United States District Court, D. Massachusetts
ZOBEL SENIOR UNITED STATES DISTRICT JUDGE
October 12, 2018, Dr. Helia Jalili (“plaintiff”)
filed suit in Massachusetts Superior Court against her former
employer, H.C. Starck, Inc., and her former supervisor, Dr.
Francois Dary (collectively “defendants”).
Plaintiff's complaint contains four counts, each alleging
a violation of Mass. Gen. Laws ch. 151B. On December 14,
2018, defendants removed the case to this court, asserting
original jurisdiction in this court over Count II pursuant to
28 U.S.C. § 1331 and supplemental jurisdiction over the
remaining three counts pursuant to 28 U.S.C. § 1367.
Plaintiff has moved to remand.
II, titled “Violation of M.G.L. c. 151B - Retaliation,
” alleges that defendants retaliated against plaintiff
“as a result of her engaging in protected
activities” when they terminated her employment
immediately after she returned from “protected
pregnancy leave” and “request[ed]
accommodations.” Docket # 12-1. According to
defendants, the only protected conduct at issue is
plaintiff's taking of leave under the federal Family and
Medical Leave Act (“FMLA”), 29 U.S.C.
§§ 2601-2654. Therefore, defendants argue Count II
is actually a federal law claim.
preliminary matter, defendants assert that removal is timely
under 28 U.S.C. § 1446(b)(3) because the removability of
the case was only ascertained during plaintiff's
deposition on November 27, 2018. During the deposition,
defense counsel asked plaintiff about her understanding of
the “protected conduct” referenced in the
complaint and plaintiff responded: “I'm not a
lawyer, but ... I went on an approved maternity leave.”
Docket # 12-2. When pressed by defense counsel as to whether
she believed she was terminated because she took FMLA leave,
plaintiff answered affirmatively.
thus raise an issue that the First Circuit has not squarely
addressed: Whether a deposition transcript may constitute
“other paper” for purposes of 28 U.S.C. §
1446(b)(3). See Romulus v. CVS Pharmacy, Inc., 770
F.3d 67, 76-79 (1st Cir. 2014). However, I need not resolve
this issue because, even assuming the deposition testimony is
properly before the court, jurisdiction is lacking.
question jurisdiction exists if a complaint states a claim
“arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331. A claim
arises under federal law if: (1) federal law creates the
cause of action; or (2) plaintiff's right to relief
depends on the resolution of a substantial question of
federal law. Empire Healthchoice Assur., Inc. v.
McVeigh, 547 U.S. 677, 690 (2006) (citing Franchise
Tax Bd. of Cal. v. Construction Laborers Vacation
Trust for Southern Cal., 463 U.S. 1, 27-28 (1983)).
the complaint references plaintiff's FMLA leave in its
factual recitation, Count II clearly seeks relief for
retaliation under Chapter 151B, not under the FMLA or any
other federal law. Defendants argue, however, that the claim
must arise under the FMLA because taking maternity leave is
not, in fact, a “protected activity” under the
state statute. Defendants cite one Massachusetts Superior
Court case for this proposition, Frederick v. Richardson
Elecs., LTD., No. 0300928, 2005 WL 2542929, at *6 (Mass.
Super. Sept. 19, 2005), but the holding of that case has
since been described as "erroneous," Krause v.
UPS Supply Chain Sols., Inc., No. CIV.A.08-CV-10237DPW,
2009 WL 3578601, at *11 n.18 (D. Mass. Oct. 28, 2009). In any
event, whether Count II states a cognizable claim under
Chapter 151B is a question for the state court to decide;
skepticism about the claim's viability does not turn it
into one rooted in federal law.
Count II does not involve “a substantial question of
federal law in dispute between the parties.”
Franchise Tax Bd., 463 U.S. at 13. To determine the
retaliation claim, a court need not interpret nor grapple
with federal law. The mere fact that the conduct for which
plaintiff alleges she was fired may include her FMLA leave
does not imbue plaintiff's state law claim with any
significant federal legal issue over which this court could
motion to remand (Docket # 8) is therefore allowed. Because
the court does not find that defendants lacked an
“objectively reasonable basis for removal, ”
Martin v. Franklin Capital Corp., 546 U.S. 132, 132
(2005), plaintiff's request for attorneys' fees and
costs under 28 U.S.C. § 1447(c) is denied.
 28 U.S.C. § 1446(b)(3) provides:
“[I]f the case stated by the initial pleading is not
removable, a notice of removal may be filed within 30 days
after receipt by the defendant ... of a copy of an amended
pleading, motion, order or other paper from which it may
first be ...