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Milner v. Tbwa Worldwide, Inc.

United States District Court, C.D. California

October 30, 2019

TBWA WORLDWIDE, INC., et al., Defendants.


          Dale S. Fischer United States District Judge.

         Defendants, 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.).


         Plaintiff 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. See id.

         In 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. Id.

         Between 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.

         In or 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).


         “Federal 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).


         A. Procedural Objections

         1. Operative Complaint

         Plaintiff 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.[1] 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.”).

         2. Failure to Comply ...

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