United States District Court, D. Delaware
M. DENISE TOLLIVER, Plaintiff,
DELMARVA FOUNDATION FOR MEDICAL CARE, et al., Defendants.
Court of the State of Delaware in and for Kent County Case
No. K17C-11-010 NEP
Denise Tolliver, Camden, Delaware. Pro Se Plaintiff.
Yeager, McCarter & English, LLP, Wilmington, Delaware.
Counsel for Defendants.
ANDREWS, U.S. DISTRICT JUDGE
Delmarva Foundation for Medical Care, Quality Health
Strategies, and Terri Daly, filed a notice of removal on
December 8, 2017 of Tolliver v. Delmarva Foundation for
Medical Care, Delaware Superior Court Case No.
K17C-11-010 NEP. (D.I. 1). Plaintiff M. Denise Tolliver
appears pro se. On December 11, 2017, Plaintiff
filed a letter/motion to remand the matter to Superior Court.
(D.I. 5) Also pending is Plaintiff's motion to strike.
(D.I. 10). The matter has been fully briefed. For the reasons
discussed below, the Court will deny Plaintiff's
letter/motion to remand and will grant her motion to strike.
AND PROCEDURAL BACKGROUND
Complaint contains claims that revolve around her employment
with Delmarva Foundation for Medical Care. Plaintiff was
hired on October 7, 2013, during year one of a two-year grant
with a second-year renewal ending June 30, 2015. (D.I.
1-1at¶2). Funding for the second year was contingent.
(Id.) Her employment was terminated on May 12, 2014.
(D.I. 1-1 at ¶ 14, 15).
of the Complaint alleges Delmarva Foundation for Medical Care
and Quality Health Strategies breached the implied covenant
of good faith and fair dealing; Count II is raised against
all Defendants and alleges a violation of Title 19, Section
1108(3) of the Delaware Code for failure to provide notice to
Plaintiff that she would be deprived of unemployment
compensation; Count III of the Complaint is raised against
all Defendants and alleges defamation; and Count IV is raised
against all Defendants and alleges disability discrimination
and retaliation as prohibited by both state and federal
employment discrimination law. (D.I. 1-1 at ¶¶
20-39). The Complaint asserts jurisdiction in the Delaware
Courts and refers to an August 14, 2017 EEOC notice of suit
rights. (Id. at ¶ 6).
is a resident of Delaware, and the Complaint provides for
service of all Defendants at an address in Easton, Maryland.
(D.I. 1-1 at ¶¶ 7-10). The Complaint seeks
compensatory and punitive damages and, specifically, $7, 800
for unpaid unemployment and $7, 815 for medical co-pay
expense reimbursement. (Id. at ¶ ii).
exercise of removal jurisdiction is governed by 28 U.S.C.
§ 1441 (a), which states that, in order to remove a
civil action from state court to federal court, a district
court must have original jurisdiction by the existence of
either a federal question or diversity of citizenship. 28
U.S.C. §§ 1331, 1332, 1441(a). Section 1441(a) and
§ 1446 both provide that the action may be removed by
the defendant to the district court of the United States. The
removal statutes are strictly construed, and require remand
to State court if any doubt exists over whether removal was
proper. Shamrock Oil & Gas Corp. v. Sheets, 313
U.S. 100, 104 (1941).
will remand a removed case "if at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction." 28 U.S.C. § 1447(c). The
party seeking removal bears the burden to establish federal
jurisdiction. Steel Valley Auth. v. Union Switch &
Signal Div. Am. Standard, Inc., 809 F.2d 1006, 1010 (3d
Cir. 1987); Zoren v. Genesis Energy, L.P., 195
F.Supp.2d 598, 602 (D. Del. 2002). In determining whether
remand based on improper removal is appropriate, the court
"must focus on the plaintiff's complaint at the time
the petition for removal was filed," and assume all
factual allegations therein are true. Steel Valley
Auth., 809 F.2d at 1010.
the matter was removed to this Court, Plaintiff filed a
letter/motion for remand stating that her Complaint is
composed of State claims and seeks less than $75, 000. (D.I.
5). In addition, Plaintiff advises that a motion for default
judgment is currently pending in State Court. (Id).
The motion for default judgment, dated December 9, 2017,
seeks compensatory damages in the sum of $44, 815 and
punitive damages in an amount deemed appropriate by the
court. (Id. at pp.4-7). In their notice of removal,
Defendants claim only that the Court has federal ...