TERENCE C. KERN, District Judge.
Before the Court are Plaintiff's Motion to Remand (Doc. 12) and Defendants' Motion for Reconsideration and Motion to Dismiss (Doc. 11).
On July 6, 2011, Plaintiff filed a Petition in the District Court for Tulsa County against Defendants K-MAC Enterprises, Inc. ("K-MAC") and Taco Bell of America, Inc. ("Taco Bell, Inc."). Plaintiff failed to issue a summons or file a waiver within 90
(Id. (footnote added).) As legal authority for the Motion to Vacate, Plaintiff cited Okla. Stat. tit. 12, § 1031, which sets forth enumerated grounds for vacating orders, decrees, and judgments. Plaintiff did not specify which ground upon which she relied but vaguely argued that "in certain circumstances it is appropriate for the courts to vacate certain orders." (Id.) The state court granted Plaintiff's Motion to Vacate ("Vacation Order") on the date it was filed "for good cause shown," thereby permitting Plaintiff to file an Amended Petition and avoid the running of certain limitation periods. (Ex. G to Am. Not. of Removal.)
On January 17, 2012, Plaintiff filed an Amended Petition against K-MAC and Taco Bell, LLC ("Taco Bell, LLC") alleging the following causes of action: (1) disability discrimination, in violation of the Americans with Disabilities Act ("ADA claim"); (2) race and gender discrimination in violation of Title VII ("Title VII claim"); (3) age discrimination in violation of the Age Discrimination in Employment Act ("ADEA claim"); (4) termination in violation of the public policy of Oklahoma ("Burk claim"), (5) denial and interference with the right to exercise Family and Medical Leave Act benefits ("FMLA claim"); (6) retaliation for filing a workers' compensation claim, in violation of title 85, section 341 of the Oklahoma Statutes ("workers' compensation retaliation claim"); and (7) intentional infliction of emotional distress ("IIED claim"). On February 9, 2012, Defendants removed the action, asserting
Plaintiff filed a motion to remand all claims based on the presence of the statutorily non-removable workers' compensation retaliation claim, see 28 U.S.C. § 1445(c), and this Court's decision in Pulley v. Bartlett-Collins Co., 2006 WL 3386909, at *3 (N.D.Okla. Nov. 21, 2006) (concluding that all claims joined with non-removable workers' compensation retaliation claim must be remanded). In response to the motion to remand, Defendant argues that (1) Pulley has been overruled by the Federal Courts Jurisdiction and Venue Clarification Act of 2011 ("FCJVCA"), Pub. L. No. 112-63, § 203(b), 125 Stat. 785, which made relevant changes to 28 U.S.C. § 1441(c) and took effect January 6, 2012; and (2) the revised version of 28 U.S.C. § 1441(c) applies because the Court should consider this action commenced as of January 17, 2012 (date of filing Amended Petition) rather than July 6, 2011 (date of filing original Petition).
This Court's decision in Pulley has been overruled by statute. See Bivins v. Glanz, No. 12-CV-103, 2012 WL 3136115, at *2 (N.D.Okla. Aug. 1, 2012). As this Court recently explained:
Id. at *2. Thus, if the revised version of 28 U.S.C. § 1441(c) applies in this case, the Court must sever the workers' compensation retaliation claim and retain all other claims. If the revised verison of the statute does not apply, the Court would presumably be free to follow its original reasoning in Pulley and remand all claims.
The Court need not decide whether the case was "commenced" before or after the FCJVCA's effective date. Based on the reasoning and policy considerations explained in the legislative history of the FCJVCA, the Court has reconsidered its decision in Pulley and would now decide the question in a manner consistent with the federal statute. Specifically, this Court reconsiders its conclusion that "the policy considerations of judicial economy and Plaintiff's choice of forum for the entire case outweigh the right to remove the federal claim under these specific circumstances." See Pulley, 2006 WL 3386909, at *3. The Court now concludes, consistent with the legislative history of the FCJVCA, that "preserving the defendant's right to remove claims arising under Federal law" outweighs other competing considerations. See H.R.Rep. No. 112-10 at 12 (2011), 2011 U.S.C.C.A.N. 576, 580. Therefore, the Court will (1) sever and remand the workers' compensation retaliation claim; (2) retain the Title VII, ADA claim, ADEA claim, and FMLA claim because they are within the Court's original jurisdiction; and (3) retain the Burk claim and IIED claim because they form part of the same case or controversy as the federal claims and are within the Court's supplemental jurisdiction. See Bivins, 2012 WL 3136115, at *2 (applying amended version of 28 U.S.C. § 1441(c) and reaching same result in case involving similar claims).
In the currently pending motion, Defendants move the Court to (1) reconsider and vacate the Vacation Order, (2) deem the action commenced as of the date of filing the Amended Petition, and (3) dismiss the Title VII, ADA, and ADEA claims as untimely filed. Alternatively, if the Court determines that the action was commenced on the date of filing the original Petition, K-MAC moves to dismiss all claims against it based on Plaintiff's failure to effect timely service. Taco Bell, LLC moves to dismiss all claims against it for failure to state a claim because Plaintiff was never employed by Taco Bell, LLC.
For reasons explained below, the Court (1) denies Defendants' motion to reconsider and vacate the Vacation Order; (2) deems the action commenced as of the filing date of the original Petition; and (3) finds that all claims were timely asserted. However, the Court nonetheless finds dismissal proper because Plaintiff failed to effect timely service upon K-MAC prior to removal and because Plaintiff has failed to state a claim for relief against Taco Bell, LLC.
After removal of an action to federal district court, "[a]ll injunctions, orders, and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved or modified by the district court." 28 U.S.C. § 1450. "A prior state court order in essence is federalized when the action is removed to federal court, although the order remains subject to reconsideration just as it had been prior to removal." Laney ex rel. Laney v. Schneider Nat'l Carriers, Inc., 259 F.R.D. 562, 564 (N.D.Okla.2009) (internal citations omitted). "Thus, a federal court is free to reconsider a state court order and to treat the order as it would any interlocutory order it might itself have entered." Id. "Further, the state court order is not entitled to deference in federal court, and because federal procedure governs the enforcement of a prior state court order removed to federal court, the federal court should ensure that the order is consistent with the federal rules...." See id. (internal citation omitted). Federal law governs the course of proceedings following removal. Wallace v. Microsoft Corp., 596 F.3d 703, 706 (10th Cir.2010) ("After removal, federal rather than state law governs the course of the later proceedings.").
The Vacation Order is an interlocutory order that does not adjudicate any claims. Therefore, Defendant's motion to reconsider the Vacation Order is governed by Federal Rule of Civil Procedure 54(b), which provides that "any order ... however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties ... is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." Fed.R.Civ.P. 54(b); Raytheon Constructors, Inc. v. Asarco, Inc., 368 F.3d 1214, 1217 (10th Cir.2003). Although not bound by the standards set forth in Federal Rule of Civil Procedure 59(e) or 60(b) when considering Rule 54(b) motions, courts within the Tenth Circuit generally look to these standards for guidance. See, e.g., Laney, 259 F.R.D. at 565; Sump v. Fingerhut, Inc., 208 F.R.D. 324, 327 (D.Kan.2002) (noting that "courts routinely turn to standards established under
Defendant contends that the Vacation Order should be reconsidered because Plaintiff "failed to show [in her Motion to Vacate] that vacation was proper under [Okla. Stat. tit. 12, § 1031]. Specifically, Defendant argues that "[w]hile Plaintiff referred very generally to § 1031 in her motion to vacate, Plaintiff did not put forth any evidence showing § 1031 was really satisfied, nor has she attempted to do so [now]." (Def.'s Reply in Support of Mot. to Reconsider and Mot. to Dismiss 6.) Defendant's argument most closely aligns with the third ground identified above — namely, the need to correct clear error committed by the state court judge.
Under Oklahoma law, a judge has wide and extended discretion to vacate a judgment, decree, or appealable order if the motion to vacate is filed within 30 days following entry of the order. Schepp v. Hess, 770 P.2d 34, 38 (Okla.1989) (explaining that, at common law, court had plenary power to reconsider and vacate decisions made during one particular "term of court") (further explaining that, although "terms of court" are now abolished, Okla. Stat. tit. 12, § 1031.1 establishes a 30-day period for this plenary power). This "term-time power," which extends 30 days after entry of an order, is "unfettered by statutory grounds." Id. Following this 30-day period, a party seeking to vacate such an order must file a motion or petition to vacate based upon one of the enumerated statutory grounds set forth in Okla. Stat. tit. 12, § 1031. See id.; Woods v. Computer Sciences Corp., 247 P.3d 1201, 1205 (Okla.Civ.App.2010) ("After the expiration of 30 days, the trial court's jurisdiction to vacate or modify a judgment is invoked by the filing of a motion or petition as provided in 12 O.S.2001 § 1031.1(C), 12 O.S.2001 § 1032, or 12 O.S.2001 § 1033."). There are different time limits and different filing requirements, depending on the statutory ground being invoked by the movant. See Okla. Stat. tit. 12, §§ 1038, 1032, 1033.
In this case, Plaintiff's Motion to Vacate was filed more than 30 days following entry of the Rule 9(a) Order, and Plaintiff expressly invoked § 1031 (setting forth enumerated grounds for vacation) and § 1038 (setting forth statutes of limitations) as the statutory bases for the motion.
Interpreting § 1031(3), the Oklahoma Court of Civil Appeals recently stated:
Woods, 247 P.3d at 1205 (quoting Edge v. Security Bldg. & Loan Ass'n, 172 Okla. 513, 45 P.2d 1108, 1109-10 (1935)).
The Court further finds that the Vacation Order is consistent with federal rules and principles. In federal court, a judge may grant relief from a final order
Defendant's motion to dismiss the Title VII, ADA, and ADEA claims as untimely is denied based upon the Court's denial of the motion to reconsider the Vacation Order. Because the Court will not reconsider or vacate the Vacation Order, the filing date of the original Petition controls. There is no dispute that the original Petition was filed within 90 days of Plaintiffs' receipt of her right to sue letter for the above-listed federal claims.
K-MAC alternatively argues that all claims against it must be dismissed because Plaintiff failed to timely serve process upon K-MAC prior to removal and that Plaintiff has not demonstrated good cause for such failure. In response, Plaintiff does not attempt to show good cause for failing to serve K-MAC within 180 days of filing the original Petition. Instead, Plaintiff argues that the Vacation Order's finding of "good cause" controls the outcome of the question regarding timely service.
Plaintiff served K-MAC on January 17, 2012, which was prior to removal to federal court. Therefore, the Court must look to state law to determine if service was proper. See Wallace, 596 F.3d at 706 ("[F]ederal courts in removed cases look to the law of the forum state ... to determine whether service of process was perfected prior to removal.") (but explaining that, if removal occurs even one day after the state deadline for service, federal rules for service come into play); see Morton v. Meagher, 171 F.Supp.2d 611, 613-14 (E.D.Va.2001) ("The validity of service of process in an action before it is removed to federal court is determined by the law of the state pursuant to which service was made."). Oklahoma law provides that "[i]f service of process is not made upon a defendant within one hundred eighty (180) days after the filing of the petition and the plaintiff cannot show good cause why such service was not made within that period, the action shall be deemed dismissed as to that defendant without prejudice." Okla. Stat.tit. 12, § 2004(I).
The first question is whether filing the Amended Petition restarted the service clock as to K-MAC. Neither party has cited, and the Court has not located, relevant Oklahoma law on whether filing an amended petition against the same defendant restarts the § 2004(I) service clock. However, the Tenth Circuit has answered this question in the context of the federal service rule:
Bolden v. City of Topeka, Kan., 441 F.3d 1129, 1148-49 (10th Cir.2006) (internal quotations and citations omitted). Following this reasoning, the Court concludes that Plaintiff's filing of the Amended Petition did not restart its service clock as to K-MAC, and Plaintiff had 180 days from July 6, 2011 — or until January 2, 2012 — to timely serve K-MAC. Because Plaintiff did not effect service upon K-MAC until January 17, 2012 — fifteen days after the deadline — service upon K-MAC was untimely.
The next question is whether Plaintiff has shown "good cause why such service was not made within that period." Okla. Stat. tit. 12, § 2004(I). Plaintiff argues that the state court judge already decided the question based on his finding of "good cause" in the Vacation Order. In contrast, Defendant argues:
(Defs.' Reply in Support of Mot. to Dismiss 8.) The Court agrees with Defendant that the issue of untimely service of process was not squarely before the state court when it decided the Motion to Vacate. The Rule 9(A) Order and subsequent Motion to Vacate related to Plaintiff's failure to issue summons within 90 days of filing the Petition, not Plaintiff's failure to timely serve process within 180 days of filing the Petition. Therefore, this Court must decide this question in the first instance, but must apply Oklahoma law. See Wallace, 596 F.3d at 706 (state law applies to question of whether service is properly effected prior to removal); Kline Enter., Inc. v. Swenson, No. 11-CV535, 2012 WL 2060731, at *3 (D.Idaho 2012) (applying Idaho law "good cause" standard in determining whether service was perfected under state law prior to removal).
The language of § 2004(I), as amended in 2009, is mandatory rather than permissive. See Okla. Stat. tit. 12, § 2004(I); Colclazier & Assocs. v. Stephens, 277 P.3d 1285, 1289 (Okla.Civ.App.2012) (explaining history of § 2004(I) and that current version uses mandatory "shall be deemed dismissed" language). Under the revised statute, when service is effected out of time, the Oklahoma Court of Civil Appeals has held that an action "shall be deemed dismissed as of 181 days following [relevant filing date,] if it [is] determined on remand that [the plaintiff] did not have good cause for the delay in service." See id. Thus, Oklahoma courts appear to lack discretion to grant permissive extensions of the service period in the absence of some showing of good cause.
In this case, Plaintiff has offered no explanation or evidence in response to Defendant's motion to dismiss based on untimely service of process. The only possible showing of "good cause" in the record is a one-sentence argument contained in the Motion to Vacate — namely, that "at the time of filing, Plaintiff was unsure of the proper defendant in the action due to the complexities of the relationship between K-MAC Enterprises and Taco Bell of America, Inc." (Ex. F to Am. Not. of Removal.) However, this statement is unsupported by evidence or any further explanation in the briefs before this Court or the state court. The Court is mindful that a dismissal without prejudice is in effect a dismissal with prejudice as to some claims. However, the Court cannot take a "hard look" at circumstances that have not been properly presented or adequately explained by Plaintiff. Under Oklahoma law, Plaintiff has not made the requisite showing of "good cause" for failing to timely effect service upon K-MAC. See Willis, 194 P.3d at 1290 (good cause must be shown by something more than counsel's unsworn representations); Colclazier & Assocs., 277 P.3d at 1290 (same). Accordingly, all claims against K-MAC were, by operation of statute, "deemed dismissed" without prejudice in state court prior to removal and therefore must be dismissed without prejudice by this Court.
In their motion, Defendants argue that the Amended Petition fails to sufficiently allege sufficient facts to hold Taco Bell, LLC jointly or directly liable for any of Plaintiff's claims along with K-MAC, Plaintiff's actual employer. In her response brief, Plaintiff did not address this argument in any manner, and all arguments and authority in Defendant's motion are deemed confessed. For the reasons and authority set forth in Defendant's motion, the Court finds that the Amended Petition fails to allege a sufficient factual basis for holding Taco Bell, LLC liable for any claims being retained by the Court — namely, the federal claims, the Burk claim, and the IIED claim. Therefore, all claims against Taco Bell, LLC are dismissed with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6).
Plaintiff's Motion for Remand (Doc. 12) is GRANTED in part and DENIED in part. The workers' compensation retaliation claim is hereby SEVERED and REMANDED to the District Court for Tulsa County, State of Oklahoma. The motion to remand is denied as to all federal claims, the Burk claim, and the IIED claim.
Defendants' Motion for Reconsideration and Motion to Dismiss (Doc. 11) is GRANTED IN PART and DENIED IN PART. It is denied as to the Motion for Reconsideration and granted as to the Motion to Dismiss as follows. All claims against K-MAC are dismissed without prejudice based on Plaintiff's failure to effect timely service prior to removal or show good cause for failing to do so. All claims against Defendant Taco Bell, LLC are dismissed with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. This order terminates the litigation, and a judgment of dismissal shall be entered by the Court.
