De Lucena v. Tootsies Entertainment LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
VINICIUS BATISTA DE LUCENA, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. 3:25-cv-00661
) 	Judge Campbell/Frensley
TOOTSIES ENTERTAINMENT, LLC, 	)
et al., 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
This removed employment discrimination case is before the court on defendants’ motions
to dismiss for failure to state a claim and Plaintiff’s motion to remand. Docket Nos. 7, 11, 15, 19,
22. 	The motions are briefed and ready for disposition. 	For the reasons set forth below, the
undersigned recommends the motion to remand be granted and this action be remanded to state
court. Alternatively, defendants’ motion to dismiss should be granted and Plaintiff be ordered to
amend his complaint.
I. BACKGROUND
On May 2, 2025, Plaintiff Vinicius Batista De Lucena filed his original suit against
defendants in the Circuit Court of Davidson County, Tennessee, for the Twentieth Judicial District
at Nashville, Case No. 25C1183. Defendants timely removed to this court based on this court’s
federal question jurisdiction pursuant to 28 U.S.C. § 1331. Docket No. 1, p.2. Plaintiff names as
defendants Tootsies Entertainment LLC ( “Tootsies”); HTDG LLC d/b/a Honky Tonk Central
(“HTDG”); Harry O’s Steakhouse LLC d/b/a Kid Rock’s Big Ass Honky Tonk Rock N’ Roll
Steakhouse (“Harry O’s”); and Jonathon Scott (collectively “defendants”). Docket No. 1., p.1.
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Plaintiff’s claims are predicated on his alleged unlawful termination from his position as a food
runner at Harry O’s.
Plaintiff’s 97-page state court complaint is overly long, rambling, convoluted, and
therefore nearly impossible to decipher. The undersigned was able to glean the following factual
allegations.
Plaintiff worked as a food runner for Harry O’s, a live music and food venue in Nashville,
Tennessee, beginning in February 2023. Docket No. 1-1, p. 22. During his employment there, his
coworkers made discriminatory remarks against him and other employees because of his nation of
origin and race. Id. p. 6. Other employees were forced to quit their jobs because a manager did
not want them to speak their native Spanish language amongst themselves. Id. A manager, Mr.
Edward, threatened to call immigration and made discriminatory slurs. 	Id. 	Defendants treated
him differently and less favorably than others and “subjected [him] to the worst schedule
comparing to the other members – which are Americans...” Id. p. 9. Plaintiff states he “forcibly
resigned” on June 5, 2023, after providing two weeks’ notice. Id. p. 27.
The court infers that at some point Plaintiff was reinstated. 	On December 14, 2023,
Plaintiff alleges that management retaliated against him by closing off the second floor of the
venue for business after he had prepared it for customers. Id. pp. 29-30. He asserts defendants
considered him a “nobody.” Id p. 29.
On May 24, 2024, while employed at Harry’s, he received a write-up for creating an
uncomfortable environment for other employees of Harry O’s. Id. pp. 30-32. Harry O’s falsely
alleged “that everybody was complaining about him.” Id. p. 32. On July 19, 2024, upon the advice
of management, server Jessica Elsbury wrongfully kept wages from the tip share belonging to him.
Id. pp. 32-33.
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On July 20, 2024, during a meeting with management that included Hannah Polk, Chris
Skelly, and Brian Medina, the door was closed and locked and he was “held hostage by all in the
room,” ultimately receiving a two-week suspension after false accusations were made against him.
Id. pp. 39-41.
Plaintiff alleges that defendants “set him up” by fabricating a false write-up alleging
complaints 	against 	him 	from 	other 	employees 	that 	were intended 	to 	“Harass, 	Retaliate,
Discriminate and Impersonate against the [Plaintiff]...” Id. pp. 30-31. Thomas Maffei, scheduler,
retaliated against him by reducing his work hours. Id. pp. 31-32. Management “would retaliate
against [him] for mentioning their faults and wrongdoings…” Id. p. 36. He trained newly hired
staff members but was not paid compensation. Id. p. 22. As a result, he was forced to resign and
file an EEO charge against Tootsies. Id. p. 42.
Plaintiff alleges that during his employment with Harry O’s, Jonathan Scott failed to
promote him to server or bartender because he was male. Id. p. 40. According to Plaintiff, during
his conversation with the management team, Plaintiff received a two-week suspension for his
workplace conduct. Id. pp. 39-40. 	Plaintiff alleges that Scott failed to investigate a Tennessee
Occupational Safety and Hazard Act claim regarding the noise level in the venue. Id. pp. 47-48.
He alleges defendants take advantage of immigrant workers and pay them lower wages and
compensation than other workers. Id. pp. 44-45.
In his complaint, Plaintiff cites The Victims of Trafficking and Violence Protection Act of
2000 (TVPA). Although he does not cite the Tennessee Occupational Safety and Health Act; he
refers to “TOSHA” in his complaint. Id. pp. 47-49. Plaintiff does not cite the Tennessee Human
Rights Act (“THRA”), however, Plaintiff refers to “human rights” in his complaint. Id. p. 91. He
appears to assert claims for sexual orientation discrimination, nation of origin discrimination, and
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retaliation and the Tennessee Human Rights Act. He appears to assert claims for labor trafficking,
harassment, and fraud. For relief, he seeks 39.71 million dollars in damages. Id. p. 79.
The instant motions followed.1
II. DISCUSSION
Motion to remand
The court will first address Plaintiff’s motion to remand. In support of his motion, Plaintiff
argues he is asserting only state law claims, that he is citing “Tennessee code,” only, and therefore
his suit properly belongs in state court. Docket No. 22, p. 3.
Defendants responded, opposing remand. Docket No. 32. They assert Plaintiff has failed
to show any compelling reason why this court should decline jurisdiction. 	Id. p. 4. 	They note
Plaintiff’s complaint asserts claims for civil rights violations under Title VII, as well as violations
of other federal laws, including labor trafficking, 18 U.S.C. §1589, occupational safety and health
violations under 29 U.S.C. 15, and fraud pursuant to 18 U.S.C. 47. Id. They argue Plaintiff cannot
credibly assert he did not mean to make a claim under federal law after enumerating federal laws
as the “Rules” in his complaint. Docket No. 30-1, p. 4.
A defendant who seeks to remove a case pursuant to 28 U.S.C. § 1441(b) bears the burden
of demonstrating that the case as pled falls within the federal question jurisdiction of the district
court. 	Eastman v. Marine Mech. Corp., 438 F.3d 544, 549 (6th Cir. 2006). 	Federal question
jurisdiction can be established by showing “either that federal law creates a cause of action or that
the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal
1 Although defendants filed separate motions to dismiss on each’s behalf, all of their briefs are
the same word-for-word. The court will refer to defendants’ motions in the collective.
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law.” Thornton v. Sw. Detroit Hosp., 895 F.2d 1131, 1133 (6th Cir. 1990) (quoting Franchise Tax
Bd. v. Constr. Laborer Vacation Trust, 463 U.S. 1, 27-28 (1983). The party invoking jurisdiction
bears the burden of proof that all prerequisites to jurisdiction are satisfied. Hatridge v. Aetna Cas.
& Sur. Co., 415 F.2d 809, 814 (8th Cir. 1969). Removal statutes are strictly construed, and any
doubts about the propriety of removal are in favor of state court jurisdiction and remand. Transit
Cas. Co. v. Certain Underwriters at Lloyd’s of London, 119 F.3d 619, 625 (8th Cir. 1997) cert.
denied, 522 U.S. 1075 (1998). In determining whether a claim “arises under” federal law, courts
must be “mindful that the nature of federal removal jurisdiction—restricting as it does the power
of the states to resolve controversies in their own courts—requires strict construction of the
legislation permitting removal.” 	Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09
(1941)).
The "mere presence of a federal issue in a state cause of action does not automatically
confer federal-question jurisdiction." Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S.
804, 813 (1986); see also Gully v. First Nat'l Bank, 299 U.S. 109 (1936) ("Not every question of
federal law emerging in a suit is proof that a federal law is the basis of the suit.") Federal
jurisdiction exists only in those circumstances where a federal question is presented by a well-
pleaded complaint which show that either federal law creates the cause of action, or the plaintiff's
right to relief necessarily depends on resolution of a substantial question of federal law. Franchise
Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 13 (1983).
Under the "well-pleaded complaint" rule, a plaintiff may avoid federal removal jurisdiction
by exclusive reliance on state law. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). "Not
every question of federal law involved in a suit is proof that a federal law is the basis of the suit".
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Rosecrans v. Lozier, 142 F.2d 118, 123 (8th Cir. 1944). An action based upon a right originating
in federal law is not for that reason alone an action arising under federal law. Id.
Here, Plaintiff’s 97-page state court complaint is extremley difficult to decipher. It cites
both state and federal laws. Despite the reference to some federal laws, Plaintiff is adament he is
bringing only state law claims. 	In light of the standard that weighs in favor of a plaintiff and
remand, Plaintiff’s pro se status, and the lack of clarity in the compaint, the court concludes the
matter properly belongs in state court. Plaintiff’s motion to remand should be granted.
Motion to Dismiss
Alternatively, in the event the case is not remanded, defendants’ motion to dismiss be
granted. 	In support of their motion to dismiss, defendants argue Plaintiff’s complaint is an
impermissible “shotgun pleading” that fails to provide them with adequate notice of the claims
asserted against them in violation of Federal Rules of Civil Procedure 8(a)(2) and 10(b). Docket
No. 8, p. 1. They contend Plaintiff fails to assert separate counts in his complaint, resulting in a
prohibited “kitchen sink” pleading. Id. Defendants further argue the complaint “insufficiently”
cites to the Tennessee Human Rights Act (“THRA”) and fails to provide them with adequate notice
of the specific statutory provisions it allegedly violated. Id. p.2. They contend Plaintiff’s common
law retaliatory discharge claim based on his purported refusal to remain silent about alleged illegal
activities is abrogated by the Tennessee Public Protection Act.
Plaintiff responded, opposing the motions. 	Docket No. 38.2 	He contends “[a]ll of the
claims on the Complaint are well explained with facts, including where dates, times, camera angles
and locations occurred from the beginning to the end from the employment time of the Plaintiff
with the Defendants. All the paragraphs are numbered with specific details. A Dismissal of the
2 Docket No. 38, a response to defendants’ motion to dismiss, is incorrectly docketed as a
motion.
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Case would contradict with the Constitution of the State of Tennessee and Constitution of the
United States of America, it’d be unconstitutional.” Id. p. 6.
A cause of action fails to state a claim upon which relief may be granted when it lacks
“plausibility in [the] complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). 	A pleading must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” 	Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009)
(quoting Fed. R. Civ. P 8(a)(2)).
To survive a motion to dismiss, the factual allegations in the pleading must be sufficient to
raise the right to relief above the speculative level on the assumption that all the allegations in the
complaint are true. Bell Atl. Corp., 550 U.S. at 555. A plaintiff is not required to include detailed
factual allegations, but must provide more than “an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Iqbal, 556 U.S. at 678. A pleading that offers legal conclusions or a simple
recitation of the elements of a cause of action will not meet this pleading standard. Id. In reviewing
a complaint, the court must construe the pleading in the light most favorable to the plaintiff. Bibbo
v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998).
The Federal Rules of Civil Procedure govern the construction of a plaintiff’s pleading.
Bank of St. Louis v. Morrissey, 597 F.2d 1131, 1134-35 (8th Cir. 1979). In order to conform to
the requirements of Rule 8, a complaint must contain "(1) a short and plain statement of the
grounds upon which the court's jurisdiction depends… , (2) a short and plain statement of the claim
showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the
pleader seeks." Fed. R. Civ. P. 8(a). Rule 8(e)(1) requires that "[e]ach averment of a pleading shall
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be simple, concise, and direct." Fed. R. Civ. P. 8(e)(1).
In addition, Rule 10(b) requires a party to “state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single set of circumstances … [and], [i]f doing
so would promote clarity, each claim founded on a separate transaction or occurrence [...] must be
stated in a separate account or defense.” Fed. R. Civ. P. 10(b). Where a plaintiff’s complaint fails
to connect specific facts or events with the various causes of action asserted, the plaintiff violates
Rule 8(a)(2)’s requirement that he provide the defendant with “adequate notice of the claims
asserted against [it] and the grounds upon which each claim rests.” See Lee v. Ohio Educ. Ass’n,
951 F.3d 386, 392-93 (6th Cir. 2020) (where the complaint failed to connect specific facts or events
with the various causes of action asserted, the plaintiff violated Rule 8(a)(2)’s requirement that
plaintiff provide the defendants with adequate notice of the claims against them and the grounds
upon which each claims rests). Where a complaint fails to separate each of a plaintiff’s causes of
action or claims for relief into separate counts, the complaint amounts to a “shotgun pleading” that
violates Rule 10(b). Lee, 951 F.2d at 393 (all seven of plaintiff’s state-law causes of action were
contained in a single sentence; holding that plaintiff violated Rule 10(b) and her complaint was a
“shotgun pleading” where the plaintiff’s complaint failed to separate each of her causes of action
or claims for relief into separate counts.).
After careful review, the Court concludes Plaintiff’s complaint does not sufficiently
comply with the requirements of Rule 8. 	Plaintiff has chosen to include a narrative recital of
argumentative and largely immaterial background materials in the complaint, rather than providing
a short and plain statement of basic allegations followed by an outline of each legal claim based
on specific allegations of fact. Plaintiff’s complaint bears no resemblance to the sample pleadings
in the official Appendix of Forms to the Federal Rules of Civil Procedure.
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The complaint contains many factual allegations and legal conclusions but fails to permit
the court or defendants’ counsel to identify the distinct federal or state law causes of action
presumably alleged. Given the breadth of the allegations and the numerous legal theories named,
the court is unable to proceed in this matter. Further, in numerous instances, the complaint does
not make clear the connections between specific allegations and any particular defendant.
Plaintiffs' complaint simply does not provide defendants notice of what legal claims are asserted
against which defendants. Therefore, defendants cannot reasonably be expected to frame
responsive pleadings.
For these reasons, the court recommends defendants’ motion to dismiss be granted.
Plaintiff should be granted leave to file and serve an amended complaint which complies with the
requirements of Rule 8, within fifteen (15) days 	in the event the District Judge adopts this
recommendation. In framing the amended complaint, plaintiff should initially set forth a short and
plain statement of the jurisdictional grounds. Plaintiff is advised to edit or eliminate much of the
factual narrative in the complaint, provide a short and plain statement of his claims, and link their
factual allegations to specific legal claims against each defendant. The amended complaint shall
clearly state how each defendant is alleged to have violated Plaintiff’s legal rights. 	The use of
separate counts for each legal theory is encouraged.
Finally, Plaintiff’s miscellaneous motions to correct a clerical error (Docket No. 29), to
ascertain the status of motions (Docket No. 39), and to file a “sur sur-reply” and request for a
hearing should be DENIED. Docket No. 34.
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III. CONCLUSION
For the foregoing reasons, the undersigned recommends Plaintiff’s motion to remand to
state court be GRANTED. Docket No. 22. Alternatively, defendants’ motions to dismiss should
be GRANTED (Docket Nos. 7, 11, 15, 19) and the Plaintiff be allowed to file an amended
complaint properly setting out any federal claims. Plaintiff’s miscellaneous motions to correct a
clerical error (Docket No. 29), to ascertain the status of motions (Docket No. 39), and to file a “sur
sur-reply” should be DENIED. Docket No. 34.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14) days
from receipt of this Report and Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said objections shall have fourteen
(14) days from receipt of any objections filed in this Report in which to file any response to said
objections. Failure to file specific objections within fourteen (14) days of receipt of this Report
and Recommendation can constitute a waiver of further appeal of this Recommendation. Thomas
v. Arn, 474 U.S. 140 (1985), reh’g denied, 474 U.S. 1111 (1986).
JEFFERY S. FRENSLEY
United States Magistrate Judge
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