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Luz Maria Ortiz v. Sodexho

July 26, 2011


The opinion of the court was delivered by: Honorable Janis L. SammartinoUnited States District Judge


Presently before the Court are (1) Plaintiff Luz Maria Ortiz's motion for remand (ECF No. 10); and (2) Defendants Sodexo, Inc. and Sodexo Operations, LLC's (collectively, Sodexo) motion to transfer venue (ECF No. 5). Also before the Court are the parties' respective oppositions and replies. (Pl.'s Opp'n, ECF No. 11; Sodexo's Opp'n, ECF No. 19; Sodexo's Reply, ECF No. 21; Pl.'s Reply, ECF No. 22.) Having considered the parties' arguments and the law, the Court DENIES Plaintiff's motion for remand and DENIES Sodexo's motion to transfer venue.


Between February 2006 and July 17, 2008, Plaintiff was employed by Sodexo. (Wohl Decl. ISO Removal Exs. F, G, H, ECF No. 1-1.) Plaintiff alleges that, during her employment, she was repeatedly subjected to sexual harassment by Defendant "Tom." (Wohl Decl. ISO Removal Ex. A (Compl.) ¶¶ 10--11, 13.) Plaintiff allegedly reported this harassment, but Sodexo "failed to reprimand, terminate, or take any disciplinary action to stop the harassment." (Id. ¶ 12.) Rather, Plaintiff alleges that Sodexo retaliated against her by terminating her employment. (Id. ¶ 14.)

On May 29, 2009, Plaintiff filed with the California Department of Fair Employment and Housing (the DFEH) three complaints of discrimination under the provisions of the California Fair Employment and Housing Act (FEHA). (Wohl Decl. ISO Removal Exs. F, G, H.) Plaintiff's FEHA complaints named as Defendants "Sodexho, Inc. and affiliated companies" (id. Ex. F); "Sodexho Operations, LLC" (id. Ex. G); and Ray Trieu (id. Ex. H). The complaints alleged that, while employed by Sodexo, Plaintiff "was subjected to sexual harassment by Ray Trieu, Kitchen Manager," and that "she was subjected to retaliation by her employers" when she reported the harassment. (Id. Exs. F, G, H.) On June 15, 2009, the DFEH issued case closure and right-to-sue notices on Plaintiff's FEHA complaints. (Id. Exs. F, G, H.) The notices indicated that Plaintiff had one year in which to file a civil action. (Id. Exs. F, G, H.)

On June 14, 2010, Plaintiff filed amended FEHA complaints naming as Defendants "Sodexho, Inc. and affiliated companies" (Wohl Decl. ISO Removal Ex. I); "Sodexho Operations, LLC" (id. Ex. J); and "Tom (last name unknown)" (id. Ex. K). The amended complaints alleged that, while employed by Sodexo, Plaintiff "was subjected to sexual harassment by Tom (last name unknown) [As opposed to Ray Trieu who was inadvertently named as the alleged harasser in the original Supplemental Facts to the DFEH Complaint]." (Id. Exs. I, J, K (bracketed material in original).) The amended complaints contained the same retaliation allegations as the original complaint. (Id. Exs. I, J, K.)

Also on June 14, 2010, Plaintiff filed the instant action in San Diego County Superior Court. (Compl.) Plaintiff's operative complaint names the same defendants named in Plaintiff's amended FEHA complaints and alleges causes of action for sexual harassment and retaliation. (Id.) On October 27, 2010, Sodexo removed the action to this Court "based on diversity of citizenship jurisdiction under 28 U.S.C. § 1332." (Notice of Removal, ECF No. 1.) Plaintiff now moves to remand the case to state court (see Mem. ISO Remand Mot., ECF No. 10), and Defendant moves to transfer the case to the Central District of California (see Mem. ISO Transfer Mot., ECF No. 5-1).


1. Legal Standard

In cases "brought in a State court of which the district courts of the United States have original jurisdiction," a defendant may remove the case to federal district court. 28 U.S.C. §1441(a). However, courts "strictly construe the removal statute against removal jurisdiction." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Therefore, "[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Id.

The removing party bears the burden of establishing that federal subject matter jurisdiction exists. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). To establish removal jurisdiction over a diversity action, the removing defendants must establish compliance with 28 U.S.C. § 1332(a), which provides for diversity jurisdiction where (1) amount in controversy exceeds $75,000, and (2) the suit is between citizens of different states. Where, as in the present case, the "plaintiff's state court complaint does not specify a particular amount of damages, the removing defendant bears the burden of establishing, by a preponderance of the evidence, that the amount in controversy exceeds [$75,000]."*fn1 Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996). Section 1332(a) also requires complete diversity between plaintiffs and defendants. Miller v. Grgurich, 763 F.2d 372, 373 (9th Cir. 1985). Courts look to "the time of the filing of a complaint" to determine whether complete diversity exists. In re Haw. Fed. Asbestos Cases, 960 F.2d 806, 810 (9th Cir. 1992). The removing party must prove its allegations by a preponderance of the evidence. McNutt v. Gen. Motors Acceptance Corp. of Ind., Inc., 298 U.S. 178, 189 (1936). The Court takes this proof from the notice of removal and may, if it chooses, construe the opposition to the motion to remand as an amendment to the notice of removal. See Cohn v. Petsmart, Inc., 281 F.3d 837, 840 n.1 (9th Cir. 2002).

2. Analysis

Plaintiff moves to remand on the ground that complete diversity does not exist because Plaintiff and Defendant Tom Young-named in the complaint as "Tom Doe" or "Tom (last name unknown)"-are California residents. (Mem. ISO Remand Mot. 1.) Sodexo, however, contends that the Court must disregard Tom's citizenship because he is both a fictitiously named and a sham defendant. (Sodexo's Opp'n 1.)

A. Sodexo Cannot Prove by a Preponderance of the Evidence that Tom is a Fictitiously Named Defendant Sodexo's first argument requires the Court to find, as a matter of fact, that Tom is a fictitiously named defendant. (See Sodexo's Opp'n 4--7.) Sodexo apparently posits that this is so because "Doe" is handwritten on the face of the complaint, along with an arrow indicating that "Doe" be added after "Tom." (See id. (referring to Tom as "Tom Doe (last name unknown)").) However, Plaintiff's counsel avers that "no one in [his] office hand-wrote 'Doe' after Tom's name on Plaintiff's complaint. Rather, it is likely that the word 'Doe' was added by court personnel." (Matern Decl. ISO Pl.'s Reply ΒΆ 4, ECF No. 22-1 to -2.) That the complaint names numerous true "Doe" defendants makes Plaintiff's counsel's version of the facts all the more likely because this suggests that Plaintiff did not intend to count Tom among the "Doe" defendants. (See Compl.) It suggests that Plaintiff ...

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