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Montgomery v. Compass Airlines, LLC

United States District Court, D. Minnesota

March 30, 2015

JEANIE MONTGOMERY, Plaintiff,
v.
COMPASS AIRLINES, LLC, Defendant

Order Filed: January 30, 2015

Page 1013

For Plaintiff: Mark A. Greenman, LAW OFFICE OF MARK A. GREENMAN, Minneapolis, MN.

For Defendant: Rodney A. Harrison, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., St. Louis, MO; Hal A. Shillingstad, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Minneapolis, MN; and David J.A. Hayes III, COMPASS AIRLINES LLC, St. Louis, MO.

Page 1014

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

JOHN R. TUNHEIM, United States District Judge.

Plaintiff Jeanie Montgomery brings this action against her former employer, Defendant Compass Airlines, LLC (" Compass" ), for a violation of the Family and Medical Leave Act (" FMLA" ) and for defamation and negligent infliction of emotional distress. Montgomery, a flight attendant for Compass from 2008 to 2013, suffers from migraine headaches and sinus infections. She alleges that Compass denied her protections to which she was entitled under the FMLA when she requested medical leave, defaming her in the process. Compass moved to dismiss Montgomery's complaint for lack of subject matter jurisdiction and failure to state a claim. On January 30, 2015, United States Magistrate Judge Franklin L. Noel issued a Report and Recommendation (" R& R" ), recommending that the Court grant Compass's motion to dismiss. The Magistrate Judge concluded that Montgomery's FMLA claim is subject to mandatory arbitration under Compass's collective bargaining agreement and that supplemental jurisdiction over the remaining state law claims would not be appropriate.

This matter is now before the Court on Montgomery's objection to the Magistrate Judge's R& R. Because the Court concludes that Compass's collective bargaining agreement contains a clear and unmistakable agreement to arbitrate disputes arising under the FMLA, the Court will overrule Montgomery's objection, adopt

Page 1015

the R& R, and grant Compass's motion to dismiss this action for lack of subject matter jurisdiction.

BACKGROUND

I. FMLA LEAVE REQUESTS AND TERMINATION

Montgomery was employed as a flight attendant by Minnesota-based air carrier Compass from February 2008 to December 13, 2013. (Second Am. Compl. (" Compl." ) ¶ 5, June 18, 2014, Docket No. 10; Decl. of Nicole Mielke (" Mielke Decl." ) ¶ 2, July 30, 2014, Docket No. 18.) Montgomery suffers from migraine headaches and sinus infections that caused her to begin missing work in 2013. (Compl. ¶ ¶ 6-7.) So that she would not be penalized under Compass's absenteeism policy for future absences caused by her medical conditions, Montgomery requested intermittent FMLA leave in September 2013. ( Id. ¶ 8.) Along with her request for leave, Montgomery submitted a certification of health that was signed and faxed to Compass by her doctor. ( Id. ¶ 9.) Because the certification did not specify the number, duration, or intervals of Montgomery's expected treatments, Compass denied her request for FMLA leave. ( Id. ¶ 10.)

In response to Compass's reason for denying her leave, Montgomery got a corrected version of the certification of health and submitted it to Compass. ( Id. ¶ 11.) The revised certification was signed by a nurse, rather than Montgomery's treating physician. ( Id. ¶ 12.) Instead of automatically denying Montgomery's revised request for leave, Compass insisted that she submit to a medical exam performed by a physician with SSM Medical Group, a health care provider with which Compass routinely contracts. ( Id. ¶ ¶ 13-14.) Montgomery complied with the requirement on October 18, 2013. ( Id. ) At the exam, the doctor informed Montgomery that she was not fit for duty as a flight attendant. ( Id. ¶ 14.)

Montgomery contested the finding that she was unfit for duty. Her personal physician sent a letter to Compass on November 12, 2013, explaining that he believed she was fit to fly and not suffering from any conditions that would prohibit her from performing her duties as a flight attendant. ( Id. ¶ 15.) On November 15, 2013, Compass denied Montgomery's request for leave once again, however, citing the SSM Medical Group doctor's conclusion that she was unfit for duty. ( Id. ¶ 16.) At that time, Compass also informed Montgomery that they would be charging her October and November absences as sick days not covered by FMLA leave. ( Id. ) Montgomery requested that her fitness for duty be evaluated by an outside physician chosen by her doctor and Compass's doctor, but Compass refused. ( Id. ¶ ¶ 17-18.)

Compass then sent Montgomery an email on December 9, 2013, expressing concern that she may have submitted " fraudulent, forged and/or altered documentation in connection with a request for leave under

Page 1016

the FMLA." ( Id. ¶ 19.) Compass informed Montgomery that a meeting would be held on December 12, 2013 to discuss this concern. ( Id. ) Compass did not attempt to contact Montgomery's doctor to verify the authenticity of the certification of health, ( id. ¶ 20), but her doctor proactively sent a memorandum to Compass on December 10, 2013, affirming that the certifications Montgomery submitted were authentic, unaltered, and completed by the physician and his staff, ( id. ¶ 21).

Montgomery attended the December 12, 2013 meeting, at which Nicole Mielke, Compass's manager of inflight operations, stated that Montgomery " submitted fraudulent, forged and/or altered documentation in connection with a request for leave under the FMLA." ( Id. ¶ 22; Mielke Decl. ¶ 3.) This statement was made in the presence of Catriona Bagley, a representative from the Association of Flight Attendants (" AFA" ) union, who was present at the meeting on Montgomery's behalf. (Compl. ¶ 22; Mielke Decl. ¶ 13; id., Ex. C at 3-4.)[1] The following day, Compass sent Montgomery a letter terminating her employment " for submitting fraudulent, forged and/or altered documentation in connection with a request for leave under the Family and Medical Leave Act (FMLA)." (Compl. ¶ 23.)

II. COLLECTIVE BARGAINING AGREEMENT

When Montgomery applied for a position as a flight attendant with Compass, she signed a document entitled " Application Certification and Agreement," agreeing to submit " any legal claims or disputes that Compass and [Montgomery] may have . . . [to] final and binding arbitration, conducted pursuant to the American Arbitration Association's National Employment Dispute Resolution Rules, before one neutral arbitrator, who shall be selected by mutual agreement of the parties and bound to follow the applicable law." (Compass's Mem. in Supp. of Mot. to Dismiss, Ex. 1 (" Applicant Certification and Agreement" ) at 2, July 30, 2014, Docket No. 19.) That Agreement remained in effect, and then on May 1, 2013, the AFA entered into a collective bargaining agreement (" CBA" ) with Compass. (Mielke Decl. ¶ 7.)

The CBA regulates the terms of flight attendants' employment and provides rules and conditions for a wide range of employment matters, including leaves of absence, medical examinations, discipline, and termination. ( Id., Ex. A (Compass CBA (" CBA" )).) It also includes a set of procedures for employees to file grievances. ( Id. at 41-45.) For grievances that are not settled in accordance with the initial process, the CBA has established an arbitration system called the System Board of Adjustment (" System Board" ). ( Id. at 46-50.) As laid out in Section 11 of the CBA, the System Board hears and decides grievances, and its decisions are " final and binding" on the parties. ( Id. at 46, 50.)

In addition to the grievance process and creation of the System Board, the CBA contains another provision relevant to Montgomery's action. Section 14 of the CBA governs leaves of absence due to a number of different causes, both health-related and not. ( Id. at 55-58.) Section 14.D states that Compass " will comply with the provisions of the Family and Medical Leave Act (FMLA). FML will run concurrent with any other leave, including sick leave, granted pursuant to this Agreement." ( Id. at 55.) Section 14.K also notes that " [a] Flight Attendant may be required to provide supporting documentation related to eligibility for a leave of absence." ( Id. at 58.)

III. PROCEDURAL HISTORY

Montgomery's union filed a grievance on her behalf on December 20, 2013, alleging that she was terminated without cause. (Mielke Decl. ¶ 14; id., Ex. B (Termination Letter) at 2.) Montgomery separately filed this action on February 28, 2014. ([Original] Compl., Feb. 28, 2014, Docket No. 1.) On July 30, 2014, Compass moved to dismiss Montgomery's action for lack of subject matter jurisdiction and failure to state a claim. (Def.'s Mot. to Dismiss, July 30, 2014, Docket No. 16.) Compass maintained that the CBA required Montgomery to submit her FMLA claim to arbitration before the System Board. On January 30, 2015, the Magistrate Judge issued a Report and Recommendation (" R& R" ) recommending

Page 1017

that the Court grant Compass's motion and dismiss Montgomery's action without prejudice. (Report & Recommendation (" R& R" ) at 14, Jan. 30, 2015, Docket No. 35.) Montgomery timely objected to the R& R. (Pl.'s Objections to the Magistrate Judge's R& R, Feb. 13, 2015, Docket No. 36.) This matter is now before the Court on Montgomery's objections.

ANALYSIS

I. STANDARD OF REVIEW

Upon the filing of a report and recommendation by a magistrate judge, a party may " serve and file specific written objections to the proposed findings and recommendations." Fed.R.Civ.P. 72(b)(2); accord D. Minn. LR 72.2(b). " The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3). " The objections should specify the portions of the magistrate judge's report and recommendation to which objections are made and provide a basis for those objections." Mayer v. Walvatne, No. 07-1958, 2008 WL 4527774, at *2 (D. Minn. Sept. 28, 2008). Objections which are not specific but merely repeat arguments presented to and considered by a magistrate judge are not entitled to de novo review, but rather are reviewed for clear error. See, e.g., Martinez v. Astrue, No. 10-5863, 2011 WL 4974445, at *3 (E.D. Pa. Oct. 19, 2011) (citing cases from numerous other jurisdictions); Fed.R.Civ.P. 72 advisory committee's note, subd. (b) (" When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." ).

II. FMLA CLAIM

Compass moves to dismiss Montgomery's FMLA claim under both Federal Rule of Civil Procedure 12(b)(1) and Rule 12(b)(6). Under Rule 12(b)(1), Compass argues that the Court lacks subject matter jurisdiction because the CBA requires her to arbitrate her FMLA claim before the System Board. Subject matter jurisdiction is also lacking, Compass contends, because the Railway Labor Act preemptively controls labor-related disputes in the airline industry and requires Montgomery to submit her claims to mandatory arbitration. Under Rule 12(b)(6), Compass argues that Montgomery's two state law claims should be dismissed for failure to sufficiently plead the essential elements of those causes of action.

A. Rule 12(b)(1) Standard

" A motion to dismiss pursuant to Rule 12(b)(1) challenges the Court's subject matter jurisdiction and requires the Court to examine whether it has authority to decide the claims." Damon v. Groteboer, 937 F.Supp.2d 1048, 1063 (D. Minn. 2013). In deciding a motion under Rule 12(b)(1) the Court must first " distinguish between a 'facial attack' and a 'factual attack.'" Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990) (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)). " In a facial challenge to jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction." Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). In other words, in a facial challenge, the court " determine[s] whether the asserted jurisdictional basis is patently meritless by looking to the face of the complaint, and drawing all reasonable inferences in favor of the plaintiff." Biscanin v. Merrill Lynch & Co., 407 F.3d 905, 907 (8th Cir. 2003) (citations omitted). In a factual attack, the court " inquires into and resolves factual disputes," Faibisch v.

Page 1018

Univ. of Minn., 304 F.3d 797, 801 (8th Cir. 2002), and is free to " consider[ ] matters outside the pleadings," Osborn, 918 F.2d at 729 n.6. The nonmoving party in a factual challenge " does not have the benefit of 12(b)(6) safeguards." Id.

B. Arbitration under the CBA

1. Clear and Unmistakable Waiver of the Judicial Forum

Compass's primary argument in favor of its motion to dismiss is that the CBA requires Montgomery to submit her FMLA claim to arbitration rather than raise it in federal court. Section 11 of the CBA, establishing the System Board, forms a clear agreement to arbitrate " grievances arising under the terms of this Agreement." (CBA at 46.) Neither party disputes that an agreement to arbitrate certain claims exists under the CBA; the issue is whether an FMLA claim is one that must be arbitrated under the agreement. The Court concludes that it is.

Union-negotiated collective bargaining agreements like Compass's CBA may require arbitration of statutory claims, but the waiver of a judicial forum for such claims must be " clear and unmistakable." Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 80, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998). Courts " will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is explicitly stated." Id. (internal quotation marks omitted). Montgomery concedes that an arbitration provision would be clear and unmistakable if it specifically named, within the same section of the agreement, the statutory right subject to mandatory arbitration. For example, the United States Supreme Court found a clear and unmistakable agreement to arbitrate statutory claims in 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009). In 14 Penn Plaza, one section of the collective bargaining agreement included language stating that " claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, [or] the Age Discrimination in Employment Act . . . shall be subject to the grievance and arbitration procedures . . . as the sole and exclusive remedy for violations." 556 U.S. at 252.

The language in the 14 Penn Plaza agreement is very similar to the language in the Application Certification and Agreement document Montgomery signed when she applied for a position with Compass:

I UNDERSTAND AND AGREE that . . . any legal claims or disputes that Compass and I may have . . . with respect to my . . . employment or termination of employment (except for worker's compensation and unemployment compensation claims and claims arising out of any applicable collective bargaining agreement) shall be decided exclusively by final and binding arbitration, conducted pursuant to the American Arbitration Association's National Employment Dispute Resolution Rules, before one neutral arbitrator, who shall be selected by mutual agreement of the parties and bound to follow the applicable law. Both Compass and I intend for this agreement to be construed as broadly as possible to cover, by way of example only, any claims under federal, state or local statutes or common law, such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, [or] the Family and Medical Leave Act . . . .

(Applicant Certification and Agreement at 2 (emphasis added).) In her objection to the R& R, Montgomery acknowledges that the provision in 14 Penn Plaza and the language in her Applicant Certification

Page 1019

and Agreement would both constitute a clear and unmistakable waiver of a judicial forum for the named statutory claims.

Montgomery argues that the CBA is different, however, because its reference to the FMLA is not contained within the same provision as the agreement to arbitrate. She urges the Court to instead view this case as analogous to Bradley v. Compass Airlines, LLC, No. 12-2471, 2013 WL 2443848 (D. Minn. June 5, 2013), in which the court interpreted an identical arbitration provision to the one at issue here. In Bradley, the court found that there was no clear and unmistakable agreement to arbitrate a Title VII racial discrimination claim under the collective bargaining agreement, because nothing in the entire CBA specified " any federal or state laws," and the arbitration provision did " not limit [the plaintiff]'s relief for statutory claims to arbitration." 2013 WL 2443848, at *5. The anti-discrimination provision in the Bradley collective bargaining agreement was worded generically, promising that Compass would " comply with applicable State and Federal laws which prohibit discrimination against any employee because of race, creed, color, religion, national origin, sex, age, disability or status as a military veteran." Id. at *1. No particular federal statutes were mentioned, much like in Wright, where the collective bargaining agreement merely provided that " [t]he Union agrees that this Agreement is intended to cover all matters affecting wages, hours, and other terms and conditions of employment," and that " [i]t is the intention and purpose of all parties hereto that no provision or part of this Agreement shall be violative of any Federal or State law." Wright, 525 U.S. at 73. The plaintiff in Wright sought to raise a claim in federal court under the Americans with Disabilities Act, which was not named in or incorporated into the collective bargaining agreement. There, the Supreme Court found the language in the agreement to be insufficiently clear to compel arbitration of a claim under the Americans with Disabilities Act. Id. at 80-82.

Because the language in the Bradley arbitration provision is the same as in Compass's CBA in this case, and the court did not compel arbitration in Bradley, Montgomery contends that the Court should likewise decline to compel arbitration here. The Court's inquiry is not solely into the wording of the arbitration provision, however. A general arbitration provision, paired with an express incorporation of a statutory protection into an agreement, can suffice to serve as a clear and unmistakable agreement to arbitrate claims arising under that statutory protection. Ibarra v. United Parcel Service, 695 F.3d 354, 359-60 (5th Cir. 2012). The arbitration provisions in Bradley and in this case are both general, but here, unlike in Bradley or Wright, the CBA contains an explicit statutory reference to the FMLA. Although Compass's promise to comply with the FMLA is contained within a separate section of the CBA than the arbitration provision, the arbitration section expressly applies to all " grievances arising under the terms of this Agreement." It is not narrowly limited to any specific subset of employment matters.

Montgomery argues that the agreement to arbitrate does not clearly refer to FMLA claims because the FMLA provision falls under a different section of the agreement. But there is no requirement that the statute be identified in the same section as the arbitration provision, as long as " the parties 'include an explicit incorporation of statutory [] requirements elsewhere in the contract .'" Ibarra, 695 F.3d at 359 (internal quotation marks omitted) (emphasis added) (quoting Carson v. Giant Food, Inc., 175 F.3d 325, 331-32 (4th Cir. 1999)). " [F]or a waiver of an employee's right to a judicial forum for statutory discrimination claims to be clear

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and unmistakable, the CBA must, at the very least, identify the specific statutes the agreement purports to incorporate or include an arbitration clause that explicitly refers to statutory claims." Id. at 359-60 (emphasis added). It need not do both. Because the Court finds that Compass's CBA included a broad arbitration provision for claims arising under the CBA, and the CBA explicitly incorporated the FMLA into Section 14, the Court concludes that the CBA clearly and unmistakably mandates arbitration of FMLA claims.

2. Mandatory Nature of Arbitration under the CBA

Montgomery argues that even if her FMLA claim is encompassed by the CBA's arbitration provision, the provision merely offers her the right to submit her claim to arbitration should she choose to do so -- it is not a mandatory grievance resolution process. Montgomery is correct that, like in Bradley, the arbitration provision in the CBA does not include language that " designates [the grievance and arbitration] procedures as the sole and exclusive remedy." Bradley, 2013 WL 2443848, at *5 (internal quotation marks omitted). But even without using explicit language that arbitration shall be " the sole and exclusive remedy for violations," 14 Penn Plaza, 556 U.S. at 252, an arbitration provision may still be construed as mandatory, Kayser v. Sw. Bell Tel. Co., No. 10-1495, 2010 WL 5139351, at *1 (E.D. Mo. Dec. 10, 2010) (explaining that the CBA at issue contained " a mandatory arbitration clause" when it provided that, in the event of disputes arising under the CBA, the union or company " may submit the issue of any such matter to arbitration for final decision" (emphasis added)).

In a decision last year, the Fifth Circuit explained how distinct arbitration provisions within an agreement can be read together to demonstrate an intent to make a grievance procedure mandatory. Gilbfert v. Donahoe, 751 F.3d 303, 309-10 (5th Cir. 2014). The court identified subsections of the collective bargaining agreement that referenced a timeline for submitting grievances, a rule that the failure to raise a grievance would constitute a waiver of the grievance, and an ultimatum that an " arbitrator's decision will be final and binding." Id. at 309. Reading these subsections together, " the district court [had] held that these provisions created a mandatory grievance procedure." Id.

Compass's CBA includes similarly-worded subsections. Section 10.B.2 of the CBA explains that the process by which an employee may challenge a disciplinary action is

by filing a written grievance with the General Manager, Inflight, or her/his designee. Delivery of the grievance will be in person or by mail. Such grievance must be received by the General Manager, Inflight, or her/his designee, no later than fourteen (14) calendar days following the Flight Attendant's receipt of the Company's written notice of discipline.

(CBA at 42.) Tracking the waiver subsection in Gilbert, the Compass CBA goes on to state that " [i]f a grievance is not filed . . . within the time limits prescribed in this Section, the decision of the Company will become final and binding." ( Id. at 45.) Finally, the CBA expressly states that any decision of the System Board " shall be final and binding." ( Id. at 50.)

Much like the provisions in Gilbert, these provisions indicate that grievances arising out of disciplinary actions must be raised through the CBA's grievance and arbitration process. If they are not, Compass's decision becomes final and binding. As a result, the Court concludes that the Compass CBA arbitration provision requires mandatory arbitration for any

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claims arising under the terms of the CBA, including, as explained above, FMLA statutory claims, because they are incorporated into the terms of the agreement in Section 14.

3. Regulation Against Waiving FMLA Rights

In her objection to the R& R, Montgomery argues that she cannot be compelled to arbitrate her FMLA claim, because it would amount to a waiver of her FMLA rights to recover liquidated damages and attorney's fees. Montgomery correctly cites the FMLA Regulation prohibiting waiver of FMLA rights. 29 C.F.R. § 825.220(d) (" Employees cannot waive, nor may employers induce employees to waive, their prospective rights under the FMLA." ). As support for her argument, Montgomery points to Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), in which the Supreme Court held that unions cannot waive the federal forum rights of employees. When the Supreme Court later decided Wright, it considered its prior ruling in Gardner-Denver and expressed uncertainty as to whether Gardner-Denver retained its precedential force in the face of a collective bargaining agreement explicitly waiving a federal statutory right in the agreement. Wright, 525 U.S. at 80. The Supreme Court acknowledged that the precise contours of the law surrounding waivers of statutory rights in collective bargaining agreements are not sharply defined, but that a clear and unmistakable agreement to arbitrate might constitute a permissible waiver of a federal judicial forum. Id. at 76-77, 79-80.

The Eighth Circuit recently concluded that FMLA claims, specifically, may be subject to a clear and unmistakable agreement to arbitrate. Thompson v. Air Transp. Int'l Ltd. Liab. Co., 664 F.3d 723 (8th Cir. 2011). In Thompson, the Eighth Circuit found that " [e]mployment-related civil rights claims, like [the plaintiff]'s FMLA and [state civil rights act] claims, can be subject to a mandatory arbitration provision." Id. at 727 (emphasis added). The court found that such a waiver is permissible because it falls within the realm of concessions for which unions may bargain with employers, and, ultimately, " [a] waiver of a judicial forum is not a waiver of claims but instead a waiver of 'only the right to seek relief from a court in the first instance.'" Id. at 726-27 (quoting 14 Penn Plaza, 556 U.S. at 265-66). As long as the plaintiff does not suffer a " complete loss of a forum," waiver of a judicial forum is permitted under a collective bargaining agreement. McNamara v. Yellow Transp., Inc., 570 F.3d 950, 957 (8th Cir. 2009).

In this case, Montgomery will not suffer a complete loss of a forum for her FMLA claim if the Court does not have subject matter jurisdiction, because she may arbitrate her claim before the System Board. Indeed, the AFA has actively pursued arbitration on her behalf for more than one year and recently filed an action before this Court seeking to compel Compass to arbitrate Montgomery's grievance arising out of her termination. ( Ass'n of Flight Attendants-CWA, AFL-CIO v. Compass Airlines, LLC, No. 15-146, Compl., Jan. 22, 2015, Docket No. 1.) Arbitration of Montgomery's FMLA claim appears to be particularly appropriate in this case, where one of the two bases for her claim comes not from the FMLA but from Section 29.B.3 of the CBA.[2] (Compl. ¶ 28 (" Defendant

Page 1022

violated the FMLA by refusing plaintiff's request for a third party medical examiner to determine whether she was fit for duty." ).) As a result, resolution of Montgomery's claim involves not only a determination as to whether Compass complied with the FMLA but also requires an interpretation of the CBA and a finding as to whether Compass violated the agreement -- a task for which a System Board arbitration panel is especially well-suited.

Further, should Montgomery prevail on her FMLA claim at arbitration, she would have the opportunity to pursue liquidated damages and attorney's fees in federal court, given that those remedies would not be available to her at arbitration. See Dillaway v. Ferrante, No. 02-715, 2003 WL 23109696, at *10-*11 (D. Minn. Dec. 9, 2003) (" [W]here an employee has prevailed at arbitration, but was not awarded the full panoply of remedies as the employee would be allowed by the remedial statute, it is appropriate for the employee to pursue his claims in court . . . . [Where a] plaintiff claims that he did not recover the full equivalent of relief obtainable under the FMLA because he was not awarded liquidated damages . . . plaintiff can pursue his claim for liquidated damages [in federal court]." ). Consequently, the Court concludes that the AFA's bargained-for waiver of a judicial forum in the first instance for FMLA claims is permissible. The Court will therefore overrule Montgomery's objection with respect to permissibility of the judicial forum waiver and grant Compass's motion to dismiss Montgomery's FMLA claim for lack of subject matter jurisdiction.[3]

III. SUPPLEMENTAL JURISDICTION

Montgomery's objection does not address the R& R's dismissal of her state law claims for lack of supplemental jurisdiction. Reviewing the Magistrate Judge's determination, and in light of the Court's conclusion that Montgomery's FMLA claim must be dismissed for lack of subject matter jurisdiction, the Court finds no clear error in the Magistrate Judge's recommendation that the claims be dismissed. Thus, the Court will adopt the R& R as to dismissal of Montgomery's defamation and negligent infliction of emotional distress claims for lack of jurisdiction. (R& R at 13-14.)

ORDER

Based on the foregoing, and all the files, records, and proceedings herein, the Court OVERRULES Montgomery's objection [Docket No. 36] and ADOPTS the Report and Recommendation of the Magistrate Judge [Docket No. 35]. IT IS HEREBY ORDERED that:

1. Defendant's motion to dismiss [Docket No. 16] is GRANTED.
2. This action is DISMISSED without prejudice.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

REPORT AND RECOMMENDATION

FRANKLIN L. NOEL, United States Magistrate Judge.

THIS MATTER came before the undersigned United States Magistrate Judge on Defendant Compass Airlines, LLC's motion to dismiss (ECF No. 16). This matter was referred to the undersigned for Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. For the reasons set forth below, the Court recommends that Defendant's motion to dismiss be GRANTED.

I. FINDINGS OF FACT

This case arises out of an employment dispute between Plaintiff Jeanie Montgomery and her former employer, Defendant Compass Airlines, LLC (Compass). See generally Second Am. Compl., ECF No. 10. Compass is a regional airline operator based in Minneapolis, Minnesota. Mielke Decl. ¶ 2, ECF No. 18. Compass qualifies as an air carrier as defined by the Railway Labor Act, 45 U.S.C. § 151. Def.'s Mem. in Supp. of Mot. to Dismiss 3, ECF No. 17.

A. Arbitration Agreement

Plaintiff Montgomery worked for Defendant as a flight attendant from February 2008 to December 13, 2013. ECF No. 10 ¶ 5. Prior to being hired as a flight attendant, and as a prerequisite condition for being considered for employment by Compass, Montgomery signed an Application Certification and Agreement (the Arbitration Agreement) on December 7, 2007. Def.'s Ex. 1, ECF No. 19. The Arbitration Agreement contained the following language regarding arbitration:

I UNDERSTAND AND AGREE that as a condition of my candidacy for employment with Compass any legal claims or disputes that Compass and I may have (including any dispute with any management or other employee or agent acting on behalf of the Company) with respect to my application for employment, employment or termination of employment (except for worker's compensation and unemployment compensation claims and claims arising out of any applicable collective bargaining agreement) shall be decided exclusively by final and binding arbitration, conducted pursuant to the American Arbitration Association's National Employment Dispute Resolution Rules, before one neutral arbitrator, who shall be selected by mutual agreement of the parties and bound to follow the applicable law. Both Compass and I intend for this agreement to be construed as broadly as possible to cover, by way of example only, any claims under federal, state or local statutes or common law, such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Virginia Human Rights Act, the Minnesota Human Rights Act, the Michigan Elliot-Larsen Civil Rights Act, the Tennessee Human Rights Act, the law of contract and the law of tort and all questions of arbitrability. I understand that this means that neither Compass nor I can file a lawsuit in court regarding any employment-related legal issue not covered by an applicable collective bargaining agreement (including my application for or termination from employment) and that both Compass and I specifically waive the right to a jury trial on any such issue. This agreement will be interpreted and enforced under the Federal Arbitration Act, 9 U.S.C. § 1, et seq., where applicable, and otherwise under the Minnesota Uniform Arbitration Act, Minn. Stat. § 572.08 et seq.

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Id. Having satisfied the prerequisites to employment, Montgomery was subsequently hired by Compass on or about February 2, 2008. ECF No. 18 ¶ 4.

B. Collective Bargaining Agreement

At the time Compass hired Montgomery, Compass flight attendants were not subject to a collective bargaining agreement. ECF No. 18 ¶ ¶ 4,7. However, on May 1, 2013 the Association of Flight Attendants (AFA)[1] entered into a Collective Bargaining Agreement (CBA) with Compass. ECF No. 18 ¶ 7. Accordingly, since May 1, 2013, the CBA has governed the terms and conditions of flight attendant employment, including leaves of absence, medical examinations, discipline and discharge, grievances, and arbitration. Id., Ex. A. Section 10 of the CBA states the procedures used for filing grievances. Id. at 41--45. The CBA further establishes a System Board of Adjustment to address grievances that are not resolved earlier in the grievance process. Id. at 46--50. Section 11.A states:

In compliance with Section 204, Title II, of the Railway Labor Act, as amended, the parties hereby establish a System Board of Adjustment for the purpose of adjusting and deciding grievances arising under the terms of this Agreement, which are properly submitted to it in accordance with Section 10, Grievance Procedures. Such Board will be known as the Compass Flight Attendant System Board of Adjustment (hereinafter referred to as the " System Board." )

Id. at 46. The section specifies that decisions of the System Board " shall be final and binding." Id. at 50. Finally, Section 14 addresses leaves of absence, with Section 14.D stating that " [t]he Company will comply with the provisions of the Family and Medical Leave Act (FMLA)." Id. at 55.

C. Montgomery's termination and subsequent grievance procedure

Montgomery suffers from migraine headaches and sinus infections, both of which are considered serious health conditions pursuant to the Family Medical Leave Act (FMLA), 29 U.S.C. § 2611. ECF No. 10 ¶ 6. Starting in 2013, Montgomery began occasionally missing work due to her health conditions. Id. ¶ 7. In September of 2013, Montgomery requested intermittent FMLA leave in order to accommodate any future absences arising from her migraines and sinus infections. Id. ¶ 8. That is, Montgomery sought FMLA leave time so that any future absences related to her conditions would not be counted against her under Compass's absenteeism policy. Id.

Pursuant to her request, Montgomery's doctor submitted a signed certification to Compass that Montgomery was indeed eligible for leave under the FMLA. Id. ¶ 9. Compass eventually denied Montgomery's leave request because the doctor did not indicate on the form the probable number of treatments needed or the duration and intervals of treatments. Id. ¶ 10. Accordingly, Montgomery resubmitted the FMLA certification; this version of the certification, however, was signed by a nurse. Id. ¶ 12. Defendant then required Montgomery to submit to a medical exam conducted by a company doctor, and Montgomery underwent such an exam on October 18, 2013. Id. ¶ 13. The consulting doctor concluded that Montgomery was unfit for duty as a flight attendant. Id. ¶ 14.

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On November 12, 2013 Montgomery's doctor again sent correspondence to Compass, stating that he did not believe Montgomery was unfit to fly or suffering from any conditions which would prevent her from completing her duties. Id. ¶ 15. Subsequently, on November 15, 2013, Compass again denied Montgomery's FMLA request based on the consulting doctor's conclusion that Montgomery was unfit for duty. Id. ¶ 16. In denying the FMLA request, Compass concluded that Montgomery's absences in October and November were not covered under the FMLA and counted the absences as sick days. Id. Montgomery then requested that a third doctor be chosen to evaluate her fitness for duty, but Compass did not agree to a third evaluation. Id. ¶ ¶ 17--18.

On December 9, 2013, Compass notified Montgomery via email that a meeting was scheduled for December 12, 2013 regarding an allegation that Montgomery submitted " fraudulent, forged and/or altered documentation in connection with a request for leave under the FMLA." Id. ¶ 19. Montgomery's doctor submitted a statement to Compass on December 10, 2013 verifying the previous FMLA certifications:

The certification of Family and Medical Leave request for Jeanie Montgomery dated September 10, 2013, September 13, 2013, and October 14, 2013, was completed by me and my medical staff. These certifications are not fraudulent, forged and/or altered documentation. I have reviewed the forms and certify that these are in fact me [sic] and my office staff's handwriting.

Id. ¶ 21.

At the December 12, 2013 meeting, Nikole Mielke, the manager of inflight operations at Compass, accused Montgomery of submitting forged or altered documentation in relation to her FMLA leave request. Id. ¶ 22; ECF No. 18 ¶ 3. Mielke's statement was made in the presence of Catriona Bagley. ECF No. 10 ¶ 22. Although Montgomery adamantly denied such allegations, Compass terminated Montgomery's employment in a December 13, 2013 letter stating, " Effective today, December 13, 2013, your employment with Compass Airlines is being terminated for submitting fraudulent, forged and /or altered documentation in connection with a request for leave under the Family and Medical Leave Act (FMLA)." Id. ¶ 23.

Montgomery's union filed a grievance related to her termination on December 20, 2013. ECF No. 18 ¶ 14. The grievance contends that Montgomery was terminated without just cause. To date, the grievance is still pending. Id. ¶ 16.

D. Claims and Present Motion

Montgomery initiated this lawsuit on February 28, 2014, asserting three claims. See Compl., ECF No. 1. Count I alleges that Compass violated the FMLA. ECF No. 10 ¶ ¶ 24--30. Count II states that accusations made by Compass employees related to Montgomery forging FMLA documents were defamatory. Id. ¶ ¶ 31--35. Finally, Count III asserts a claim for negligent infliction of emotional distress. Id. ¶ ¶ 36--38. Compass responded with the instant motion to dismiss, arguing that this Court lacks subject matter jurisdiction over Montgomery's FMLA claim and the claims for defamation and negligent infliction of emotional distress fail to state a claim upon which relief can be granted. ECF No. 16; see generally ECF No. 17.

II. STANDARD OF REVIEW

A. Rule 12(b)(1) Motion to Dismiss

The jurisdictional power of federal courts is defined by Article III of the Constitution. Because federal courts are not courts of general jurisdiction, the issue

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of subject matter jurisdiction may be raised at any time. See Fed.R.Civ.P. 12(b)(1); Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (stating that subject matter jurisdiction may never be forfeited or waived). Indeed, a federal court has a " special obligation" to satisfy itself of its own jurisdiction. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). If subject matter jurisdiction is lacking, the court must dismiss the action. Kontrick v. Ryan, 540 U.S. 443, 455, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004).

A motion attacking the Court's subject matter jurisdiction is governed by Rule 12(b)(1) of the Federal Rules of Civil Procedure. A Rule 12(b)(1) motion to dismiss can either (1) attack the complaint's claim of jurisdiction on its face or (2) attack the factual basis for jurisdiction. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). A facial challenge to subject-matter jurisdiction argues that factual allegations made in a complaint--even if truthful--are insufficient to establish jurisdiction. Carlson Holdings, Inc. v. NAFCO Ins. Co., 205 F.Supp.2d 1069, 1073 (D. Minn. 2001). When analyzing a facial challenge to jurisdiction, the Court considers the pleadings alone. Id. In contrast, " [w]here a defendant mounts a 'factual attack' on the plaintiff's complaint, 'the court considers matters outside the pleadings and the non-moving party does not have the benefit of 12(b)(6) safeguards' in that the court may not presume the factual allegations in the plaintiff's complaint are true." Rector v. State Farm Mut. Ins. Co., 392 F.Supp.2d 1069, 1071 (W.D. Mo. 2005) (quoting Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990)).

B. Rule 12(b)(6) Motion to Dismiss

In considering a Rule 12(b)(6) motion, the court views the pleadings in the light most favorable to the nonmoving party and treats the alleged facts as true. See Ossman v. Diana Corp., 825 F.Supp. 870, 879--80 (D. Minn. 1993). Conclusions of law made by the nonmoving party, however, are not " blindly accept[ed]." Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). A Rule 12(b)(6) motion to dismiss is granted when the factual allegations, even assumed to be true, do not entitle that party to relief. See, e.g., Taxi Connection v. Dakota, Minn. & E. R.R. Corp., 513 F.3d 823, 826--27 (8th Cir. 2008).

Under Rule 8(a) of the Federal Rules of Civil Procedure, pleadings " shall contain a short and plain statement of the claim showing that the pleader is entitled to relief." A pleading must allege " enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Determining whether a complaint states a plausible claim for relief is " a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. " But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but not 'shown'--'that the pleader is entitled to relief.'" Id. (quoting Fed.R.Civ.P. 8(a)(2)).

III. LEGAL ANALYSIS

A. Subject Matter Jurisdiction

Compass maintains that this Court lacks subject matter jurisdiction over Montgomery's complaint for three reasons: (1) the CBA governing the terms of Montgomery's employment with Compass mandates

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arbitration; (2) Montgomery's claims are subject to the Arbitration Agreement she signed prior to commencing employment with Compass; and (3) the claims are preempted by the Railway Labor Act because they necessitate an interpretation of the CBA.

As to the first argument, Compass contends that this Court does not maintain subject matter jurisdiction over Montgomery's FMLA claim because the CBA entered into by Compass and the Association of Flight Attendants requires arbitration. ECF No. 17 at 8--11. Compass points to the broad language of Section 11.A of the CBA which creates a System Board of Adjustment " for the purpose of adjusting and deciding grievances arising under the terms of this Agreement." ECF No. 18-1 at 46. Additionally, Compass cites to Section 14.D which states that Compass " will comply with the provisions of the Family and Medical Leave Act." Id. at 55. Compass maintains that these two provisions, when read together, necessitate arbitration because the CBA explicitly references the FMLA and therefore Montgomery's claim arises under the terms of the agreement. ECF No. 17 at 11. The Court agrees.

The Supreme Court has repeatedly held that in order for a collective bargaining agreement to properly command arbitration, such a requirement must be unambiguous. See, e.g., Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 79, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998) (" Not only is petitioner's statutory claim not subject to a presumption of arbitrability; we think any CBA requirement to arbitrate it must be particularly clear." ). Accordingly, the Court has stated that, in order for a provision mandating arbitration in a collective bargaining agreement to be enforceable, such a provision must be " clear and unmistakable." Id. at 80.

For example, in 14 Penn Plaza LLC v. Pyett, the Supreme Court found that a collective bargaining agreement was sufficiently clear to compel arbitration of the plaintiff's employment discrimination claim. 556 U.S. 247, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009). Specifically, the Court examined Section 30 of the agreement, which stated, in part:

There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employee Act, the New York State Human Rights Law, the New York City Human Rights Code, . . . or any other similar laws, rules, or regulations. All such claims shall be subject to the grievance and arbitration procedures (Articles V and VI) as the sole and exclusive remedy for violations.

Id. at 252. The Court stated that this language required arbitration of statutory antidiscrimination claims because it " clearly and unmistakably requires respondents to arbitrate." Id. at 260.

Contrastingly, in Wright v. Universal Maritime Service Corp., the Supreme Court concluded that CBA language did not satisfy the clear and unmistakable standard needed to waive an employee's right to bring statutory claims under the Americans with Disabilities Act (ADA) in a judicial forum. 525 U.S. 70, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998). The Wright CBA stated that " [m]atters under dispute which cannot be promptly settled between the Local and an individual Employer shall . . . be referred [to a grievance process]" and that " [t]he Union agrees that this Agreement is intended to cover all matters affecting wages, hours, and other terms

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and conditions of employment." Id. at 72-73. In concluding that the CBA was not clear and unmistakable, the Court highlighted the breadth of the arbitration clause and the fact that the CBA made no specific reference to the ADA. Id. at 80 (stating that the " arbitration clause is very general, providing for arbitration of 'matters under dispute' which could be understood to mean matters in dispute under the contract. And the remainder of the contract contains no explicit incorporation of statutory antidiscrmination requirements" ).

In the present case, Montgomery maintains that the arbitration provision in the Compass CBA does not satisfy the " clear and unmistakable" standard needed to compel arbitration of her FMLA claim. In support of this contention, Montgomery cites to Bradley v. Compass Airlines, LLC, No. 12-CV-2471 SRN/JSM, 2013 WL 2443848 (D. Minn. June 5, 2013), a case involving the same defendant as the present action in which the court evaluated similar provisions of a collective bargaining agreement. Mem. in Opp'n to Mot. to Dismiss, ECF No. 23 at 8-10. In Bradley, the court examined whether a former Compass pilot's discrimination and reprisal claims were subject to mandatory arbitration. The collective bargaining agreement in that case (Compass Pilot CBA) contained a substantively identical general arbitration clause to that in the present action:

In compliance with Section 204, Title II, of the Railway Labor Act, as amended, the parties establish a System Board of Adjustment for the purpose of adjusting and deciding disputes or grievances arising under the terms of this Agreement or any supplemental agreement. Such Board will be known as the Compass Airlines Pilots' System Board of Adjustment (hereinafter referred to as the " System Board" ).

Bradley, 2013 WL 2443848 at *1. The Compass Pilot CBA further contained a non-discrimination clause:

The Company and the Association agree that they will comply with applicable State and Federal laws which prohibit discrimination against any employee because of race, creed, color, religion, national origin, sex, age, disability or status as a military veteran.

Id. In differentiating the above contractual provisions with the provision in 14 Penn Plaza, the court in Bradley emphasized that unlike the CBA in 14 Penn Plaza, the Compass Pilot CBA did not address " claims arising under non-discrimination statutes with mandatory grievance and arbitration procedures in the same paragraph." Id. at *5. Further, the court stressed that the non-discrimination clause in the Compass Pilot CBA did not " specify any federal or state laws" and the arbitration provision " did not limit [the plaintiff's] relief for statutory claims to arbitration." Id. Here, Montgomery contends that because the arbitration provision in the present action is identical to the provision in the Compass Pilot CBA, the Court should adopt the reasoning of Bradley. ECF No. 23 at 9--10. Montgomery further stresses that the Compass CBA, like in Bradley, does not contain a reference to FMLA claims in the same paragraph as the arbitration requirement. Id. at 9.

The Court concludes that the language of the CBA at issue here falls somewhere in between the provision the Supreme Court found enforceable in 14 Pen Plaza and the CBAs found insufficiently clear in Wright and Bradley. Like the Wright and Bradley arbitration provisions, Section 11. A of the Compass CBA does not contain within the same paragraph a reference to statutory claims or specific rights arising under the FMLA. However, in contrast to Wright and Bradley, the Compass CBA

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does contain a specific reference to the FMLA in another section of the agreement; Section 14.D explicitly provides that " [t]he Company will comply with the provisions of the Family and Medical Leave Act (FMLA)."

The Court finds this distinction--that is, the overt reference and naming of the FMLA in another provision of the CBA--determinative. As noted above, the Supreme Court in Wright found the CBA language at issue in that case insufficiently clear to require arbitration and, in doing so, placed special emphasis on the fact that the agreement contained no incorporation of the statutory claims at issue. Wright, 525 U.S. at 80 (" And the remainder of the contract contains no explicit incorporation of statutory antidiscrimination requirements." ).

Moreover, the Fifth Circuit evaluated this very situation in Gilbert v. Donahoe and concluded that a CBA, which contained a general grievance clause and a separate reference to the statutory claim in another section of the CBA, was sufficiently clear to require arbitration. 751 F.3d 303 (5th Cir. 2014). Specifically, one section of the Gilbert CBA established a grievance procedure for employees, defining grievance as " the complaint of an employee or of the Union which involves the interpretation, application of, or compliance with the provisions of this Agreement." Id. at 309. Additionally, another section of the Gilbert CBA explicitly incorporated into the agreement the prohibition of discrimination of handicapped employees as contained in the Rehabilitation Act. Id. at 309--10. The court concluded that, when reading these two separate provisions together, the collective bargaining agreement clearly and unmistakably mandated arbitration of the plaintiff's Rehabilitation Act claims. Id. at 310. In finding that the court lacked subject matter jurisdiction over the Rehabilitation Act claim, the court emphasized that the CBA complied with the dicta in Wright requiring identification of " the specific statutes the agreement purports to incorporate." Id. Contrastingly, the court maintained jurisdiction over an FMLA claim, finding that the Gilbert CBA did not mandate arbitration of this claim because it did not overtly reference the FMLA. Id.

Here, as in Gilbert, although the arbitration provision (11.A) generally establishes an arbitration procedure for grievances arising out of the agreement, a separate provision of the agreement (14.D) explicitly references the statute at issue by stating that Compass will " comply with the provisions of the Family and Medical Leave Act (FMLA)." The Court finds that, when taken together, Sections 11.A and 14.D clearly and unmistakably require arbitration of Montgomery's FMLA claim because the Compass CBA names the " specific statute[] the agreement purports to incorporate" into the arbitration provision as suggested by Wright. In sum, the actual identification of the FMLA in Section 14.D makes it clear and unmistakable that claims arising under the FMLA are incorporated into the Compass CBA and therefore subject to required arbitration.

Accordingly, the Court recommends dismissal of Montgomery's FMLA claim for lack of subject matter jurisdiction. Because the Court concludes that arbitration of Montgomery's FMLA claim is mandatory pursuant to the Compass CBA, the Court declines to address Compass's remaining arguments for arbitration relating to the pre-employment Arbitration Agreement and the Railway Labor Act.

B. State Law Claims of Defamation and Negligent Infliction of Emotional Distress

Because this Court recommends dismissing Montgomery's federal claim under

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the FMLA, the Court finds that it is inappropriate to exercise supplemental jurisdiction over the remaining state law claims.

Pursuant to 28 U.S.C. § 1367(c)(3), a federal district court may decline to exercise supplemental jurisdiction over state law claims if the court has " dismissed all claims over which it has original jurisdiction." Zutz v. Nelson, 601 F.3d 842, 850 (8th Cir. 2010). A court may exercise discretion when concluding whether to continue to entertain state law claims after dismissing federal claims in a case. Quinn v. Ocwen Fed. Bank FSB, 470 F.3d 1240, 1249 (8th Cir. 2006). However, the Eighth Circuit has specified that when " resolution of the remaining claims depends solely on a determination of state law, the Court should decline to exercise jurisdiction." Glorvigen v. Cirrus Design Corp., 581 F.3d 737, 749 (8th Cir. 2009) (citing Farris v. Exotic Rubber and Plastics of Minn., Inc., 165 F.Supp.2d 916, 919 (D. Minn. 2001)). When deciding whether to exercise supplemental jurisdiction, courts look to a number of factors including judicial efficiency, convenience, and fairness to litigators. Condor Corp. v. City of St. Paul, 912 F.2d 215, 221 (8th Cir. 1990) (internal citation omitted). In evaluating these factors, Courts often consider " the stage of litigation; the difficulty of the state claim; the amount of time and energy necessary for the claim's resolution; and the availability of a state forum." Goddard, Inc. v. Henry's Foods, Inc., 291 F.Supp.2d 1021, 1051 (D. Minn. 2003) (internal citations and quotation marks omitted).

Considering the above factors, the Court concludes that this is not the appropriate forum for adjudicating the state law claims of defamation and negligent infliction of emotional distress. Importantly, this case remains in the early stages of litigation. This Court has not exerted substantial time or resources into resolving the dispute. Likewise, because this case is currently in the early stages of litigation, failing to exercise supplemental jurisdiction would not prejudice either party. Finally, an available state forum exists in which to resolve the remaining claims. In sum, " this case is the usual case in which all federal-law claims are eliminated before trial wherein the balance of factors to be considered point toward declining to exercise jurisdiction over the remaining state-law claims." Magee v. Trustees of the Hamline Univ., Minn., 957 F.Supp.2d 1047, 2013 WL 1332031, at * 9 (D. Minn. 2013) (internal quotation marks omitted) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988)).

IV. RECOMMENDATION

Based upon all the files, records, and proceedings herein, IT IS HEREBY RECOMMENDED that Defendant's motion to dismiss (ECF No. 16) be GRANTED and the action be DISMISSED without prejudice.

Pursuant to the Local Rules, any party may object to this Report and Recommendation by filing with the Clerk of Court and serving on all parties, on or before February 13, 2015, written objections that specifically identify the portions of the proposed findings or recommendations to which objection is being made, and a brief in support thereof. A party may respond to the objecting party's brief within fourteen (14) days after service thereof. All briefs filed under the rules shall be limited to 3,500 words. A judge shall make a de novo determination of those portions to which objection is made.

Unless the parties are prepared to stipulate that the District Court is not required by 28 U.S.C. § 636 to review a transcript of the hearing in order to resolve all objections made to this Report and Recommendation, the party making the objections shall timely order and cause to be filed by February 15, 2015, a complete transcript of the hearing.

This Report and Recommendation does not constitute an order or judgment of the District Court, and it is, therefore, not appealable to the Circuit Court of Appeals.


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