UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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PAMELA LEVINSON, )
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Plaintiff, )
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v. ) Civil Action No. 13-0484 (ABJ)
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WILMER CUTLER PICKERING )
HALE AND DORR LLP, )
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Defendant. )
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MEMORANDUM OPINION
Plaintiff Pamela Levinson filed her original and first amended complaints against
defendant Wilmer Cutler Pickering Hale and Dorr LLP (“WilmerHale”) in the Superior Court for
the District of Columbia, alleging violations of the District of Columbia Family and Medical
Leave Act and the District of Columbia Human Rights Act (“D.C. law claims”), and common
law breach of contract and of the duty of good faith and fair dealing (“common law claims”).
Notice of Removal Ex. A [Dkt. # 1-1, 1-2]. Ms. Levinson’s common law claims relate to
WilmerHale’s retirement benefits plan. Id. Defendant removed the action to federal court on the
ground that the common law claims are “completely preempted” by the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., and are therefore federal in
character. Def.’s Opp. to Pl.’s Mot. for Leave to Amend and Mot. to Remand at 2 [Dkt. # 11]
(“Def.’s Opp.”). One month after defendant’s removal, plaintiff filed the Motion to Remand
[Dkt. # 9] and Motion for Leave to File Second Amended Complaint [Dkt. # 10] that are now
before this Court. The proposed second amended complaint eliminates the claims that defendant
contends are preempted by ERISA. Pl.’s Mot. for Leave to File 2d Am. Compl. at 1 (“Mot. to
Amend”).
Because the Court finds no reason to prevent plaintiff from amending her complaint in
this manner, that motion will be granted. In addition, plaintiff’s remaining claims will be
remanded to the Superior Court in the interest of comity.
STANDARD OF REVIEW
I. Motion for Leave to File Amended Complaint
When a party seeks to amend its pleading after a responsive pleading has been served, the
Court should “freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2); see Firestone
v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996). When evaluating whether to grant a party’s
motion for leave to amend its pleading, the Court must consider: (1) undue delay; (2) prejudice
to the opposing party; (3) futility of the amendment; (4) bad faith; and (5) whether the plaintiff
has previously amended the complaint. Atchinson v. District of Columbia, 73 F.3d 418, 425
(D.C. Cir. 1996), quoting Foman v. Davis, 371 U.S. 178, 182 (1962). “[A] district court should
grant leave to amend a complaint ‘[i]n the absence of’” these factors. Id., quoting Foman, 371
U.S. at 182.
II. Motion to Remand
A defendant has the right to remove an action from state to federal court when the action
could have originally been brought in federal court. 28 U.S.C. § 1446(a) (2012). If a case
removed to federal court encompasses both federal and state claims, the district court has
supplemental jurisdiction over any state claims that “are so related” to the federal claims “that
they form part of the same case or controversy.” Id. § 1367(a). But the court may, in its
discretion, “decline to exercise supplemental jurisdiction over a [state] claim . . . [if] the claim
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substantially predominates over the [federal] claim or claims.” Id. § 1367(c). In addition, “in
the usual case in which all federal-law claims are eliminated before trial, the balance of factors to
be considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness,
and comity—will point toward declining to exercise jurisdiction over the remaining state-law
claims.” Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); see Edmondson &
Gallagher v. Alban Towers Tenants Ass’n, 48 F.3d 1260, 1267 (D.C. Cir. 1995).
ANALYSIS
Ms. Levinson seeks leave to file a second amended complaint that omits her common law
claims against WilmerHale. Mot. to Amend at 1. In addition, she asks this Court to remand her
D.C. law claims to the Superior Court. Pl.’s Mot. to Remand at 2. Defendant opposes both
motions. It insists that plaintiff is attempting to engage in impermissible forum shopping and
contends that this Court should exercise supplemental jurisdiction over plaintiff’s entire
complaint. Def.’s Opp. at 3–10. The Court will decline to do so.
I. Motion For Leave to File an Amended Complaint
Defendant does not assert, and the Court does not find, that plaintiff’s proposed
amendments would trigger the Foman factors of undue delay, prejudice to defendant, or futility.
See Foman, 371 U.S. at 182. Plaintiff has amended her complaint only once before, and even if
she is seeking to amend her complaint again solely to return to Superior Court, as defendants
allege, this is not necessarily evidence of forbidden bad faith. If defendant’s claims are correct,
here, plaintiff has simply “deleted causes of action that ERISA completely preempt[s].” Giles v.
NYLCare Health Plans, Inc., 172 F.3d 332, 340 (5th Cir. 1999) (holding that a plaintiff had not
engaged in improper forum manipulation when she simultaneously moved to amend her
complaint to drop claims that were completely preempted by ERISA, and to remand the case to
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state court). Thus, if the motions were denied, the ERISA claims would be subject to a motion to
dismiss and, eventually, the Court and the parties would be in exactly the position they occupy
now: deciding whether to send pure state law claims back to state court.
Under these circumstances, like the court in Giles, the Court “do[es] not see [plaintiff’s
motion] as forum manipulation, but rather as a legitimate attempt to try her state law claims in
the forum of her choice.” Id. Therefore, none of the Foman factors counseling against
permitting a plaintiff to amend her complaint are present in this case. Given that “a district court
should grant leave to amend a complaint ‘[i]n the absence of’” the Foman factors, Atchison, 73
F.3d at 425, quoting Foman, 371 U.S. at 182, plaintiff’s motion for leave to file an amended
complaint will be granted.
II. Motion to Remand
Although plaintiff and defendant vigorously dispute whether this Court may exercise
supplemental jurisdiction over plaintiff’s D.C. law claims, compare Pl.’s Mot. to Remand at 5–8,
with Def.’s Opp. at 7–8, the Court need not resolve that question here. Rather, the Court declines
to exercise any supplemental jurisdiction it might have. The Court is mindful that defendant has
a statutory right of removal that should not be “subject to the plaintiff’s caprice.” St. Paul
Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 294 (1938). But in light of plaintiff’s
amendment of her complaint, defendant no longer possesses any “‘interest recognized by a
federal statute in a federal forum.’” Zuurbier v. MedStar Health, Inc., 306 F. Supp. 2d 1, 7
(D.D.C. 2004), quoting Trask v. Kasenetz, 818 F. Supp. 39, 45 (E.D.N.Y. 1993). Therefore,
defendant has no federal right that would be prejudiced by remand. Under such circumstances,
courts in this district and elsewhere have remanded in the interests of comity. See id., citing
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Woolf v. Mary Kay, Inc., 176 F. Supp. 2d 654, 660 (N.D. Tex. 2001); see also Carnegie–Mellon,
484 U.S. at 350 n.7.
CONCLUSION
Because this Court finds that none of the factors that counsel against permitting a plaintiff
to amend his complaint are applicable, plaintiff’s motion to amend her complaint will be granted.
In addition, out of considerations of comity, this Court will grant plaintiff’s motion and remand
her remaining claims to Superior Court. A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: November 25, 2013
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