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Averill v. Fiandaca

United States District Court, D. Maine

October 5, 2017

CHERYL AVERILL, Plaintiff
v.
JOSEPH FIANDACA, JR., Defendant

          RECOMMENDED DECISION ON PLAINTIFF'S MOTION TO REMAND

          John C. Nivison U.S. Magistrate Judge.

         In this action, Plaintiff seeks to recover unpaid wages and liquidated damages for work she performed in support of Defendant's coastal fishing business, compensatory damages for assault and battery and the intentional infliction of emotional distress. (Complaint, ECF No. 1-1.) She also requests title to a pickup truck. (Id.) Plaintiff filed in state court on June 16, 2017; Defendant removed the matter to this Court. (Notice of Removal, ECF No. 1.)

         The matter is before the Court on Plaintiff's Second Motion to Amend Scheduling Order and Motion to Remand to State Court. (ECF No. 13). Following a review of the pleadings, and after consideration of the parties' arguments, I recommend the Court grant in part the motion, remand the matter to state court, and deny Plaintiffs' request for fees and costs.

         Background

         In her complaint, Plaintiff alleges that Defendant, a self-employed lobsterman and landlord, breached his agreement to pay Plaintiff a percentage of his fishing revenue in exchange for services she provided to his business operations. Plaintiff asserts that she managed Defendant's rental property, organized and maintained Plaintiff's business records, built lobster traps, worked as a crew member on Defendant's fishing boat, and transported material for Defendant. (Complaint ¶¶ 14, 15, 20, 46.) Plaintiff alleges that after the party's relationship ended, Defendant did not compensate Plaintiff for her services as he agreed. (Id. ¶ 55.)

         Through this action Plaintiff seeks equitable title to a pickup truck, unpaid wages and liquidated damages pursuant to 26 M.R.S. § 626, unjust enrichment and/or quantum meruit damages in the alternative, and compensatory damages for assault and battery and the intentional infliction of emotional distress.

         Defendant filed a notice of removal on July 31, 2017, following service of the complaint on July 12, 2017.[1] (Notice of Removal ¶¶ 1 - 2.) Citing 28 U.S.C. §§ 1331 and 1333, Defendant asserts the action is properly removed because Plaintiff seeks compensation for services provided as a crew member on Plaintiff's lobster boat. (Id. ¶¶ 3, 9.)[2] Plaintiff moved for remand on August 22, 2017.[3] (ECF No. 13.)

         Discussion

         A. Standard of Review

         The removing party bears the burden of establishing that removal was proper. Danca v. Private Health Care Sys., Inc., 185 F.3d 1, 4 (1st Cir. 1999). “Jurisdiction is normally ascertained from the face of the state court complaint that triggered the removal.” Id. The language of the removal statute is strictly construed, Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109 (1941), and ambiguity concerning the basis of removal jurisdiction favors remand, Rossello-Gonzalez v. Calderon-Serra, 398 F.3d 1, 11 (1st Cir. 2004).

         B. Removal and Remand

         Title 28 U.S.C. § 1441(a) provides:

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 the district and division embracing the place where such action is pending.

         Defendant argues this Court has original jurisdiction over this action because Plaintiff seeks to recover unpaid wages earned, in part, for services provided to a commercial fisherman. According to Defendant, such a claim is in the nature of a maritime claim, and thus at least one of Plaintiff's claims is within the original jurisdiction of this Court, either because the claim presents a federal question for purposes of 28 U.S.C. § 1331, or ...


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