United States District Court, C.D. California
CIVIL MINUTES - GENERAL Proceedings: (IN CHAMBERS) ORDER GRANTING PLAINTIFF'S MOTION TO REMAND 
BEVERLY REID O'CONNELL, District Judge.
Pending before the Court is Plaintiff Luke Hardman's ("Plaintiff") Motion to Remand to the Superior Court of California, County of Los Angeles. (Dkt. No. 10.) After considering the papers filed in support of and in opposition to the instant motion, the Court deems this matter appropriate for resolution without oral argument of counsel. See Fed.R.Civ.P. 78; C.D. Cal. L.R. 7-15. For the following reasons, the Court finds Defendant The Boeing Company ("Boeing") failed to timely remove this action in accordance with 28 U.S.C. § 1446(b) and accordingly GRANTS Plaintiff's motion.
II. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, a resident and citizen of California, began working for Boeing in 2007 as a mechanical design engineer. (Compl. ¶ 6; see also Removal ¶ 2.) During the course of his employment, Plaintiff performed satisfactorily and even received various accolades, awards, promotions, and salary increases. (Compl. ¶ 8.) On July 9, 2014, Plaintiff's managers informed him that a co-worker had reported him for sexual harassment. (Compl. ¶ 9.) Plaintiff's managers escorted him to a separate building, where he met with Boeing's Equal Employment Opportunity ("EEO") investigator Stephanie McCarthy ("Ms. McCarthy"). (Compl. ¶ 10.)
According to Plaintiff, Ms. McCarthy accused him of sending inappropriate text messages from his cell phone to a co-worker and refused to consider evidence suggesting Plaintiff's cell phone had been hacked. (Compl. ¶¶ 10-15.) During the meeting, Ms. McCarthy apparently accused Plaintiff of lying and inappropriately referenced the suicides of Plaintiff's two brothers in an attempt to coerce or shame him into confessing. (Compl. ¶ 13.) The day after the meeting, Plaintiff contacted the Los Angeles County Sheriff to report what he believed to be an incident of cyber crime, and the investigating officer concluded Plaintiff's cell phone had in fact been hacked. (Compl. ¶ 16.)
Believing Ms. McCarthy had acted unethically and was biased against him, Plaintiff requested that a new EEO investigator be assigned to his case. (Compl. ¶ 20.) Boeing did not assign a new investigator. (Compl. ¶ 20.) According to Plaintiff, one of the company's human resources representatives assured him that he would have an opportunity to present additional evidence on his behalf. (Compl. ¶ 22.) Yet when Plaintiff returned to work after a scheduled vacation on July 28, 2014, he found that his access to the building had been disabled. (Compl. ¶ 23.) Later that morning, the human resources representative informed Plaintiff the company had concluded he committed sexual harassment and decided to terminate him. (Compl. ¶¶ 25-27.)
Plaintiff initiated this action on December 19, 2014 in the Superior Court of California, County of Los Angeles against Boeing and Ms. McCarthy, alleging claims for: (1) breach of employment contract, (2) breach of the covenant of good faith and fair dealing, (3) gender discrimination, (4) defamation, (5) intentional infliction of emotional distress ("IIED"), (6) invasion of privacy, and (7) unfair and unlawful business practices in violation of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200 et seq. The Complaint names Ms. McCarthy as a defendant on only the fifth and sixth claims for IIED and invasion of privacy. Id.
On December 29, 2014, Plaintiff served Boeing with a copy of the summons and Complaint. (Removal ¶ 7.) Plaintiff did not, and still has not, served Ms. McCarthy. (Removal ¶ 8.) On January 12, 2015, Boeing's counsel spoke with Plaintiff's counsel to inform him that Boeing was considering filing a demurrer if Plaintiff did not stipulate to Ms. McCarthy's dismissal. (Removal ¶ 42.) Plaintiff's counsel agreed on condition that Boeing waive its right to remove. (Removal ¶ 42.) Boeing's counsel refused and stated, in that conversation and a follow-up email, that Plaintiff's proposal indicated Ms. McCarthy was a "sham" defendant. (Removal ¶ 42; see also Decl. of Ray E. Boggess in Supp. of Mot. to Remand ("Boggess Decl.") Ex. A.)
On January 28, 2015, Boeing filed a demurrer to Plaintiff's fifth and sixth claims. (Removal ¶ 9, Ex. B.) On May 12, 2015, the Superior Court sustained the demurrer without leave to amend as to the fifth claim for IIED. (Removal ¶ 10, Exs. E, F.) The Superior Court also sustained Boeing's demurrer of the sixth claim for invasion of privacy but granted leave to amend. (Removal ¶ 10, Exs. E, F.) Plaintiff did not file an amended pleading.
Boeing removed the matter on June 9, 2015, invoking this Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Removal ¶ 1.) Boeing, a citizen of Delaware and Illinois for purposes of diversity jurisdiction, contends Ms. McCarthy, a California resident and citizen, was fraudulently joined and that complete diversity therefore exists. (Removal ¶¶ 3, 4.) Boeing asserts the face of the Complaint does not establish Ms. McCarthy's status as a sham defendant and that it timely removed the matter once the Superior Court sustained its demurrer and Plaintiff failed to file an amended pleading. (Removal ¶ 55.) Boeing further contends Plaintiff's May 15, 2015 deposition testimony confirmed for the first time that he cannot establish an IIED or invasion of privacy claim against Ms. McCarthy. (Removal ¶ 56.) Plaintiff now moves to remand on the basis that Boeing failed to remove this action within the statutory removal period set forth in 28 U.S.C. § 1446. (Dkt. No. 10.) Boeing timely opposed the motion, (Dkt. No. 11), and Plaintiff timely replied, (Dkt. No. 13).
III. LEGAL STANDARD
Federal courts are of limited jurisdiction and possess only that jurisdiction as authorized by the Constitution and federal statute. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Original jurisdiction may be established pursuant to the diversity statute, 28 U.S.C. § 1332. Under § 1332(a)(1), a federal district court has jurisdiction over "all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, " and the dispute is between citizens of different states. The United States Supreme Court has interpreted § 1332 to require ...