Jose Rodriguez v. Dairy Conveyor Corporation

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA [10] 11 JOSE RODRIGUEZ, an individual, Case No. 8:23-cv-01683-JWH-JDE 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION TO REMAND [ECF No. 24] 14 DAIRY CONVEYOR CORPORATION, a New York 15 corporation; VLADAN RAKIC; and 16 DOES 1 through 20, inclusive, 17 Defendants. [27] 1 Before the Court is the motion of Plaintiff Jose Rodriguez to remand this 2 action to Orange County Superior Court.1 Defendant Dairy Conveyor 3 Corporation has opposed,2 and the matter is fully briefed.3 The Court concludes 4 that this matter is appropriate for resolution without a hearing. See 5 Fed. R. Civ. P. 78; L.R. 7-15. For the reasons set forth below, the Court orders 6 that Rodriguez’s Motion is DENIED without prejudice. 7 I. BACKGROUND 8 Rodriguez initially filed this action in Orange County Superior Court in 9 March 2023.4 The Original Complaint alleged the following 13 causes of action 10 against Dairy Conveyor and Does 1 through 20: 11 • discrimination in violation of Cal. Gov’t Code §§ 12940 et seq.; 12 • harassment in violation of Cal. Gov’t Code §§ 12940 et seq.; 13 • retaliation in violation of Cal. Gov’t Code §§ 12940 et seq.; 14 • failure to prevent discrimination, harassment, and retaliation in violation 15 of Cal. Gov’t Code §§ 12940 et seq.; 16 • waiting time penalties in violation of Cal. Labor Code §§ 201-03 ; 17 • conversion; 18 • unfair business practices in violation of the Unfair Competition Law, [19] Cal. Bus. & Prof. Code §§ 17200 et seq.; 20 • civil assault; 21 • civil battery; 22 • wrongful termination in violation of Cal. Gov’t Code §§ 12940 et seq.; 23 • wrongful termination in violation of public policy; 24 • a claim for declaratory relief; and [25] 26 1 Pl.’s Mot. to Remand (the “Motion”) [ECF No. 24]. 2 Def.’s Opp’n to the Motion (the “Opposition”) [ECF No. 26]. [27] 3 Pl.’s Reply in Supp. of the Motion (the “Reply”) [ECF No. 28]. 1 • a claim for injunctive relief.5 2 Importantly, for the purpose of the instant Motion, the Original 3 Complaint refers to “Vladimir, and Does 1-20” as Rodriguez’s employers, in 4 addition to Dairy Conveyor.6 The Original Complaint specifically discusses and 5 concerns Rodriguez’s allegations that he was “subjected to harassment by his 6 supervisor and Foreman, Vladimir (last name unknown).”7 7 Dairy Conveyor was served with the Original Complaint in August 2023, 8 and it timely removed the action to this Court in September 2023.8 Because all 9 of Rodriguez’s causes of action arise under state law, Dairy Conveyor removed 10 the case pursuant to 28 U.S.C. §§ 1332 , 1441, 1446, & 1453, alleging diversity 11 jurisdiction.9 12 Rodriguez filed the operative First Amended Complaint in this Court 13 later in September 2023.10 The Amended Complaint asserts the same claims for 14 relief as the Original Complaint, but it adds a newly named individual 15 Defendant—Vladan Rakic—who is identified as Rodriguez’s “supervisor and 16 Foreman.”11 “Vladan” appears to be the correct name of the individual to 17 whom the Original Complaint refers as “Vladimir”: Paragraphs 25 through 32 18 of the Amended Complaint are identical to Paragraphs 25 through 31 of the 19 Original Complaint, except that “Vladimir” becomes “Vladan.”12 [22] 5 Decl. of Paul Calabretta, Ex. A (the “Original Complaint”) [ECF 23 No. 1-2]. [6] Id. at ¶¶ 6-8 . [7] Id. at ¶ 25 ; see also id. at ¶¶ 26-31 . 25 8 Notice of Removal ¶ 4. 26 9 See generally id. 10 First. Am. Compl. (the “Amended Complaint”) [ECF No. 14]. [27] 11 See generally id.; see also id. at ¶ 25 . 1 Dairy Conveyor answered the Amended Complaint in October 2023.13 2 Rodriguez filed the instant Motion in January 202414 and thereafter filed a proof 3 of service of the Amended Complaint upon Rakic.15 4 II. LEGAL STANDARD 5 Federal courts are courts of limited jurisdiction. Accordingly, “[t]hey 6 possess only that power authorized by Constitution and statute.” Kokkonen v. 7 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). To remove an action to 8 federal court under 28 U.S.C. § 1441 , the removing defendant “must 9 demonstrate that original subject-matter jurisdiction lies in the federal courts.” 10 Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 33 (2002). 11 A defendant may remove civil actions in which complete diversity of 12 citizenship between the parties exists and the amount in controversy exceeds 13 $75,000. See 28 U.S.C. § 1332 (a). “Complete diversity” means that “each 14 defendant must be a citizen of a different state from each plaintiff.” In re 15 Digimarc Corp. Derivative Litigation, 549 F.3d 1223, 1234 (9th Cir. 2008). The 16 removing defendant bears the burden of establishing that removal is proper. See 17 Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (noting the 18 “longstanding, near-canonical rule that the burden on removal rests with the 19 removing defendant”); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) 20 (“[t]he strong presumption against removal jurisdiction means that the 21 defendant always has the burden of establishing that removal is proper” 22 (quotation marks omitted)). Any doubts regarding the existence of subject 23 matter jurisdiction must be resolved in favor of remand. See id. (“[f]ederal 24 jurisdiction must be rejected if there is any doubt as to the right of removal in the 25 first instance”). [26] 13 Answer to Amended Complaint [ECF No. 18]. [27] 14 See generally Motion. 1 III. ANALYSIS 2 In his Motion, Rodriguez asserts (1) that removal was not proper based 3 upon the forum defendant rule, see 28 U.S.C. § 1441 (b)(2); and (2) the Court 4 lacks subject matter jurisdiction because, with the addition of Rakic, the parties 5 are not diverse.16 6 Rodriguez’s first argument, that removal was improper under the forum 7 defendant rule, fails because the rule is procedural, not jurisdictional, so the 8 Court may not remand pursuant to the forum defendant rule absent a timely 9 motion to remand under the rule. See Lively v. Wild Oats Markets, Inc., 456 F.3d 10 933, 936 (9th Cir. 2006). Because Rodriguez did not move to remand this action 11 within 30 days of its removal to this Court, the Court may not remand pursuant 12 to the forum defendant rule. See id. 13 However, assuming that Rakic has been properly served and joined as a 14 Defendant to this action, Rodriguez’s second argument—that the Court lacks 15 diversity jurisdiction because both Rodriguez and Rakic are citizens of 16 California—succeeds. As Rodriguez attests, Rakic is not a sham defendant; 17 Rodriguez included Rakic in the Original Complaint, albeit under an incorrect 18 name, and Rodriguez properly amended the complaint with Rakic’s corrected 19 name once Rodriguez discovered it.17 20 However, as Dairy Conveyor asserts, Rodriguez does not appear to have 21 properly served and joined Rakic.18 Mario Hurtado, on behalf of Rodriguez, 22 attests that he served a copy of the Amended Complaint upon Rakic by mail: 23 “by placing the [Amended Complaint] in a sealed envelope, addressed as set 24 forth below, and placing the envelope for collection and mailing in the place 25 designated for such in our offices, following ordinary business practices,” and [26] 16 See generally Motion. [27] 17 See supra Part I. 1|| “by mailing it to the person’s last known address, which constitutes service pursuant to [Rule] 5(b)(2)(C)” of the Federal Rules of Civil Procedure.” But Rodriguez must serve Rakic with both the Amended Complaint and a summons. 4|| See Fed. R. Civ. P. 4(c) & 5. Furthermore, service of those documents upon 5|| Rakic must be procedurally proper: service by mail “is deemed complete on the 6|| date a written acknowledgment of receipt of summons is executed, if such || acknowledgment thereafter is returned to the sender.” Cal. Civ. Proc. Code &|| § 415.30. Because Rakic, or his agent, has not acknowledged receipt of the 9|| summons and Amended Complaint, service upon him by mail is not complete, || and the Court lacks in personam jurisdiction over him. See Tandy Corp. v. 11\| Superior Ct., 117 Cal. App. 3d 911, 913 (1981). 12 IV. DISPOSITION 13 Once Rakic is properly served, the parties will no longer be diverse and 14|| the Court may remand this action. But until then, the action was properly 15|| removed, so remand is improper. Thus, Rodriguez’s instant Motion is 16 || DENIED without prejudice. 17 IT IS SO ORDERED. VU Dated: February 26, 2024 : 20 GNITED oT RTES DISTRICT JUDGE [27] 28|| © Certificate of Service 52-53.