Shary Said v. Orange County District Attorney s office, et al
Filing
20
MINUTES (IN CHAMBERS) Order GRANTING Plaintiff's Motion to Voluntarily Dismiss and DENYING AS MOOT Plaintiff's Motion to Remand; Order, Sua Sponte, Remanding Action to Orange County Superior Court 14 by Judge James V. Selna: For the reaso ns stated above, the Court grants Said's motion for voluntary dismissal and remands the action sua sponte to Orange County Superior Court. The Court denies as moot Said's motion to remand. The Court vacates the hearing scheduled for August 29, 2016 at 1:30 p.m. See document for further information. (lwag)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
SACV 16-01227 JVS(KESx)
Title
SHARY SAID v. ORANGE COUNTY DISTRICT ATTORNEYS OFFICE, et al.
Present: The Honorable
Date
August 22, 2016
James V. Selna
Karla J. Tunis
Not Present
Deputy Clerk
Court Reporter
Attorneys Present for Plaintiffs:
Attorneys Present for Defendants:
Not Present
Not Present
Proceedings:
(In Chambers)
Order GRANTING Plaintiff’s Motion Voluntarily
Dismiss and
DENYING AS MOOT Plaintiff’s Motion to Remand
ORDER, SUA SPONTE, REMANDING ACTION TO
ORANGE COUNTY SUPERIOR COURT
Plaintiff Shary Said (“Said”), proceeding pro se, has moved to remand this action
to Orange County Superior Court. Docket No. 14. Said alternatively moves for voluntary
dismissal under Federal Rule of Civil Procedure 41(a)(2). Id. Defendant Macy’s West
Stores, Inc. (“Macy’s West”) filed an opposition. Docket No. 17. Said filed a reply.
Docket No. 19.
For the reasons stated above, the Court grants Said’s motion for voluntary
dismissal and remands the action sua sponte to Orange County Superior Court. The
Court denies as moot Said’s motion to remand.
1.
Introduction
In March 2016, Said sued 36 businesses and individuals in Orange County
Superior Court, including, as relevant here, Macy’s West. Docket No. 1-1. The complaint
alleged various state law tort and contract claims, as well as one federal law claim for
discrimination on the bases of national origin, race, religion, and gender in violation of
the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. Id. Three months later, on June
28, 2016, Macy’s West filed an answer in state court. Docket No. 1-2.
On July 1, 2016, Macy’s West removed the action to this Court under 28 U.S.C. §
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
SACV 16-01227 JVS(KESx)
Date
August 22, 2016
Title
SHARY SAID v. ORANGE COUNTY DISTRICT ATTORNEYS OFFICE, et al.
1441(a) for federal question jurisdiction. Docket No. 1. About one week later, on July 7,
2016, Said filed a notice of voluntary dismissal seeking to dismiss the action in its
entirety. Docket No. 5. The clerk of court dismissed all but two defendants: Alec Tenace
and Macy’s West.1 See Docket No. 16.
Said now moves to remand the action to Orange County Superior Court for, among
other things, lack of subject-matter jurisdiction. Docket No. 14. Said alternatively moves
to voluntarily dismiss her federal discrimination claim under Rule 41(a)(2). Id.
2.
Analysis
2.1.
The Court grants Said’s motion for voluntary dismissal.
Rule 41(a)(2) prohibits plaintiffs from voluntarily dismissing their action without
the court’s approval once the defendant files its answer. Fed. R. Civ. P. 41(a)(2). The
standard for securing the court’s approval is low, however. Courts generally will grant
the plaintiff’s motion for voluntary dismissal unless the defendant shows that it will
suffer “legal prejudice” as a result of dismissal. Waller v. Fin. Corp. of Am., 828 F.2d
579, 583 (9th Cir. 1987). In this context, “legal prejudice” means prejudice to some legal
interest, claim, or argument. Smith v. Lenches, 263 F.3d 972, 976 (9th Cir. 2001).
Here, Said moves to voluntarily dismiss her federal discrimination claim. Docket
No. 14. In its opposition, Macy’s West does not identify, let alone establish, any legal
prejudice that it will suffer if the Court dismisses this claim. The Court therefore grants
Said’s motion for voluntarily dismissal. The dismissal is without prejudice. See Fed. R.
Civ. P. 41(a)(2) (“Unless the order states otherwise, a dismissal under this paragraph . . .
is without prejudice.”).
2.2.
The Court no longer has original jurisdiction.
1
The clerk of court did not enter dismissal against Macy’s
West because, as discussed infra, the plaintiff must first secure
the court’s approval to dismiss an action when, as here, the
defendant already filed an answer to the complaint. Docket No. 16
¶ 5. The record does not indicate why the clerk of court did not
dismiss Alec Tenace.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
SACV 16-01227 JVS(KESx)
Date
August 22, 2016
Title
SHARY SAID v. ORANGE COUNTY DISTRICT ATTORNEYS OFFICE, et al.
Macy’s West removed this action on the basis of federal question jurisdiction.
Docket No. 1. However, the Court has dismissed Said’s sole federal claim. Accordingly,
the Court must determine whether there is original jurisdiction here. In its opposition,
Macy’s West argues that the Court has original jurisdiction over the remaining state law
claims on grounds of diversity jurisdiction. Specifically, Macy’s West argues that there is
complete diversity because the only remaining parties are Said and Macy’s West, and
Said is a California resident and Macy’s West is an Ohio corporation. Docket No. 18 at
11-12. The Court rejects this argument.
To establish diversity jurisdiction, there must be complete diversity between the
parties. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). For diversity
purposes, natural persons like Said are citizens of the states where they live, Kanter v.
Warner-Lambert Co., 265 F.3d 843, 857 (9th Cir. 2001), and corporations like Macy’s
West are citizens of both their state of incorporation and the state where their principal
place of business is located, 28 U.S.C. § 1332(c)(1). The party asserting diversity
jurisdiction bears the burden of establishing complete diversity. See In re Ford Motor
Co./Citibank (South Dakota), N.A., 264 F.3d 952, 957 (9th Cir. 2001) (“The party
asserting federal jurisdiction bears the burden of proving the case is properly in federal
court.”).
Macy’s West has failed to establish complete diversity here, for two independent
reasons.
First, and most importantly, Alec Tenace is still a defendant in this action, despite
Said’s attempts to dismiss him. Said alleges that Alec Tenace is a California resident,
Docket No. 1-1 at 8 ¶ 12, and Macy’s West has submitted no evidence establishing
otherwise.
Second, and even if Alec Tenace was no longer a defendant, Macy’s West has
failed to establish complete diversity between Said and Macy’s West. To establish its
Ohio citizenship, Macy’s West submits only a printout from the California Secretary of
State website indicating that Macy’s West is incorporated in Ohio. Docket No. 18-4 at 2.
However, a printout from the California Secretary of State by itself is insufficient to
establish complete diversity. See L’Garde, Inc. v. Raytheon Space & Airborne Sys., 805
F. Supp. 2d 932, 940 (C.D. Cal. 2011) (“California district courts have found that reliance
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
SACV 16-01227 JVS(KESx)
Date
August 22, 2016
Title
SHARY SAID v. ORANGE COUNTY DISTRICT ATTORNEYS OFFICE, et al.
on a single piece of evidence, such as a Secretary of State printout, is insufficient for a
party to prove the location of its headquarters under the nerve center test.”).
2.3.
The Court declines to exercise supplemental jurisdiction.
Because the Court no longer has federal question jurisdiction, and the Court
otherwise lacks diversity jurisdiction, the Court must decide whether to exercise
supplemental jurisdiction over Said’s remaining state law claims. 28 U.S.C. § 1367(c)(3)
(“The district courts may decline to exercise supplemental jurisdiction” if “the district
court has dismissed all claims over which it has original jurisdiction.”). In determining
whether to exercise supplemental jurisdiction over state law claims, courts must consider
four factors: comity, judicial economy, fairness, and convenience. Sanford v.
Memberworks, 625 F.3d 550, 561 (9th Cir. 2010). When federal claims are dismissed
before trial, these factors typically “point toward declining to exercise jurisdiction over
the remaining state-law claims.” Id. Accordingly, absent exceptional circumstances, it is
“generally preferable” for district courts to decline exercising supplemental jurisdiction
when the state law claims are dismissed before trial. Harrell v. 20th Cent. Ins. Co., 934
F.2d 203, 205 (9th Cir. 1991).
The Court declines to exercise supplemental jurisdiction here. First, comity
strongly favors declining jurisdiction, as Said now proceeds exclusively on state law
discrimination, privacy, contract, harassment, and stalking claims. Second, judicial
economy similarly favors declining jurisdiction, as the Court has not performed any
substantive legal analysis of these state law claims. Finally, considerations of
convenience and fairness do not favor exercising supplemental jurisdiction: given the
early stage of this litigation, proceeding in state court would not be unduly inconvenient
or unfair to Macy’s West. See Sanford, 625 F.3d at 561 (“When the single federal-law
claim in the action was eliminated at an early stage in the litigation, the District Court had
a powerful reason to choose not to continue to exercise jurisdiction.”). Because the
balance of factors disfavor exercising supplemental jurisdiction, the Court declines to
exercise supplemental jurisdiction here.
2.4.
The Court remands the action to Orange County Superior Court.
Under 28 U.S.C. § 1447(c), the court must remand an action sua sponte if the court
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
SACV 16-01227 JVS(KESx)
Date
August 22, 2016
Title
SHARY SAID v. ORANGE COUNTY DISTRICT ATTORNEYS OFFICE, et al.
loses subject-matter jurisdiction after removal. 28 U.S.C. 1447(c); Polo v. Innoventions
Int’l, LLC, --- F.3d ---, 2016 WL 4394586, at *3 (9th Cir. 2016) (“No motion, timely or
otherwise, is necessary: ultimate responsibility to ensure jurisdiction lies with the district
court.”). As discussed supra, the Court no longer has original jurisdiction over the action,
and declines to exercise supplemental jurisdiction over the remaining state law claims.
Accordingly, the Court remands the action sua sponte to Orange County Superior Court.
2.5.
The Court denies as moot Said’s motion to remand.
As an alternative to voluntary dismissal, Said moves to remand the action to
Orange County Superior Court. Docket No. 14. Because the Court must remand sua
sponte under section 1447(c), the Court denies Said’s motion to remand as moot.
2.6.
The Court declines to sanction Macy’s West.
In her motion, Said requests that the Court sanction Macy’s West for removing the
action in bad faith. Docket No. 14 at 25-26. Said appears to request sanctions under 28
U.S.C. § 1447(c). Id. at 26 (citing Kanter v. Warner-Lambert Co., 52 F. Supp. 2d 1126,
1132 (N.D. Cal. 1999), which awarded attorney’s fees and costs under 28 U.S.C. §
1447(c)). The Court declines to sanction Macy’s West here.
Section 1447(c) provides that, if the court remands an action after removal, the
court may award the non-removing party attorney’s fees and costs incurred from the
removal. 28 U.S.C. § 1447(c). “The standard for awarding fees should turn on the
reasonableness of the removal. Absent unusual circumstances, courts may award
attorney’s fees under § 1447(c) only where the removing party lacked an objectively
reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132,
141 (2005). Here, Macy’s West had an objectively reasonable basis for removal because
the operative complaint expressly alleged federal discrimination claims, which plainly
invoked the Court’s federal question jurisdiction.
3.
Conclusion
For the reasons stated above, the Court grants Said’s motion for voluntary
dismissal and remands the action sua sponte to Orange County Superior Court. The
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
SACV 16-01227 JVS(KESx)
Date
August 22, 2016
Title
SHARY SAID v. ORANGE COUNTY DISTRICT ATTORNEYS OFFICE, et al.
Court denies as moot Said’s motion to remand.
The Court vacates the hearing scheduled for August 29, 2016 at 1:30pm.
IT IS SO ORDERED.
:
Initials of Preparer
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