United States District Court, S.D. California
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND [DOC.
ROGER T. BENITEZ UNITED STATES DISTRICT JUDGE
John Martin Garon moves this Court to remand this matter back
to the California Superior Court for lack of subject matter
jurisdiction and for fees and costs incurred due to removal.
The motion is GRANTED as to remand and DENIED as to
Plaintiffs request for fees and costs.
September 21, 2018, Plaintiff John Martin Garon filed his
Complaint in California Superior Court for eight California
state law claims arising out of his employment with Defendant
Fair Isaac Corporation, dba FICO. Among those claims,
Plaintiff brings suit for: (1) retaliation pursuant to
California Government Code § 12940(h); (2) retaliation
based on use of medical leave pursuant to California
Government Code § 12945.2(1); and (3) disability-based
associational discrimination pursuant to California
Government Code § 12926(o).
February 28, 2019, Defendant removed this action under 28
U.S.C. § 1331 federal question jurisdiction, contending
that Plaintiffs discovery responses served on January 29,
2019 provided Defendant with notice, for the first time, that
Plaintiff was asserting claims arising under the laws of the
United States. See 28 U.S.C. § 1331.
Specifically, Defendant points to three interrogatories it
served on Plaintiff:
Special Interrogatory No. 4: Do you
contend in the first alleged cause of action in your
Complaint, for retaliation, that Defendant violated the
Family and Medical Leave Act ('FMLA')?
Special Interrogatory No. 6: Do you
contend in the second alleged cause of action in your
Complaint, for retaliation, that Defendant violated the FMLA?
Special Interrogatory No. 7; Do you
contend in the third alleged cause of action in your
Complaint, for associational discrimination that Defendant
violated the Americans with Disabilities Act?
response to each interrogatory, Plaintiff offered objections
and answered "Yes." Plaintiff now moves to remand
for lack of subject matter jurisdiction and for the fees and
costs incurred as a result of Defendant's removal.
28 U.S.C. § 1441(a), an action may be removed to the
federal district court when "the district courts of the
United States have original jurisdiction."
"Generally speaking, a cause of action arises under
federal law only when the plaintiffs well-pleaded complaint
raises issues of federal law." Marin General Hosp.
v. Modesto & Empire Traction Co., 581 F.3d 941 (9th
Cir. 2009). Courts strictly construe the removal statute
against removal jurisdiction. See, e.g., Provincial
Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d
1083, 1087 (9th Cir. 2009). Further, "[a] defendant
seeking removal has the burden to establish that removal is
proper," Luther v. Countrywide Home Loans Servicing,
LP, 533 F.3d 1031, 1034 (9th Cir. 2008), and "[a]ny
doubt about the right of removal requires resolution in favor
of remand." Moore-Thomas v. Alaska Airlines,
Inc., 553 F.3d 1241, 1244 (9th Cir. 2009).
a defendant must seek removal within thirty days of the
initial pleading. Here, Defendant did not do so. Defendant
contends removal is still timely, however, under §
1446(b)(3), which provides that, where the initial pleading
does not indicate the case is removable, "a notice of
removal may be filed within thirty days after receipt by the
defendant, through service or otherwise, of a copy of an
amended pleading, motion, order or other paper from
which it may first be ascertained that the case is one which
is or has become removable." 28 U.S.C. § 1446(b)(3)
parties appear to agree, Plaintiffs' initial pleading
filed in state court did not, on its face, allege any claims
arising under federal law. Indeed, each of the eight claims'
titles and headings identify violations of a specific
California law. Thus, the usual 30-day deadline from the time
Plaintiff served Defendant with his Complaint does not apply.
Rather, the Court's jurisdiction turns on whether
Plaintiffs interrogatory answers constitute "other paper
from which it [could be] first ascertained that the case is
one which is or has become removable." Id. at
§ 1446(b)(3). Thus, the Court must determine whether
Plaintiffs case became removable at the moment he responded
"yes" to three interrogatories, which asked if
Plaintiff contended that Defendant's conduct violated two
federal statutes, the ADA and FMLA. The Court finds it did
the Ninth Circuit, discovery responses . . . can [constitute
'other paper' that] trigger[s] the thirty day removal
period in certain actions, mainly diversity cases and
federally preempted claims." Williams v.
Hilarides, 2012 WL 2339335, at *2 (E.D. Cal. June 19,
2012) (citing cases). For example, "[w]here it is not
clear on the face of a state complaint that diversity
jurisdiction exists, subsequent discovery responses can
affirmatively reveal the existence of such jurisdiction by .
. . disclosing that the amount in controversy is
sufficient." Id.; see also, e.g., Carvalho v.
Equifax Information Svcs., LLC,629 F.3d 876 (9th Cir.
2010) (deposition testimony can constitute "other
papers" when defendant is able to reasonably determine
for first time that the amount in controversy was sufficient
for diversity jurisdiction). In much the same way, discovery
responses may make clear to the defendant that a state claim
is preempted by federal law, necessitating removal. Id;
see also, e.g., Regents of Univ. of California v. Aisen,143 F.Supp.3d 1055, 1056 ...