The opinion of the court was delivered by: Amy Berman Jackson United States District Judge
Pending before the Court is plaintiff's motion to remand the case to the Superior Court of District of Columbia. Upon consideration of the motion and the opposition, the Court will grant plaintiff's motion.
On July 29, 2010, plaintiff Randy Daniels brought this action against defendant Potomac Electric Power Company ("PEPCO") in the Superior Court of the District of Columbia. Plaintiff alleges three violations of the District of Columbia Human Rights Act ("DCHRA"), D.C. Code § 2-1401.01, et seq., and two tort claims-intentional infliction of emotional distress, and negligent failure to provide plaintiff with a safe working environment. Defendant filed a notice of removal to this Court on September 15, 2010 pursuant to 28 U.S.C. § 1441. Plaintiff moved to remand the case on October 18, 2010.
Removal of cases to federal court is controlled by 28 U.S.C. § 1441(b). As federal courts are of limited jurisdiction, the party opposing a motion to remand bears the burden of establishing that subject matter jurisdiction exists. See Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) ("The burden of establishing federal jurisdiction is placed upon the party seeking removal.") (internal quotations omitted). "Where the need to remand is not self-evident, the court must resolve any ambiguities concerning the propriety of removal in favor of remand." Johnson-Brown v. 2200 M St. LLC, 257 F. Supp. 2d 175, 177 (D.D.C. 2003) (internal citations omitted).
"The presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987) (citing Gully v. First Nat'l Bank, 229 U.S. 109, 112-113 (1936)). "[T]he vast majority of cases brought under the general federal-question jurisdiction of the federal courts are those in which federal law creates the cause of action." Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 808 (1986).
"One corollary to the well-pleaded complaint rule . . . is that Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character." Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987). "When the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law." Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 8 (2003). See also Caterpillar, 482 U.S. at 393 (1987) ("Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law.") (internal citations omitted)
Defendant asserts two grounds on which the Court should exercise subject matter jurisdiction. Defendant first argues that plaintiff's allegation that it violated a federal statute is sufficient to constitute a claim that "arises under" federal law and is therefore within the Court's jurisdiction pursuant to 28 U.S.C. § 1331. Second, defendant argues that plaintiff's state law claims have been completely preempted by federal law, and therefore, they must be considered to be federal claims. The Court is not persuaded that it should retain jurisdiction on either ground.
I. Defendant's Alleged Violations of Federal Law Are Insufficient to Invoke Federal Question Jurisdiction
First, defendant asserts that the Court may exercise federal question jurisdiction pursuant to 28 U.S.C. § 1331 because plaintiff's negligence claim ("Count V") arises under the federal Occupational Safety and Health Act ("OSHA"), 29 U.S.C. § 651, et seq. Def.'s Notice of Removal ¶ 3. Defendant contends that because plaintiff alleges (1) that defendant is an employer within the definition of OSHA, (2) that plaintiff is protected by OSHA and (3) that defendant violated OSHA, Count V therefore "arises under" federal law within the confines of section 1331. Def.'s Mem. in Opp. to Pl.'s Mot. to Remand ("Def.'s Opp.") at 6. This argument fails.
Plaintiff argues that Count V does not arise under federal law, but instead alleges violations of federal law only as evidence of plaintiff's state law tort claim. Pl.'s Reply at 5 ("As evidence of the negligence per se, Plaintiff points to the violation of Federal OSHA."). A review of the complaint bears this out. See e.g., Compl. ¶ 66 ("Defendant, in violation of both District of Columbia and Federal law, failed to provide Plaintiff . with an employment environmentthat was free from recognized hazards . . ."). The Supreme Court has held that a "complaint alleging a violation of a federal statute as an element of a state cause of action, when Congress has determined that there should be no private, federal cause of action for the violation, does not state a claim 'arising under the Constitution, laws, or treaties of the United States.'" Merrell Dow, 478 U.S. at 817 (quoting 28 U.S.C. § 1331). Defendant concedes that "OSHA does not provide a private right of action." Def's Opp. at 6.
Therefore, because OSHA does not provide a federal cause of action, and because alleged violations of OSHA were asserted by plaintiff simply to prove elements of a state common law claim, the Court ...