United States District Court, W.D. Kentucky, Louisville
CHARLES R. SIMPSON III, SENIOR JUDGE
matter is before the Court on several motions. Plaintiff
filed four motions: 1) Motion to Remand (DN 7); 2) Motion to
Stay Briefing on Defendant's Motion to Dismiss (DN 8); 3)
Motion to Expedite Briefing on Motion to Stay (DN 9); and 4)
Motion for Leave to File Sur-Reply, or Alternatively, Motion
to Strike Exhibits Submitted by Defendant (DN 22). Defendant
filed three motions: 1) Motion to Dismiss or, in the
Alternative, Stay Pending Individual Arbitration (DN 6); 2)
Motion to Stay Briefing on Plaintiff's Motion to Remand
Pending Decision on Defendant's Motion to Compel
Arbitration (DN 10); and 3) Defendant's Contingent Motion
for Leave to File Response to Sur-Reply (DN 25).
reasons set forth herein, the Court will grant
Plaintiff's Motion to Remand (DN 7), and deny
Defendant's Motion to Stay Briefing on Plaintiff's
Motion to Remand (DN 10) as moot.
November 9, 2018, Plaintiff Michael Southard (the
“Plaintiff”) commenced this putative class action
against Defendant Newcomb Oil Co., LLC d/b/a Newcomb Oil Co.
(“Newcomb Oil”) in the Jefferson Circuit Court.
DN 1-2. Plaintiff's original complaint alleged violations
of the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 201, et seq., in addition to Kentucky
statutory and common law claims. Id. Specifically,
Plaintiff brought state law claims for failure to pay
overtime under KRS § 337.285 (Count II), failure to
provide meal and rest periods under KRS §§ 337.355,
337.365, and 446.070 (Count III), untimely payment of wages
and unlawful withholding of wages under KRS §§
337.055 and 337.060 (Count IV), failure to furnish statement
of wage deductions under KRS § 337.070 (Count V), and
unjust enrichment (Count VI). On December 6, 2018 Newcomb Oil
removed the action to this Court based on federal question
jurisdiction and supplemental jurisdiction. DN 1.
December 12, 2018, Plaintiff amended his complaint as a
matter of course pursuant to Federal Rule of Civil Procedure
15(a), removing the sole federal claim. DN 5. That same day,
Newcomb Oil moved to dismiss Plaintiff's claims, compel
arbitration or, in the alternative, stay pending individual
arbitration (hereinafter “Motion to Compel
Arbitration”). DN 6. On December 20, 2018, Plaintiff
filed a Motion to Remand for lack of subject matter
jurisdiction. DN 7.
next day brought a flurry of competing motions starting with
Plaintiff's Motion to Stay Briefing on Defendant's
Motion to Dismiss, which asserted that the Court must resolve
the Motion for Remand before the Motion to Compel
Arbitration. DN 8. Plaintiff also filed a motion asking the
Court to expedite briefing on Plaintiff's motion to stay.
DN 9. In response, Newcomb Oil filed its own motion to stay
asking the Court to stay briefing on Plaintiff's motion
to remand pending the Court's resolution of Newcomb
Oil's Motion to Compel Arbitration. DN 10.
January 2, 2019, having received no ruling on Plaintiff's
motion to stay briefing on the motion to compel, Plaintiff
filed its response to Newcomb Oil's Motion to Compel
Arbitration (DN 11), to which Newcomb Oil replied (DN 16). On
January 10, 2019, having received no ruling on its motion to
stay briefing, Newcomb Oil filed its response opposing
Plaintiff's Motion to Remand (DN 12), to which Plaintiff
replied (DN 20).
brought even more motion practice. On February 5, 2019,
Plaintiff moved for leave to file a sur-reply regarding
Newcomb Oil's exhibits attached to Newcomb Oil's
Motion to Compel Arbitration. DN 22. Newcomb Oil filed a
response in opposition (DN 23), and filed a contingent motion
for leave to file a response to the sur-reply. DN 25.
parties urge the Court to decide their respective motion
first. Newcomb Oil's position is that the Court should
decide its Motion to Compel Arbitration because
“arbitrability is a mandatory threshold issue that
should be decided at the earliest possible stage in this
proceeding, ” before discretionary matters such as
supplemental jurisdiction. DN 10, at 1-2. In contrast,
Plaintiff asks the Court to address its Motion to Remand
first on the grounds that “[a] federal court
must resolve issues of subject matter jurisdiction
before it decides the merits of a claim.” DN 8-1, at 1
(citing Steel Co. v. Citizens for a Better
Env't., 523 U.S. 83, 93 (1998)) (emphasis in
Plaintiff's Motion to Remand is based upon subject matter
jurisdiction, the Court addresses it first. As grounds for
remand, Plaintiff asserts first that the Court lacks subject
matter jurisdiction because the amended complaint contains no
federal claims. Alternatively, Plaintiff argues that the
Court should decline to assert supplemental jurisdiction over
the state law claims.
post-removal amended complaint did not deprive this court of
original subject matter jurisdiction. Subject matter
jurisdiction is determined by examining the complaint as it
existed at the time of removal. Harper v. AutoAlliance
Int'l. Inc., 392 F.3d 195, 210 (6th Cir. 2004)
(citing Long v. Bando Mfg. of Am., Inc., 201 F.3d
754, 758 (6th Cir. 2000) (holding that the district court was
not divested of subject matter jurisdiction upon the
dismissal of plaintiff's federal claims)).
Plaintiff's original complaint at the time of removal
asserted both state and federal statutory claims - making
subject matter jurisdiction ...