     Case: 14-10188      Document: 00512741820         Page: 1    Date Filed: 08/21/2014




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

                                                                                   FILED
                                                                               August 21, 2014
                                    No. 14-10188
                                  Summary Calendar                              Lyle W. Cayce
                                                                                     Clerk


ROSE MARY CLEWIS,

                                                 Plaintiff - Appellant
v.

MEDCO HEALTH SOLUTIONS, INCORPORATED; KEVIN COCHENER;
TREY GORDON; DENNIS CLIFFORD,

                                                 Defendants - Appellees




                  Appeals from the United States District Court
                    for the Northern District of Texas, Dallas
                             USDC No. 3:12-CV-5208


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM:*
       In October 2012, Rose Mary Clewis filed suit against Medco Health
Solutions, Inc. (Medco), alleging that it violated the “American Disability Act,
(ADA), and the Texas Commission on Human Rights Act (TCHRA), by denying,
and or failing to reasonably accommodate” her disability.                  Medco timely
removed the case to federal court, asserting that the court had federal question



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10188
jurisdiction over Clewis’s ADA claim and supplemental jurisdiction over her
state law claims. Clewis filed a motion to remand in which she asserted that
her claims did not present a federal question. The district court denied the
motion, holding that Clewis’s ADA claim presented a federal question and that
it had supplemental jurisdiction over her state law claim which arose from the
same facts as the ADA claim. The district court explained that Clewis’s filing
of an amended complaint that appeared to delete her ADA claim was of no
consequence because it was filed in state court after the case had already been
removed to federal court, and federal subject matter jurisdiction is determined
at the time of removal.
      On March 28, 2013, Clewis filed an Amended Complaint in which she
sought relief only under state law. The district court granted Medco’s motion
to strike the Amended Complaint because it was filed more than three months
after Medco filed its answer, without Medco’s consent or leave of court, in
violation of Federal Rule of Civil Procedure 15(a)(1). 1
      In July 2013, with leave of court, Clewis filed an Amended Complaint
which Medco answered on August 5. On September 12, Clewis filed a “Second
Amended Complaint” in which she alleged that Medco violated the Texas
Labor Code. The district court denied Medco’s motion to strike the Second
Amended Complaint, and Medco filed its answer on October 23.
      On December 6, 2013, Clewis filed a Third Amended Complaint in which
she added Kevin Cochener as a defendant and asserted a claim against him for
intentional infliction of emotional distress. On December 16, she filed another



      1Rule 15(a)(1) provides:
      A party may amend its pleading once as a matter of course within:
      (A) 21 days after serving it, or
      (B) if the pleading is one to which a responsive pleading is required, 21 days
      after service of a responsive pleading or 21 days after service of a motion under
      Rule 12(b), (e), or (f), whichever is earlier.
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                                    No. 14-10188
motion to remand to state court, alleging that the district court lacked subject
matter jurisdiction because she had deleted her ADA claim, and that diversity
of citizenship was lacking because Medco and Cochener were citizens of Texas.
      Medco moved to strike the Third Amended Complaint on the ground that
it was filed in violation of Rule 15(a). Medco argued alternatively that, even if
the court were to allow the amendment, the intentional infliction of emotional
distress claim against Cochener “would have to be struck under Rule 12(f)
because it is facially time-barred and serves only to inject immaterial and
impertinent allegations that have nothing to do with this disability-
discrimination case.”
      On December 31, Clewis filed a Fourth Amended Complaint in which she
added two new defendants, Dennis Clifford and Trey Gordon. She asserted
that she did not need consent or leave of court to file the amendment because
it was in response to Medco’s Rule 12(f) 2 motion to strike and was therefore
authorized by Rule 15(a).
      On January 15, 2014, the district court granted Medco’s motion to strike
Clewis’s Third Amended Complaint because she filed it without leave of court
and without Medco’s consent.           The court sua sponte struck the Fourth
Amended Complaint for the same reasons.
      On March 4, 2014, the district court denied Clewis’s motion to remand
and granted Medco’s motion to dismiss.             In its order, the district court
explained that when a defendant removes a case to federal court because of the
presence of a federal claim, a later amendment eliminating the federal claim
that was the original ground for federal jurisdiction generally does not divest
the federal court of jurisdiction. Concluding that issues of comity, convenience,



      2  Rule 12(f) provides that “[t]he court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.”
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                                 No. 14-10188
fairness, and judicial economy all weighed in favor of not remanding the case
to state court, the district court concluded that it was appropriate to exercise
supplemental jurisdiction over Clewis’s state law disability discrimination
claim. See 28 U.S.C. § 1367; Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
350 (1988). The district court dismissed Clewis’s claims with prejudice under
Federal Rule of Civil Procedure 41(b) because Clewis had failed to comply with
its order that she provide a signed social security release form to Medco,
despite having been warned that failure to comply would be viewed as willful
and contumacious conduct resulting in dismissal of her complaint with
prejudice. The court described at length the basis for its finding that Clewis’s
refusal to comply with its orders was willful and contumacious and that any
lesser sanctions would not alter Clewis’s conduct.
      On appeal, Clewis argues that she had a right to file her Fourth
Amended Complaint without consent and without leave of court and that the
district court erred by denying her motion to remand because it lacked subject
matter jurisdiction after she added non-diverse defendants in her Fourth
Amended Complaint.
      In support of her contention that she had a right to file her Fourth
Amended Complaint without first obtaining Medco’s consent or leave of court,
Clewis relies on Medco’s motion to strike her Third Amended Complaint. In
that motion to strike, Medco argued that the entire complaint should be struck
because it had been filed without consent or leave of court.       Contrary to
Clewis’s contention, Medco’s alternative request that the court strike the
intentional infliction of emotional distress claim against Cochener under Rule
12(f) did not authorize her to file her Fourth Amended Complaint without first
obtaining either Medco’s consent or leave of court.       But even if Medco’s
alternative request were construed as a Rule 12(f) motion which allowed the
filing of the Fourth Amended Complaint, Clewis’s addition of non-diverse
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                                       No. 14-10188
defendants in that complaint did not divest the district court of subject matter
jurisdiction. Medco removed the case to federal court on the basis of federal
question jurisdiction. As the district court explained repeatedly to Clewis,
jurisdiction is determined at the time of removal. See Manguno v. Prudential
Prop. & Cas. Ins. Co., 276 F.3d 720, 733 (5th Cir. 2002) (“To determine whether
jurisdiction is present . . . we consider the claims in the state court petition as
they existed at the time of removal.”). When the case was removed to federal
court, Clewis’s state court petition contained a federal claim for violation of the
Americans with Disabilities Act. Thus, the district court had subject matter
jurisdiction.     Clewis does not challenge, and has therefore waived, any
argument regarding the district court’s discretionary decision to exercise
supplemental jurisdiction over her state law claims, as well as the district
court’s findings of willful and contumacious conduct and its dismissal of her
claims with prejudice under Rule 41(b). The judgment of the district court is
therefore AFFIRMED. 3




      3   Clewis’s motion for judicial notice is DENIED.

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