The opinion of the court was delivered by: BREWSTER
On January 16, 1996, this Court held a hearing in the above-captioned case on Orders to Show Cause why this case should not be remanded to Superior Court, why defense counsel should not be sanctioned, and on plaintiff's motion to transfer venue and defendant's request for sanctions. Kathleen Pratt, Esq. appeared on behalf of plaintiff Bradley Tanzman. Daniel Fears, Esq. appeared on behalf of defendants Midwest Express Airlines, Inc., Kimberly-Clark Corporation and Peter Klebenow.
After due consideration of the parties' briefs, their evidence and arguments, the Court hereby DISMISSES this case. Furthermore, the Court DENIES as moot plaintiff's motion to transfer venue, DENIES defendants' request for sanctions and DECLINES to award sanctions against defendants.
Plaintiff is suing his former employer, Midwest Express Airlines, Midwest Express's parent company, Kimberly-Clark Corporation, and his former supervisor, Peter Klebenow, on claims alleging, inter alia, violations of the California Fair Employment and Housing Act (FEHA), sex discrimination, workplace sexual harassment and wrongful termination.
Plaintiff filed his complaint on August 10, 1995, in Superior Court in San Mateo County. Defendants filed on August 25, 1995, a motion to change venue of the case from San Mateo County to San Diego County, and this motion was granted on September 11, 1995.
By Notice dated September 27, 1995, the Superior Court for San Diego County issued a Notice of Receipt of Transferred Case, pursuant to California Code of Civil Procedure (CCP) § 399, stating that the case had been received and filed on September 15, 1995, after transfer from San Mateo Superior Court. On September 15, 1995, defendants purported to remove to this Court, stating that they received the summons and complaint on August 18, 1995.
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332. The amount in controversy allegedly exceeds $ 50,000 and diversity of citizenship exists: plaintiff is a resident of California and Midwest Express is a Delaware corporation with principal place of business in Wisconsin; Kimberly-Clark is a Delaware corporation with principal place of business in Texas, and Peter Klebenow resides in Washington, D.C.
However, it appears that the receipt and filing of the case by the San Diego Superior Court were premature under California law. California state law, at CCP § 400, provides that a party may appeal an order transferring venue within 20 days of service of notice of the order. CCP § 400, entitled "Petition for writ of mandate by party aggrieved" reads:
When an order is made by the superior court granting or denying a motion to change the place of trial, the party aggrieved by such order may, within 20 days after service of a written notice of the order, petition the court of appeal for the district in which the court granting or denying the motion is situated for a writ of mandate requiring trial of the case in the proper court. The superior court may, for good cause, and prior to the expiration of the initial 20-day period, extend the time for one additional period not to exceed 10 days. The petitioner shall file a copy of such petition in the trial court immediately after the petition is filed in the court of appeal. The court of appeal may stay all proceedings in the case, pending judgment on the petition becoming final....
CCP § 399 pertains to the time for transmission of files by the clerk of the transferor court to the clerk of the transferee court. The statute reads in pertinent part:
When an order is made transferring an action or proceeding under any of the provisions of this title, the clerk shall, after expiration of the time within which a petition for writ of mandate could have been filed pursuant to Section 400, or if such petition is filed after judgment denying the writ becomes final, and upon payment of the costs and fees, transmit the pleadings and papers therein ... to the clerk of the court to which the same is transferred....The court to which an action or proceeding is transferred under this title shall have and exercise over the same the like jurisdiction as if it had been originally commenced therein, all prior proceedings being saved ....
On September 22, 1995, defendants filed in this Court an answer to plaintiff's complaint Notwithstanding defendants' attempted removal to this Court, on or about September 29, 1995, within the time limits set forth in CCP §§ 399 and 400, plaintiff filed a motion to stay the transfer and a petition for writ of mandate before the California Court of Appeal, First District, appealing the San Mateo Superior Court's order of September 11 granting the motion to change venue. Defendants apparently wrote a letter to the California Court of Appeals advising them that since defendants had removed the case to federal court on September 15, the Court of Appeal was without jurisdiction in the matter. By order dated October 5, 1995, the Court of Appeal denied the petition for writ of mandate and request for stay by postcard without indicating the basis for the rulings. In the meantime, on October 13, 1995, plaintiff filed in this Court a motion to change venue of this case to the Northern District of California, based on 28 U.S.C. § 1406 (wrong venue), and 28 U.S.C. § 1404 (forum non conveniens). On November 20, 1995, this Court held a hearing on that motion. The Court, expressing reservations about the propriety of defendants' removal, deferred ruling on plaintiff's motion and ordered a hearing on Orders to Show Cause why this case should not be remanded to Superior Court and why defense counsel should not be sanctioned.
A. Dismissal by this Court Without Prejudice is Warranted Because the Putative Transfer of this Case to San Diego Superior Court was Ineffective, Thus No Case or Controversy was Removable ...