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Scheller v. American Medical Response

September 15, 2008

KAREN SCHELLER, PLAINTIFF,
v.
AMERICAN MEDICAL RESPONSE, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION FOR REMAND (Document 11) ORDER DENYING DEFENDANTS' MOTION TO STRIKE AS MOOT (Document 25)

On July 28, 2008, Plaintiff Karen Scheller ("Plaintiff") filed the instant motion to remand this action to the Stanislaus County Superior Court. The motion was heard before the Honorable Dennis L. Beck, United States Magistrate Judge, on September 12, 2008. Brett Dickerson appeared on behalf of Plaintiff. Jennifer Achtert appeared on behalf of Defendants American Medical Response, Inc. ("AMR") and Cindy Woolston (collectively "Defendants").

PROCEDURAL BACKGROUND

Plaintiff filed this discrimination action in the Stanislaus Superior Court on February 20, 2008. Her First Amended Complaint ("FAC"), filed on March 7, 2008, alleges (1) disability discrimination under the California Fair Employment and Housing Act ("FEHA"); (2) age discrimination under FEHA; (3) tortious termination in violation of public policy; (4) retaliation; (5) breach of employment contract; (6) breach of the implied covenant of good faith and fair dealing; and (7) intentional interference with economic relationship against Defendant Woolston.

The FAC was served on Defendant Woolston on March 21, 2008, through substitute service on her assistant. Defendant AMR was served on March 13, 2008, by mailing the documents to its agent for service of process.*fn1

Defendants answered the FAC on June 4, 2008.

On June 6, 2008, Defendants removed the action to this Court based on preemption by Section 301 of the Labor Management Relations Act ("LMRA"), 28 U.S.C. § 185, of the Fifth, Sixth and Seventh Causes of Action. In its notice, Defendants state that the notice was filed within thirty (30) days of service, contending that AMR was served on May 13, 2008. Defendants did not believe that Defendant Woolston had been properly served, although she joined in the notice of removal.

Plaintiff filed the instant motion for remand on July 28, 2008, arguing that the allegations in the FAC are based on violations of state law, rather than any term or condition in the Collective Bargaining Agreement ("CBA").

Defendants opposed the motion on August 29, 2008.

Plaintiff filed her reply on September 5, 2008.

On September 8, 2008, Defendants filed a motion to strike portions of the reply.

FACTUAL BACKGROUND

According to the FAC, AMR is a Delaware corporation doing business in Modesto. Plaintiff resides in Stanislaus County. Defendant Woolston resides in Sacramento County and is sued individually and in her capacity as a supervisory employee of AMR.

Plaintiff was hired by AMR's predecessor as an EMT in 1985. She became a part-time employee of AMR in 1995 and a full-time employee in 1999. In January 2005, Plaintiff suffered an on-the-job shoulder injury and was placed on temporary disability. From the date of her injury through the date of her surgery, Plaintiff was cleared for light duty, though it was not offered to her. In June 2005, ...


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