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Middlebrooks v. Fuentes


June 11, 2010


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Before the Court is defendants' Notice of Removal and plaintiff's Notice of Defective Notice of Removal ("Opp'n"). For the reasons set forth herein, the Court finds that removal is improper and will remand this case to the Superior Court of the District of Columbia ("Superior Court").


Plaintiff Lillie M. Middlebrooks filed a 117-page, 980-paragraph, 246-count pro se complaint in Superior Court on May 3, 2010. The complaint alleges that plaintiff was unlawfully terminated by defendants based on her race, gender, color, and protected activities. (Compl. ¶ 1.) All of the 246 counts in the complaint, except one, allege violations of the District of Columbia Human Rights Act ("DCHRA"), D.C. Code 2-1401.01-1431.08, and District of Columbia common law.*fn1 The one federal cause of action alleges a violation of 42 U.S.C. § 1981. (Compl. at 40.) On May 26, defendants filed a notice of removal under 28 U.S.C. § 1441(b) on the grounds that the Court possesses federal question jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction under 28 U.S.C. § 1367. (Notice of Removal ¶ 10.) Alternatively, defendants state that removal is proper under 28 U.S.C. § 1441(c), which allows removal of an entire case where a cause of action with federal question jurisdiction conferred by § 1331 is joined with otherwise non-removable claims. (Id.); see also 28 U.S.C. § 1441(c).

In response, plaintiff filed what amounts to objections to the removal and/or a motion for remand of the case on June 9, 2010, arguing, inter alia, that removal from Superior Court is improper because she does not seek "any type of relief under any federal law and/or statute." (Opp'n at 12.) Specifically, plaintiff states that Count 57 of her complaint, the only count arising under federal law, "was an inadvertent typing error." (Id.) Plaintiff also contends that she is free to file an amended complaint, which presumably would not include the lone § 1981 claim at issue. (Id. at 14.)


Based on its review of defendants' notice, plaintiff's objections, and the relevant case law, the Court finds that removal of the instant case is improper. Plaintiff represents that she did not intend to include the § 1981 claim in her complaint, and based on that representation, the Court will treat plaintiff's objections as a notice of dismissal of Count 57 (i.e., the § 1981 claim) under Federal Rule of Civil Procedure 41(a). See Brown v. District of Columbia, 514 F.3d 1279, 1283 (D.C. Cir. 2008) ("'[A] document filed pro se is to be liberally construed.'") (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Under Rule 41(a), "a plaintiff may dismiss an action without a court order by filing . . . a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment." Fed. R. Civ. P. 41(a)(1)(A). Here, although defendants have filed a motion to dismiss, they have not filed an answer or a motion for summary judgment, and therefore dismissal without prejudice of plaintiff's § 1981 claim is appropriate. See, e.g., Little v. Trott & Trott, P.C., No. 09-1882, 2009 WL 4827441, at * 1 (D.D.C. Dec. 14, 2009) (dismissing complaint without prejudice where defendants had filed motion to dismiss). Without the § 1981 claim, the Court does not have original jurisdiction over any part of plaintiff's complaint, rendering the exercise of supplemental jurisdiction under §§ 1367 or 1441(c) impossible.*fn2


For the foregoing reasons, the Court grants plaintiff's motion to dismiss Count 57, which alleges race discrimination in violation of 42 U.S.C. § 1981. Absent Count 57, plaintiff's complaint contains no claims over which the Court has original jurisdiction.*fn3 Accordingly, removal under 28 U.S.C. § 1441 is improper, and the Court remands this case to Superior Court. A separate Order accompanies this Memorandum Opinion.

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