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Goens v. Adams & Associates, Inc.

United States District Court, E.D. California

July 25, 2017

ADAMS & ASSOCIATES, INC., a Nevada corporation; KELLY MCGILLIS, an individual, Defendants.



         This 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.[1] (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.

         I. Factual and Procedural Background

         Plaintiff 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 n.4.)

         On May 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.)

         II. Legal Standard

         A civil 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 Cir. 1992).

         The 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)).

         Diversity 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).

         III. Analysis

         It is 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.

         A. Defendant timely filed its Notice of Removal.

         Plaintiff 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.)

         Defendant 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 Defendant's argument.

         Title 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)).

         Pursuant 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).

         Plaintiff 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 ...

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