The opinion of the court was delivered by: The Honorable David O. Carter, Judge
Julie Barrera Not Present Courtroom Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS: NONE PRESENT NONE PRESENT
PROCEEDING (IN CHAMBERS): ORDER DENYING PLAINTIFF'S MOTION TO ALTER OR AMEND JUDGMENT ON THE PLEADINGS
Before the Court is plaintiff James Lake ("Plaintiff")'s Motion to Alter or Amend Judgment on the Pleadings ("Motion") (Docket 15). The Court has considered the moving, opposing, replying, and supplemental papers, and DENIES Plaintiff's Motion.
Defendant Delta Air Lines, Inc. ("Defendant") hired Plaintiff on December 8, 1978, as a pilot based out of Orange County, California. Id. at ¶ 5. On February 25, 1997, Plaintiff suffered a hearing impairment due to an "on-the-job, in-flight related incident," rendering Plaintiff disabled. Id. at ¶ 8. Plaintiff alleges that following the incident, Defendant "placed Plaintiff on inactive status due to his disability," required Plaintiff to remain on inactive status indefinitely, and failed to accommodate Plaintiff's disability. Id. at ¶ 11. Plaintiff retired on June 1, 2006. Id. at ¶¶ 5, 11.
Plaintiff alleges that following his retirement, Defendant denied Plaintiff "the same non-revenue travel benefits as were provided to other non-disabled retirees." Id. at ¶ 10. Plaintiff claims that Defendant's policy of "denying certain benefits to retirees who were inactive due to disability prior to age 50 is a punishment and retaliation for becoming disabled," and "Defendant has engaged in a pattern and practice of refusing to provide certain benefits to all retired employees who are disabled prior to age 50." Id. at ¶¶ 11-12. Consequently, Plaintiff filed his Complaint in Superior Court on March 19, 2010, asserting claims for: (1) disability discrimination, (2) failure to accommodate, (3) failure to engage in interactive process regarding accommodation, (4) disparate treatment, (5) unfair business practices, and (6) negligent infliction of emotional distress (Docket 1). Defendant removed the action to this Court on November 18, 2010.
On January 3, 2011, Defendant filed its motion for judgment on the pleadings (Docket 7). Plaintiff failed to timely file his opposition by January 10, 2011 and, accordingly, the Court granted Defendant's motion as unopposed (Docket 12). Plaintiff subsequently filed the present Motion to alter or amend the Court's judgment. After considering, inter alia, Plaintiff's pro se status, the Court granted Plaintiff's motion and considered Plaintiff's late Opposition to Defendant's motion for judgment on the pleadings (Docket 23). In his Opposition, Plaintiff argues that Defendant's removal was improper because this Court lacks subject matter jurisdiction, but does not address the substantive merits of Defendant's motion (Docket 18).
Federal court removal is governed by 28 U.S.C. § 1441, which provides in pertinent part that "[e]xcept as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction may be removed by the defendant or the defendants to the district court of the United States for the district and division embracing the place where such action is pending."
Courts construe the removal statute strictly against removal. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). "The party seeking removal bears the burden of establishing federal See Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 1988). If there is any doubt as to the right of removal in the first instance, remand must be ordered. See Gaus, 980F.2d at 566. Thus, removal is proper only ...