JULIE A. ROBINSON, District Judge.
This matter is before the Court on Plaintiff Henry Ortiz's Motion to Remand (Doc. 8). The matter is fully briefed and the Court is prepared to rule. For the reasons explained in detail below, the Court grants Plaintiff's motion and remands the case to the Twenty-Ninth Judicial District in Wyandotte County, Kansas.
Plaintiff was employed by Defendant A.C.I. Motor Freight, Inc. as a pick-up and delivery driver of semi-trailer trucks. On August 11, 2014, Plaintiff commenced this action against Defendant in Wyandotte County District Court, alleging that Defendant wrongfully terminated him in violation of public policy, specifically the Kansas whistleblower law. In Count I, Plaintiff contends that Defendant terminated him for reporting an unsafe condition on his commercial vehicle in violation of public policy expressed in three federal regulations promulgated by the Federal Motor Carrier Safety Administration ("FMCSA"): 49 C.F.R. § 396.7, 49 C.F.R. § 396.11(a)(1)(i); and 49 C.F.R. § 396.11(a)(3)(i). Plaintiff alleges that his December 13, 2013 vehicle inspection report identified an unsafe condition on his vehicle likely to cause an accident or breakdown of the vehicle. In reporting this unsafe condition, Plaintiff alleges he engaged in protected activity by reporting illegal conduct on the part of Defendant, namely permitting its driver to operate a vehicle with trailer brakes in an unsafe condition. Plaintiff alleges that he was terminated as a result of his complaints related to the safety of Defendant's vehicles. Count II alleges a violation of state law and public policy. Plaintiff contends that Defendant also terminated him for his complaint reporting the battery he suffered by one of Defendant's supervisors in violation of the public policy expressed in K.S.A. § 21-3412(a).
Defendant removed this case contending this Court has original jurisdiction over Plaintiff's claims on two alternative grounds: 1) diversity of citizenship jurisdiction under 28 U.S.C. § 1332, and 2) federal question jurisdiction under 28 U.S.C. § 1331. Plaintiff's Motion to remand followed.
In its response, Defendant concedes that Plaintiff's claims do not satisfy the requirements of diversity jurisdiction, and thus removal rests upon federal question jurisdiction.
Cases arise under federal law in two ways. First, "when federal law creates the cause of action asserted," which covers a category of cases that "accounts for the vast bulk of suits that arise under federal law."
The issue presented by Defendant's Motion to Remand is whether Plaintiff's state law whistleblower claim in Count I raises an issue of federal law that is substantial enough to warrant the exercise of federal question jurisdiction. There is a presumption against finding federal jurisdiction.
Defendant analyzes the federal jurisdiction question under the factors articulated by the Tenth Circuit in Rice v. Office of Servicemembers' Group Life Insurance,
"Kansas follows the common-law employment-at-will doctrine, which allows employers to terminate employees for good cause, for no cause, or even for the wrong cause."
Plaintiff does not dispute that federal transportation safety regulation issues are "necessary" to his case or that the federal issue is disputed by Defendant. Thus, the Court turns its analysis to the third and fourth Gunn factors in determining whether Plaintiff's whistleblower claim arises under federal law.
To demonstrate substantiality, "it is not enough that the federal issue is significant only to the parties in the immediate suit; that will always be true when the state claim `necessarily raises' a disputed federal issue."
The Supreme Court has identified three factors to consider in determining substantiality:
The factors are not present in this case. This is a dispute between private parties; no federal actor is involved. The federal question is not a near "pure issue of law," but requires the application of unique facts to transportation safety regulations. And, because the key issue involves a determination under a reasonable person standard, it is not likely to control many other cases. Defendant's assertion that Plaintiff must prove an actual violation of FMCSA regulations is not well-taken. As discussed above, under Kansas law it is not necessary to show an actual violation of the federal regulations referenced in Plaintiff's complaint, only that a reasonably prudent person would have concluded that a violation occurred. Any interpretation of the federal regulations by the State court would not serve as binding precedent because such a determination is case-based. Accordingly, the Court finds that Defendant has not shown that the disputed issue of federal law in this case is "substantial" within the meaning of federal question jurisdiction.
Nor has Defendant met its burden of showing that this action is capable of resolution in the federal courts without disturbing the federal-state balance. Defendant contends that the federal statute at issue, the Surface Transportation Assistance Act ("STAA"),
Thus, Defendant has not demonstrated that resolution of this action in federal court would not disrupt the federal-state balance. If the Court allowed federal jurisdiction in this case, any defendant in a Kansas whistleblower case could remove simply by referencing a federal issue involved. Kansas has a strong interest in adjudicating retaliatory discharge claims regarding whistleblowing on safety violations,
In sum, though the federal question is necessarily raised and actually disputed, it is not substantial, and resolution in a federal court would cause significant disruption to the federal-state balance. Thus, the Court concludes Count I does not "arise under" federal law, and the Court does not have original jurisdiction. Likewise, the Court does not have supplemental jurisdiction over Count II, which relies exclusively on Kansas law.