The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER: 1) DENYING PLAINTIFF'S MOTION TO REMAND (DOC. NO. 4.) 2) GRANTING DEFENDANTS' MOTION TO DISMISS (DOC. NO. 3.)
Two motions are currently pending before the Court: (1) Plaintiff Tera Luedde's ("Plaintiff") motion to remand this case to San Diego Superior Court and; (2) Devon Robotics, LLC ("Devon") and John Bennett's ("Bennett") (collectively "Defendants") motion to dismiss. The Court decides these matters on the papers submitted and without oral argument. See S.D. Cal. Civ. R. 7.1(d.1) And for the reasons stated below, the Court DENIES Plaintiff's motion to remand (Doc. No. 4) and GRANTS Defendants' motion to dismiss. (Doc. No. 3).
Plaintiff is a resident of the State of California who works as a sales person in the medical device sales industry. (Doc. No. 1; Ex. B2 [hereinafter "FAC"].) Devon is a Pennsylvania-based limited liability company, organized and existing under the laws of the Commonwealth of Pennsylvania, with its principle place of business in Pennsylvania. (Doc. No. 1 at ¶ 5.) Bennet is a resident of Pennsylvania and the Chief Executive Officer of Devon. (FAC at ¶ 3.)
Beginning in 2005, Plaintiff was employed as a sales representative at ForHealth Technologies ("FHT"). (FAC at ¶ 7.) In June of 2009, Plaintiff entered discussions with Devon, a competitor of FHT, regarding a position in their company as a sales representative. (Id. at ¶ 8.) On June 11, 2009, Bennett interviewed Plaintiff by telephone. (Id. at ¶ 10.) During their conversation, Plaintiff told Bennett she would not leave FHT without a firm offer from Devon. (Id. at ¶ 12.) On June 17, 2009, Devon sent Plaintiff an employment offer via email with an anticipated start date of July 15, 2009. (FAC at ¶ 13.) Plaintiff accepted the offer by email that same day. (Id.) Soon after, Plaintiff resigned from her position at FHT. (Id.)
On July 2, 2009, Devon sent Plaintiff a proposed written agreement titled "Employment Agreement." (FAC; Ex. 1 [hereinafter "Agreement"].) The Agreement was to become effective on July 15, 2009, and to last for an initial term of one year. (Agreement at ¶ 6.) The Agreement contained a forum selection clause ("FSC") requiring all disputes brought by either party to be brought in the Commonwealth of Pennsylvania. (Agreement at ¶ 9.) Specifically, the FSC provided:
Governing Law and Jurisdiction
The parties agree that this Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Pennsylvania. With respect to and dispute brought by Employee against Company or any dispute brought by Company against Employee, or any combination thereof, Employee agrees to bring all judicial claims in, and only in, the Court of Common Pleas of Montgomery County, Commonwealth of Pennsylvania. The provisions of this paragraph nine (9) shall survive termination of this Agreement. (Id.)
Plaintiff signed the Agreement on July 5, 2009, and returned it to Devon. (Doc. No. 3.) Devon retained, but did not sign the Agreement. (Id.)
In the days leading up to Plaintiff's anticipated start date, both parties acted in reliance on the Agreement. (FAC at ¶ 15.) Devon printed and provided Plaintiff with business cards. (Id.) Devon also provided Plaintiff with a Blackberry phone and a laptop computer which Plaintiff configured with the assistance of Devon's IT Department.(Id.) Devon's corporate travel department also arranged for Plaintiff's travel to Phoenix, Arizona, for appointments Plaintiff scheduled on July 20 and 21, 2009. (Id.) Meanwhile, Plaintiff purchased an external hard drive to transfer information from FHT to her new Devon laptop computer. (Id.) Plaintiff also received and completed a significant amount of new hire and payroll paperwork related to the position at Devon. (Id.)
On July 13, 2009, two days before Plaintiff's anticipated start date, John Seigel, Executive Vice President of Commercial Development, informed Plaintiff of a need to delay her start date due to cash flow constraints.(Id. at ¶ 17.) Devon told Plaintiff she should not expect to start earlier than September 1, 2009, and that even that date, as well as her position with the company, was far from certain. (Id.) On August 3, 2009, Plaintiff, through her counsel, sent a letter to Defendants accusing them of "intentionally misleading" Plaintiff and "stringing Plaintiff along" and threatened Defendants with "protracted public litigation." (Doc. No. 3; Bennett Decl. at ¶ 14.) Plaintiff also disclosed her efforts to return to her prior employer. (Id.) Bennet interpreted Plaintiff's actions as a termination of the Agreement. (Id. at ¶ 15.)
Ultimately, on November 17, 2009, Plaintiff filed this lawsuit against Devon alleging the following six causes of action: (1) Promissory Estoppel; (2) Fraud; (3) Negligent Misrepresentation; (4) Intentional Interference with Contractual Relationship; (5) Interference with Prospective Economic Advantage; and (6) Breach of Contract. (Doc. No. 1; Ex. A2 [hereinafter "Original Complaint"].) Bennett was not named as a party in the caption of the Original Complaint or in the Summons. Plaintiff asserts that Bennett had been inadvertently excluded. (Doc. No. 11 at 2.)
On November 25, 2009, Devon was served with the Summons and the Original Complaint. (Doc. No. 1; Ex. A1.) On December 14, 2009, Plaintiff filed the FAC in San Diego Superior Court. In contrast to the Original Complaint, the FAC named Bennett as a party to the action. On February 1, 2010, Bennett was served with the Summons and the FAC. (Doc. No. 1; Ex. B1.)
On February 19, 2010, Defendants filed a joint Notice of Removal on the basis of diversity jurisdiction. (Doc. No. 1.) Plaintiff responded by filing a motion to remand to state court. (Doc. No. 4.) Defendant opposes the remand and filed a motion to dismiss. (Doc. No. 3.) Plaintiff opposes the motion to dismiss. (Doc. No. 7.)
An action is removable to federal court only if it might have been brought there originally. See 28 U.S.C. § 1441(a). Notice of removal to federal court must be filed within thirty days of service of the initial pleading on the defendant. 28 U.S.C. § 1446(b). Pursuant to the rule of unanimity, where there are multiple defendants, all defendants must unite in a petition for removal to federal court. See Chi. Rock Island & Pac. R.R. Co. v. Martin, 178 U.S. 245, 248(1900). If a defendant's removal notice fails to meet the procedural requirements of section 28 ...