FINDINGS AND RECMOMENDATIONS RE PLAINTIFF'S MOTION TO REMAND AND MOTION TO AMEND ECF NO. 10, 11
STANLEY A. BOONE, Magistrate Judge.
On December 4, 2013, Plaintiff Catrell Bakari ("Catrell Bakari") filed a motion to remand and a motion requesting leave to file a second amended complaint. (ECF Nos. 10, 11.) Both motions were referred to the undersigned magistrate judge for findings and recommendations pursuant to 28 U.S.C. § 636(b).
The Court finds it appropriate for Plaintiff's motions to be submitted upon the record and briefs on file without need for oral argument. See Local Rule 230(g). For the reasons set forth below, the Court recommends that Plaintiff's motion to remand be partially granted and that Plaintiff's motion to amend be denied as moot.
This action was removed from state court on November 8, 2013. (ECF No. 1.) Defendant Foster Poultry Farms, Inc. ("Defendant") removed this action on the basis of federal question jurisdiction.
Plaintiff filed the original complaint against Defendant in state court on December 28, 2011. Plaintiff proceeded pro se while in state court. Plaintiff generally alleged that he was employed by Defendant and Plaintiff was subjected to racial discrimination during the course of his employment. The original complaint four causes of action entitled "Fraud and Intentional Deceit, " "Race Discrimination, " "Wrongful Termination In Violation Of Public Policy, " and "Intentional Infliction Of Emotional Distress." On or around May 21, 2012, Plaintiff filed a First Amended Complaint in state court. The First Amended Complaint is the operative pleading. Defendant removed this action approximately 18 months after the operative pleading was filed in state court. Defendant contends that the existence of federal question jurisdiction was not ascertained until sometime within thirty days of the removal. Defendant contends that the existence of a federal question was only ascertained after Plaintiff provided responses to Defendant's discovery requests. Defendant argues that prior to that point, it was unclear what statute Plaintiff was suing under.
On December 4, 2013, Plaintiff filed the present motion to remand and motion to amend his complaint. (ECF Nos. 10, 11.) Plaintiff argues that Defendant's removal was untimely because Defendant knew of the existence of federal question jurisdiction at least eighteen months prior to removal. In the alternative, Plaintiff requests that leave to amend be granted so that the complaint can be amended to only raise state law claims.
On December 23, 2013, Defendant filed its opposition to Plaintiff's motion to remand and its non-opposition to Plaintiff's motion to amend. (ECF Nos. 13, 14.) Defendant opposes Plaintiff's motion to remand only with respect to Plaintiff's request for an award of attorneys' fees. Defendant does not oppose remanding this action to state court.
LEGAL STANDARDS FOR MOTIONS TO REMAND
Removal of actions from state court to federal court are generally governed by 28 U.S.C. § 1441, which states, in pertinent part:
(a) Generally.-Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for ...