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Kobos v. Schwan's Home Service

August 7, 2009

KIRK KOBOS, PLAINTIFF,
v.
SCHWAN'S HOME SERVICE, INC., ET AL., DEFENDANTS.



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

ORDER DENYING PLAINTIFF'S MOTION TO REMAND ACTION

(Document 11)

On May 7, 2009, Plaintiff Kirk Kobos ("Plaintiff") filed the instant motion to remand the action to state court. The matter was heard on July 31, 2009, before the Honorable Dennis L. Beck, United States Magistrate Judge. Marina Fraigun appeared telephonically on behalf of Plaintiff. Alan Rupe appeared on behalf of Defendants Schwan's Home Service, Inc. and Steve Houselog.

PROCEDURAL BACKGROUND

Plaintiff filed this employment action against Schwan's Home Service, Inc. ("Schwan's"), Steve Houselog ("Houselog") and Does 1 through 50 in the Kern County Superior Court on March 10, 2009. Plaintiff alleges wrongful termination in violation of public policy (California Government Code § 12940 et seq. and Workers Compensation Act), disability discrimination, retaliation, failure to take all reasonable steps to prevent discrimination and retaliation, violation of wage and hour law (unpaid overtime wages, failure to pay minimum wages and waiting time penalties), unfair competition and intentional infliction of emotional distress.

Plaintiff is a resident of Kern County, California. Defendant Schwan's is a Minnesota corporation with its principal place of business in Minnesota. Defendant Houselog is a resident of California.

On May 14, 2009, Defendants Schwan's and Houselog removed the action to this Court based on complete diversity and fraudulent joinder. In the notice of removal, Defendants contend that Houselog was fraudulently joined to defeat diversity jurisdiction. Defendants answered the complaint on May 19, 2009.

Plaintiff filed the instant motion for remand on May 29, 2009, arguing that Houselog is not "fraudulently joined" and is not a "sham" defendant because Houselog harassed Plaintiff and suspended and terminated Plaintiff for engaging in protected activities. Plaintiff also requests sanctions in the form of attorney's fees totaling $3,150.00 for defending against removal.*fn1

Defendants opposed the motion on June 23, 2009. Plaintiff did not file a reply.*fn2

FACTUAL BACKGROUND

According to the complaint, Plaintiff was employed by Schwan's as Route Manager. At the time of his hire, Schwan's allegedly told Plaintiff that he would be paid on an hourly basis, making approximately $700 per week. On or about February 22, 2008, Plaintiff began working for Schwan's and sustained a work-related injury--a broken ankle. Plaintiff was rendered disabled and remained off work for approximately six months. During that time, Schwan's allegedly did not inform Plaintiff of his rights under the Workers Compensation Act and did not pay him for working on February 22, 2008. Complaint, p. 2.

On or about July 2, 2008, Defendant Houselog, the Location General Manager for Schwan's, allegedly called Plaintiff to tell him the company "wanted him back." When Plaintiff returned, Schwan's allegedly coerced him into signing a Release of Liability for his February 22, 2008 accident. Plaintiff then began working 12 hours per day, 5 days a week, but was paid only $600 per week. Plaintiff alleges that Schwan's mis-classified him as a salaried employee to avoid paying him overtime wages. Further, he was not given a route, but told to "knock on doors" and do sales. Complaint, p. 2.

Plaintiff purportedly re-injured his ankle while working in November 2008. He reported the injury, but Schwan's allegedly did not inform Plaintiff of his rights under the Workers Compensation Act and did not provide Plaintiff with any leave. Instead, Schwan's allegedly ordered Plaintiff to generate sales in outlying areas where no one spoke English. Defendant Schwan's also reportedly reduced Plaintiff's salary to $300 and $350 per week. Plaintiff alleges that Schwan's took these actions in retaliation for "being injured on the job and disabled." Complaint, p. 4. Plaintiff further alleges that Defendant Schwan's retaliated against him as follows: (1) Defendant Houselog took items off of Plaintiff's truck and blamed Plaintiff for missing items; (2) forced Plaintiff to pay for boots that he was never given; (3) failed to give Plaintiff credit for certain sales; (4) gave less qualified employees tasks that would generate more money; and (5) required Plaintiff to "clock out" and then go to the bank for Schwan's. Complaint, p. 3.

On or about December 8, 2008, Plaintiff was suspended for alleged insubordination. He was terminated on or about December 17, 2008. Plaintiff alleges that he was terminated because he sustained work-related injuries and was disabled. Plaintiff further alleges that he was terminated because he was ...


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