Jurisdiction - Removal - Remand.

Byline: Mass. Lawyers Weekly Staff

Where a plaintiff seeks remand to state court based upon the late removal by a defendant, the motion is granted because the defendant failed to meet its burden of proof that the federal court has jurisdiction.

"On July 12, 2017, Plaintiff filed an action against Defendant Horgan Enterprises ('Defendant') in Superior Court alleging nonpayment of overtime wages in violation of Mass. Gen. Laws ch. 151, 1A, failure to pay all wages earned in violation of Mass. Gen. Laws ch. 149, 148 and 149, breach of contract, and national origin and race discrimination in violation of Mass. Gen. Laws ch. 151B, 1 et seq. The Complaint alleges that Plaintiff resides in Massachusetts and that Defendant is a Massachusetts corporation with a principal place of business in Massachusetts. The case proceeded through discovery in Superior Court, which concluded on December 15, 2018. On December 7, 2018, Plaintiff was deposed and stated that she had been living in Puerto Rico for one and a half years. Defendant received the transcript of Plaintiff's deposition on January 8, 2019. [ECF No. 7-7].

"On January 18, 2019, Defendant removed the action to this Court. Following removal, Plaintiff filed a motion to remand the case back to Superior Court on the ground that the deadline for removal under 28 U.S.C. 1446 had elapsed. Defendant opposes remand and asserts that Plaintiff prevented a timelier removal in bad faith.

"A defendant seeking removal bears the burden of showing that the federal court has jurisdiction. See Danca v. Private Health Care Sys., Inc., 185 F.3d 1, 4 (1st Cir. 1999). Pursuant to 28 U.S.C. 1446(b)(3), notice of removal may be 'filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.' 28 U.S.C. 1446(b)(3). However, cases removed on the basis of diversity jurisdiction under 28 U.S.C. 1332 may not be removed...