United States District Court, C.D. California
Present: The Honorable JOHN A. KRONSTADT, UNITED STATES
CIVIL MINUTES - GENERAL
(IN CHAMBERS) ORDER RE PLAINTIFF'S MOTION TO REMAND
THE ACTION TO STATE COURT (DKT. 16);
DEFENDANT TONIKE MATTHEWS' MOTION TO DISMISS PURSUANT TO
FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) (DKT. 18) JS-6:
Defendant Tonike Matthews Only
Ferrer ("Plaintiff') brought this action against
Host International, Inc., HMS Host Family Restaurants, Inc.,
HMS Host USA, Inc. and Tonike Matthews in the Los Angeles
Superior Court. Complaint, Dkt. 1-1 at 5. The Complaint
advances the following causes of action: (i) violation of
Cal. Lab. Code § 1102.5, (ii) violation of Cal. Lab.
Code § 6310, (iii) violation of Cal. Lab. Code §
232.5(c), (iv) disability discrimination in violation of Cal.
Govt. Code § 12940(a), (v) failure to prevent
discrimination in violation of Cal. Govt. Code §
12940(k), (vi) failure to provide reasonable accommodations
in violation of Cal. Govt. Code § 12940(m), (vii)
failure to engage in the interactive process in violation of
Cal. Govt. Code § 12940(n), (viii) intentional
infliction of emotional distress, (ix) defamation and (x)
wrongful termination in violation of public policy.
Id. Defendants Host International, Inc., HMS Host
Family Restaurants, Inc. and HMS Host USA, Inc.
("Host") removed the action on this basis of
diversity jurisdiction. Dkt. 1.
filed a Motion to Remand ("Motion to Remand") on
October 3, 2016. Dkt. 16. Host opposed ("MTR
Opposition" (Dkt. 19)) and Plaintiff replied ("MTR
Reply" (Dkt. 21)).Defendant Tonike Matthews
("Matthews") filed a Motion to Dismiss
("Motion to Dismiss") on October 7, 2016. Dkt. 18.
Plaintiff filed a late opposition on January 11, 2017
("MTD Opposition"). Dkt. 29. A hearing was held on
both Motions on February 6, 2017, and they were taken under
submission. Dkt. 32.
reasons stated in this Order, the Motion to Remand is
DENIED, and the Motion to Dismiss is
is a citizen of California. Complaint at ¶ 5. The
Complaint alleges that Plaintiff worked as a full-time line
cook for 8 oz. Burger Bar, which is a restaurant located in
the Los Angeles International Airport. Id.
at¶¶ 15-16. She was employed there from
approximately February 20, 2015 to July 22, 2015.
Id. The Complaint alleges that Host operates 8 oz.
Burger Bar, and that Matthews was Plaintiffs immediate
supervisor during the period of her employment. Id.
at ¶¶15, 17.
alleges that, beginning in February 2015, she reported
numerous workplace health and safety issues to upper
management of Host. Id. at ¶ 18. These issues
included the infestation of roaches and the malfunctioning of
the kitchen sink and refrigerators. Id. at ¶
19. The Complaint also alleges that Plaintiff reasonably
believed that these conditions violated state or local
statutes and/or local, state or federal regulations.
Id. at ¶ 20. Plaintiff alleges that, instead of
addressing these conditions, Defendant began to retaliate
against her. Id. at ¶ 21. For example, she
alleges that Matthews berated her, instructed her not to
"go over her head ever again" and issued and then
provided to her an unwarranted criticism of her work.
Id. at ¶ 22. According to the Complaint,
Plaintiff was wrongfully terminated on July 22, 2015, in
retaliation for her reporting of the aforementioned health
issues. Id. at ¶ 24.
Complaint also alleges that, on or around June 2015,
Plaintiff began experiencing conditions arising from blood
clots that resulted in her hospitalization. Id. at
¶ 25. On June 25, 2015, Plaintiff notified Defendants
that she needed surgery to have the blood clots removed.
Id. at ¶ 26. The Complaint alleges that
Plaintiff received a note from a treating physician that
placed her on medical leave from approximately June 26, 2015
to July 1, 2015. Id. at ¶ 27. Due to ongoing
medical problems, Plaintiffs leave was extended through July
19, 2015. Id. Plaintiff states that she returned to
work without restriction on July 20, 2015, and was terminated
on July 22, 2015 for pretextual reasons. Id. at
¶ 28. She received notice of her termination through an
Associate Disciplinary Action Form, which contained the
following "Description of Circumstances":
Based on your attendance, you are in violation of the
attendance policy. You took an unapproved Leave of Absences
[sic] for the dates of 7/9/15, 7/10/15, 7/11/15, 7/12/15,
7/15/15, 7/16/15, 7/17/15, 7/18/15 and 7/19/15 which resulted
in the violation.
You are hereby being terminated from Hms Host effective
today, July 22, 2015.
Ex. 3 to Declaration of Carl J. Fraley-Bennett
("Fraley-Bennett Decl."), Dkt. 16-2 at 14. Matthews
signed the Associate Disciplinary Action Form. Id.
received a right-to sue letter from the California Department
of Fair Employment and Housing on May 27, 2016. Complaint at
¶ 29. She filed this action on July 22, 2016.
removal notice, Host asserted diversity jurisdiction. Dkt. 1
at 2. The notice stated that HMS Host Family Restaurants,
Inc. and HMS Host USA, Inc. were erroneously named as
defendants, because neither had ever employed Plaintiff.
Id. at 3. HMS Host Family Restaurants, Inc. is
incorporated in Maryland and HMS Host USA, Inc. and Host
International, Inc. are both incorporated in Delaware.
Id. at 5. All three companies are headquartered in
Maryland. Id. The notice also stated that, as of the
date of removal, Matthews had not been served with the
summons and Complaint, and argued that Matthews was a sham
defendant because no viable claims were advanced against her
in an individual capacity. Id.
motion to remand is the procedural means to challenge the
removal of an action. Moore-Thomas v. Alaska Airlines,
Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). Generally, a
civil action may be removed only if it could have been
brought initially in a federal court. 28 U.S.C. §
1441(a). Federal courts have diversity jurisdiction where the
amount in controversy exceeds $75, 000 and is between parties
who are citizens of different states. 28 U.S.C. §§
1332, 1441. Diversity jurisdiction is a basis for removal.
The removal statute is to be strictly construed; any doubt
about removal is to be resolved in favor of remand. Gaus
v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
courts have subject matter jurisdiction where the adverse
parties are citizens of different states, and the amount in
controversy exceeds $75, 000. 28 U.S.C. §§ 1332,
1441. "[O]ne exception to the requirement of complete
diversity is where a non-diverse defendant has been
'fraudulently joined.'" Morris v. Princess
Cruises, Inc.,236 F.3d 1061, 1067 (9th Cir. 2001).
"Fraudulently joined defendants will not ...