Izmaylov v. Save Mart Supermarkets et al

Filing 13

ORDER signed by Senior Judge William B. Shubb on 4/6/15 ORDERING that plaintiff's motion to remand be, and the same hereby is, GRANTED, and this action is hereby REMANDED to the Superior Court of the State of California, in and for the County of Placer. Copy of remand order sent to other court. CASE CLOSED.(Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANIEL IZMAYLOV,
Plaintiff,

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CIV. NO. 2:15-00323 WBS KJN
MEMORANDUM AND ORDER OF REMAND

v.
SAVE MART SUPERMARKETS, INC.,
a California corporation, and
KENNETH BACA, an Individual
and DOES 1 through 50,

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Defendants.

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Plaintiff Daniel Izmaylov brought this action in state

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court against his employer, Save Mart, and his supervisor,

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Kenneth Baca, alleging employment discrimination.

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removed to this court following plaintiff’s response in a request

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for admissions that suggested he was pursuing a claim under the

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Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601, et seq.

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Presently before the court is plaintiff’s motion to remand.

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I.

Factual and Procedural Background
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Defendants

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Plaintiff worked at Save Mart as a clerk at the grocery

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chain’s distribution center.

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(Docket No. 9-2).)

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intermittently for a knee injury and following the birth of his

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son.

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retaliation and harassment due to this leave.

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30.)

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During his employment, plaintiff took leave

(Id. ¶¶ 14-15.)

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(First Am. Compl. (“FAC”) ¶ 12

Plaintiff alleges he was subjected to
(Id. ¶¶ 16, 29-

Plaintiff initially filed this action on January 14,
2014, in California Superior Court in the County of Stanislaus.

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(See Notice of Removal ¶ 1 (Docket No. 1).)

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subsequently transferred to Placer County.

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On April 3, 2014, plaintiff filed his FAC in state court,

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asserting six claims under state law for unlawful discrimination,

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Cal. Gov’t Code §§ 12900, et seq.; wrongful termination, id.;

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harassment, id.; failure to accommodate his disability, id.

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§ 12940; retaliation, id.; and failure to take reasonable steps

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to prevent discrimination, id. § 12940(k).

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The case was
(See id. ¶¶ 2, 8.)

(See FAC ¶¶ 19-57.)

On December 5, 2014, defendants served plaintiff with a

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“Request for Admissions, Set One” and a “Form Interrogatory No.

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17.1.”

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Plaintiff’s response to the request for admissions on January 15,

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2015, read:

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(See Rafoth Decl. ¶ 5, Exs. 3-4 (Docket No. 10-1).)

Request: Plaintiff is not pursuing a claim under the
Family Medical Leave Act of 1993, 29 U.S.C. section
2601 et seq. in this lawsuit.
Response: Plaintiff objects to this request on the
grounds that it seeks counsel’s legal reasoning,
theory, or statutory basis supporting a factual
contention.
Plaintiff further objects on the ground
the request seeks counsel’s work product through
counsel’s thought processes.
Further, Plaintiff does
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not waive his right to amend his complaint prior to or
during trial under Code of Civil Procedure sections
473(a)(1) and 576.
Subject to, and without waiving,
said
objections,
Plaintiff
responds
as
follows:
Denied.

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(Notice of Removal ¶ 35; Rafoth Decl. Ex. 3 (citations omitted).)
In the separate interrogatory, defendants asked plaintiff to
state all facts upon which plaintiff based his response to the
request for admission.

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provide a response at this time.”

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(Id.)

On February 9, 2015, defendants removed to this court
on the basis that plaintiff was pursuing a federal claim that
conferred federal question jurisdiction.

(Id. ¶ 6; Notice of

Removal ¶ 37 (“Plaintiff’s response to Defendant Save Mart
Supermarket’s request for admission was the first concrete paper
filed or served in this case that established that Plaintiff was
pursuing a federal claim, thereby bestowing upon this Court
federal question jurisdiction over the case.”).)

One day later,

plaintiff’s counsel emailed defendants’ counsel to state that
plaintiff “has no intent to plead a FMLA, 29 U.S.C. section 2601
et seq., in this FEHA discrimination lawsuit” and that the
earlier response was an “inadvertent technical error.”

(Rafoth

Decl. ¶ 7, Ex. 5.)

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Plaintiff

stated, “Plaintiff does not have sufficient information to

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(See Rafoth Decl. Ex. 4.)

The parties subsequently stipulated to permit plaintiff
to amend his response to the request for admission on March 2,
2015.
8).)

(See id. ¶ 8; Stipulation and Proposed Order (Docket No.
Plaintiff now moves to remand the case to state court.

(Mot. to Remand (Docket No. 9).)

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II.

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Discussion
“[A]ny civil action brought in a State court of which

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the district courts of the United States have original

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jurisdiction, may be removed by the defendant or the defendants,

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to the district court of the United States for the district . . .

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where such action is pending.”

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time before final judgment it appears that the district court

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lacks subject matter jurisdiction, the case shall be remanded.”

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28 U.S.C. § 1447(c).

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28 U.S.C. § 1441(a).

“If at any

Federal courts have original subject matter

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jurisdiction over “all civil actions arising under the

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Constitution, laws, or treaties of the United States.”

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§ 1331.

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under federal law only when the plaintiff’s well-pleaded

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complaint raises issues of federal law.”

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Taylor, 481 U.S. 58, 63 (1987).

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removal based upon facts developed during discovery.

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Karambelas v. Hughes Aircraft Co., 992 F.2d 971, 974 (9th Cir.

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1993) (collecting cases).

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28 U.S.C.

“It is long settled law that a cause of action arises

Metro. Life Ins. Co. v.

Several authorities also support
See

“[T]he plaintiff is ‘the master of the claim’ and is

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not required to assert federal claims, even if they exist.”

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(quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987));

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see ARCO Envtl. Remediation, L.L.C. v. Dep’t of Health & Envtl.

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Quality of Montana, 213 F.3d 1108, 1114 (9th Cir. 2000) (“As the

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master of the complaint, a plaintiff may defeat removal by

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choosing not to plead independent federal claims.”).

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“[J]urisdiction must be analyzed on the basis of the pleadings

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filed at the time of removal without reference to subsequent
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Id.

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amendments . . . .”

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225 F.3d 1042, 1046 n.3 (9th Cir. 2000) (quoting Sparta Surgical

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Corp. v. Nat’l Ass’n of Sec. Dealers, 159 F.3d 1209, 1213 (9th

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Cir. 1998)) (internal quotation marks omitted).

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Chabner v. United of Omaha Life Ins. Co.,

Defendants argue that the court has subject matter

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jurisdiction over this case because plaintiff’s response to the

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request for admissions establishes that plaintiff was pursuing a

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federal claim at the time of removal.

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30-41.)

(See Notice of Removal ¶¶

Plaintiff moves for remand on the basis that this

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admission does not establish federal question jurisdiction and

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that, even if it did, the admission was made in error and the

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parties have stipulated to allow plaintiff to amend its response

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to clarify that plaintiff is not pursuing any claims under FMLA.

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(See Pl.’s Mem. at 3-6; Velez Decl. ¶¶ 4-8 (Docket No. 9-2).)

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Plaintiff’s FAC makes several references to FMLA.

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These references center on the alleged time plaintiff took away

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from work as “Intermittent FMLA leave”: first in 2009 to care for

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a knee injury and later, in 2013, for baby-bonding time with his

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newborn son.

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alleges that he was terminated “for availing himself to FMLA and

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due to his physical disability.”

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makes no mention of any claims brought pursuant to FMLA.

(See FAC ¶¶ 14-15, 22.)

For example, plaintiff

(Id. ¶ 21.)

However, the FAC

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With regard to plaintiff’s response to the Request for

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Admission, there is some authority from within the Ninth Circuit

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supporting removal to federal court based on facts brought to

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light during discovery.

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940 F.2d 503, 507 (9th Cir. 1991) (finding at the time of summary

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judgment that the only basis for a plaintiff’s claim was an ERISA

See, e.g., Felton v. Unisource Corp.,

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violation); Riggs v. Cont’l Baking Co., 678 F. Supp. 236, 238

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(N.D. Cal. 1988) (denying remand based on facts developed during

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a deposition).

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incomplete pleadings that failed to allege certain facts that

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might have clarified the basis for the plaintiff’s claims.

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allowing discovery, it became clear in each case that the

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plaintiff’s only basis for an asserted claim depended on federal

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law.

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summary judgment, and by that time it was clear that the only

However, those cases involved ambiguous or

After

See Karambelas, 992 F.2d at 974 (“[Felton] was decided on

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basis for the plaintiff’s claim was an ERISA violation.” (citing

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Felton, 940 F.2d at 507)); Riggs, 678 F. Supp. at 237-38 (stating

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that, while plaintiff’s complaint did not indicate that plaintiff

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was a union member, plaintiff’s claim was based on the alleged

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breach of a collective bargaining agreement and thus arose under

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federal law).

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The current case more closely resembles the Ninth

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Circuit’s opinion in Karambelas.

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state law claim for breach of an employment contract, see

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Karambelas, 992 F.2d at 972-973, 975, but during a deposition,

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the plaintiff “speculated that another possible reason for his

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discharge might have been to deprive him of ERISA rights,” id. at

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975.

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claim was insufficient to form a basis for federal jurisdiction,”

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the Ninth Circuit ordered that the case be remanded to state

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court.

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There, the plaintiff brought a

Noting that “mere simulacrum of a possible unasserted ERISA

Id.
The court finds plaintiff’s response comparable to the

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kind of speculative answer at issue in Karambelas.

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response does not assert a FMLA claim, nor does it suggest that
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Plaintiff’s

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the basis for one of plaintiff’s existing claims may arise solely

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under FMLA.

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plaintiff has never asserted a federal claim in his pleadings,

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and plaintiff’s counsel has declared under oath that there is no

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federal FMLA claim being made in this case.

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6; Velez Decl. ¶¶ 8-9.)

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See Felton, 940 F.2d at 507.

As in Karambelas,

(See Pl.’s Mem. at

Accordingly, because the FAC does not assert a claim

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arising under federal law, the court will grant plaintiff’s

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motion to remand this case to state court.

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IT IS THEREFORE ORDERED that plaintiff’s motion to

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remand be, and the same hereby is, GRANTED, and this action is

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hereby REMANDED to the Superior Court of the State of California,

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in and for the County of Placer.

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Dated:

April 6, 2015

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