United States District Court, C.D. California
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND (DKT.
11) AND DENYING THE PARTIES' REQUESTS FOR JUDICIAL NOTICE
(DKTS. 12, 21, 26)
S. Fischer United States District Judge.
TBWA Worldwide, Inc., TBWA Chiat Day Los Angeles, TBWA
Chiat/Day, Inc., TBWA Chiat/Day, TBWA/Media Arts Lab, Omnicom
Group, Inc., Omnicom Holdings USA Inc., Omnicom Management
Inc., and Omnicom International Holdings Inc. (collectively,
Entity Defendants) and Michael Claypool, Erin Riley, Sheri
Thorburn, Troy Ruhanen, Chris Garbutt, and Elaine Stein
(collectively, Individual Defendants) (collectively,
Defendants) removed this case based on diversity
jurisdiction. Dkt. 1 (Notice). Plaintiff Duncan Milner
(Plaintiff) moves for remand. Dkt. 11 (Mot.).
has been employed by the Entity Defendants since 1987, with a
one-year hiatus in 1988. Dkt. 1-1 (Compl.) ¶ 9.
Plaintiff's employment was terminated in 2019; he was 61.
around April 2015, Milner contacted Ruhanen about his
disappointing yearly performance bonus, the stagnation of his
base salary, and “no new stock grants since
2012.” Id. ¶ 12(e). A week later, Ruhanen
told Plaintiff that his decreasing bonus was due to the
“economics of the network and the agency.”
Id. In around late 2016, Plaintiff was informed that
he was being replaced by Brent Anderson, who was
significantly younger than Plaintiff. Id. ¶
12(f). In around 2017, Plaintiff was demoted to the Media
Arts Lab\For Good agency, where his total annual compensation
was cut in half and the number of employees reporting to him
decreased from 40 to 50 to only six. See Id. ¶
12(g). Plaintiff was also moved to a less desirable office
space and was no longer invited to exclusive marketing events
or quarterly global creative meetings. See id.
¶ 12(j). The creative directors who were invited to such
meetings were substantially younger than Plaintiff.
Plaintiff's demotion and his termination, he observed
that the Entity Defendants were hiring more “digital
natives, ” employees in their 20s and 30s, pursuant to
a company narrative of hiring younger people who were
familiar with social media. Id. ¶ 12(h).
Claypool referred to this company narrative on a number of
occasions and was present when Plaintiff's employment was
terminated. Id. Claypool also would say that
“[a]s an agency, we need to be more knowledgeable and
more digital focused.” Id.
around February 2019, Lee Clow, Plaintiff's mentor and
boss, announced he was retiring. Id. ¶ 13(a).
Within two months, Thorburn told Plaintiff that “they
couldn't carry his salary anymore” and offered him
a 50 percent pay cut or severance. Id. ¶
13(b)-(c). Plaintiff was also told that the Entity Defendants
could not support the salaries of two other employees, one in
her 60s and another in his 50s. Id. ¶ 13(c). On
about June 18, 2019, Milner met with Claypool who informed
him that “they had looked around” and
“didn't have anything for him, even at a reduced
salary.” Id. ¶ 13(d). Plaintiff responded
that “It's starting to look and smell like age
discrimination.” Id. ¶ 13(e). Plaintiff
alleges on information and belief that Riley and Ruhanen were
involved in the termination of Plaintiff's employment.
Id. ¶ 13(f).
courts are courts of limited jurisdiction” and
“possess only that power authorized by [the]
Constitution and statute . . . .” Kokkonen v.
Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). A
defendant may remove an action to federal court if the
federal court could exercise subject matter jurisdiction over
the action. 28 U.S.C. § 1441(a). “The removal
statute is strictly construed against removal
jurisdiction” and “[t]he defendant bears the
burden of establishing that removal is proper.”
Provincial Gov't of Marinduque v. Placer Dome,
Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). If a
defendant fails to meet its burden of establishing the Court
has subject matter jurisdiction, the suit is remanded. 28
U.S.C. § 1447(c).
argues that removal was procedurally improper because he
filed his First Amended Complaint (FAC) on September 16,
2019, four days before Defendants removed the case based on
the original Complaint. See Mot. at 3-4. However,
Defendants were not served with the FAC until September 25,
2019, after they had removed the matter. See id. at
4. The removal therefore was procedurally
proper. See Noorazar v. BMW of N. Am.,
LLC, No. 18-CV-02472 W (JLB), 2019 WL 442477, at *2
(S.D. Cal. Feb. 5, 2019) (“[I]n California an amended
complaint supersedes the original for the purpose of removal
only when served upon the affected defendant.”);
Lewis v. QVC, Inc., No. SACV 17-0287-DOC (KESx),
2017 WL 1423703, at *3 (C.D. Cal. Apr. 20, 2017)
(“Because Plaintiff did not serve notice of the FAC on
Defendants until after [defendant] removed the action to the
[Central] District of California, the operative complaint is
Plaintiff's original Complaint.”).
Failure to Comply ...