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Pimentel v. Huntsman International, LLC

United States District Court, C.D. California

July 12, 2019

Nain Carlos Delgado Pimentel
v.
Huntsman International, LLC, et al.

          Present: The Honorable JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGE.

          CIVIL MINUTES - GENERAL

         Proceedings: (IN CHAMBERS) ORDER RE PLAINTIFF'S MOTION TO REMAND THIS ACTION TO STATE COURT (DKT. 11) JS-6: Remand

         I. Introduction

         On December 29, 2017, Nain Carlos Delgado Pimentel (“Plaintiff”) filed a complaint in the Los Angeles Superior Court against Huntsman International, LLC (“Huntsman International” or the “Parent Defendant”). Complaint, Exhibit 1 to Notice of Removal, Dkt. 1-1 at 7-23. It advances claims under California law arising from Plaintiff's employment. Id. On September 6, 2018, Plaintiff filed a one-page form amending the complaint to state that the entity sued under the fictitious name of Doe 1 is Huntsman Advanced Materials Americas LLC (“Huntsman Americas” or the “Subsidiary Defendant”). Exhibit 3 to Notice of Removal, Dkt. 1-1 at 61.

         On December 14, 2018, the Subsidiary Defendant filed a notice of removal based on diversity of citizenship. Dkt. 1. On January 14, 2019, Plaintiff filed a motion to remand the action to the Superior Court (the “Motion”), contending that the removal was untimely, and that Defendants had waived their right to remove the action. Dkt. 11. The Subsidiary Defendant filed an opposition. Dkt. 13. Plaintiff did not file a reply. A hearing on the Motion was conducted on April 8, 2019. Dkt. 23. During the hearing, each party was ordered to file a supplemental brief addressing relevant authority that had not been addressed in their briefs. They timely did so. See Dkt. 25 (“Plaintiff's Supplemental Brief”); Dkt. 24 (“Defendants' Supplemental Brief”). The matter was then taken under submission.

         For the reasons stated in this Order, the Motion is GRANTED.

         II. Factual Background

         The Complaint alleges that Plaintiff was employed by Defendants, i.e., by the Parent Defendant named in the Complaint as well as the Doe defendants not yet identified at that time. Complaint, Dkt. 1-1 ¶ 1.[1] Plaintiff alleges that he worked in Defendants' Los Angeles facility from 2006 until August 2017 as a shipping clerk. Id. ¶¶ 11, 13. At the end of April 2017, Plaintiff became disabled due to a back condition and began a leave of absence. Id. ¶ 13. The Complaint alleges that on August 2, 2017, Plaintiff provided documentation as to his condition that included a return to work date of August 25, 2017. Id. ¶ 14. However, Defendants terminated Plaintiff's employment on August 15, 2017, allegedly “because [Plaintiff] exercised his right to a leave of absence based on his medical condition and physical disability.” Id. ¶¶ 15-16. Plaintiff also alleges that Defendants failed to provide lawful meal and rest periods, failed to provide accurate itemized wage statements, and failed to pay all wages due upon termination. Id. ¶ 18.

         Based on these allegations, the Complaint advances the following nine causes of action: (i) disability discrimination in violation of the California Fair Employment and Housing Act (“FEHA”), Cal. Gov't Code §§ 12900, et seq.; (ii) unlawful denial of reasonable accommodations for a disability in violation of FEHA; (iii) failure to engage in a timely, good faith, interactive process in violation of FEHA; (iv) failure to prevent discrimination, in violation of FEHA; (v) failure to provide meal periods as required by Industrial Welfare Commission orders and Cal. Lab. Code §§ 226.7, 512; (vi) failure to provide rest periods as required by Industrial Welfare Commission orders and Cal. Lab. Code § 226.7; (vii) failure to pay wages due upon discharge or quitting, and entitlement to waiting time penalties, under Cal. Lab. Code §§ 201-03; (viii) failure to provide accurate wage statements in violation of Cal. Lab. Code §§ 226, 1174; and (ix) unfair business practices in violation of the Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200, et seq. Complaint, Dkt. 1-1 ¶¶ 20-79.

         III. Procedural Background

         As noted, the Complaint was filed in the Los Angeles Superior Court on December 29, 2017, and named the Parent Defendant and Doe defendants. Complaint, Dkt. 1-1 at 6. On January 8, 2018, Lonnie D. Giamela (“Giamela”) and Aymara Ledezma (“Ledezma”) of the law firm Fisher & Phillips LLP sent a letter to Plaintiff's counsel stating that they represented the Parent Defendant. Exhibit A to Declaration of Arthur Kim (“Kim Decl.”), Dkt. 11-1 at 7-8. The letter described Plaintiff's obligation to preserve documents and evidence, including those related to “his employment with Defendant.” Id. at 8. On February 7, 2018, the Parent Defendant filed an Answer (the “Parent Defendant Answer”). Dkt. 1-1 at 54-58. The Parent Defendant Answer included a general denial as well as 21 affirmative defenses. See id.

         In March 2018, counsel for the Parent Defendant contacted Plaintiff's counsel to discuss potential mediation. After further communications between March 2018 and May 2018, the parties agreed to arrange for a mediation session, which was later scheduled for November 15, 2018, and engage in an informal exchange of documents in connection with the mediation. Declaration of Arthur Kim (“Kim Decl.”), Dkt. 11-1 ¶ 7; Exhibit B to Kim Decl., Dkt. 11-1 at 10-13; Declaration of Aymara Ledezma (“Ledezma Decl.”), Dkt. 13-1 at 2 ¶¶ 4, 7; Exhibit B to Ledezma Decl., Dkt. 13-1 at 11-12. On May 8, 2018, Plaintiff's counsel produced 93 pages of documents. Kim Decl. ¶ 9; see also Exhibit B to Kim Decl., Dkt. 11-1 at 10. On May 24, 2018, the Parent Defendant's counsel produced 120 pages of documents. Kim Decl. ¶ 9; see also Exhibit B to Ledezma Decl., Dkt. 13-1 at 12.

         In late July 2018, Plaintiff propounded discovery requests. However, shortly thereafter, the parties agreed that formal discovery would remain stayed pending the completion of the mediation, with any additional information necessary for the mediation to be shared informally. Kim Decl. ¶ 11; Exhibit D to Kim Decl., Dkt. 11-1 at 19; Ledezma Decl., Dkt. 13-1 ¶ 6. The parties appeared in the Superior Court on April 12, 2018 for a case management conference. Kim Decl. ¶ 13; see also Case Management Statements, Exhibits 7 and 8 to Notice of Removal, Dkt. 1-1 at 121-134.

         In October 2018, Plaintiff's counsel informed defense counsel that he no longer believed the planned November 15, 2018 mediation would be productive. Kim Decl. ¶ 15; Ledezma Decl. ¶ 7. He states that the basis for this decision was “the distance separating the parties.” Kim Decl. ¶ 15. The parties then agreed that, due to the cancelation of the mediation, responses would be provided to Plaintiff's July 2018 discovery requests. Ledezma Decl. ¶ 7. Plaintiff's counsel twice agreed to extend the deadline for the responses. Kim Decl. ¶¶ 16-18; Exhibits E, F, and G to Kim Decl., Dkt. 11-1 at 20-26. The result of these extensions was that certain responses were due on December 17, 2018, and certain deponents affiliated with Defendant would be made available for depositions between January 7 and January 10, 2019. Exhibits F and G to Kim Decl., Dkt. 11-1 at 24, 26.

         On September 6, 2018, Plaintiff filed a one-page form amending the complaint to state that the entity sued under the fictitious name of Doe 1 had been identified as the Subsidiary Defendant. Exhibit 3 to Notice of Removal (the “Doe Amendment”), Dkt. 1-1 at 61. Counsel states that upon his review of documents that apparently had been provided in the earlier exchange, he had “realize[d] that another legal entity, [the Subsidiary Defendant], might also have employer status.” Kim Decl. ¶ 13. The Doe Amendment was contemporaneously served by mail on Giamela and Ledezma. Dkt. 1-1 at 62. In October 2018, Ledezma “called Plaintiff's counsel and notified him that [her] office could accept service of the complaint for [the Subsidiary Defendant] by Notice and Acknowledgment of Receipt” pursuant to Cal. Code Civ. Proc. § 415.30 (“CCP 415.30”). Ledezma Decl. ¶ 9. On October 29, 2018, Plaintiff's counsel mailed the Notice with the relevant materials included. Exhibit 4 to Notice of Removal, Dkt. 1-1 at 64. On November 19, 2018, Ledezma executed the acknowledgement of receipt portion of the form. Exhibit 5 to Notice of Removal, Dkt. 1-1 at 112. On December 13, 2018, the Subsidiary Defendant filed an answer in the Superior Court (the “Subsidiary Defendant Answer”). Exhibit 6 to Notice of Removal, Dkt. 1-1 at 114-18. With the exception of the name of the defendant entity, this pleading is identical to the Parent Defendant Answer that had been filed ten months earlier. It includes a general denial and the same 21 affirmative defenses and is signed by Giamela and Ledezma. See id.; Parent Defendant Answer, Exhibit 2 to Notice of Removal, Dkt. 1-1 at 54-58.

         On December 14, 2018, the Subsidiary Defendant filed the Notice of Removal. Dkt. 1. It states, in relevant part, that the removal is timely because it was filed within 30 days of the date when formal service of the Doe Amendment was effected -- November 19, 2018. Id. ¶ 14. It contends that the Subsidiary Defendant is the entity that employed Plaintiff. Id. ¶ 3. It includes a declaration of an Assistant Secretary for the Parent Defendant, who states that she is familiar with Plaintiff's work for the Subsidiary Defendant because the Parent Defendant “controls, directs, and coordinates the company's domestic business activities.” Declaration of Rachel K. Muir (“Muir Decl.”), Dkt. 1-2.

         IV. ...


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