Vinod Chhabra v. DeVry University, Inc., et al

Filing 31

ORDER DENYING PLAINTIFFS MOTION TO REMAND 16 by Judge Dean D. Pregerson. (lc). Modified on 2/2/2016 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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VINOD CHHABRA,

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Plaintiff,

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v.
DEVRY UNIVERSITY, INC., an
Illinois corporation
registered in the State of
California; DEVRY
UNIVERSITY, an entity of
unknown capacity; DEVRY,
INC., a Delaware corporation
registered in the State of
California; SCOTT SAND, an
individual; KELLI SPENCE, an
individual; BRIAN PORTER, an
individual,

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Defendants.
___________________________

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Case No. CV 15-03857 DDP (FFMx)

ORDER DENYING PLAINTIFF’S MOTION
TO REMAND

[Dkt. 16]

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Presently before the court is Plaintiff Vinod Chhabra’s Motion
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to Remand.

Having considered the submissions of the parties, the

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court denies the motion and adopts the following Order.
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I.

Background

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This case is once again before this court, after having been
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dismissed, remanded, now removed from state court a second time.
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As described in this court’s earlier Order (“First Order”),

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Plaintiff was employed by Defendants Devry University, Inc. and

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Devry, Inc. as an admissions advisor.

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Dkt. 19.)

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Plaintiff alleged that all Defendants, including the Individual

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Defendants, “intended at all time to discriminate against

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plaintiff’s employment (sic) due to his race natural origin and age

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(sic).”

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Defendants “intended to undermine, disrupt and terminate plaintiff

(No. 14-cv-07663-DDP-FFM,

The Individual Defendants were Plaintiff’s supervisors.

The Complaint further alleged that the Individual

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as retaliation for his disclose, and divulging of conduct

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perpetrated by defendant Scott Sand.”

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Individual Defendants terminated Plaintiff’s employment because of

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a “claimed prevarication.”

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On October 22, the

Plaintiff brought suit in state court alleging one cause of

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action for discrimination, three causes of action for wrongful

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termination, and a cause of action for breach of contract.

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Defendants removed to this court and moved to dismiss.

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moved to remand.

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the motion to dismiss solely discussed facts and theories regarding

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the Individual Defendants that appeared either totally unrelated to

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this case or were not alleged in the Complaint, denied Plaintiff’s

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motion to remand for lack of diversity jurisdiction and granted

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Defendants’ motion to dismiss.

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although expressing skepticism that Plaintiff would be able to

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adequately allege any claims against the Individual Defendants,

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granted leave to amend.

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Plaintiff

This court, noting that Plaintiff’s opposition to

(First Order at 4.)

The court,

(Id. at 5.)

Plaintiff filed a First Amended Complaint (“FAC”), adding
defamation, intentional infliction of emotional distress, and
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negligent infliction of emotional distress claims against the

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Individual Defendants.

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Defendants acknowledged that is was no longer discernible from the

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face of the FAC whether the parties are completely diverse. (No.

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14-cv-07663-DDP-FFM, Dkt. 23.)

At the request of the parties, the

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court remanded to state court.

(No. 14-cv-07663-DDP-FFM, Dkt. 27.)

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(No. 14-cv-07663-DDP-FFM, Dkt. 8.)

After conducting some discovery in state court, and deposing

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Plaintiff himself, Defendants concluded that the Individual

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Defendants, who are California citizens, remain sham defendants,

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fraudulently joined by Plaintiff to defeat diversity jurisdiction.

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(Notice of Removal at 6.)

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admitted in his deposition that he has no facts to support any of

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the newly-alleged claims (defamation, infliction of emotional

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distress) against the Individual Defendants.

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7-18).

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Individual Defendants are not fraudulently joined.

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response, Plaintiff filed the instant motion to remand, as well as

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a “supplement” to the motion ostensibly responsive to the court’s

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Order to Show Cause, but essentially comprised of a shortened

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version of the arguments raised in the instant motion.

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II.

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Defendants contend that Plaintiff

(Notice of Removal at

This court ordered Plaintiff to show cause why the
(Dkt. 15.)

In

Discussion
As an initial matter, Plaintiff’s counsel once again does not

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dispute that he made no attempt to meet and confer in accordance

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with Local Rule 7-3.1

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second such failure, as Plaintiff’s counsel violated Local Rule 7-3

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in connection with his first motion to remand as well.

See C.D. Cal. L. R. 7-3, 7-9.

This is the

As

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Plaintiff has not filed a Reply in support of the instant
motion.
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explained in this court’s First Order, this alone would be reason

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to deny Plaintiff’s motion to remand.

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Plaintiff’s counsel is cautioned that the court expects full

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compliance with all Local Rules in the future.

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C.D. Cal. L.R. 7-12.

In any event, the argument raised in the instant motion has no

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merit.

Plaintiff contends, without authority, that Defendants may

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not remove the same case twice.

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v. Dollar Tree Stores, Inc., 781 F.3d 1185, 1188 (9th Cir. 2015)

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(“A successive removal petition is permitted . . . when subsequent

Plaintiff is mistaken.

See Reyes

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pleadings or events reveal a new and different ground for removal.”

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(internal quotations and emphases omitted)); See also S.W.S.

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Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492-93 (5th Cir. 1996)

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(“The prohibition against removal on the same ground does not

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concern the theory on which federal jurisdiction exists . . ., but

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rather the pleading or event that made the case removable. . . . A

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defendant . . . can file a second removal petition when subsequent

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pleadings or events reveal a new and different ground for removal .

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. . .”).

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Plaintiff then argues that Defendants “abandoned” their right

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to remove when they consented to remand of the FAC.

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“A waiver of the right of removal must be clear and unequivocal.”

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Resolution Trust Corp. v. Bayside Developers, 43 F.3d 1230, 1240

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(9th Cir. 1994).

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relinquishment of the right.

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that, on the face of the FAC, there was no “current” jurisdiction

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over the matter, and explicit pronouncement that they believed even

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the new allegations to be “improper and meritless” are consistent

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with their subsequent discovery efforts and second removal.

(Motion at 6.)

Here, there has been no unambiguous
To the contrary, Defendants’ notice

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(No.

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14-cv-07663-DDP-FFM, Dkt. 27.)

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right to removal by taking “actions in state court that manifest

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his or her intent to have the matter adjudicated there, and to

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abandon his or her right to a federal forum,” the taking of

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jurisdictional-type discovery in state court does not manifest any

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such intent.

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III. Conclusion

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Although a defendant may waive the

Resolution Trust, 43 F.3d at 1240.

For the reasons stated above, Plaintiff’s Motion to Remand is
DENIED.

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IT IS SO ORDERED.

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Dated: February 2, 2016
DEAN D. PREGERSON
United States District Judge

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