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Tolliver v. Highmark BCBSD, Inc.

United States District Court, D. Delaware

January 9, 2019

M. DENISE TOLLIVER, Plaintiff,
v.
HIGHMARK BCBSD, INC., Defendant.

         Superior Court of the State of Delaware in and for Kent County No. K18C-02-010 WLW

          M. Denise Toliiver, Camden, Delaware. Pro Se Plaintiff.

          Geoffrey Graham Grivner, Esquire, Buchnan Ingersoll & Rooney P.C., Wilmington, Delaware. Counsel for Defendant.

          MEMORANDUM OPINION

          CONNOLLY, U.S. District Judge

         Defendant Highmark BCBSD, Inc. ("Defendant"), filed a notice of removal on May 25, 2018 of Tolliver v. Highmark BCBSD, Inc., Delaware State Court No. K18C-02-010 WLW. (D.I. 1). Plaintiff M. Denise Tolliver ("Plaintiff') appears pro se. On June 1, 2018, she filed a motion to remand the matter to State Court. (D.I. 5) The matter has been fully briefed. For the reasons discussed below, the Court will deny Plaintiffs motion.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On February 12, 2018, Plaintiff filed a two-count Complaint against Defendant in the Superior Court of the State of Delaware in and for Kent County ("Superior Court"), raising state claims for breach of contract and discrimination and retaliation under the Delaware Discrimination in Employment Act ("DDEA"), 19 Del. C. § 720, et seq. (See D.I. 1-1) Defendant moved to dismiss on the grounds that the breach of contract claim was time-barred, the DDEA claims were not timely raised before the Delaware Department of Labor ("DDOL"), and Plaintiff had never received a right to sue letter from the DDOL (See D.I. 1-2)

         The Superior Court granted the motion to dismiss and gave Plaintiff leave to amend to raise the discrimination and retaliation claims under federal law. (See D.I. 1-3) Plaintiff filed an Amended Complaint on May 14 2018 and raised discrimination and retaliation claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq. (See D.I. 1-4) Defendant removed the matter to this Court on May 25, 2018. (D.I. 1)

         On June 1, 2018, Plaintiff filed a motion to remand on the grounds that the filing lacks a true and correct copy of all process, pleadings and orders served on defendant, [1]it is untimely, and Defendant waived its right to removal when it filed its motion to dismiss the original complaint. (D.I. 5)

         II. LEGAL STANDARDS

         The 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 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. Id. at §§ 1441(a), 1446. 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).

         A court 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, LP., 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 plaintiffs 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.

         III. DISCUSSION

         A. ...


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