14. The Supreme Court has also
considered whether allowing state courts to resolve the claim
will "undermine the development of a uniform body of
[federal] law." Gunn, 568 U.S. at 261.
basis for her claim of negligent misrepresentation under
Massachusetts law, plaintiff alleges that while she was on
leave because of anxiety and depression, defendant
"misrepresented that [she] would not be terminated while
on [leave due to her] disability, " even though it
"knew or should have known that [her] position would not
be available as of November 3, 2014." Am. Compl. at
¶¶ 39-40. She further alleges that defendant
"failed to inform [her] that she needed to provide a
return to work date in order to retain her employment with
[defendant]." Am. Compl. at ¶¶ 36. She also
alleges that defendant's "misrepresentation to [her]
caused her to remain out on leave beyond" June 23, 2014,
the date to which defendant had previously extended her
leave. Id. at ¶ 42. As a result, on November 3,
2014, she was terminated. Id.
claims that defendant's misrepresentation breached its
"duty to [plaintiff] to inform her of her rights under
the FMLA and ADA." Id. at ¶ 38. However,
plaintiff dismissed her FMLA claim because the alleged
misrepresentations occurred after the 12-week period of leave
to which the FMLA allegedly entitled her. See
Pl's Opp. to Motion to Dismiss (Docket No. 11)
("Pl's Opp.") at 2; see also 29 U.S.C.
§2612 (a) . She has not asserted a claim under the ADA.
The parties concede that there is no provision of the FMLA or
the ADA that required defendant to notify plaintiff, after
her 12-week FMLA leave ended, that she could be terminated
for remaining on indefinite leave without setting a date for
her return. See Def's Memo, in Supp. of Motion
to Dismiss (Docket No. 7) at 1; Pl's Opp. at 6. Plaintiff
does not allege that defendant failed to comply with any of
the FMLA notice requirements under 29 C.F.R. §825.300
during her initial 12 weeks of leave. In effect, plaintiff
contends that the FMLA and ADA are evidence of a "public
policy" that employers should provide complete and
accurate information in the circumstances alleged, and that
Massachusetts law elevates that policy into a duty. Pl's
Opp. at 5, 8.
explained earlier, §1331 gives United States District
Courts the power to decide state-law claims that "depend
on the construction or application of federal law,
" if "the contested federal issue [is] a
substantial one." Grable, 545 U.S. at 314
(emphasis added); see also Merrell Dow Pharma. Inc., v.
Thompson, 478 U.S. 804, 808-09 (1986) (stating that
"the vindication of a right under state law [must]
necessarily turn on some construction of federal
law")(emphasis added). To provide federal
jurisdiction to decide a claim based on state law, the claim
must depend on the "interpretation of a federal statute
or regulation" or the propriety of a federal
administrative action. Municipality of
Mayaguez, 726 F.3d at 14. In Grable, for example,
the plaintiff in a quiet-title action alleged that the
Internal Revenue Service violated a duty imposed under a
federal tax statute, 26 U.S.C. §6335(a), when it seized
his property. See 545 U.S. at 311. Because any duty
to plaintiff in this case was imposed by state, not federal
law, §1331 does not apply.
Fracasse v. People's United Bank, the Second
Circuit found that it lacked jurisdiction over a comparable
case and remanded it to state court. 747 F.3d 141 (2nd Cir.
2014) . It held that "[n]either the federal government
nor the federal system as a whole has a pressing interest in
ensuring that a federal forum is available to defendants in
state tort suits that [like this case] include passing
references to a federal statute cited only as an articulation
of public policy." Id. at 145. In
Fracasse, the plaintiffs alleged that their employer
failed to compensate them for overtime work and wrongfully
terminated one of them while she was on medical leave due to
increased stress and anxiety. Id. at 142-43. They
asserted claims for breach of the covenant of good faith and
fair dealing and wrongful termination under state law.
Id. The plaintiffs referenced the Fair Labor
Standards Act as "one of numerous public policies"
supporting their claims. Id. at 144. In finding that
it lacked jurisdiction under §1331, the court reasoned
that employees whose FLSA rights were violated "ha[d]
direct access to a federal forum to assert their rights under
the FLSA." Id. at 145. Therefore, there was no
"pressing" federal interest in providing a federal
forum for state-law claims raising FLSA issues. Id.
at 145. In addition, declining jurisdiction would not
"cede an opportunity to establish binding
precedent" because the FLSA "need[ed] no
interpretation in connection with the state tort claims that
ha[d] been pled." Id.
in this case plaintiff does not ask the court to interpret
any provision in the ADA or FMLA, but merely to define the
"policies" behind those statutes and their
implementing regulations. Therefore, as in Fracasse,
this case does not require the court to construe a federal
law definitively. Since it does not pose a question of
federal law, state court adjudication of the claim will not,
as the parties contend, "undermine the development of a
uniform body of [federal] law." Joint Memo, at 5.
addition, employees alleging that they were harmed by
violations of the FMLA's notice provisions may seek
relief directly under the FMLA. See Ragsdale v. Wolverine
World Wide, Inc., 535 U.S. 81, 89 (2002); 29 C.F.R.
§825.300(e); Vannoy v. Federal Reserve Bank of
Richmond, 827 F.3d 296, 301-02 (4th Cir. 2016)(holding
that claim under FMLA based on employer's failure to
notify employee of his right to reinstatement at the
conclusion of his medical leave, which would have caused him
to structure his leave differently). Employees alleging
failures to grant a reasonable request for medical leave as
an accommodation for a disability may sue under the ADA.
See Garcia-Ayala v. Lederle Parentals, Inc., 212
F.3d 638, 645-50 (1st Cir. 2000) . Such claims give the
federal courts ample opportunity to interpret the ADA'S
and FMLA's requirements applicable to leave. Therefore,
as in Fracasse, there is no federal interest in
allowing a state-law claim such as plaintiff's negligent
misrepresentation claim in this case to be used as a vehicle
to do so. See 747 F.3d at 145.
cases cited by the parties are materially different. In each
of them, the court was required to interpret federal law--not
just an unwritten federal policy--to grant full relief. In
Anversa, "all of the plaintiff's claims
turn[ed] on the interpretation of...federal
regulations." 835 F.3d at 174 n.5 (1st Cir. 2016). In
Bd. of Comm'rs of Southeast La. Flood Protection
Auth. - East v. Tenn. Gas. Pipeline Co., LLC, the Fifth
Circuit found jurisdiction over the plaintiff's
negligence and nuisance claims because they could "not
be resolved without a determination whether multiple federal
statutes create[d] a duty of care that does not otherwise
exist under state law." 850 F.3d 714, 724 (5th Cir.
2017) . Similarly, in Shea v. Union Free School Dist. of
Massapequa, the court construed the plaintiff's
allegations as asserting that the defendant "failed to
comply with the provisions of the [Individuals with
Disabilities Act (the "IDEA")]." 682 F.Supp.2d
239, 242 (E.D.N.Y. 2010). Therefore, although the plaintiffs
"appear[ed] to challenge the defendant's compliance
with state, not federal, procedural ...