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Garon v. Fair Isaac Corp.

United States District Court, S.D. California

June 30, 2019

JOHN MARTIN GARON, an individual, Plaintiff,
v.
FAIR ISAAC CORPORATION, dba FICO, an unknown entity, and DOES 1 through 25, Inclusive, Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION TO REMAND [DOC. 11]

          HON. ROGER T. BENITEZ UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         I. DISCUSSION

         On 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).

         On 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?

         In 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.

         A. Removal

         Under 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).

         Normally, 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) (emphasis added).

         As the parties appear to agree, Plaintiffs' initial pleading filed in state court did not, on its face, allege any claims arising under federal law.[1] 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 not.

         "In 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 ...


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