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Keith Ader v. Belimed

August 3, 2012

KEITH ADER, PLAINTIFF,
v.
BELIMED, INC, A FLORIDA CORPORATION, AND DOES 1-20, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER and FINDINGS AND RECOMMENDATIONS

Presently before the court is defendant's motion to dismiss this diversity jurisdiction case for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1), on the grounds that the amount in controversy does not exceed $75,000.*fn1 Defendant moves, in the alternative, to transfer this case to the United States District Court for the District of South Carolina pursuant to 28 U.S.C. § 1404(a), for the convenience of the parties and witnesses and in the interest of justice.

This matter came before the court on its August 2, 2012 civil law and motion calendar. Attorney Robert M. Anderson appeared via telephone on behalf of defendant.

Plaintiff, who is proceeding without counsel, appeared via telephone and represented himself.

The undersigned has fully considered the parties' briefs, the parties' oral arguments, and appropriate portions of the record. For the reasons that follow, the undersigned recommends that defendant's motion to dismiss for lack of subject matter jurisdiction be denied. However, the undersigned recommends that this case be transferred to the U.S. District Court for the District of South Carolina pursuant to 28 U.S.C. § 1404(a).

I. BACKGROUND

Plaintiff's complaint in this case, which concerns plaintiff's employment with and termination by defendant, did not originally allege a basis for this court's subject matter jurisdiction, but the Civil Cover Sheet asserted subject matter jurisdiction based on the diversity jurisdiction statute, 28 U.S.C. § 1332(a). (Civil Cover Sheet, Dkt. No. 1, Doc. 1-1; see also Anderson Decl. ¶ 3.) After defendant filed a motion to dismiss the complaint for lack of subject matter jurisdiction and, alternatively, to transfer the case to the District of South Carolina, plaintiff filed his First Amended Complaint (Dkt. No. 11) as a matter of course pursuant to Federal Rule of Civil Procedure 15(a)(1)(B). Defendant subsequently withdrew its original motion to dismiss or transfer and filed a similar motion addressed to the First Amended Complaint, which is before the court.

Before turning to plaintiff's allegations, the undersigned addresses a threshold argument made by defendant. Plaintiff represents that he added claims for wrongful termination and breach of contract to his First Amended Complaint "after [he] found that grounds existed to pursue them." (Pl.'s Opp'n ¶ 1, Dkt. No. 15.) Defendant argues that plaintiff's newly raised claims should not be considered by this court because they "appear" to have been fabricated to raise the amount in controversy above the jurisdictional threshold. (See Pl.'s Mot. to Dismiss/Transfer at 1 n.1, 7-8, 10, 11 n.7; Pl's Reply Br. at 5-6.) But defendant has not argued any legal basis for the court to disregard such claims added through an amendment as a matter of course, and where the First Amended Complaint supersedes the original complaint. Moreover, defendant's counsel retreated from this argument at the hearing and conceded that he lacked legal authority for defendant's argument in this regard. Accordingly, defendant's argument about the alleged fabrication of claims is not well-taken on the record presently before the court, and the court considers plaintiff's wrongful termination and breach of contract claims here.

Turning to plaintiff's First Amended Complaint, plaintiff alleges that this court can exercise diversity jurisdiction over his claims. (First Am. Compl. ¶ 1.) Plaintiff does not allege his state of citizenship in the First Amended Complaint, but his declaration filed in connection with defendant's motion represents under penalty of perjury that plaintiff "was a resident of the State of Utah from approximately June of 2001 until approximately July of 2010," and that he "became a resident of Arizona in approximately July of 2010." (Ader Decl. ¶¶ 3-4.) Plaintiff alleges that defendant is a Florida corporation with its principal place of business in South Carolina, and that defendant is authorized to do business in California, including Placer County, as a foreign corporation. (First Am. Compl. ¶ 14; see also Carr Decl. ¶ 14 (declaring that defendant's principal place of business is in Charleston, South Carolina).) He further alleges that the amount in controversy "exceeds, exclusive of costs and interest, seventy-five thousand dollars." (First Am. Compl. ¶ 1.)

Defendant's "primary business is the manufacture and sale of infection control equipment and software to the healthcare and pharmaceutical industry, and the provision of service maintenance of its equipment to its customers." (Carr Decl. ¶ 3.) Plaintiff alleges that he is a former, non-exempt employee of defendant and was "employed to do work in various capacities in the State of California." (First Am. Compl. ¶¶ 17-18.) Plaintiff declares that he was employed by defendant from June 21, 2009, to July 29, 2010. (Ader Decl. ¶ 6.) Plaintiff declares that he interviewed for his field service technician position in Los Angeles, California, and that he was offered a job to work in Los Angeles. (See Ader Decl. ¶¶ 7-9.) Defendant's agents later asked plaintiff if plaintiff would consider working in "Northern California," and the parties came to an arrangement where plaintiff would reside in Utah and fly to California for work. (Id. ¶ 10.) Plaintiff asserts that he performed the majority of his work in "Northern California," with "some work performed in Colorado, Utah, New Mexico, Arizona, Nevada, Michigan, and South Carolina." (Id. ¶ 12.) At the hearing, plaintiff clarified that his work in Northern California included work within the Eastern, Northern, and Central Districts of California. Plaintiff also attended training in South Carolina. (See id. ¶ 13.) Over the course of his employment, plaintiff maintained two residences to accommodate his work-related travel, in Utah and Arizona, and ultimately moved his whole family to Arizona. (See id. ¶¶ 17, 25.)

Plaintiff was terminated by defendant. Plaintiff alleges that he had entered into an "oral contract" with his manager regarding the use of a rental vehicle to assist plaintiff's move to Arizona to accommodate his work, which was for defendant's benefit. (First Am. Compl. ¶ 26; Ader Decl. ¶¶ 16, 20-22.) However, defendant allegedly relied on plaintiff's use of the rental vehicle and alleged financial reporting irregularities regarding a work-related airfare upgrade as "grounds for disciplinary action" that apparently consisted of termination from employment for cause. (See First Am. Compl. ¶¶ 27-29; Ader Decl. ¶¶ 23-24, 26-31.)

Plaintiff alleges several claims against defendant, which are all alleged pursuant to California law and are tied to plaintiff's employment and termination by defendant.*fn2 First, plaintiff alleges a claim for unpaid overtime wages pursuant to California Labor Code ("Labor Code") §§ 510, 1194, and 1198, and an Industrial Welfare Commission ("ICW") Wage Order. (See First Am. Compl. ¶¶ 4, 19, 30-37.) Second, plaintiff alleges a claim for unpaid wages premised on defendant's failure to provide meal breaks in accordance with Labor Code § 226.7, associated regulations, and an ICW Wage Order. (See First Am. Compl. ¶¶ 5, 20, 38-44.) Plaintiff's third and fourth claims for relief allege that defendant failed to maintain and provide plaintiff with accurate pay and commission records in violation of various provisions of the Labor Code. (See First Am. Compl. ¶¶ 8, 22, 45-55.) Fifth, plaintiff alleges a claim pursuant to Labor Code §§ 201-203, and 227.3, premised on defendant's failure to timely pay unpaid wages and commissions upon termination. (See First Am. Compl. ¶¶ 6-7, 21, 23, 56-60.) Sixth, plaintiff seeks equitable and injunctive relief pursuant to California's Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq., for restitution of unpaid wages, and to "enforce Labor Code penalties." (See First Am. Compl. ¶¶ 9, 61-73.)

Seventh, plaintiff alleges "a tort claim for wrongful termination in violation of public policy pursuant to California Government Code § 12940," claiming that he was harassed because of a mental disability and was fired in retaliation for raising the harassment with supervisory and management personnel. (See First Am. Compl. ¶ 10, 25.) Plaintiff alleges that he suffers from bipolar disorder and that as a result of this "mental disability," he belongs to a protected class. (See id. ¶¶ 24, 76; Ader Decl. ¶ 5.) He further alleges that throughout his employment with defendant, he was harassed by telephone and email by a co-worker, identified in a declaration as Melissa Carr. (See First Am. Compl. ¶¶ 25, 77; Ader Decl. ¶ 14.) Plaintiff alleges that he alerted his managers and Human Resources personnel about the harassment and resulting impact on his disability on multiple occasions, which amounted to a request for a reasonable accommodation of his disability. (See First Am. Compl. ¶ 78; Ader Decl. ¶¶ 13, 15, 19, 24.) Plaintiff alleges that he was terminated by Carr's immediate supervisor in retaliation for reporting the harassment. (First Am. Compl. ¶ 80; Ader Decl. ¶ 30.)

Eighth, plaintiff alleges claims for breach of contract premised on breaches of one oral contract and one implied-in-fact contract. (See First Am. Compl. ¶¶ 11, 26-29, 84-96.) The oral contract pertains to plaintiff's alleged agreement with a supervisor to permit plaintiff to rent a vehicle, the rental that ultimately led to plaintiff's discharge. Plaintiff derives the implied-in-fact contract from a "Standards of Conduct" policy provided to plaintiff upon his hiring, which provided that employees would only be terminated for cause.

In connection with his various claims, plaintiff seeks statutory damages and penalties under the Labor Code, compensatory damages, restitution, declaratory and injunctive relief, back pay, front pay, emotional distress damages, punitive damages, and attorney's fees, although plaintiff is appearing pro se. (See First Am. Compl. at 22-25.)

II. DISCUSSION

At the outset, the undersigned raises one unique aspect of the pending motions not raised by the parties. Contrary to the general rule that courts address the question of subject matter jurisdiction first, district courts have some discretion to decide the question of transfer of venue prior to addressing subject matter jurisdiction. See In re LimitNone, LLC, 551 F.3d 572, 577-78 (7th Cir. 2008) (per curiam) (holding that the district court did not err as a matter of law by resolving a motion to transfer venue pursuant to 28 U.S.C. ยง 1404(a) prior to addressing subject matter jurisdiction, but cautioning that the holding "should not be read to suggest that district courts may in every case decide venue in advance of subject-matter jurisdiction without due consideration of whether it is ...


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