Opinion
Civil Action No. 3:02-CV-1310-L
October 10, 2002
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff's Motion to Remand, filed July 19, 2002. After careful consideration of the motion, response, and applicable law, the court, for the reasons stated, denies Plaintiff's Motion to Remand.
I. Factual and Procedural Background
Plaintiff Michael S. Collins ("Plaintiff") is an employee of Defendants New Horizon Training Centers, L.P. d/b/a New Horizons Computer Learning Centers of Dallas/Ft. Worth, Austin, Houston; RBC Partners, Inc., f/k/a Dagny Taggart, Inc. and Guy Christopher Jones (collectively "Defendants"). Defendants are in the business of providing customer-focused computer and technical training. As an account executive, Plaintiff's duties include selling computer and technical training to various businesses and collecting inside sales. Plaintiff alleges that Defendants have refused to pay persons in his position overtime compensation, even though they perform non-exempt work, choosing instead to pay such employees on a commission-only basis.
It is not altogether clear from Plaintiff's Original Petition ("Plaintiff's Petition") whether he is an account executive or an employee who performs the same or similar type functions as do account executives. For purposes of this order, the court assumes that Plaintiff is an account executive. It is also not clear from Plaintiff's Petition when he began his employment with Defendants; however, based on Plaintiff's allegation that Defendants have been an enterprise since May 1999, the court assumes that his employment with them began at or near the same period of time.
On May 29, 2002, Plaintiff filed this lawsuit in the 134th Judicial District Court of Dallas County, Texas, asserting claims against Defendants for violations of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201 et seq., for failure to pay overtime pay and for monetary and liquidated damages and attorney's fees pursuant to the Portal-to-Portal Act of 1947, 29 U.S.C. § 251 et seq. Plaintiff purports to bring this action as an "opt-in" collective action on behalf of all persons who have worked for Defendants in the State of Texas and have been, are, or will be, employed as an account executive, or an equivalent or similar position, and all other non-exempt employees of Defendants. On June 21, 2002, Defendants removed the action to this court pursuant to 28 U.S.C. § 1441(a), asserting federal question jurisdiction under 28 U.S.C. § 1331. Plaintiff now moves to remand the case to state court.
II. Plaintiff's Motion to Remand
Plaintiff contends that Defendants' removal was improper under the FLSA, because the jurisdictional portion of the statute expressly provides that an action based on violations of the FLSA "may be maintained" in state court, thereby negating the general grant of removal authority under 28 U.S.C. § 1441(a). He explains that because FLSA actions may be prosecuted to final judgment in state court, any subsequent removal of the action to federal court is improper. Defendants disagree, contending that § 1441(a) provides a broad right of removal of any civil action that could have been brought in federal court, unless otherwise expressly provided by Congress. They argue that because the word "maintain" is ambiguous, it cannot constitute an express prohibition against removal.
Under the general removal statute, 28 U.S.C. § 1441(a), any civil action brought in state court over which the federal district courts have original jurisdiction may be removed by a defendant to federal court "(e)xcept as otherwise expressly provided by Act of Congress." The FLSA provides that an action brought to enforce its provisions "may be maintained" against any employer in any federal or state court of competent jurisdiction. 29 U.S.C. § 216(b). Neither the Supreme Court nor the Fifth Circuit Court of Appeals has decided whether FLSA suits originating in state court may be removed to federal court; however, the court is not without some guidance.
The authority on the removability of FLSA actions is currently divided. of the three circuits that have expressly addressed the issue, two have held that FLSA claims may be removed, see Breuer v. Jim's Concrete of Brevard, Inc., 292 F.3d 1308, 1309 (11th Cir.), petition for cert. filed, 71 U.S.L.W. 3169 (U.S. Sept. 3, 2002) (No. 02-337); Cosme Nieves v. Deshler, 786 F.2d 445 (1St Cir.), cert. denied, 479 U.S. 824 (1986), and one circuit has held that FLSA claims may not be removed. See Johnson v. Butler Bros., 162 F.2d 87 (8th Cir. 1947). There is also a split of authority in the Northern District of Texas as well as in other districts in the Fifth Circuit. While one line of authority holds that FLSA actions are removable, see Ehle v. Williams Boshea, L.L.C., No. CIV.A.01-3757, 2002 WL 373271 (E.D. La. Mar. 7, 2002); Shaw v. CF Data Corp., No. CIV.A.3:01-CV-1517-G, 2001 WL 1326528 (N.D. Tex. Oct. 15, 2001); Chapman v. 8th Judicial Juvenile Prob. Bd., 22 F. Supp.2d 583 (E.D. Tex. 1998); Ramos v. H.E. Butt Grocery Company, 632 F. Supp. 342 (S.D. Tex. 1986); Hill v. Moss-American, Inc., 309 F. Supp. 1175 (N.D. Miss. 1970), another line holds that such cases are not removable, see Castillo v. Texans Can!, Slip Copy, No. CIV.A.3 :02-CV-0587-R, 2002 WL 1733727 (N.D. Tex. July 25, 2002); Lloyd v. Classic Chevrolet, Inc., Slip Copy, No. CIVA. 4:01-CV-896-Y, 2002 WL 989470, (N.D. Tex. Jan 31, 2002); Lopez v. Wal-Mart Stores, Inc., 111 F. Supp.2d 865 (S.D. Tex. 2000); Esquivel v. St. Andrews Constr., 999 F. Supp. 863 (N.D. Tex. 1998). Although the court limits its citations to cases decided by district courts in the Fifth Circuit, it notes that other district courts across the country are also split on the issue, with the majority of them permitting removal. The court finds more persuasive the reasoning of the developing modern trend of cases permitting removal.
The court notes that while the Fifth Circuit has not squarely decided the issue, it has suggested in dicta that FLSA actions may be subject to removal. See Baldwin v. Sears, Roebuck Co., 667 F.2d 458, 460-61 (5th Cir. 1982) (holding that ADEA claims are removable). In Baldwin, an employee brought suit in state court against his employer, asserting violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. The employer removed the action to federal court, and the employee sought remand. The district court denied remand, and the employee appealed. The issue before the Fifth Circuit was whether suits brought under the ADEA, which is to be enforced in accordance with certain provisions of the FLSA, are removable. The employee argued that because some courts had determined that ELSA claims were not removable, and since ADEA cases were to be enforced in accordance with the FLSA, it followed that ADEA cases were also not removable. The Fifth Circuit rejected the employee's argument. In doing so, the court recognized the Eighth Circuit's decision in Johnson v. Butler Bros., supra, which held that actions under the ELSA were not removable; however, it noted that Johnson was decided in 1947, prior to the 1948 amendments to the general removal statute, 28 U.S.C. § 1441. which added the language "[e]xcept as otherwise expressly provided by Act of Congress. . . ." The court voiced its belief that this amendment placed the removability of FLSA actions in a quite different light. Baldwin, 667 F.2d at 460 n. 1. The court also found that because the issue of removability of FLSA actions was not well settled, it was not bound by precedent to hold ADEA actions nonremovable.
First, the general removal statute makes it unequivocally clear that except as expressly provided by an Act of Congress, a defendant may remove any civil action that could have been originally brought in federal court. See 28 U.S.C. § 1441(a). The Fifth Circuit has further expounded on this provision, stating that § 1441 "creates a broad right of removal which can be limited only by an act of Congress expressly prohibiting it," Baldwin, 667 F.2d at 459, and that "[t]he statutory right of removal provides the defendant with an opportunity to substitute his choice of forum for the plaintiff's original choice of forum" Id. (citation omitted). Thus, "[u]nless. there is an express declaration by Congress to the contrary, all types of civil action, in which there is concurrent original jurisdiction in both federal and state courts, are removable." Id. at 460 (emphasis added).
Second, Congress has proved itself quite capable of clearly and unequivocally prohibiting the removal of federal causes of action. For example, 28 U.S.C. § 1445, captioned "Nonremovable cases," expressly provides that cases arising under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., may not be removed to federal court. 28 U.S.C. § 1445(a). See also 28 U.S.C. § 1445(c) (providing that actions arising under a state's workmen's compensation laws may not be removed to federal court); 28 U.S.C. § 1445(d) (providing that actions arising under § 40302 of the Violence Against Women Act of 1994 may not be removed to federal court). Congress moreover has, in some instances, expressly imposed limits, rather than absolute bars to removal. See, e.g., 15 U.S.C. § 77v(a) (providing that cases arising under the Securities Act of 1933 may not be removed, except where allowed under 15 U.S.C. § 77p(c)); 28 U.S.C. § 1445(b) (providing that cases arising under 49 U.S.C. § 11706 or 14706 may not be removed unless the amount in controversy exceeds $10,000); 15 U.S.C. § 1719 (providing that cases arising under the Interstate Land Sales Full Disclosure Act, 15 U.S.C. § 1701 et seq., shall not be removed to federal court unless the United States or an officer or employee of the United States in his official capacity is a party); and 15 U.S.C. § 3612 (providing that cases arising under the Condominium and Cooperative Abuse Relief Act of 1980, 15 U.S.C. § 3601 et seq., shall not be removed to federal court unless an officer or employee of the United States in his official capacity is a party). Thus, where Congress has intended to preclude removal it has done so with unmistakable clarity.
Actions brought under the FLSA are not listed among those causes of action specifically designated as "nonremovable" under 28 U.S.C. § 1445, and there is no express prohibition against removal provided in the FLSA itself. The phrase "may be maintained" is ambiguous, at best. See Chapman, 22 F. Supp.2d at 585. As explained by the court in Chapman:
The term "express" has been defined as "[c]lear; definite; explicit; plain; direct; unmistakable; not dubious or ambiguous." Black's Law Dictionary 580 (6th ed. 1990). While the court recognizes that the phrase "may be maintained" can be interpreted to refer to actions that have already been brought but not yet reduced to judgment, it must also be remembered that "[t]o maintain an action or suit may [also] mean to commence or institute [the action or suit]." Black's Law Dictionary 953 (6th ed. 1990). A term that is reasonably susceptible to two competing definitions cannot be considered unmistakable or unambiguous. The very fact that courts are divided over the import of the term "maintained" in the ELSA context is itself evidence of the term's ambiguity. In short, because the phrase "may be maintained" does not rise to the level of explicitness required by § 1441(a), the court finds that it does not constitute an express proscription on removal of FLSA actions.Id. at 585-86 (emphasis added). Had Congress intended to foreclose removal of FLSA actions, the court is convinced that it could have done so with unmistakable clarity. Without an explicit statutory directive by Congress precluding the removal of ELSA actions, the court simply cannot agree that Defendants' removal was improper.
Third, the legislative history relied upon by Plaintiff appears to be inapplicable here. Plaintiff cites a 1958 Senate Report discussing the "inadvisability of permitting removal of cases arising under" laws that are similar to the workmen's compensation acts of the states, such as, the FLSA. S. Rep. No. 85-1830, at 8 (1958), reprinted in 1958 U.S.C.C.A.N. 3099, 3106. In Cosme Nieves, the First Circuit observed that "the amendment under discussion [in the Senate Report] involved 28 U.S.C. § 1445, making state workmen's compensation cases non-removable, and neither 28 U.S.C. § 1441 nor 29 U.S.C. § 216(b) is mentioned or affected by the amendment." Cosme Nieves, 786 F.2d at 451 n. 18. The court agrees with this observation. Moreover, as noted by the court in Chapman: "§ 1441(a) requires that an express prohibition against removability be set forth in an 'Act of Congress, ' not in the legislative history of a neighboring statute. Indeed, the act of referring to tangential legislative history merely underscores the fact that the statute at issue is not explicit on its face." Chapman, 22 F. Supp.2d at 586. In light of the split of authority and ambiguity regarding the text of § 216(b), the court cannot say that Congress intended the language in § 216(b) of the ELSA to be an express prohibition against removal.
III. Conclusion
As stated before, the court realizes there is a split of authority on the issue in question — even within this district. Many of the decisions holding that an ELSA action is not removable are cogent and reflect careful thought and detail. They were helpful to the court in appreciating the issue and performing its task. Ultimately, however, this court is convinced that those cases allowing removal of ELSA actions are preferred and more accurately reflect congressional intent. For the foregoing reasons, the court concludes that ELSA actions originating in state court may be removed pursuant to 28 U.S.C. § 1441(a). Accordingly, Plaintiffs Motion to Remand is denied.
Plaintiff requests that, in the alternative, the court remand the action because all uncertainty regarding removal jurisdiction should be resolved against federal jurisdiction. Notwithstanding the competing authorities on the issue, the court is convinced that absent an express declaration by Congress to the contrary, ELSA actions maybe removed to federal court. Plaintiffs request in the alternative is therefore denied.