Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SOO v. UNITED PARCEL SERVICE

October 8, 1999

KENT SOO, PLAINTIFF,
v.
UNITED PARCEL SERVICE, INC., BOB HERZOG, AND DOES I THROUGH INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Breyer, District Judge.

MEMORANDUM AND ORDER

On October 1, 1999, the Court heard oral argument regarding why this case should remain in federal court and not be remanded to state court for lack of jurisdiction. Having carefully considered the papers submitted by the parties, and having had the benefit of oral argument, the Court REMANDS this action to the Superior Court for the County of San Francisco.

BACKGROUND

Plaintiff filed his complaint in state court on May 24, 1999. The complaint alleges a single cause of action against both United Parcel Service ("UPS") and Bob Herzog ("Herzog") for retaliation in violation of the California Fair Employment and Housing Act ("FEHA"). UPS removed the case to federal court on July 23, 1999 on the basis of federal question and diversity jurisdiction. UPS contended that federal question jurisdiction was proper because the retaliation claim arose under and is preempted by the LMRA. UPS also contended that diversity jurisdiction was proper because plaintiff is a resident of California, UPS is a resident of Ohio and Georgia, and Herzog, although a resident of California, had not been served and, in any event, is a sham defendant whose residence has no affect upon jurisdiction.

On September 3, 1999, the Court heard oral arguments regarding UPS's motion to dismiss the retaliation claim based on preemption by the LMRA, failure to state a claim, and the statute of limitations. The Court ruled that plaintiff's claim was not preempted by the LMRA, and since there is no federal question jurisdiction, the Court ordered UPS to show cause why this case was properly removed on grounds of diversity jurisdiction.

DISCUSSION

I. THE NON-DIVERSE DEFENDANT

A. Herzog's Non-Service

UPS first claims that Herzog's residence is irrelevant to jurisdiction because he has not been served. In support of this proposition UPS cites 28 U.S.C. § 1441(b). UPS's reliance on section 1441(b) is misplaced. Diversity depends upon the citizenship of the parties named, not whether they have been served. See Clarence E. Morris, Inc. v. Vitek, 412 F.2d 1174, 1176 (9th Cir. 1969) (citing Pullman Co. v. Jenkins, 305 U.S. 534, 541, 59 S.Ct. 347, 83 L.Ed. 334 (1939)).

In Cripps v. Life Insurance Company of North America, 980 F.2d 1261 (9th Cir. 1992), the Ninth Circuit held that only defendants who have been served may be counted for jurisdictional purposes in an interpleader action. Id. at 1266. However the Cripps court distinguished its facts from Clarence Morris v. Vitek: "That case [Clarence Morris v. Vitek] held that a defendant could not ignore an unserved, nondiverse co-defendant in seeking to remove a case to federal court based on diversity. Because the party seeking removal in Vitek had no control over who was served the danger of manipulation present here did not exist in Vitek." Id. at 1266 n. 4. Thus, complete diversity is defeated by joinder of a nondiverse codefendant even if he or she has not been served.

Both plaintiff Soo and defendant Herzog are residents of California. Therefore, removal is improper unless Herzog is a "sham" defendant and the amount in controversy exceeds $75,000.

B. Is Herzog a Sham Defendant?

1. Legal Standard for Sham Defendants

A defendant has the burden of proving that the requisite jurisdiction exists to support removal. See Murakami v. E.L. DuPont De Nemours, 1999 WL 701902 (9th Cir. Sept.9, 1999) (citing Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992)). When a case is removed to federal ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.