United States District Court, N.D. California, San Jose Division
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND RE:
DKT. NO. 13.
J. DAVILA United States District Judge.
Richard Fernandez (“Plaintiff”) brought this
action for employment discrimination in the California
Superior Court for the County of San Benito. Defendants PSC
Industrial Outsourcing, LP (“PSC”), a citizen of
the State of Delaware, and Gary Colbert
(“Colbert”), a citizen of the State of
California, removed the action, asserting diversity
jurisdiction under 28 U.S.C. §1441(b). Defendants
acknowledge that both Plaintiff and Defendant Colbert are
citizens of California; however, Defendants contend that
Colbert is a sham defendant whose presence does not defeat
diversity. Plaintiff filed a motion to remand and noticed the
motion for hearing on July 27, 2017. The Court finds it
appropriate to take the motion under submission for decision
without oral argument pursuant to Civil Local Rule 7-1(b).
Having considered the motion, opposition, and reply briefs,
and for the reasons set forth below, Plaintiff's motion
to remand the action to San Benito County Superior Court is
original complaint contains six causes of action: (1)
disability discrimination in violation of the Fair Employment
and Housing Act (“FEHA”); (2) failure to engage
in the interactive process in violation of the FEHA; (3)
failure to accommodate in violation of the FEHA; (4) wrongful
termination in violation of public policy; (5) intentional
infliction of emotional distress (“IIED”); and
(6) negligent infliction of emotional distress
(“NIED”). All six claims are asserted against
Plaintiff's former employer, PSC; the IIED and NIED
claims are asserted against Plaintiff's former manager,
Colbert. After Defendants removed the action to this Court,
Plaintiff filed a First Amended Complaint
(“FAC”), to set forth additional facts in support
of his six causes of action.
FAC, Plaintiff alleges that in December 2011, he began
working as a Technician for PSC, a company that provides
specialty maintenance services for the aerospace,
manufacturing, refining, chemical, and other industries.
Starting in October 2015, Plaintiff made numerous complaints
to Colbert about company practices that he believed posed
imminent harm to himself and his co-workers. For example,
Plaintiff raised concerns about the lack of training provided
to workers regarding the operation of a self-contained
breathing apparatus (“SCBA”), a device worn by
workers to provide breathable air in a hazardous atmosphere.
Plaintiff also complained that PSC failed to provide
employees with proper equipment to clean hazardous material
in a liquid tank.
alleges that after he made the complaints,
“Colbert's conduct became hostile.” More
specifically, Plaintiff alleges that Colbert treated him with
disdain; withheld resources necessary for him to perform his
job; refused to take steps to protect him from workplace
bullying; and ignored complaints that another supervisor,
Bruce Gilbert, intentionally created a hostile work
environment and used abusive language. Plaintiff also alleges
that instead of addressing Plaintiff's concerns, Colbert
intentionally assigned Plaintiff to work on projects that
alleges that in December of 2015, he took a medical leave of
absence due to severe lower back pain, and in late February
of 2016, he requested an extension of his medical leave of
absence and mailed PSC a Certification of Health Care
Provider for Employee's Serious Health Condition Form
(“Certification”). Plaintiff alleges that despite
repeated phone calls, PSC ignored his request for an
extension of his medical leave of absence and terminated him
on March 24, 2016. Plaintiff alleges on information and
belief that Colbert made and/or approved the termination
decision. Plaintiff further alleges that PSC cancelled his
employer-provided medical benefits, and consequently, medical
treatment for his back has been compromised and delayed.
Plaintiff alleges that he has and continues to suffer pain,
humiliation, severe emotional distress, trauma and
jurisdiction is a creation of statute. See Libhart v.
Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir.
1979) (“The removal jurisdiction of the federal courts
is derived entirely from the statutory authorization of
Congress.”). In general, only those state court actions
that could have been originally filed in federal court may be
removed. 28 U.S.C. § 1441(a) (“Except as otherwise
expressly provided by Act of Congress, any 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.”); see Caterpillar, Inc. v.
Williams, 482 U.S. 386, 392 (1987) (“Only
state-court actions that originally could have been filed in
federal court may be removed to federal court by
defendant.”). Accordingly, the removal statute provides
two basic ways in which a state court action may be removed
to federal court: (1) the case presents a federal question,
or (2) the case is between citizens of different states and
the amount in controversy exceeds $75, 000. 28 U.S.C.
§§ 1441(a), (b).
motion to remand, it is the removing defendant's burden
to establish federal jurisdiction, and the court must
strictly construe removal statutes against removal
jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566
(9th Cir. 1992) (“The ‘strong presumption'
against removal jurisdiction means that the defendant always
has the burden of establishing that removal is
proper.”). “Where doubt regarding the right to
removal exists, a case should be remanded to state
court.” Matheson v. Progressive Specialty Ins.
Co., 319 F.3d 1089, 1090 (9th Cir. 2003).
does not dispute that, without Colbert, there would be
complete diversity, and the amount in controversy would
exceed the jurisdictional minimum. Thus, the only issue on
this motion is whether Plaintiff has stated or can state a
claim against Colbert.