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April 19, 1993


The opinion of the court was delivered by: VAUGHN R. WALKER

 In April 1991, defendant ADP Automotive Claims Services, Inc. ("ADP") hired plaintiff Sandra Barraclough as a temporary employee. This cause of action arises out of plaintiff's allegation that on September 30, 1991, ADP wrongfully terminated her because of her speech impairment and physical handicap. Barraclough sued ADP in Superior Court of the State of California in Contra Costa County alleging a single cause of action for employment discrimination based on handicap in violation of the California Fair Employment and Housing Act ("FEHA"). ADP answered the complaint on August 12, 1992.

 On January 27, 1993, plaintiff served ADP with a set of requests for admission, asking ADP to admit that "in connection with [its] termination of Sandra Barraclough [it] violated the Americans with Disabilities Act of 1990 pertaining to discrimination against an employee with a physical disability."

 ADP's counsel telephoned Barraclough's counsel within a few days after receipt of these requests and inquired if plaintiff's counsel intended to amend the complaint to add a claim under the Americans With Disabilities Act ("ADA"). Barraclough's counsel replied that Barraclough was asserting a claim under the ADA which counsel believed was sufficiently encompassed in the existing pleading. Barraclough's counsel thereafter confirmed plaintiff's intent to state a claim under the ADA in a letter dated February 10, 1993. The letter stated:

In connection with your inquiry by phone regarding the pleadings, this will again confirm that we have intended to include a claim under the American With Disabilities Act of 1990. Upon review of the document, I believe you will find the requisite allegations have been made, especially with regard to the failure to provide "reasonable accommodations" for Mrs. Barraclough's disability.

 Having received this confirmation that Barraclough intended to assert a federal ADA claim, ADP removed the action to federal court. Barraclough now seeks to remand this case to state court on the ground that this court lacks subject matter jurisdiction and upon the alternative ground that ADP's motion to remove was not timely made.

 After reviewing the papers submitted and considering the arguments of counsel at a hearing on April 16, 1993, the court hereby DENIES Barraclough's motion to remand for lack of subject matter jurisdiction and for defendant's failure to remove in a timely manner. Instead, the court DISMISSES plaintiff's ADA claim for failure to state a claim upon which relief can be granted and REMANDS plaintiff's remaining state employment discrimination claim to state court.



 Barraclough contends that this court does not have subject matter jurisdiction over her claim against ADP because he only federal claim lacks merit. The date upon which Barraclough bases her cause of action for wrongful termination is September 30, 1991. The ADA did not become effective until July 26, 1992. See 42 USC 12101-12117. Since the wrongful termination occurred before the effective date of the ADA, Barraclough's claim under the ADA is meritless. Therefore, with her only federal claim devoid of any merit, Barraclough argues that the court has no basis for federal jurisdiction and should remand the matter to state court.

 The law is clear, however, that a plaintiff should not be permitted to "effectuate remand by pointing out the flaws in her own complaint, in effect arguing for dismissal of that claim * * * ." Dworkin v. Hustler Magazine, Inc., 611 F. Supp. 781, 784 (DC Wyo 1988). Similarly, the court in Sarmiento v. Texas Board of Veterinary Medical Examiners, 939 F.2d 1242, 1245 (5th Cir. 1991), held that the fact that a federal claim lacks merit does not deprive the district court of subject matter jurisdiction. In the present case, Barraclough argues for remand on just that ground.

 Because plaintiff is asserting a federal claim (whether nor not meritorious), defendant has a right to a federal forum. As stated in Austwick v. Board of Education, 555 F. Supp. 840, 842 (ND Ill 1983), "A federal forum for federal claims is certainly a defendant's right." Even if plaintiff's federal claim is meritless, as plaintiff now claims, defendant is entitled to have the court so determine. Only when the merits of the ADA claim have been decided and the claim dismissed will remand be proper. Based upon the precedents established in Dworkin and Sarmiento and upon defendant's right to have the federal claim brought against him considered in a federal forum, the court DENIES Barraclough's motion to dismiss for lack of subject matter jurisdiction.


 Barraclough also moves the court to remand this case on the ground that ADP's procedure was defective because it did not file its ...

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