The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS DENYING PLAINTIFF'S MOTION TO REMAND (Document 11)
On November 24, 2009, Eric Hawkins ("Plaintiff") filed the instant Motion to Remand. (Docs. 11 and 12). Federal Express Corporation ("Defendant" or "FedEx") filed an Opposition on February 1, 2010. (Docs. 18 and 19). Plaintiff filed a Reply on February 1, 2010. (Doc. 22). The Court reviewed the pleadings and determined that this matter was suitable for decision without oral argument pursuant to Local Rule 230(g). The hearing set for February 12, 2010 at 9:30 am was vacated. Having considered all written materials submitted, the Court recommends that Plaintiff's Motion to Remand be DENIED.*fn1
Plaintiff filed this action against Defendant in the Fresno County Superior Court of California, Case No. 09CECG03415, on September 28, 2009. (Doc. 1, Notice of Removal at Exhibit C ). Defendant was served with the complaint on September 29, 2009. (Doc. 1, Notice of Removal at Exhibit B). Defendant filed an answer to the complaint on October 29, 2009. (Doc. 2, Notice of Removal at Exhibit E). Defendant removed this action to this Court pursuant to 28 U.S.C. § 1446(b) on October 29, 2009 based on diversity jurisdiction contending that: 1) it is a corporation incorporated under the laws of the State of Delaware and has its principal place of business in the Tennessee, 2) Plaintiff is a resident of California, and 3) the amount in controversy exceeds $75,000. (Doc. 1).
Plaintiff filed the instant Motion for Remand on November 24, 2009, arguing that FedEx failed to provide admissible evidence to support diversity jurisdiction at the time the Notice or Removal was filed. Plaintiff argues that the declarations attached to the Notice of Removal were stale because they were prepared three years ago and they are inadmissible hearsay. In its Opposition, Defendant argues that the Notice of Removal was sufficient to establish diversity and Plaintiff's evidentiary objections are misplaced. FedEx also filed supplemental declarations. In his Reply, Plaintiff argues that the new evidence is untimely and is not properly submitted.
The complaint alleges that Plaintiff commenced employment with FedEx from 1992 until July 15, 2008. Plaintiff alleges that he was terminated without justifiable cause after he made complaints to the Human Resources Department about discrimination and a hostile work environment. Plaintiff contends that FedEx retaliated against him for objecting to discrimination and harassment.
Specifically, Plaintiff alleges that Defendant did not provide him with reasonable accommodation and promoted similarly situated non-disabled employees or females to better employment positions than Plaintiff. Plaintiff alleges that he reported this disparate treatment from Defendant's supervisors and managers and insisted that he be treated equally as similarly situated employees. However, Defendant did nothing to correct or prevent the discrimination. Plaintiff contends that the discrimination and harassment resulted in a loss of tangible job benefits, arbitrary and punitive job assignments, as well as created a pervasive hostile working environment. Plaintiff alleges that after he made the complaints, Defendant failed to provide him with a workplace free from discrimination, failed to respond or investigate the complaints of discrimination, failed to take remedial action against the supervisors who engaged in the discrimination, and failed to have an effective policy to prevent discrimination against Plaintiff. Plaintiff was subsequently terminated on July 15, 2008.
Based on the above, Plaintiff alleges several causes of action under the California Government Code § 12940 et seq (the California Fair Employment and Housing Act) for disability discrimination, sex/gender discrimination, failure to engage in interactive process, failure to prevent harassment, and retaliation. Plaintiff also alleges a claim for termination in violation of public policy. Plaintiff is seeking general damages for pain and suffering including emotional and mental distress damages; past and future lost wages and other employment related benefits; special damages according to proof; interest for losses occurred in earnings, deferred compensation, and other employee benefits at the prevailing wage; prejudgment interest; consequential damages; punitive damages; and attorney's fees and costs.
Pursuant to 28 U.S.C. § 1441(a), a defendant may remove an action to federal court if the plaintiff could have filed the action in federal court initially. 28 U.S.C. § 1441(a); Ethridge v. Harbor House Restaurant , 861 F.2d 1389, 1393 (9th Cir.1988). This case was removed based on diversity jurisdiction, which provides as follows
Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties, or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly ...