United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
RICHARD M. GERGEL, UNITED STATES DISTRICT COURT JUDGE
matter comes before the court on Defendants partial motions
to dismiss (Dkt. Nos. 5, 16.) For the reasons below, this
Court denies the motions as moot and remands this case to
state court as the Court lacks subject-matter jurisdiction.
Liam Wallis filed this case in the Charleston County Court of
Common Pleas on March 18, 2019. (Dkt. No. 1-1.) Plaintiff
alleges, generally, that he was employed by Defendant The
Boeing Company ("Boeing") as a Quality Assurance
Conformity Manager ("QACM") since 2011. (Dkt. No.
12 at ¶ 8.) After sustaining an injury in August 2016,
Plaintiff alleges that he took medical leave pursuant to the
Family and Medical Leave Act. (Id. at ¶ 17.)
Upon return from medical leave, Plaintiff alleges that he
learned that a new supervisor had been disregarding Boeing
safety policies while he was out on leave. (Id. at
¶¶ 23 - 24.) Plaintiff alleges that when he
attempted to inform his managers about the policy violations,
he was told not to write-up any of the alleged violations.
(Id. at ¶¶ 25 - 28.) Plaintiff alleges
that he brought further safety violations to Boeing's
attention during 2017 and he was ultimately terminated on
June 15, 2017 for refusing to conceal alleged safety
violations. (Id. at ¶¶ 29 - 41.)
complaint brings three causes of action. First, Plaintiff
brings a claim for wrongful termination in violation of
public policy, based on his alleged termination for reporting
safety violations. (Id. at ¶¶ 51 - 55.)
Second, Plaintiff brings a claim for civil conspiracy against
his supervisors, relying on the same facts related to
Defendants' alleged attempt to conceal safety violations.
(Mat¶¶ 56-60.) Finally, Plaintiff brings a claim
for unpaid wages, unrelated to the wrongful termination or
civil conspiracy claim, alleging that Plaintiff worked in
excess of forty hours per week, was not an exempt executive
or administrative employee, and was not paid overtime.
(Id. at ¶¶ 9 - 10, 61 - 65.)
removed the case to this Court on April 16, 2019. (Dkt. No.
1.) Defendants claim federal question jurisdiction, alleging
that Plaintiffs claim for unpaid wages arises under the Fair
Labor Standards Act ("FLSA"), 29 U.S.C. § 201
et seq., and that Plaintiffs claim for wrongful
termination in violation of public policy is preempted by the
Wendell H. Ford Aviation Investment and Reform Act for the
21st Century ("AIR 21 Act"), 49 U.S.C.
§ 42121. (Id.) Defendants subsequently moved to
dismiss the claims for wrongful termination and civil
conspiracy, alleging the wrongful termination claims are
inappropriate as Plaintiff has a remedy under the AIR 21 Act,
and separately that Plaintiff has failed to make out a claim
for civil conspiracy. (Dkt. Nos. 5, 16.) Plaintiff opposes
the motions, and Defendants filed replies. (Dkt. Nos. 13,
15, 27, 28.)
courts are courts of limited jurisdiction. Strawn v. AT
& T Mobility LLC, 530 F.3d 293, 296 (4th Cir. 2008)
(citation omitted). Federal removal jurisdiction exists if
the action is one "of which the district courts of the
United States have original jurisdiction." 28 U.S.C.
§ 1441(a). A defendant removing a case to federal court
bears the burden of establishing that federal jurisdiction is
proper. Strawn, 530 F.3d at 296 (citations omitted).
The existence of federal jurisdiction is determined at the
time the defendant files his notice of removal. See
Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939)
(citations omitted). The removal statute is strictly
construed against removal jurisdiction, and any doubts as to
jurisdiction weigh in favor of remand. In re Blackwater
Sec. Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006).
Fourth Circuit held:
In the case where remand is based on a lack of subject matter
jurisdiction, the remand order may be entered at any time,
for jurisdiction goes to the very power of the court to act.
See 28 U.S.C. § 1447(c); Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 94, 118
S.Ct. 1003, 140 L.Ed.2d 210 (1998). In addition, because the
lack of subject matter jurisdiction may be noticed by the
district court sua sponte or by any party see
Arbaugh v. Y&H Corp., 546 U.S. 500, 506, 126 S.Ct.
1235, 163 L.Ed.2d 1097 (2006); Caterpillar Inc. v.
Lewis, 519 U.S. 61, 69, 117 S.Ct. 467, 136 L.Ed.2d 437
(1996), the court may enter a remand order sua
Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d
192, 196 (4th Cir. 2008). See also 28 U.S.C. §
1447(c) ("If at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction, the case shall be remanded."). The Court
therefore assesses whether it has subject-matter
jurisdiction for any of the three claims brought by
Plaintiff against Defendants.
Court has no federal question jurisdiction over the
Plaintiffs first cause of action for wrongful discharge in
violation of public policy. As both Parties acknowledge,
South Carolina recognizes a cause of action for wrongful
termination in violation of public policy, "[w]here the
retaliatory discharge of an at-will employee constitutes [a]
violation of a clear mandate of public policy, a cause of
action in tort for wrongful discharge arises."
Ludwick v. This Minute of Carolina, Inc., 287 S.C.
219, 225, 337 S.E.2d 213, 216 (1985). However, the public
policy exception to at-will employment does not exist in
"situations where the employee has an existing statutory
remedy for wrongful termination." Barron v. Labor
Finders of S.C, 393 S.C. 609, 615, 713 S.E.2d 634, 637
(2011). Therefore, Defendants argue in their notice of
removal that since the AIR 21 Act, 49 U.S.C. § 42121, a
federal statute, provides Plaintiff with a remedy, federal
question jurisdiction is appropriate. (Dkt. No. 1 at 4.)
Defendants' statement is misplaced.
well settled, "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 plaintiffs properly pleaded
complaint...." Harless v. CSX Hotels, Inc., 389
F.3d 444, 450 (4th Cir. 2004). Defendants' argument that
the Air 21 Act provides Plaintiff with a statutory remedy,
preventing Plaintiff from making out a claim for violation of
public policy, serves as a possible defense to Plaintiffs
claim. However, "a case may not be removed to
federal court on the basis of a federal defense, including
the defense of pre-emption, even if the defense is
anticipated in the plaintiffs complaint, and even if both
parties concede that the federal defense is the only question
truly at issue." Caterpillar Inc. v. Williams,482 U.S. 386, 393, 107 S.Ct. 2425, 2430 (1987). The only
instance where a defense of preemption confers federal
question jurisdiction is under the "complete
preemption" doctrine where "the preemptive force of
a statute is so 'extraordinary' that it 'converts
an ordinary state common-law complaint into one stating a
federal claim...."' Id. Here, however, the
Air 21 Act is does not preempt any possible wrongful
termination in violation of ...