United States District Court, C.D. California
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND (DOCKET NUMBER 8)
DEAN D. PREGERSON, District Judge.
Presently before the court are Plaintiffs' Motions to Remand and Request for Reimbursement. For reasons stated in this order the Motion to Remand is GRANTED.
Plaintiff Jorge Gonzalez-Delrio ("Plaintiff") worked as a ramp agent at Aircraft Service International's Los Angeles International location. (Ex. A, Bello Decl.; Ex. A, Abidoye Decl. (Complaint) ¶ 16.) On October 23, 2010, Plaintiff suffered a back injury while performing his job duties and was placed on medical leave for almost a year. (Id. ¶ 17, 19.) On October 17, 2011, Plaintiff's doctor allowed him to return to work with restrictions. (Id. ¶ 20.) Two days later, Plaintiff contacted Synthia Aruya, Aircraft Service International's Human Resources manager, to inform her that he wished to return to work. (Id. ¶ 21.) Plaintiff alleges Aruya terminated him stating that he could only return to work if he had a doctor's note that reinstated him without restrictions. (Id.)
On September 27, 2013, Plaintiff filed a complaint in the Los Angeles Superior Court against Aircraft Service International, Aircraft Service International, Inc. (Collectively, "Defendants"), and Sinthia Aruya ("Aruya"), erroneously sued as Cynthia Douglass. (Compl.) In the complaint, Plaintiff alleged seven causes of action under the California Fair Employment and Housing Act (FEHA)and the California Family Rights Act (CFRA) for discrimination and retaliation. (Id.) Plaintiff's single cause of action against Aruya was for retaliation under the CFRA. (Id. ¶¶ 106-120)
On March 20, 2014, Aruya filed a demurrer on grounds that individuals cannot be liable under the CFRA. (Ex. C, Bello Decl., Ex. Q, Abidoye Decl., Dkt. No. 1 (Demurrer)) On July 18, 2014, the Superior Court sustained the demurrer without leave to amend.(Ex. E, Bello Decl.; Ex. T, Abidoye Decl.) On August 13, 2014, the remaining defendants removed this case to federal court on the basis of diversity jurisdiction. (Notice of Removal, Dkt. No. 1.)
Plaintiff now moves to remand on two grounds: (1) that removal was untimely and (2) that this court lacks jurisdiction because the non-diverse defendant was not fraudulently joined. Plaintiff also moves for reimbursement of attorney's fees.
II. LEGAL STANDARD
District courts have original jurisdiction over "all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between citizens of different States." 28 U.S.C. § 1332(a). A defendant may remove a case from state court to federal court if the case could have originally been filed in federal court. 28 U.S.C. § 1441(a). As the removing party, Defendant bears the burden of proving federal jurisdiction. Duncan v. Stuetzle , 76 F.3d 1480, 1485 (9th Cir. 1996); see also Matheson v. Progressive Specialty Ins. Co. , 319 F.3d 1089, 1090 (9th Cir. 2003). The removal statute is strictly construed against removal jurisdiction, and federal jurisdiction must be rejected if any doubt exists as to the propriety of removal. Gaus v. Miles, Inc. , 980 F.2d 564, 566 (9th Cir. 1992) (explaining that courts resolve doubts as to removability in favor of remand).
A. Timeliness of the Removal
Defendants removed this action pursuant to 28 U.S.C. § 1441(b), which permits removal under this Court's diversity jurisdiction, 28 U.S.C. § 1332. Normally, a defendant must file a notice of removal within thirty days of receiving the state court complaint. 28 U.S.C. §1446(b)(1). This is a statutory requirement that cannot be waived by the Court. The parties agree that Defendants did not remove within thirty days of receipt of the state court complaint.
Nonetheless, Defendants contend that removal was proper under 28 U.S.C. §1446(b)(3), which allows for removal based on diversity jurisdiction "within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." Defendant's argument, when boiled down to its simplest form, is that the state court's decision sustaining Aruya's demurrer is the first such "paper" from which it could be ascertained that the case was or had become removable.
All parties would presumably agree that if California law were absolutely clear that Aruya was fraudulently joined from the beginning, Defendants would have been required to remove within thirty days of receipt of the state court complaint, because in such a case the complaint itself is the "paper" that makes clear that the non-diverse defendant is fraudulently joined. There is no requirement that the state court rule on the fraudulent joinder issue before the case is removable. "[I]t is not necessary to wait until the fraudulently joined defendant has tested the claims against it in state court and succeeded in defeating them on a motion to dismiss or demurrer... Either the complaint ...