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Ferrer v. Host International, Inc.

United States District Court, C.D. California

March 7, 2017

Mirella Ferrer
v.
Host International, Inc., et al.

          Present: The Honorable JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGE

          CIVIL MINUTES - GENERAL

         Proceedings: (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

         I. Introduction

         Mirella 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.

         Plaintiff 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.

         For the reasons stated in this Order, the Motion to Remand is DENIED, and the Motion to Dismiss is GRANTED.

         II. Factual Background

         Plaintiff 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.

         Plaintiff 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.

         The 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.

         Plaintiff 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. Id.

         In the 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.

         III. Analysis

         A. Legal Standard

         1. Remand

         A 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).

         Federal 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 ...


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