The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
Order Granting Plaintiff's Motion to Remand [Dkt. No. 7 ]
Plaintiff Myrtha Gonzalez ("Plaintiff") has sued defendants J.S. Paluch Company Inc. ("Paluch") and Rachael Casavant ("Casavant") for various state law claims relating to her employment at and termination from Paluch. (See generally Compl. Docket No. 1.) Paluch removed from state court, claiming this Court had jurisdiction under 28 U.S.C. § 1332 ("section 1332"). (Notice of Removal, Docket No. 7-2.) Presently before the Court is Plaintiff's Motion to Remand ("Motion"). (Docket No. 7.) Relevant to this Motion is Plaintiff's harassment claim against Casavant, a California citizen. Paluch claims remand is improper, because Plaintiff has not served Casavant, and because Plaintiff fraudulently joined Casavant. The Court disagrees. Because Plaintiff's claim against Casavant prevents exercising jurisdiction under section 1332, Plaintiff's Motion, is granted.
In August 2008 Plaintiff, a California resident, began working for Paluch, an Illinois corporation with its principal place of business in that state. (Compl. ¶¶ 1:1-2, 2:1.)*fn1 Casavant is a citizen and resident of California, whom Paluch employed "in a managerial and supervisory capacity." (Id. ¶ 1:4.) Beginning in February 2009, Plaintiff served as an Outside Sales Representative for Paluch, and Casavant was one of her supervisors. (Id. ¶ 2:1-2.) One of Casavant's responsibilities was assigning Outside Sales Representatives to sales territories . (Id. ¶ 2:3.) Paluch rates the quality of each territory in California, according to their size, affluence, and other factors. (Id.) Plaintiff became pregnant, and on August 4, 2011, informed Casavant that she would be taking time off beginning on September 10, 2011, as she was expected to give birth on or about October 5th. (Id. ¶ 2:5.) Casavant, then, began giving Plaintiff the "cold shoulder," and on several occasions "completely ignored" Plaintiff "when she came into the office." (Id. ¶ 2:6.) Before Plaintiff began her pregnancy leave, she had twenty sales territories. (Id. ¶ 2:14.)
On or around January 5, 2012, Plaintiff spoke with the human resources department at Paluch, and was told to return to work on January 13, 2012. (Id. ¶ 2:9.) On about January 10, 2012, Plaintiff tried to speak with Casavant about which sales territories she would be assigned once she returned, but Casavant said she was unaware Plaintiff was returning, and told Plaintiff to contact human resources. (Id. ¶ 2:10.) When Plaintiff told Casavant she had already spoken with human resources, Casavant again insisted that Plaintiff contact that department. (Id.) The next day Plaintiff went to Paluch's office to meet with Casavant, but she was denied entry. (Id. ¶ 2:11.) She was forced to communicate through an intercom, and the individual she spoke with said sales associates were not currently allowed in the building, and that Casavant would contact her later. (Id.)
Casavant did not contact Plaintiff, and when Plaintiff returned to work on January 13, another Paluch employee gave Plaintiff the name of one client that she was allowed to contact. (Id. ¶ 2:12.) About two weeks later Casavant had still not spoken with Plaintiff, so Plaintiff reached out to the person "responsible for communicating with the outside sales staff about which territories Casavant had assigned them." (Id. ¶ 2:13.) This individual informed Plaintiff that Casavant assigned her to two territories, which were ranked low in contrast to the highly ranked territories Plaintiff had before taking pregnancy leave. (Id. ¶¶ 2:13, 15) Plaintiff then attempted to contact Casavant "multiple times by telephone and email to find out why" she was assigned to eighteen fewer territories than she previously had, but Casavant never responded. (Id. ¶ 2:14.)
Because of the number and quality of Plaintiff's territories, she made fewer sales than before her pregnancy leave. (Id. ¶ 2:16.) Being paid on commission, her income dropped. (Id.) On April 10, 2012 Plaintiff contacted Casavant about being unable "to make sales," because of her "confined" territory assignments. (Id. ¶ 2:18.) Casavant told Plaintiff that, "if she failed to turn in advertisement contracts or contact the office for a period of 10 consecutive working days, she was considered to have voluntarily resigned and her employment would be terminated." (Id.) On May 2, 2012, Plaintiff emailed Casavant and an individual in Paluch's human resources department, alleging that "she was being discriminated against because of her pregnancy." (Id. ¶ 2:19.) The same day, Plaintiff received a letter from Paluch, dated two days earlier, stating that "she had voluntarily resigned because she had not submitted advertisement agreements for a period of 10 consecutive days." (Id.) No Paluch employee responded to Plaintiff's email. (Id.)
II. Legal Standard: Removal Under Diversity Jurisdiction Generally
A defendant who seeks to remove a case from state to federal court has the burden of establishing federal subject matter jurisdiction. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921). Courts also "strictly construe the removal statute against removal jurisdiction." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Removal is governed by substantive and procedural requirements. Pursuant to 28 U.S.C. § 1441("section 1441")(a), an action brought in state court may be removed to federal court if the civil action is one "of which the district courts of the United States have original jurisdiction." Section 1332 provides that district courts have original jurisdiction "of all civil actions where the matter in controversy exceeds the sum of value of $75,000, exclusive of interest and costs and is between citizens of different States." Section 1332(a)(1). Complete diversity of citizenship is required, meaning each of the plaintiffs must be a citizen of a different state than each of the defendants. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996).
A. Service , Removal, and Diversity Jurisdiction
Paluch claims that removal was appropriate under section 1441, because Casavant, the only defendant who is a California citizen, has not been served in this action. (Paluch's Opposition to Plaintiff's Motion to Remand ("Opp'n") at 3:26-4:12. Plaintiff states she has "actively attempt[ed]" to serve Casavant, but has been unsuccessful. (Plaintiff's Reply to Opp'n to Motion to Remand ("Reply") at 6:3-9.)
Section 1441(b)(2) states: "A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." Section 1441 (emphasis added). Some district courts have interpreted this language to approve removal actions that were brought before named in-state defendants were served. See e.g. Cucci v. Edwards, 510 F. Supp. 2d 479 (C.D. Cal. 2007) (holding that removal was proper when service upon a forum defendant had ...