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Title Edmond Hakakha v. Cvs Pharmacy

October 25, 2011


The opinion of the court was delivered by: The Honorable Christina A. Snyder, U.S. District Judge



RITA SANCHEZ N/A N/A Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants: N/A N/A Proceedings: (In Chambers:) PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT AND MOTION TO REMAND (filed 9/23/2011)


The Court finds this motion appropriate for decision without oral argument. Fed. R. Civ. P. 78; Local Rule 7-15. On February 18, 2011, plaintiff Edmond Hakakha ("Hakakha") filed the instant action in the Los Angeles Superior Court against defendants CVS Pharmacy, Inc., California CVS Pharmacy, LLC, Garfield Beach CVS, LLC (collectively, "CVS"), Abel "Perez," and Does 1--100. The complaint alleges eleven claims styled as: (1) disability discrimination in violation of Cal. Gov't Code § 12940(a); (2) perceived disability discrimination in violation of Cal. Gov't Code § 12926.1; (3) failure to reasonably accommodate disability pursuant to Cal. Gov't Code § 12940(m) and (n); (4) failure to engage in the interactive process pursuant to Cal. Gov't Code § 12940(n); (5) national origin/religion discrimination in violation of Cal. Gov't Code § 12940(a); (6) harassment/hostile work environment in violation of Cal. Gov't Code § 12940(a); (7) wrongful termination in violation of public policy; (8) breach of oral/implied contract; (9) breach of implied covenant of good faith and fair dealing; (10) intentional infliction of emotional distress; and (11) negligent infliction of emotional distress.*fn1

Plaintiff, a CVS employee for 18 years, was victimized in a December 24, 2008 armed robbery while engaged in the course and scope of his employment. According to plaintiff, as a result of this armed robbery he began to suffer physical, emotional, cognitive, and psychological disabilities. Compl. ¶¶ 16, 19. Plaintiff avers that his manager failed to accommodate his post-traumatic stress disabilities and discriminated against him because of his race and religion following the incident. Id. ¶ 18. Plaintiff was fired on May 12, 2009, after allegedly selling cigarettes to an underage, undercover police officer. Id. ¶ 21.

Plaintiff filed a complaint with the Department of Fair Employment and Housing ("DFEH") regarding defendants' alleged violations of FEHA. In his DFEH complaint, he named Abel "Perez" as the CVS manager who allegedly engaged in the discriminatory and wrongful conduct. The DFEH granted plaintiff a right to sue on April 27, 2010, and the instant action resulted.

At the time plaintiff filed his DFEH complaint and his Los Angeles Superior Court complaint, he understood his manager's name to be Abel "Perez." In fact, plaintiff's supervisor's name is Abel "Prendez." Plaintiff discovered this error on July 5, 2011, when defendants' counsel responded to a set of special interrogatories. On August 11, 2011, plaintiff dismissed Abel "Perez" without prejudice, and "contemplat[ed]" adding Abel Prendez as a Doe substitution. Mot. at 6. Prior to adding Abel Prendez, however, defendants timely removed to this Court on the basis of diversity jurisdiction on August 24, 2011. Plaintiff now seeks leave to amend his complaint to substitute Abel Prendez as a named defendant and remand this action to the Los Angeles Superior Court for want of subject-matter jurisdiction. After carefully considering the arguments set forth by both parties, the Court finds and concludes as follows.


A. Leave to Amend

Fed. R. Civ. P. 15 provides that after a responsive pleading has been filed, "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a).

Where leave to amend is required, the decision whether to grant leave to amend "is entrusted to the sound discretion of the trial court." Jordan v. County of Los Angeles, 669 F.2d 1311, 1324 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982). "Five factors are taken into account to assess the propriety of a motion for leave to amend: bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint." Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (citing Nunes v. Ashcroft, 348 F.3d 815, 818 (9th Cir.2003)). "Some courts have stressed prejudice to the opposing party as the key factor." Texaco v., 939 F.2d 794, 798 (9th Cir. 1991). However, "[u]ndue delay is a valid reason for denying leave to amend." Id. (internal quotation marks and citation omitted); but see Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999) ("Undue delay by itself, however, is insufficient to justify denying a motion to amend."). Further, "the liberality of Rule 15(a) does not mean that amendment will be allowed regardless of the diligence of the moving party. Where the party seeking amendment knows or should know of the facts upon which the proposed amendment is based but fails to include them in the original complaint, the motion to amend may be denied." Jordan, 669 F.3d at 1324. "Late amendments to assert new theories are not reviewed favorably when the facts and the theory have been known to the party seeking amendment since the inception of the cause of action." Kaplan, 49 F.3d at 1370 (internal quotation marks and citation omitted). Delay can contribute to a finding of prejudice, for "expense, delay, and wear and tear on individuals and companies count toward prejudice." Id. (internal quotation marks and citation omitted).

B. Motion for Remand

A motion for remand is the proper procedure for challenging removal. Remand may be ordered either for lack of subject matter jurisdiction or for any defect in removal procedure. See 28 U.S.C. ยง 1447(c). The Court strictly construes the removal statutes against removal jurisdiction, and jurisdiction must be rejected if there is any doubt as to the right of removal. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The party seeking removal bears the burden of establishing federal jurisdiction. See Prize Frize, Inc. v. Matrix, Inc., 167 F.3d 1261, 1265 (9th Cir. 1999). The defendant also has the burden of showing that it has complied with the ...

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