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Nahat v. Ballet San Jose, Inc.

United States District Court, Ninth Circuit

November 1, 2013

DENNIS NAHAT, Plaintiff,
v.
BALLET SAN JOSE, INC., a corporation, and DOES ONE through TWENTY, Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO REMAND STATE LAW CLAIMS Docket 10, 20.

SAUNDRA BROWN ARMSTRONG, District Judge.

Plaintiff Dennis Nahat commenced the instant action in state court against his former employer, Defendant Ballet San Jose, Inc., alleging claims based on his termination. After Plaintiff amended his complaint to add a federal copyright infringement claim, Defendant removed the action under 28 U.S.C. § 1441. The parties are presently before the Court on Plaintiff's motion to remand his state law claims under 28 U.S.C § 1441(c)(2), or alternatively, § 1367(c). Dkt. 20. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby GRANTS IN PART and DENIES IN PART the motion to remand for the reasons set forth below. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See Fed.R.Civ.P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).

I. BACKGROUND

Defendant hired Plaintiff as its Artistic Director in October 1999, and later promoted him to Artistic/Executive Director in 2004. FAC ¶¶ 5-6, Dkt. 1-1. During the course of his employment, Plaintiff received pay raises in recognition of his job performance. Id . In addition, Defendant allegedly promised Plaintiff that his employment was secure so long as his job performance was satisfactory, and that he would not be terminated absent good cause. Id . ¶¶ 6-10. Plaintiff claims that he was terminated without good cause, notwithstanding his satisfactory job performance. Id . ¶ 11. Plaintiff further asserts that subsequent to his termination, Defendant continued to present ballet productions using his personal props, costumes and other "staging elements, " along with his proprietary choreographic works, without his authorization. Id . ¶¶ 83, 90.

On December 26, 2012, Plaintiff filed a Complaint in the Santa Clara County Superior Court alleging eleven state law causes of action for: (1) breach of contract/breach of the implied covenant of good faith and fair dealing/wrongful termination; (2) bad faith; (3) intentional misrepresentation by making promises without intent to perform; (4) negligent misrepresentation; (5) intentional interference with business relations; (6) negligent supervision and firing; (7) age and sexual orientation discrimination in violation of state law; (8) discharge in violation of public policy; (9) intentional infliction of emotional distress; (10) violation of right of publicity; and (11) specific recovery of personal property (claim and delivery) and conversion. Compl. ¶¶ 13-90.

On June 10, 2013, Plaintiff filed a First Amended Complaint ("FAC") alleging the same eleven causes of action from the original Complaint, and adding a twelfth claim for copyright infringement under federal law. As before, the first nine causes of action are based on the termination of Plaintiff's employment. Id . ¶¶ 13-76. The tenth cause of action avers that following Plaintiff's termination, Defendant misappropriated his name for commercial gain and disparaged his professional reputation by not being forthcoming regarding the reasons for his termination. Id . ¶¶ 77-78. The eleventh cause of action for conversion alleges that Defendant failed to return "documents and other tangible personal items, including all props, costumes and scenery and other staging elements" worth between $20-25 million upon Plaintiff's termination. Id . ¶ 83. In his newly-alleged copyright infringement claim, Plaintiff claims that Defendant "continues to use, exploit, publicize, and otherwise perform copyrighted choreographed works ow[n]ed by Plaintiff without permission or authorization from Plaintiff." Id . ¶ 90.

On June 24, 2013, Defendant filed a Notice of Removal based on Plaintiff's inclusion of a federal copyright infringement claim. Dkt. 1. Plaintiff now moves to sever and remand his eleven state law claims for lack of supplemental jurisdiction under 28 U.S.C. § 1441(c)(2). Alternatively, Plaintiff moves the Court to exercise its discretion and remand his state law claims under 28 U.S.C. § 1367(c) on the basis that such claims substantially predominate over the federal claim. The motion is fully briefed and ripe for adjudication.[1]

II. LEGAL STANDARD

"A motion to remand is the proper procedure for challenging removal." Moore-Thomas v. Alaska Airlines, Inc. , 553 F.3d 1241, 1244 (9th Cir. 2009). "The strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper, ' and that the court resolves all ambiguity in favor of remand to state court." Hunter v. Philip Morris USA , 582 F.3d 1039, 1042 (9th Cir. 2009) (quoting Gaus v. Miles, Inc. , 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).

III. DISCUSSION

A. MANDATORY REMAND

The removal statute, 28 U.S.C. § 1441, provides, in pertinent part: "[A]ny 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 defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). District courts have original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.

With respect to removed state law claims, "the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." 28 U.S.C. § 1367(a). However, where supplemental jurisdiction is lacking, i.e., where the claims are not part of the same case or controversy, the Court must remand such claims. Id . § 1441(c). The ...


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