The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S MOTION FOR REMAND TO STATE COURT RELEVANT FACTUAL AND PROCEDURAL BACKGROUND Documents 11 & 12
According to Plaintiff Robin Chambers, she was employed by Defendant Penske Truck Leasing Corporation from September 3, 2008, until her discharge on November 12, 2010. (Doc. 1, Ex. A, ¶¶ 8 & 14.) Plaintiff was hired as a Manager Trainee/Rental Representative, and prior to her termination had received at least two salary increases during the course of her employment, based upon excellent job performance. (Doc. 1, Ex. A, ¶ 8.) On November 7, 2010, Plaintiff contacted Defendant's branch rental manager, her direct supervisor, and advised him that she was suffering from severe swelling and pain in her feet and ankles. The branch manager permitted Plaintiff to take the following Monday off so that she could obtain medical treatment. (Doc. 1, Ex. A, ¶ 9.) After seeking medical treatment from her primary care provider and a specialist, Plaintiff returned to work on November 11, 2010. (Doc. 1, Ex. A, ¶¶ 10-13.) The orthopedist with whom Plaintiff consulted referred her to physical therapy and provided a note for her employer wherein it was stated that "when she did return to work  she needed to be allowed to come in late or leave early to attend physical therapy." (Doc. 1, Ex. A, ¶ 11.)
On November 12, 2010, Plaintiff arrived early and worked a regular shift. Later that day, Plaintiff was advised by the branch manager that she was terminated for "being late to work" and because, despite a legitimate medical need, Plaintiff's absence from the workplace constituted a violation of a final written warning. (Doc. 1, Ex. A, ¶ 14.)
Thereafter, in December 2010, Plaintiff filed a complaint against Defendant with the Department of Fair Employment and Housing. (Doc. 1, Ex. A, ¶ 15.) On or about January 20, 2011, Plaintiff filed a complaint against Defendant in the Stanislaus County Superior Court. Plaintiff alleged disability discrimination, failure to accommodate a disability, failure to engage in the interactive process, denial of medical leave, and retaliation and failure to prevent discrimination and retaliation pursuant to California's Fair Employment and Housing Act. (See Doc. 1 at 2 & Ex. A.)
On March 3, 2011, Defendant filed its answer to the complaint (see Doc. 1, Ex. B), and on March 4, 2011, Defendant filed a Notice of Removal in this Court (Doc. 1).
On March 9, 2011, Plaintiff filed the instant motion. (Docs. 10-12.) On April 1, 2011, Defendant filed an opposition to the instant motion (Doc. 14) and on April 6, 2011, Plaintiff filed her reply (Doc. 15).
On April 11, 2011, this Court determined the matter was suitable for decision without oral argument pursuant to Local Rule 230(g).*fn1 The hearing scheduled for April 15, 2011, was vacated and the matter was deemed submitted for written findings. (Doc. 17.)
Title 28 of the United States Code section 1441(a) provides that a defendant may remove "any civil action brought in a State court of which the district courts . . . have original jurisdiction . . .." Removal is proper when a case originally filed in state court presents a federal question or where there is diversity of citizenship among the parties and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a).
Section 1447(c) provides that "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." "The removal statute is strictly construed against removal jurisdiction [and] [t]he defendant bears the burden of establishing that removal is proper." Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083 (9th Cir. 2009). The Ninth Circuit has held that "[w]here doubt regarding the right to removal exists, a case should be remanded to state court." Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003).
A motion to remand is the proper procedure for challenging removal. Babasa v. LensCrafters, Inc., 498 F.3d 972, 974 (9th Cir. 2007). When reviewing a motion to remand, a district court must analyze jurisdiction "on the basis of the pleadings filed at the time of removal without reference to subsequent amendments." Sparta Surgical Corp. v. Nat'l Ass'n of Sec. Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir. 1998) (citation omitted). If a defendant has improperly removed a case over which the district court lacks subject matter jurisdiction, the district court shall remand the case to the state court. 28 U.S.C. § 1447(c); see also Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006) (noting that a district court resolves all ambiguity in favor of remand). However, a district court lacks discretion to remand a case to the state court if the case was properly removed. Carpenters S. Cal. Admin. Corp. v. Majestic Hous., 743 F.2d 1341, 1343 (9th Cir. 1984); see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 356, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988).
Where the parties in an action are citizens of different states, a district court "shall have original jurisdiction . . . where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs." 28 U.S.C. § 1332(a). This amount includes claims for general and special damages (excluding costs and interests), attorneys fees if recoverable by statute or contract, and punitive damages, if recoverable as a matter of law. Conrad Assocs. v. Hartford Accident & Indem. Co., 994 F.Supp. 1196, 1198 (N.D. Cal. 1998). The amount in controversy is "determined at the time the action commences, and a federal court is not divested of jurisdiction . . . if the amount in controversy subsequently drops below the minimum jurisdictional level." Hill v. Blind Industries and Services of Maryland, 179 F.3d 754, 757 (9th Cir. 1999).
Where the complaint does not specify the amount sought as damages, the removing party must prove by a preponderance of the evidence that the amount in controversy meets the jurisdictional threshold. Abrego v. The Dow Chemical Co., 443 F.3d 676, 683 (9th Cir. 2006); ...