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Jellinek v. Advance Products & Systems

August 24, 2010

L. ROBERT JELLINEK, PLAINTIFF,
v.
ADVANCE PRODUCTS & SYSTEMS, INC.; AND WILLIAM "TOM" FORLANDER, DEFENDANTS.



The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER GRANTING MOTION TO REMAND; DENYING MOTION FOR COSTS AND FEES'

Plaintiff L. Robert Jellinek moves to remand this action to state court and for an award of costs associated with the filing of the present motion. Defendants Advance Products & Systems, Inc. ("APS") and William "Tom" Forlander ("Forlander") oppose the motion. Pursuant to Local Rule 7.1(d)(1), the court finds this matter appropriate for decision without oral argument. For the reasons set forth below, the court grants the motion to remand and denies the motion for costs and fees.

BACKGROUND

On July 29, 2009 Plaintiff commenced a state court action against his former employer, Defendants APS and Forlander, alleging age, disability, and race discrimination, defamation, and nonpayment of wages. Defendants APS and Forlander were served with the original complaint on September 28, 2009. ( Motion, Exhs. 2, 3). On November 2, 2009, Forlander filed a motion to quash service of summons, claiming a lack of personal jurisdiction, (Motion, Exh. 5), which was denied by the Superior Court on December 4, 2009, and by the California Supreme Court on April 14, 2010.

(Oppo. Exh. H).

On March 8, 2010, Jellinek served APS with the First Amended Complaint ("FAC"). (Motion, Exh. 10). Then, on May 25, 2010, Forlander was served with the amended complaint. (Oppo. Ex. I). Shortly thereafter, on June 9, 2010, Defendants filed a Notice of Removal to federal court under 28 U.S.C. § 1441. (Ct. Dkt. 1).

Plaintiff, in an opposed motion, moves to remand the action to state court on the ground that Defendants removed the case to federal court outside the 30-day time period of 28 U.S.C. §1446(b).

DISCUSSION

The Motion to Remand

A defendant seeking to remove an action from state court must file a Notice of Removal within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.

28 U.S.C. §1446(a). The first 30-day period for removal only applies if the case stated by the initial pleadings is "removable on its face" as found within the "four corners of the document." Harris v. Bankers Life and Cas. Co., 425 F. 3d 689, 694 (9th Cir. 2005). Defendants have the burden to establish federal removal jurisdiction. California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004). For purposes of removal jurisdiction, the time for removal commences when the defendant is able to "intelligently ascertain" that plaintiff's claim exceeds $75,000. Huffman v. Saul Holdings Ltd., 194F.3d 1072, 1078-79 (10th Cir. 1999). Any doubt concerning removal jurisdiction is construed against the removing party. Gaus v. Miles, Inc. 980 F.2d 564, 566 (9th Cir. 1992).

The court concludes that the prerequisites for diversity jurisdiction were satisfied as of the September 28, 2009 service date such that the 30-day period of removal commenced on that date.

Defendants removed this action based on diversity jurisdiction, which is governed by 28 U.S.C. § 1332. In order to qualify for diversity jurisdiction, § 1332(a) requires that the parties to the case are citizens of different states and the amount in controversy exceeds $75,000. Here, neither party disputes that they are citizens of different states. The amount in controversy alleged in the original complaint, however, does not identify a specific amount in controversy. However, in light of litigation realities, it is facially apparent that the amount in controversy likely exceeded the $75,000 amount in controversy requirement. Plaintiff seeks monetary damages for wrongful termination and seeks compensatory and punitive damages (including loss of pay, fringe benefits, impaired earning capacity, and emotional distress) as well as attorney's fees. See Luckett v. Delta Airline, Inc., 171 F.3d 295, 298 (5th Cir. 1999) (although damages not alleged in the complaint, it is facially apparent that tort claim for loss of property, travel expenses, pain ...


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