                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
PAMELA LEVINSON,                    )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )              Civil Action No. 13-0484 (ABJ)
                                    )
WILMER CUTLER PICKERING             )
HALE AND DORR LLP,                  )
                                    )
                  Defendant.        )
____________________________________)


                                MEMORANDUM OPINION

       Plaintiff Pamela Levinson filed her original and first amended complaints against

defendant Wilmer Cutler Pickering Hale and Dorr LLP (“WilmerHale”) in the Superior Court for

the District of Columbia, alleging violations of the District of Columbia Family and Medical

Leave Act and the District of Columbia Human Rights Act (“D.C. law claims”), and common

law breach of contract and of the duty of good faith and fair dealing (“common law claims”).

Notice of Removal Ex. A [Dkt. # 1-1, 1-2]. Ms. Levinson’s common law claims relate to

WilmerHale’s retirement benefits plan. Id. Defendant removed the action to federal court on the

ground that the common law claims are “completely preempted” by the Employee Retirement

Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., and are therefore federal in

character. Def.’s Opp. to Pl.’s Mot. for Leave to Amend and Mot. to Remand at 2 [Dkt. # 11]

(“Def.’s Opp.”). One month after defendant’s removal, plaintiff filed the Motion to Remand

[Dkt. # 9] and Motion for Leave to File Second Amended Complaint [Dkt. # 10] that are now

before this Court. The proposed second amended complaint eliminates the claims that defendant
contends are preempted by ERISA. Pl.’s Mot. for Leave to File 2d Am. Compl. at 1 (“Mot. to

Amend”).

       Because the Court finds no reason to prevent plaintiff from amending her complaint in

this manner, that motion will be granted. In addition, plaintiff’s remaining claims will be

remanded to the Superior Court in the interest of comity.

                                   STANDARD OF REVIEW

I. Motion for Leave to File Amended Complaint

       When a party seeks to amend its pleading after a responsive pleading has been served, the

Court should “freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2); see Firestone

v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996). When evaluating whether to grant a party’s

motion for leave to amend its pleading, the Court must consider: (1) undue delay; (2) prejudice

to the opposing party; (3) futility of the amendment; (4) bad faith; and (5) whether the plaintiff

has previously amended the complaint. Atchinson v. District of Columbia, 73 F.3d 418, 425

(D.C. Cir. 1996), quoting Foman v. Davis, 371 U.S. 178, 182 (1962). “[A] district court should

grant leave to amend a complaint ‘[i]n the absence of’” these factors. Id., quoting Foman, 371

U.S. at 182.

II. Motion to Remand

       A defendant has the right to remove an action from state to federal court when the action

could have originally been brought in federal court. 28 U.S.C. § 1446(a) (2012). If a case

removed to federal court encompasses both federal and state claims, the district court has

supplemental jurisdiction over any state claims that “are so related” to the federal claims “that

they form part of the same case or controversy.” Id. § 1367(a). But the court may, in its

discretion, “decline to exercise supplemental jurisdiction over a [state] claim . . . [if] the claim



                                                 2
substantially predominates over the [federal] claim or claims.” Id. § 1367(c). In addition, “in

the usual case in which all federal-law claims are eliminated before trial, the balance of factors to

be considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness,

and comity—will point toward declining to exercise jurisdiction over the remaining state-law

claims.” Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); see Edmondson &

Gallagher v. Alban Towers Tenants Ass’n, 48 F.3d 1260, 1267 (D.C. Cir. 1995).

                                           ANALYSIS

       Ms. Levinson seeks leave to file a second amended complaint that omits her common law

claims against WilmerHale. Mot. to Amend at 1. In addition, she asks this Court to remand her

D.C. law claims to the Superior Court. Pl.’s Mot. to Remand at 2. Defendant opposes both

motions. It insists that plaintiff is attempting to engage in impermissible forum shopping and

contends that this Court should exercise supplemental jurisdiction over plaintiff’s entire

complaint. Def.’s Opp. at 3–10. The Court will decline to do so.

I. Motion For Leave to File an Amended Complaint

       Defendant does not assert, and the Court does not find, that plaintiff’s proposed

amendments would trigger the Foman factors of undue delay, prejudice to defendant, or futility.

See Foman, 371 U.S. at 182. Plaintiff has amended her complaint only once before, and even if

she is seeking to amend her complaint again solely to return to Superior Court, as defendants

allege, this is not necessarily evidence of forbidden bad faith. If defendant’s claims are correct,

here, plaintiff has simply “deleted causes of action that ERISA completely preempt[s].” Giles v.

NYLCare Health Plans, Inc., 172 F.3d 332, 340 (5th Cir. 1999) (holding that a plaintiff had not

engaged in improper forum manipulation when she simultaneously moved to amend her

complaint to drop claims that were completely preempted by ERISA, and to remand the case to



                                                 3
state court). Thus, if the motions were denied, the ERISA claims would be subject to a motion to

dismiss and, eventually, the Court and the parties would be in exactly the position they occupy

now: deciding whether to send pure state law claims back to state court.

       Under these circumstances, like the court in Giles, the Court “do[es] not see [plaintiff’s

motion] as forum manipulation, but rather as a legitimate attempt to try her state law claims in

the forum of her choice.”      Id.   Therefore, none of the Foman factors counseling against

permitting a plaintiff to amend her complaint are present in this case. Given that “a district court

should grant leave to amend a complaint ‘[i]n the absence of’” the Foman factors, Atchison, 73

F.3d at 425, quoting Foman, 371 U.S. at 182, plaintiff’s motion for leave to file an amended

complaint will be granted.

II. Motion to Remand

       Although plaintiff and defendant vigorously dispute whether this Court may exercise

supplemental jurisdiction over plaintiff’s D.C. law claims, compare Pl.’s Mot. to Remand at 5–8,

with Def.’s Opp. at 7–8, the Court need not resolve that question here. Rather, the Court declines

to exercise any supplemental jurisdiction it might have. The Court is mindful that defendant has

a statutory right of removal that should not be “subject to the plaintiff’s caprice.” St. Paul

Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 294 (1938). But in light of plaintiff’s

amendment of her complaint, defendant no longer possesses any “‘interest recognized by a

federal statute in a federal forum.’” Zuurbier v. MedStar Health, Inc., 306 F. Supp. 2d 1, 7

(D.D.C. 2004), quoting Trask v. Kasenetz, 818 F. Supp. 39, 45 (E.D.N.Y. 1993). Therefore,

defendant has no federal right that would be prejudiced by remand. Under such circumstances,

courts in this district and elsewhere have remanded in the interests of comity. See id., citing




                                                 4
Woolf v. Mary Kay, Inc., 176 F. Supp. 2d 654, 660 (N.D. Tex. 2001); see also Carnegie–Mellon,

484 U.S. at 350 n.7.

                                        CONCLUSION

       Because this Court finds that none of the factors that counsel against permitting a plaintiff

to amend his complaint are applicable, plaintiff’s motion to amend her complaint will be granted.

In addition, out of considerations of comity, this Court will grant plaintiff’s motion and remand

her remaining claims to Superior Court. A separate order will issue.




                                             AMY BERMAN JACKSON
                                             United States District Judge

DATE: November 25, 2013




                                                 5
