Opinion
Civil Action No. 3:01-CV-2604-D
January 8, 2002
ORDER
Plaintiff Robert Ayotte's ("Ayotte's") January 7, 2002 motion to remand is denied.
The Civil Justice Expense and Delay Reduction Plan adopted by this court provides that "[e]ach judge will continue to give priority to the monitoring and resolution of pending motions." Plan at § XI(2) ( reprinted in Texas Rules of Court: Federal at 278 (West Pamp. Supp. 2001)). To eliminate undue delay and unnecessary expense to the parties to this and other civil actions pending on the court's docket, and because the court has determined that the motion is suitable for resolution by order and without awaiting a response to the motion, the court is deciding the motion without issuing a more detailed opinion and without awaiting defendants' response.
Ayotte sued defendants Home Depot U.S.A., Inc. ("Home Depot") and two Home Depot employees in Texas district court alleging claims of disability discrimination under the Texas Commission on Human Rights Act ("TCHRA"), Tex. Labor Code Ann. §§ 21.001-21.405 (West 1996 Supp. 2002), violation of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., and a Texas common law cause of action for intentional infliction of emotional distress. Defendants removed the case based on federal question jurisdiction over the FMLA claim and supplemental jurisdiction over the TCHRA and intentional infliction of emotional distress claims. The court rejects Ayotte's contention that because by statute an FMLA claim can be maintained in state court, it is not removable. See Ladner v. Alexander Alexander, Inc., 879 F. Supp. 598, 599 (W.D. La. 1995) (denying motion to remand and holding that FMLA claim was removable).
The court also declines in its discretion to remand Ayotte's state-law claims. The TCHRA causes of action are factually related to Ayotte's federal FMLA claim and will be decided under federal standards. Cf. Caballero v. Central Power Light Co., 858 S.W.2d 359, 361 (Tex. 1993) (holding that stated purpose of TCHRA is to coordinate and conform with certain federal antidiscrimination laws). Ayotte has failed to demonstrate that the intentional infliction of emotional distress claim will predominate, particularly given the difficulty of establishing such claims in the employment context. See, e.g., Hagen v. BeautiControl Cosmetics, Inc., 1998 WL 355479, at *2 (N.D. Tex. June 30, 1998) (Fitzwater, J.) (noting that essential ingredient of extreme and outrageous conduct required for intentional infliction of emotional distress claim is narrowly construed in employment context and that narrow construction makes establishing extreme and outrageous conduct in employment context very difficult).
If Ayotte promptly seeks and obtains leave to dismiss his FMLA claim, the court will likely remand the balance of the case to state court under its discretion and in accordance with its usual procedure. Although the propriety of removal is usually determined by examining the case at the time of removal, see Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 292 (5th Cir. 2000), a district court retains the discretion to remand a case after the claims that gave rise to federal jurisdiction, and, in turn, to removal, have dropped out of the case. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988); Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 339 (5th Cir. 1999) (affirming remand of state claims after plaintiffs amended complaint dropped claim that was completely preempted by ERISA); Pyle v. Beverly Enters.-Tex., Inc., 826 F. Supp. 206, 211-12 (N.D. Tex. 1993) (Fitzwater, J.).
The motion to remand is denied.
SO ORDERED.