The opinion of the court was delivered by: Honorable Gary Allen Feess
Present: The Honorable GARY ALLEN FEESS
Renee Fisher None N/A Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants: None None
Proceedings: (In Chambers)
ORDER RE: MOTION TO REMAND & MOTION TO DISMISS
Plaintiff Kathy Azarbarzin brings this wrongful termination case following the end of her employment with Defendant Convatec, Inc. ("Convatec"). This action arises out of Convatec's alleged retaliatory conduct and discrimination in regards to Plaintiff. Plaintiff alleges that she was fired because she: (1) took workers' compensation leave, (2) questioned Convatec's unlawful marketing practices, and (3) is Middle Eastern. Plaintiff brings multiple California statutory and common law causes of action.
Before the Court are two motions: Plaintiff's motion to remand and Convatec's motion to dismiss. Plaintiff moves to remand this action to Los Angeles County Superior Court on the basis that Convatec's removal is untimely. Convatec moves to dismiss Plaintiff's claims for intentional infliction of emotional distress and negligent infliction of emotional distress for failure to state cognizable claims. For the reasons that follow, the Court GRANTS Plaintiff's motion to remand and DENIES Defendant's motion to dismiss as moot.
Plaintiff is a former employee of Convatec, a developer and marketer of medical technologies, for whom she worked for nearly seventeen years. (Docket No. 1, [Not. of Removal ("Not.")], Ex. 1 [Compl.] ¶¶ 1-2.) Plaintiff alleges that her employment was terminated because she took time off of work due to a workers' compensation injury, because she voiced concerns regarding unethical and illegal activities Convatec engaged in to sell its products, and because Convatec discriminates against people of Middle Eastern descent. (Id. ¶¶ Plaintiff filed this action originally in Los Angeles County Superior Court. Convatec first removed the action to this Court on September 21, 2012 on the basis of diversity jurisdiction. (Docket No. 18, [Declaration of Koray J. Bulut ("Bulut Decl.")], Ex. 2 [First Removal].) On October 17, 2012, the Court remanded this action sua sponte for failure to adequately allege subject matter jurisdiction. (Bulut Decl., Ex. 3 [10/17/12 Order].) Namely, Convatec alleged Plaintiff's state of residence, rather than her state of citizenship. (First Removal ¶ 4; 10/17/12 Order at 2.) Convatec subsequently got Plaintiff to stipulate to her state of citizenship and removed to this Court again. (Bulut Decl., Ex. 4 [Stipulation]; Not. ¶¶ 10-11.)
Plaintiff now moves to remand on the basis that Convatec's second petition for removal is untimely. (Docket No. 12, [Mot. to Remand ("Remand Mem.")].) The Court agrees that remand is proper, which moots Convatec's motion to dismiss.