The opinion of the court was delivered by: The Honorable Gary Allen Feess
Present: The Honorable GARY ALLEN FEESS
Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants: None None
Proceedings: (In Chambers)
ORDER RE: PLAINTIFF'S MOTION TO REMAND
I. INTRODUCTION AND BACKGROUND
On October 12, 2010, Plaintiff Shannon Rider ("Rider") filed a suit against Sears, Roebuck and Co. ("Sears") and Mario Carillo in Los Angeles County Superior Court. (Docket No. 1, Not. of Removal, Ex. A [Compl.].) The complaint asserts various state-law causes of action in connection with "ongoing sexual harassment by supervisory employees Doris Webb ("Webb") and defendant Carillo" that Rider suffered. (Compl. ¶ 7.) The complaint alleges that both Rider and Carillo are residents of California. (Id. ¶¶ 2, 3.) Sears is a citizen of New York and Illinois. (Not. ¶¶ 16--17.)
After filing the complaint, Rider realized that she had mistakenly named Mario Carillo as a defendant, when she meant to name her supervisor, Mario Gonzalez. (See Declaration of Stephen A. Ebner ("Ebner Decl."), Ex. 2 [Defendant's Response to Special Interrogatories], Ex. 3 [Deposition of Shannon Rider ("Rider Depo.")] at 44--46.) This first came to light in early January 2011, when Defendants served responses to special interrogatories that named a Mario Gonzalez-and not Mario Carillo-as Rider's supervisor. (Ebner Decl., Ex. 2.) Thereafter, at her deposition on January 26, 2011, Rider testified that she did not have "any concerns or issues with respect to how Mario Carillo treated" her. (Rider Depo. at 44:13--16.) She had mistakenly named him as a defendant because she did not know the last name of her supervisor, who was also named Mario. (Id. at 44:5--9.) At the deposition, Rider further testified that she did not "know of any reason why [she] should be bringing a claim against Mario Carillo." (Id. at 46:16--18.) Defense counsel likely received a transcript of that deposition on or about February 14, 2011. (Ebner Decl., Ex. 4.) On February 14, Rider's counsel sent defense counsel an email offering to compromise the claims against Carillo by way of stipulated dismissal. (Id., Ex. 5.) Two days later, Rider's counsel sent defense counsel a proposed stipulation as to dismissal of Carillo. (Id., Ex. 6.) The next day, at defense counsel's request, Rider's counsel sent a revised stipulation of dismissal. (Id. ¶¶ 8--10 & Ex. 9.) On March 4, 2011, the parties submitted the proposed stipulation to the state court, and the court approved the stipulation on March 25, 2011. (Not., Ex. H.) Five days later, on March 30, 2011, Sears removed the action to this Court on the basis of diversity jurisdiction. (Docket No. 1.)
Rider now moves to remand this case to state court. (Docket No. 9.) Rider contends that Sears's removal was not timely under 28 U.S.C. § 1446(b), which requires that a defendant remove a case from state court within thirty days after the case becomes removable. According to Rider, this case became removable as soon as Sears learned that Carillo, the non-diverse party, had been mistakenly named as a defendant. For the reasons set forth below, the Court GRANTS Rider's motion.
STANDARD FOR REMOVAL UNDER ...