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Fearey v. Chugach Education Services, Inc.

United States District Court, D. Oregon

July 29, 2019

STEPHANIE FEAREY, Plaintiff,
v.
CHUGACH EDUCATION SERVICES, INC.; MANAGEMENT & TRAINING CORPORATION; MICAH WIESE; DANNY STODDARD; and ROBERT WRIGHT, Defendants.

          MITRA SHAHRI DANIEL K. LE ROUX ANDREW P. FREEMAN MITRA LAW GROUP ATTORNEYS FOR PLAINTIFF

          MATTHEW C. CASEY PEDER RIGSBY ALEXANDER H. HILL BULLIVANT HOUSER BAILEY P.C. ATTORNEYS FOR DEFENDANT CHUGACH EDUCATION SERVICES, INC.

          OPINION AND ORDER

          ANNA J. BROWN United States Senior District Judge.

         This matter comes before the Court on Plaintiff Stephanie Fearey's Motion (#14) to Remand this case to Multnomah County Circuit Court. The Court finds the record is sufficiently developed and, therefore, oral argument is not necessary to resolve Plaintiff's Motion.

         For the reasons that follow, the Court GRANTS Plaintiff's Motion and REMANDS this matter.

         BACKGROUND

         On February 12, 2019, Plaintiff filed a complaint in the Multnomah County Circuit Court of the State of Oregon against Defendant Chugach Education Services, Inc., and other parties. Plaintiff alleges she was employed by Chugach as a Residential Advisor at Springdale Job Corps located in Troutdale, Oregon. Plaintiff alleges four claims against Chugach arising out of her employment: sex discrimination pursuant to Oregon Revised Statutes § 659A.030(1)(a-b); sexual harassment/hostile work environment pursuant to Oregon Revised Statutes § 659A.030(1)(a-b); retaliation for reporting unlawful conduct/whistleblowing pursuant to Oregon Revised Statutes § 659A.199; and retaliation for reporting unlawful practices under Oregon state law pursuant to Oregon Revised Statutes § 659A.010(1)(f).[1]

         On March 20, 2019, Chugach was served with Summons and Complaint in the state-court case.

         On April 22, 2019, Chugach filed in this Court a Notice of Removal of the state-court case pursuant to 28 U.S.C. § 1442(a) (1) .

         On May 21, 2019, Plaintiff filed a Motion to Remand this case to state court.

         On June 28, 2019, the Court took Plaintiff's Motion under advisement.

         STANDARDS

         Federal courts are courts of limited jurisdiction and only have subject-matter jurisdiction over matters authorized by the United States Constitution and Congress. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). See also Couch v. Telescope Inc., 611 F.3d 629, 632 (9th Cir. 2010). Thus, the standard of review applicable to a motion for remand is the same as that applicable to a motion to dismiss for lack of subject- matter jurisdiction under Federal Rules of Civil Procedure 12(b)(1). Leite v. Crane Co., 749 F.3d 1117, 1121-22 (9th Cir. 2014)("Challenges to the existence of removal jurisdiction should be resolved within [the] same framework" as that applicable to motions to dismiss for lack of subject-matter jurisdiction due to "the parallel nature of the inquiry.").

         A motion to remand is the proper procedure for challenging removal. Babasa v. LensCrafters, Inc., 498 F.3d 972, 974 (9th Cir. 2007). A defendant may remove a civil state-court action to federal court if the federal court has original jurisdiction over the action. 28 U.S.C. § 1441(a). Removal pursuant to 28 U.S.C. § 1441(a) is strictly construed against removal jurisdiction, and federal jurisdiction must be rejected "if there is any doubt as to the right of removal." Geographic Expeditions, Inc. v. Est. of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1106-07 (9th Cir. 2010}(citation omitted). See also Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th •Cir. 2009)(citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).

         Removal is also authorized when the state-court action is against "[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office." 28 U.S.C. § 1442 (a) (1) (the federal officer removal statute). Section 1442(a)(1) is interpreted "broadly in favor of removal." Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006) .

         The party seeking removal bears the burden of establishing by a preponderance of the evidence that all removal requirements have been met. Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1021 (9th Cir. 2007). See also Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). Thus, if a plaintiff challenges the defendant's removal of a case, the defendant bears the burden of establishing the propriety of the removal. See Geographic Expeditions, 599 F.3d at 1107.

         DISCUSSION

         As noted, Chugach removed this matter pursuant to the federal officer removal statute. See 28 U.S.C. § 1442(a)(1). To invoke this statute, Chugach "must show (1) it is a 'person' within the meaning of the statute, (2) a causal nexus exists between Plaintiffs' claims and the actions Chugach took pursuant to a federal officer's direction, and (3) it has ...


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