Luis Salas v. The Wendy's Company, et al
Filing
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MINUTE ORDER IN CHAMBERS by Judge Josephine L. Staton: ORDER remanding case to Riverside County Superior Court, Case number RIC1401054. Mailed certified copies to superior court. Case Terminated. Made JS-6 (Attachments: # 1 CV 103) (twdb)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. EDCV 14-593 JLS (CWx)
Title: Luis Salas v. The Wendy’s Co., et al.
Date: May 9, 2014
Present: Honorable JOSEPHINE L. STATON, UNITED STATES DISTRICT JUDGE
Terry Guerrero
Deputy Clerk
ATTORNEYS PRESENT FOR PLAINTIFF:
Not Present
N/A
Court Reporter
ATTORNEYS PRESENT FOR DEFENDANT:
Not Present
PROCEEDINGS: (IN CHAMBERS) ORDER REMANDING CASE TO
RIVERSIDE COUNTY SUPERIOR COURT, CASE NO.
RIC1401054
Where a federal district court lacks subject-matter jurisdiction, it must remand the
case, and has the discretion to do so sua sponte. See Kelton Arms Condo. Owners Ass’n,
Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003) (citing 28 U.S.C.
§ 1447(c)). For the reasons discussed below, the Court sua sponte REMANDS this case
to Riverside County Superior Court.
I.
Background
Plaintiff Luis Salas filed this action in Riverside County Superior Court against
Defendants Wendy’s International, LLC (erroneously sued as The Wendy’s Co.) and
Esperanza Avila asserting state-law claims for (1) discrimination based on age;
(2) disability discrimination; (3) harassment; (4) retaliation; (5) failure to engage in
interactive process; (6) failure to prevent discrimination and harassment; (7) failure to
accommodate; (8) wrongful termination; and (9) termination in violation of public policy.
(Notice Ex. A (“Compl.”) at 6-20, Doc. 1.) Claims one through eight are brought under
California’s Fair Employment and Housing Act (“FEHA”), and only claim three is
asserted against Avila. (Id.)
According to the Complaint, the Department of Fair Employment and Housing
issued Plaintiff a right to sue letter on February 4, 2013. (Id. ¶ 30. See also RJN Ex. 2
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____________________________________________________________________________
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. EDCV 14-593 JLS (CWx)
Title: Luis Salas v. The Wendy’s Co., et al.
Date: May 9, 2014
(right to sue letter dated February 4, 2013), Doc. 13-1.) The Complaint is stamped as
filed on February 5, 2014. (Compl.)
On March 26, 2014, Wendy’s International removed the action to this Court
asserting diversity jurisdiction. (Notice.) In the Notice, Wendy’s International contends
that Plaintiff is a citizen of California and Wendy’s International is a citizen of Delaware
and Ohio. (Notice ¶¶ 9-10.) Plaintiff alleges that Avila is also a California resident.
(Compl. ¶ 3.) Wendy’s International, however, asserts in its Notice that Avila is a sham
defendant because Plaintiff’s FEHA claim against her is time barred under California
Government Code § 12965(d). (Notice ¶¶ 15-21.) Specifically, Wendy’s International
claims that the Complaint was filed one day after the expiration of § 12965(d)’s one year
time limit to file a FEHA claim after a right to sue letter is issued. (Id.)
On April 2, 2014, Wendy’s International filed a Motion to Dismiss, arguing that
claims one through eight of the Complaint are time barred. (Mot., Doc. 9.) Plaintiff filed
an Opposition, and Wendy’s International replied. (Opp’n, Doc. 18; Reply, Doc. 19.)
II.
Legal Standard
When reviewing a notice of removal, “‘[i]t is to be presumed that a cause lies
outside [the] limited jurisdiction [of the federal courts] and the burden of establishing the
contrary rests upon the party asserting jurisdiction.’” Hunter v. Philip Morris USA, 582
F.3d 1039, 1042 (9th Cir. 2009) (quoting Abrego Abrego v. Dow Chem. Co., 443 F.3d
676, 684 (9th Cir. 2006)) (quotation marks omitted) (alterations in original). Courts
“strictly construe the removal statute against removal jurisdiction,” and “the defendant
always has the burden of establishing that removal is proper.” Gaus v. Miles, Inc., 980
F.2d 564, 566 (9th Cir. 1992). “Federal jurisdiction must be rejected if there is any doubt
as to the right of removal in the first instance.” Id. To exercise diversity jurisdiction, a
federal court must find complete diversity of citizenship among the adverse parties, and
the amount in controversy must exceed $75,000. 28 U.S.C. § 1332(a).
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____________________________________________________________________________
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. EDCV 14-593 JLS (CWx)
Title: Luis Salas v. The Wendy’s Co., et al.
III.
Date: May 9, 2014
Discussion
Here, assuming Avila is a proper defendant, the Court lacks diversity jurisdiction
over this matter because Plaintiff and Avila are both California residents. (See Compl.
¶¶ 1, 3.) Wendy’s International asserts that Avila is a sham defendant because Plaintiff’s
sole claim against her is time barred. (Notice ¶¶ 15-20.) Because the parties have fully
briefed this issue in connection with Wendy’s International’s Motion to Dismiss, the
Court requires no further briefing in order to decide whether Avila is a fraudulently
joined sham defendant.
A non-diverse defendant is deemed fraudulent, and her presence disregarded for
purposes of diversity jurisdiction, where “the plaintiff fails to state a cause of action
against [the] . . . defendant, and the failure is obvious according to the settled rules of the
state.” McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). A statute of
limitations defense is a permissible means to establish fraudulent joinder. See Ritchey v.
Upjohn Drug Co., 139 F.3d 1313, 1320 (9th Cir. 1998). A defendant, however, bears the
“heavy burden” of establishing fraudulent joinder. Hunter, 582 F.3d at 1046.
“Fraudulent joinder must be proven by clear and convincing evidence.” Hamilton
Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). “The standard
is not whether plaintiff[] will actually or even probably prevail on the merits, but whether
there is a possibility that [he] may do so.” Rico v. Jones Lang LaSalle Americas, Inc.,
No. CV 14-1322-GHK JEMX, 2014 WL 1512190, *2 (C.D. Cal. Apr. 16, 2014)
(quotation marks omitted) (emphasis added).
In a declaration submitted in support of Plaintiff’s Opposition to the Motion to
Dismiss, Plaintiff’s counsel states that she submitted the Complaint to the state court by
facsimile at 2:35 p.m. on February 4, 2014. (Cohen Decl. ¶ 3, Doc. 18-1.)1 The fax
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Wendy’s International contends that the Court should disregard or strike this declaration
because extrinsic evidence cannot be considered in evaluating a motion to dismiss. (See Reply at
1; Objcts., Doc. 19-1.) The Court may, however, consider such evidence when determining
whether removal was proper because a non-diverse defendant was fraudulently joined. See
Ritchey, 139 F.3d at 1318 (stating that a court may go “somewhat further” than plaintiff’s
pleadings in determining whether, for purposes of removal, a defendant was fraudulently joined);
Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1068 (9th Cir. 2001) (considering summary______________________________________________________________________________
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____________________________________________________________________________
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. EDCV 14-593 JLS (CWx)
Title: Luis Salas v. The Wendy’s Co., et al.
Date: May 9, 2014
confirmation sheet submitted by Plaintiff indicates that the fax was received on “02/04”
at “2:23.” (Cohen Decl. Ex. E.)2 On February 5, 2014, the state court emailed Plaintiff’s
counsel stating that page three of the complaint was incomplete, and requesting that
Plaintiff resubmit the entire fax for processing. (Cohen Decl. Ex. B.) The resubmitted
Complaint was stamped as having been filed on February 5, 2014. (See Compl.)
This evidence gives Plaintiff ample grounds to argue that his claim against Avila
is not time barred. Under California Rule of Court 1.20(a), “[u]nless otherwise provided,
a document is deemed filed on the date it is received by the court clerk.”3 Plaintiff could,
therefore, credibly argue in state court that his FEHA claim against Avila is timely
because his Complaint was received by the clerk’s office on February 4, 2014. Further,
where a document transmitted to the court by fax is “not filed with the court because of
(1) an error in the transmission of the document to the court that was unknown to the
sending party or (2) a failure to process the document after it has been received by the
court, the sending party may move the court for an order filing the document nunc pro
tunc.” Cal. R. Ct. 2.304(d). In its Reply to the Motion to Dismiss, Wendy’s International
argues that Plaintiff should have sought a nunc pro tunc order correcting the filing date
before the case was removed. (Reply at 5.) There is no reason, however, that Plaintiff
judgment-type evidence in resolving whether removal was proper because a defendant was
fraudulently joined). For purposes of this Order, Wendy’s International’s request to strike is
denied, and its objections to the admission of extrinsic evidence are overruled. To the extent the
Court has relied upon the Cohen Declaration and the documents attached to it, Wendy’s
International’s remaining evidentiary objections (Objcts. at 2-9) are also overruled. The
statements and documents the Court has relied upon in this Order are relevant to the issue of
fraudulent joinder, and the Court has not relied on them to the extent they state legal conclusions.
Further, the Cohen Declaration sufficiently authenticates and lays a foundation for the admission
of those documents the Court has relied upon.
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Wendy’s International contends that other records of the fax transmission show that the
Complaint was filed after court hours at 9:44 p.m. on February 4, 2014. (Mot. at 2. See also
RJN Ex. 3.) The Court need not resolve this factual dispute in determining whether Avila is a
sham defendant. Plaintiff’s evidence indicates that it is at least possible that the fax was sent and
received during Court hours.
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Moreover, Plaintiff contends that the third page of his fax was a cover sheet. (Cohen Decl. ¶ 7,
Ex. C.) Where a party’s filing is submitted with an incomplete cover sheet, “the clerk of court
must file the paper.” Cal. R. Ct. 3.220(a) (emphasis added).
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____________________________________________________________________________
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. EDCV 14-593 JLS (CWx)
Title: Luis Salas v. The Wendy’s Co., et al.
Date: May 9, 2014
was required to do so before Wendy’s International removed the case. As long as there is
a possibility that Plaintiff could proceed against Avila in state court by seeking a nunc
pro tunc order, Avila is not a sham defendant. Rule 2.304 of the California Rules of
Court affords Plaintiff such an opportunity.
Because there is, at the very least, a possibility that Plaintiff will be able to
proceed against Avila in state court, Avila is not a sham defendant and complete diversity
was lacking at the time of removal.
IV.
Conclusion
For the foregoing reasons, the Court concludes that it lacks subject-matter
jurisdiction over this case, and REMANDS it to Riverside County Superior Court, Case
Number RIC1401054.
Initials of Preparer: tg
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