United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR
L. NUNLEY, UNITED STATES DISTRICT JUDGE
matter is before the Court pursuant to Plaintiff Maurice
Goens's (“Plaintiff”) Motion for Remand to
State Court. (ECF No. 6.) Defendant Adams & Associates,
Inc. (“Defendant”) opposes. (ECF No. 13.) The
Court has carefully considered the parties arguments. For the
following reasons, Plaintiff's Motion for Remand to State
Court (ECF No. 6) is hereby DENIED.
Factual and Procedural Background
filed this action with the Superior Court of the State of
California for the County of Sacramento on March 23, 2016.
(ECF No. 1 at 14, 17.) Plaintiff asserts state law claims
against Defendant, his former employer, alleging claims under
California's Fair Employment and Housing Act
(“FEHA”) for (i) race, religion and sex
discrimination, (ii) wrongful termination in violation of
public policy, and (iii) retaliation, common law claims for
(iv) harassment, and (v) failure to prevent discrimination,
(vi) wrongful termination, and (vii) intentional infliction
of emotional distress. (ECF No. 1 at 20-26.) Plaintiff
asserts state law claims against Kelly McGillis
(“McGillis”), an individual who was employed by
Defendant, alleging claims under FEHA for (i) wrongful
termination in violation of public policy, (ii) retaliation,
and (iii) failure to prevent discrimination, and common law
claims for (iv) intentional infliction of emotional distress,
and (v) harassment. (ECF No. 1 at 20-26; ECF No. 13 at 7
5, 2016, Defendant removed this action to the United States
District Court for the Eastern District of California,
alleging diversity jurisdiction pursuant to 28 U.S.C.
§§ 1332 and 1441(b). (ECF No. 1 at 2.) Plaintiff
moves to remand, arguing Defendant's Notice of Removal
was untimely. (ECF No. 6 at 3.) Plaintiff also argues that
diversity jurisdiction is not appropriate, stating that
Defendant is a citizen of California and that Kelly McGillis
is also a citizen of California. (ECF No. 6 at 3, 5.)
Defendant opposes Plaintiffs motion. (ECF No. 13.)
action brought in state court, over which the district court
has original jurisdiction, may be removed by the defendant to
federal court in the judicial district and division in which
the state court action is pending. 28 U.S.C. § 1441(a).
The district court has original jurisdiction over civil
actions between citizens of different states in which the
alleged damages exceed $75, 000. 28 U.S.C. § 1332(a)(1).
The party asserting federal jurisdiction bears the burden of
proving diversity. Lew v. Moss, 797 F.2d 747, 749
(9th Cir. 1986) (citing Resnik v. La Paz Guest
Ranch, 289 F.2d 814, 819 (9th Cir. 1961)). Diversity is
determined as of the time the complaint is filed and removal
effected. Strotek Corp. v. Air Transp. Ass 'n of
Am., 300 F.3d 1129, 1131 (9th Cir. 2002). Once
jurisdiction attaches, a party cannot thereafter, by its own
change of citizenship, destroy diversity. Id. at
1132. Removal statutes are to be strictly construed against
removal. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th
amount in controversy is determined by reference to the
complaint itself and includes the amount of damages in
dispute, as well as attorney's fees, if authorized by
statute or contract. Kroske v. U.S. Bank Corp., 432
F.3d 976, 980 (9th Cir. 2005). Where the complaint does not
pray for damages in a specific amount, the defendant must
prove by a preponderance of the evidence that the amount in
controversy exceeds $75, 000. Singer v. State Farm Mut.
Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997)
(citing Sanchez v. Monumental Life Ins. Co., 102
F.3d 398, 404 (9th Cir. 1996)). If the amount is not facially
apparent from the complaint, the Court may “require
parties to submit summary-judgment-type evidence relevant to
the amount in controversy at the time of removal.”
Id. (citing Allen v. R & H Oil & Gas
Co., 63 F.3d 1326, 1335-56 (5th Cir. 1995)).
requires that the citizenship of each plaintiff be diverse
from the citizenship of each defendant (i.e., complete
diversity). Caterpillar Inc. v. Lewis, 519 U.S. 61,
68 (1996). For purposes of diversity, a corporation is a
citizen of any state in which it is incorporated and any
state in which it maintains its principal place of business.
28 U.S.C. § 1332(c)(1).
undisputed that Plaintiff is a citizen of California and the
amount in controversy exceeds $75, 000. (ECF No. 13 at 2.)
The Court must, therefore, determine whether removal was
timely and whether all Defendants are diverse from Plaintiff.
Defendant timely filed its Notice of
argues that Defendant filed its Notice of Removal after the
30-day deadline for removing a case to federal court. (ECF
No. 6 at 5.) Plaintiff asserts that Defendant was served with
the summons and complaint on April 4, 2016. (ECF No. 6-1
¶ 5.) Defendant filed its Notice of Removal on May 5,
2016. (ECF No. 1.) Plaintiff argues that removal was 31 days
after initial service, one day beyond the 30-day period
permitted under 28 U.S.C. § 1446. (ECF No. 6 at 5.)
responds that it was never properly served, so the 30-day
period never ran, and thus its Notice of Removal was timely.
(ECF No. 13 at 7-8; ECF No. 14 ¶ 6.) Defendant states
that on April 5, 2016, Plaintiff attempted to serve a
security guard employed by a contractor which provides guards
for Defendant's facilities, and who was not authorized to
accept service for Defendant. (ECF No. 14 ¶ 6.)
Defendant argues it answered the complaint out of an
abundance of caution, but was never properly served. (ECF No.
13 at 8.) Plaintiff did not file a reply or respond to
28 U.S.C. § 1446(b), requires removal of a case within
30 days of formal service. 28 U.S.C. § 1446. “[A]
defendant is not obliged to engage in litigation unless
notified of the action, and brought under a court's
authority, by formal process.” Destfino v.
Reiswig, 630 F.3d 952, 956 (9th Cir. 2011) (quoting
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.,
526 U.S. 344, 347 (1999) (allowing a defendant to remove more
than 30 days after he received a faxed courtesy copy of the
complaint, because the defendant removed within 30 days of
being formally served by certified mail)).
to California Code of Civil Procedure § 416.10,
“[a] summons may be served on a corporation by
delivering a copy of the summons and the
complaint…[t]o the president, chief executive officer,
or other head of the corporation, a vice president, a
secretary or assistant secretary, a treasurer or assistant
treasurer, a controller or chief financial officer, a general
manager, or a person authorized by the corporation to receive
service of process. Cal. Civ. Proc. Code § 416.10. A
“general manager” under the California statute
includes “any agent of the corporation of sufficient
character and rank to make it reasonably certain that the
defendant will be apprised of the service made.”
Gibble v. Car-Lene Research, Inc., 67 Cal.App.4th
295 (1998) (quoting Eclipse Fuel Engineering Co. v.
Superior Court, 148 Cal.App. 2d 736, 745-46 (1957))
(internal quotation marks omitted).
has not attached proof of service to his motion.
(See ECF No. 6.) Defendant's General Counsel and
Vice President of Human Resources, Tiffinay Pagni, has
provided a declaration in support of Defendant's
opposition which provides additional detail about the
attempted service. (ECF No. 14.) The security guard whom
Plaintiff attempted to serve works at Defendant's
Sacramento facility. (ECF No. 14 ¶ 6.) He is employed by
a contractor which provides security services to that
facility and he is not employed by Defendant. (ECF No. 14
¶ 6.) The security guard was not ...