The opinion of the court was delivered by: Honorable A. Howard Matz, U.S. District Judge
Present: The Honorable A. HOWARD MATZ, U.S. DISTRICT JUDGE
Stephen Montes Not Reported
Deputy Clerk Court Reporter / Recorder Tape No. Attorneys NOT Present for Plaintiffs: Attorneys NOT Present for Defendants:
Proceedings: IN CHAMBERS (No Proceedings Held)
Before this Court is a Motion for Leave to File a Second Amended Complaint ("SAC") and Remand the Action to State Court filed by Plaintiffs Shideh Khoshnood, Jacob Shahwan, and Ajay Lalwani ("Plaintiffs").*fn1 The Proposed Second Amended Complaint ("Proposed SAC") seeks to add Maria Mesa as a defendant on one new cause of action (twelfth cause of action) for intentional infliction of emotional distress ("IIED") on behalf of Plaintiff Jacob Shahwan, and adds defamation allegations against Mesa by Plaintiff Shahwan in the tenth cause of action. Proposed SAC ¶¶ 129 (defamation allegations); 142-152 (IIED allegations). If Plaintiffs were permitted to file the Proposed SAC, diversity jurisdiction would be destroyed since Mesa and Plaintiffs are California citizens. Proposed SAC ¶¶ 5-7, 9.*fn2
For the following reasons, the Court GRANTS the Motion and ORDERS the action remanded to Los Angeles County Superior Court.*fn3
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
Case No. CV 11-04551 AHM (FFMx)
SHIDEH KHOSHNOOD et al. v. BANK OF AMERICA et al.
This case involves an action for employment discrimination in which Plaintiffs, former employees of Bank of America ("BofA" or "Defendant"), allege that their employer terminated them unlawfully because of age and race. Plaintiffs filed their Complaint in Los Angeles County Superior Court on June 15, 2010, naming as Defendants BofA, its Consumer Market Executives Benjamin Garcia and Vera Stewart, and its Region Executive Lynn Fernandez. Plaintiff filed a first amended complaint ("FAC") in Superior Court on September 23, 2010. That complaint, which names the same defendants, is the current operative complaint.
On May 20, 2011, Plaintiffs dismissed without prejudice Defendants Garcia, Fernandez, and Stewart. Dkt. 1, Notice of Removal ("NOR") ¶ 6 & Exh. L. Linda Fermoyle Rice, Counsel for Plaintiffs, explains in her declaration appended to the Motion that permitting the dismissal of the named defendants was a "rookie error" on her part. Rice Decl. ¶ 8. H She notes, "That was an error on my part, not only because it resulted in removal but because my clients have legitimate individual claims, certainly as to Mr. Garcia. In fact, if this case is remanded to state court, the first thing I will do is make a motion to set aside the dismissals and/or to "Doe" back in Mr. Garcia at a minimum." Rice Decl. ¶ 12.
After the entry of the request for dismissal, the only remaining Defendant was BofA, and there was, for the first time, diversity between the parties. NOR ¶ 7. The action was removed by Defendants to this Court on May 26, 2011 on the basis of diversity jurisdiction. NOR ¶¶ 12-13. Plaintiffs filed a motion for leave to amend the Complaint on June 10, 2011. Dkt. 8. In their motion, Plaintiffs also request remand to state court.
Although the permissive standard of Federal Rule of Civil Procedure 15(a) allows for amendment as a matter of course prior to the service of a responsive pleading, the proper standard for deciding whether to allow post-removal joinder of a diversity-destroying defendant is set forth in 28 U.S.C. § 1447(e). See, e.g., Clinco v. Roberts, 41 F. Supp. 2d 1080, 1088 (C.D. Cal. 1999) (Pregerson, J.). See also IBC Aviation Services, Inc. v. Compania Mexicana de Aviacion, S.A. de C.V., 125 F. Supp. 2d 1008, 1011 (N.D. Cal. 2000) (Conti, J.) (recognizing that diversity-destroying amendment is analyzed under § 1447(e) and requires higher scrutiny than does amendment generally). 28 U.S.C. § 1447(e) provides that "[i]f after removal a plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court." Yniques v. Cabral, 985 F.2d 1031, 1035 (9th Cir. 1993) (citing 28 U.S.C. 1447(e)), disapproved of on other grounds by McDowell v. Calderon, 197 F.3d 1253, 1255 n.4 (9th Cir. 1999).*fn4
In ruling on such a motion, courts look to several factors, as discussed in Boon v. Allstate Ins. Co., 229 F. Supp. 2d ...