United States District Court, D. Delaware
M. DENISE TOLLIVER, Plaintiff,
HIGHMARK BCBSD, INC., Defendant.
Superior Court of the State of Delaware in and for Kent
County No. K18C-02-010 WLW
Denise Toliiver, Camden, Delaware. Pro Se Plaintiff.
Geoffrey Graham Grivner, Esquire, Buchnan Ingersoll &
Rooney P.C., Wilmington, Delaware. Counsel for Defendant.
CONNOLLY, U.S. District Judge:
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.
FACTUAL AND PROCEDURAL BACKGROUND
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)
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)
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, it is untimely,
and Defendant waived its right to removal when it filed its
motion to dismiss the original complaint. (D.I. 5)
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).
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.