     Case: 17-20290      Document: 00514263779         Page: 1    Date Filed: 12/06/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                    No. 17-20290                                 FILED
                                  Summary Calendar                        December 6, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
KENNETH GRIFFITH,

              Plaintiff – Appellant

v.

ALCON RESEARCH, LIMITED,

              Defendant – Appellee



                   Appeal from the United States District Court
                       for the Southern District of Texas,
                             USDC No. 4:16-CV-2832


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Kenneth Griffith (“Griffith”) appeals the district
court’s order dismissing his workplace discrimination and retaliation action,
which Griffith filed in state court and which the defendant removed to federal
court. Because Griffith’s state court complaint did not assert a federal cause of
action, the district court erred in denying the motion to remand and had no
jurisdiction to adjudicate the case. Therefore, we VACATE the district court’s


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 17-20290
order and REMAND this case to the district court with instructions to remand
it to the state court from which it was removed.
           I.     FACTUAL AND PROCEDURAL BACKGROUND
      Griffith filed this lawsuit in Texas state court against his former
employer, Alcon Research, Ltd. (“Alcon”), asserting claims of national origin
and racial discrimination and retaliation. Griffith’s complaint stated that
jurisdiction was “proper pursuant to Tex. Lab. Code §21.051 and §21.055” and
that his suit was timely filed in accordance with the “Notice of Complainant’s
Right to file Civil Action” issued by the Texas Workforce Commission (“TWC”).
Though Griffith’s complaint did not cite any provisions of federal law, it
referred to a charge he filed with the Equal Employment Opportunity
Commission (“EEOC”) and the EEOC’s issuance of a notice of right-to-sue.
Though Griffith did not attach the EEOC notice to his complaint, he did attach
the TWC notice.
      Alcon filed a timely notice of removal, contending that the district court
had jurisdiction under 28 U.S.C. § 1331 because Griffith’s “race and national
origin discrimination claims implicitly invoke[d] Title VII of the Civil Rights
Act of 1964.” After removal, Griffith filed a timely motion to remand arguing
that his complaint asserted claims based exclusively on state law. The district
court summarily denied Griffith’s motion, stating that because Griffith’s
complaint “refer[red] to (a) the charge that he filed with the Equal Employment
Opportunity Commission, and (b) the right-to-sue letter he received . . . , [it]
ha[d] original jurisdiction.”
      Thereafter, Alcon filed a motion for summary judgment. Griffith did not
respond, and the district court granted the motion dismissing the case. This
appeal ensued.




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                                     No. 17-20290
                                  II.    DISCUSSION
       On appeal, Griffith asserts that the district court improperly denied his
motion to remand and that its final judgment should be vacated for want of
subject matter jurisdiction. We review questions of federal jurisdiction de
novo. 1
       A. Subject Matter Jurisdiction
       “‘Federal courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute.’” 2 Thus, a federal court
presumes that a cause of action “‘lies outside [its] limited jurisdiction, and the
burden of establishing the contrary rests upon the party asserting
jurisdiction.’” 3
       Alcon asserts that the district court properly exercised original
jurisdiction over this case pursuant to 28 U.S.C. § 1331. Section 1331 grants
federal courts jurisdiction over “all civil actions arising under the Constitution,
laws, or treaties of the United States.” A case “aris[es] under” federal law for
purposes of section 1331 when a plaintiff’s “well-pleaded complaint establishes
either that federal law creates the cause of action or that the plaintiff’s right
to relief necessarily depends on resolution of a substantial question of federal
law.” 4 However, even if federal remedies are available as a matter of fact, a
plaintiff may, as master of his complaint, “avoid federal jurisdiction by
exclusive reliance on state law.” 5



       1 Elam v. Kan. City S. Ry. Co., 635 F.3d 796, 802 (5th Cir. 2011).
       2 Energy Mgmt. Servs., LLC v. City of Alexandria, 739 F.3d 255, 257 (5th Cir. 2014)
(quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
       3 Id.
       4 Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006) (quoting

Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 27–28
(1983)).
       5 Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987); see also Lorenz v. Tex.

Workforce Comm’n, 211 F. App’x. 242, 244 (5th Cir. 2006).
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                                        No. 17-20290
       Here, Griffith relied exclusively on state law. He repeatedly cited Texas
discrimination and retaliation law and did not mention federal law. 6 Griffith
also specified that his action was timely filed pursuant to the TWC notice,
which permitted him to file “a private civil action in state court.”
       Alcon contends that, despite these direct citations to state law, Griffith
implicitly raised a federal cause of action by “referenc[ing] and assert[ing] facts
supporting both state and federal claims . . . .” However, Griffith’s reference to
facts that could support a federal claim does not, standing alone, create federal
question jurisdiction. 7 Griffith’s well-pleaded complaint must have, “on [its]
face,” stated a federal cause of action. 8 Although Griffith indeed referenced his
dealings with the EEOC in his complaint, he did not mention Title VII or any
similar federal statute. As such, the district court lacked subject-matter
jurisdiction and was not entitled to render judgment in Alcon’s favor.
       B. Attorney’s Fees and Costs
       Griffith also argues that he is entitled to an award of reasonable
attorney’s fees and costs in light of Alcon’s “wrongful removal.” The award of
costs and fees under 28 U.S.C. § 1447(c) is discretionary and should be granted




       6  Griffith relies upon Texas Labor Code § 21.051 and § 21.055, which, respectively,
pertain to workplace discrimination and retaliation.
        7 See Avitts v. Amoco Prod. Co., 53 F.3d 690, 693 (5th Cir. 1995) (noting that “when

both federal and state remedies are available, plaintiff’s election to proceed exclusively under
state law does not give rise to federal jurisdiction”); cf. Easton v. Crossland Mortg. Corp., 114
F.3d 979, 982 (9th Cir. 1997) (“[T]he mere reference of a federal statute in a pleading will not
convert a state law claim into a federal cause of action . . . .”). The district courts in this
circuit also agree with this result. See Lyles v. Citicorp CreditSvcs., Ltd., No. Civ.A. 3:97-CV-
0599-G, 1997 WL 810027, at *2 (N.D. Tex. Dec. 30, 1997); Maheshwari v. University of Texas–
Pan American, 460 F. Supp. 2d 808, 811–12 (S.D. Tex. 2006); Pidgeon v. East Baton Rouge
Sheriff’s Office, No. 17-342-JJB-RLB, 2017 WL 3996463, at *3 (M.D. La. Aug. 21, 2017);
Addison v. Grillot Land & Marine, L.L.C., No. CIV.A. 02-01251, 2002 WL 1298761, at *2
(E.D. La. June 10, 2002).
        8 Elam, 635 F.3d at 803.

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                                      No. 17-20290
only where the removing party “lacked an objectively reasonable basis for
seeking removal.” 9
       Although, as indicated above, the relevant case law dictates that Alcon’s
removal was improper, it was not objectively unreasonable. Griffith’s
complaint referenced his EEOC charge and his notice of right-to-sue. These
references, though ultimately insufficient to confer jurisdiction on the district
court, could have led Alcon to reasonably believe that removal was proper. 10




       9 Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). We decide whether
Alcon’s removal lacked an objectively reasonable basis without regard for our ultimate
conclusion that removal was improper. See id; see also Valdes v. Wal-Mart Stores, Inc., 199
F.3d 290, 293–94 (5th Cir. 2000).
       10 Cf. Valdes, 199 F.3d at 293–94 (declining to award attorneys’ fees to non-removing

party even though removal was legally improper because removing party “could conclude
from th[e] case law that its position was not an unreasonable one”).
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