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Elizabeth Ungureanu & Daniel Ungureanu v. A. Teichert & Son

March 14, 2013

ELIZABETH UNGUREANU & DANIEL UNGUREANU, PLAINTIFFS,
v.
A. TEICHERT & SON, INC., AND RONALD WOLFSON, DEFENDANTS.



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

ORDER AND FINDINGS AND RECOMMENDATIONS

This action was originally filed by plaintiffs Elizabeth Ungureanu ("Elizabeth") and Daniel Ungureanu ("Daniel") (collectively, "plaintiffs") in the Sacramento County Superior Court on September 21, 2012. (Dkt. No. 1-1 at 4.) Subsequently, on December 28, 2012, defendant A. Teichert & Son, Inc. ("Teichert") filed a notice of removal of the action to federal court, invoking the court's federal question jurisdiction. (Dkt. No. 1.)*fn1 Plaintiffs proceed in this action without counsel.

Presently pending before the undersigned is plaintiffs' motion to remand the action to state court, which was noticed for hearing on March 14, 2013. (Dkt. No. 7.) On February 25, 2013, defendant Teichert filed an opposition to the motion to remand. (Dkt. No. 15.)

Additionally, on February 11, 2013, defendant Teichert filed a motion to dismiss plaintiffs' claims against defendant Teichert pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (Dkt. No. 10.) Defendant Teichert's motion to dismiss was also noticed for hearing before the undersigned on March 14, 2013. (Id.) Plaintiffs failed to file a timely opposition to that motion. (Dkt. No. 16.) Instead, on March 13, 2013, the day before the hearing, plaintiffs filed a "Notice of Dismissal of All Federal Claims Filed by the Plaintiffs and Motion to Remand the Civil Claims to State Court," discussed further below. (Dkt. No. 20.)

At the March 14, 2013 hearing, plaintiffs failed to appear; attorney Larry Kazanjian appeared on behalf of defendant Teichert; and attorney David van Dam appeared on behalf of defendant Dr. Ronald Wolfson ("Wolfson"). (Dkt. No. 21.) After considering the parties' briefing, the parties' oral argument, and appropriate portions of the record, the undersigned recommends that plaintiffs' motion to remand the action to state court be denied, that defendant Teichert's motion to dismiss be granted and plaintiffs' claims against defendant Teichert be dismissed with prejudice, and that the remaining state law claims against defendant Wolfson be remanded to state court.

BACKGROUND

Plaintiffs filed the instant action in the Sacramento County Superior Court on September 21, 2012. (Dkt. No. 1-1 at 4; Dkt. No. 7 at 5.) Although the complaint is lengthy and at times somewhat vague, plaintiffs essentially allege that plaintiff Daniel was working as a certified heavy equipment operator for his employer, defendant Teichert, in May of 2004 when a co-worker intentionally slammed into Daniel with a bulldozer while Daniel was operating a scraper, resulting in Daniel suffering various injuries. Although Daniel reported the incident to his supervisor, the supervisor at that time allegedly refused to file an incident report or open a worker's compensation claim on Daniel's behalf, and the co-worker did not receive appropriate discipline or training. (Dkt. No. 1-1 at 9-10.)

According to plaintiffs, multiple incidents of similar improper behavior by co-workers took place in 2004-2005, resulting in further injuries and causing Daniel to eventually stop working around July 11, 2005. Plaintiffs allege that although Daniel was required to take a drug test after the incident(s), the responsible co-workers were not appropriately drug tested. (See Dkt. No. 1-1 at 9-21.) Plaintiffs also claim that, during Daniel's employment by defendant Teichert, Daniel's supervisor and co-workers harassed him about his Romanian descent and called him "bobble head" or "rooster," because he moved his head constantly due to the neck pain resulting from his injuries. (Id. at 14-16.)

Plaintiffs further allege that Daniel's last day at work was followed by many years of dissatisfactory treatments and evaluations through the worker's compensation system. According to plaintiffs, Daniel was improperly denied treatment; defendant Teichert improperly influenced, and interfered with, the medical evaluations in Daniel's worker's compensation case; and defendant Teichert, defendant Wolfson (one of the worker's compensation qualified medical examiners involved), and others conspired to manipulate the worker's compensation system in an attempt to deny or reduce Daniel's benefits. (Dkt. No. 1-1 at 18-21, 30-33.)

Plaintiffs' operative complaint asserts claims for employment discrimination under 42 U.S.C. § 1981 and 42 U.S.C. §§ 2000e et seq., the Bane Civil Rights Act [Cal. Civ. Code § 52.1], and the Ralph Civil Rights Act [Cal. Civ. Code § 51.7]; disability discrimination under the Americans with Disabilities Act; negligent hiring; negligent supervision; negligent retention; unfair or unlawful business practices [Cal. Bus. & Prof. Code §§ 17200 et seq.]; and negligence against defendant Teichert; and claims for conspiracy and fraud against both defendant Teichert and defendant Wolfson. (See generally Dkt. No. 1-1 at 21-33.) These claims all concern Daniel, and although Elizabeth is named as a plaintiff, there are no actual claims asserted by her.

Defendant Teichert was served with plaintiffs' state court complaint on November 29, 2012. (Dkt. No. 15-1, ¶ 3.) According to plaintiffs, defendant Wolfson was also served with the complaint prior to December 12, 2012. (Dkt. No. 7 at 5.) Subsequently, on December 28, 2012, defendant Teichert filed its notice of removal of the action to federal court. (Dkt. No. 1.) Plaintiffs then filed their motion to remand the action to state court on January 30, 2013, and defendant Teichert filed its motion to dismiss on February 11, 2013. (Dkt. Nos. 7, 10.) Thereafter, on March 13, 2013, defendant Wolfson also filed a motion to dismiss plaintiffs' claims against him pursuant to Federal Rule of Civil Procedure 12(b)(6), presently set for hearing on April 18, 2013, before the undersigned. (Dkt. No. 19.)

DISCUSSION

Plaintiffs' Motion to Remand

Title 28 U.S.C. § 1441(a) provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending."

In their motion to remand, plaintiffs do not dispute that this court has federal question subject matter jurisdiction over this action, which includes several federal claims. Instead, plaintiffs argue that defendant Teichert's removal of the action to federal court was procedurally defective, because defendant Wolfson did not join in the notice of removal and the notice of removal does not explain why all the defendants have not joined in the removal. (Dkt. No. 7.) Plaintiffs also request that they be awarded their costs and expenses related to the allegedly improper removal. (Id.)

Defendant Teichert contends that plaintiffs' motion to remand is untimely and should be denied on that basis alone. That argument has merit. "A motion to remand the case on the basis of any defect other than subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)." 28 U.S.C. § 1447(c); N. Cal. Dist. Council of Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1038 (9th Cir. 1995); see also Resolution Trust Corp. v. Bayside Developers, 43 F.3d 1230, 1239 (9th Cir. 1994) (holding that procedural removal defects were waived when a motion to remand based on such defects were filed three days late).

In this case, defendant Teichert's notice of removal was filed on December 28, 2012, which means that plaintiffs were required to file any motion to remand no later than January 27, 2013.*fn2 (Dkt. No. 1.) However, plaintiffs' motion to remand was only filed on January 30, 2013 -- three days late. (Dkt. No. 7.) As such, any procedural defects in the removal were waived.

Additionally, along with its opposition to plaintiffs' motion to remand, defendant Teichert also submitted the remaining defendant Wolfson's "Notice of Non-Opposition to Notice of Removal of Civil Action to Federal Court," which was signed by counsel for defendant Wolfson. (Dkt. No. 15-1, Ex. 1.) In that notice, defendant Wolfson consents to the removal of the entire action to federal court, and states that he did not file a notice of removal "for the only reason that it did not appear that the Federal claims were directed to Dr. Wolfson." (Id.) See Destfino v. Reiswig, 630 F.3d 952, 956-57 (9th Cir. 2011) ("All defendants who have been properly...served in the action must join a petition for removal. If this is not ...


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