Barker v. Department of Consumer Affairs, et al

Filing 18

STIPULATION and ORDER signed by Magistrate Judge Kendall J. Newman on 01/29/16 ORDERING that the following causes of action, individually-named defendants, and prayer for relief, are DISMISSED WITH PREJUDICE: Plaintiff's federal cause of action for denial or interference with rights in violation of the Family Medical Leave Act (FMLA), 26 U.S.C. §2617(a); Plaintiff's state law cause of action for Intentional Infliction of Emotional Distress; the individually-named defendants Donald Chang and Anita Scuri and Plaintiff's prayer for punitive damages against Chang and Scuri. REMANDING CASE to Sacramento County Superior Court; copy of remand order sent to Sacramento Superior: Case No. 34-2015-00176766. CASE CLOSED (Benson, A)

1
2
3
4
5
6
7

KAMALA D. HARRIS, State Bar No. 146672
Attorney General of California
FIEL D. TIGNO, State Bar No. 161195
Supervising Deputy Attorney General
COURTNEY S. LUI, State Bar No. 173064
Deputy Attorney General
1515 Clay Street, 20th Floor
P.O. Box 70550
Oakland, CA 94612-0550
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendant California
Department of Consumer Affairs

8
9
10

SHELA BARKER
P.O. Box 15054
Sacramento, CA 95851
Pro Se Plaintiff

11
12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE EASTERN DISTRICT OF CALIFORNIA

14

SACRAMENTO DIVISION

15
16
SHELA BARKER,

Case No. 2:15-CV-01321-TLN-KJN PS

17
18
v.

Plaintiff, STIPULATION TO REMAND AND
ORDER

19
20
21
22

STATE OF CALIFORNIA;
DEPARTMENT OF CONSUMER
AFFAIRS, a Public Entity; DONALD
CHANG, AND ANITA SCURI, as
Individual Defendants; and DOES 1-25,
inclusive,

23
Defendants.
24
25
26
27
28
1
Stipulation to Remand and Order (2:15-CV-01321-TLN-KJN)

1

Pro Se Plaintiff Shela Barker (“Plaintiff”) and Defendant California Department of

2

Consumer Affairs (“Defendant” or “DCA”), through its attorneys, the Office of the Attorney

3

General of the State of California, by Courtney S. Lui, Deputy Attorney General, stipulate and

4

jointly request approval by the Court as follows:

5
6
7

STIPULATION
1.

On March 19, 2015, Plaintiff commenced an action in the Superior Court of

8

California, County of Sacramento, entitled Shela Barker v. State of California; Department of

9

Consumer Affairs; A Public Entity; Donald Chang, and Anita Scuri, as individuals; and Does 1

10

through 25, inclusive, as Case No. 34-2015-00176766, alleging the following eight causes of

11

action: (1) Disability discrimination in violation of the Fair Employment and Housing Act, Cal.

12

Gov. Code §12940 et seq. (“FEHA”); (2) Failure to engage in the good faith interactive process

13

in violation of FEHA ; (3) Hostile work environment in violation of FEHA; (4) Retaliation in

14

violation of FEHA; (5) Failure to prevent discrimination and harassment in violation of FEHA;

15

(6) Unlawful denial or interference with rights under the California Family Rights Act, Cal. Gov.

16

Code §12945.2; (7) Unlawful Denial or Interference with Rights under the Family Medical

17

Leave Act, 26 U.S.C. §2617(a); and (8) Intentional Infliction of Emotional Distress.

18

2.

On or about June 19, 2015, Defendant DCA removed the matter to this Court, on the

19

grounds that this Court has original jurisdiction under 28 U.S.C. §1331, and this matter is one that

20

may be removed pursuant to the provisions of 28 U.S.C. section 1441(a), in that Plaintiff’s

21

complaint arises under the Family Medical Leave Act, 26 U.S.C. §2617(a).

22
23
24

3.

After discussion, the parties agree and stipulate to the dismissal, with prejudice, of the

following causes of action, individually-named defendants, and prayer for relief:
(a)

25

Plaintiff’s federal cause of action for denial or interference with rights in
violation of the Family Medical Leave Act (FMLA), 26 U.S.C. §2617(a);

26

(b)

the state law cause of action for Intentional Infliction of Emotional Distress;

27

(c)

individually-named defendants Donald Chang (“Chang”) and Anita Scuri

28

(“Scuri”); and
2
Stipulation to Remand and Order (2:15-CV-01321-TLN-KJN)

1

(d)

2

4.

Plaintiff’s prayer for punitive damages against Chang and Scuri.

The parties agree and stipulate that after dismissal of Plaintiff’s federal cause of

3

action for denial or interference with rights in violation of the Family Medical Leave Act (26

4

U.S.C. §2617(a)), this court will no longer have subject matter jurisdiction over Plaintiff’s civil

5

action.

6

5.

The parties agree and stipulate that upon entry of the dismissals as detailed in

7

Paragraph 3, above, this matter is to be remanded to the Sacramento County Superior Court,

8

pursuant to 28 U.S.C. §1447(c), alleging the following remaining causes of action: (1) Disability

9

discrimination in violation of the Fair Employment and Housing Act, Cal. Gov. Code §12940 et

10

seq. (“FEHA”); (2) Failure to engage in the good faith interactive process in violation of FEHA ;

11

(3) Hostile work environment in violation of FEHA; (4) Retaliation in violation of FEHA; (5)

12

Failure to prevent discrimination and harassment in violation of FEHA; and (6) Unlawful denial

13

or interference with rights under the California Family Rights Act, Cal. Gov. Code §12945.2.

14

6.

The parties agree and stipulate that upon remand of this action to the Sacramento

15

County Superior Court, Plaintiff will not amend her remaining causes of action, or add further

16

causes of action or defendants.

17

///

18

///

19
20
21
22
23
24
25
26
27
28
3
Stipulation to Remand and Order (2:15-CV-01321-TLN-KJN)

1
2

7.

The parties agree and stipulate that all pending deadlines, if any, in this case should

be taken off the Court’s calendar.

3
4

Dated: January 28, 2016

Respectfully submitted,
KAMALA D. HARRIS
Attorney General of California
FIEL D. TIGNO
Supervising Deputy Attorney General

5
6
7

/s/ Courtney S. Lui
COURTNEY S. LUI
Deputy Attorney General
Attorneys for Defendant California
Department of Consumer Affairs

8
9
10
11
12

Dated: January 28, 2016

Respectfully submitted,

13
/s/ Shela Barker
SHELA BARKER
Pro Se Plaintiff

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4

Stipulation to Remand and Order (2:15-CV-01321-TLN-KJN)

1
2
3

ORDER
After carefully reviewing the parties’ stipulation and the applicable law, IT IS HEREBY
ORDERED THAT:

4

1.

The parties’ stipulation to remand the action to state court is approved.1

5

2.

The following causes of action, individually-named defendants, and prayer for relief,

6

are DISMISSED WITH PREJUDICE:

7

(a)

8

violation of the Family Medical Leave Act (FMLA), 26 U.S.C. §2617(a);

9

(b)

10

Plaintiff’s state law cause of action for Intentional Infliction of Emotional
Distress;

11

(c)

The individually-named defendants Donald Chang (“Chang”) and Anita Scuri
(“Scuri”);2 and

12
13
14

Plaintiff’s federal cause of action for denial or interference with rights in

(d)
3.

Plaintiff’s prayer for punitive damages against Chang and Scuri.

Upon entry of the dismissals as detailed in Paragraph 2, above, Eastern District of

15

California case number 2:15-CV-01321-TLN-KJN, Shela Barker v. State of California, et al.,

16

shall be REMANDED to the Superior Court of California, County of Sacramento.

17

4.

The Clerk of Court shall serve a certified copy of this order on the Clerk of the

18

Sacramento County Superior Court, and shall include the original state court case number in the

19

proof of service.

20
21
22
23
24
25
26

1

The court disapproves that portion of the parties’ stipulation which indicates that, after
dismissal of plaintiff’s sole federal FMLA claim, the court would no longer have subject matter
jurisdiction. Subject matter jurisdiction “must be analyzed on the basis of the pleadings filed at
the time of removal without reference to subsequent amendments.” Sparta Surgical Corp. v. Nat’l
Assoc. of Securities Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir. 1998). Thus, the dismissal of
plaintiff’s FMLA claim does not compel remand of the action to state court. Nonetheless, as the
court foreshadowed at the status conference, in light of the dismissal of plaintiff’s sole federal
claim at this early stage of the litigation, the court finds it appropriate to decline to exercise
supplemental jurisdiction over plaintiff’s remaining state law claims. Therefore, the court
approves the parties’ stipulation to remand the action to state court.
2

27
28

In an order dated December 4, 2015, the State of California was also dismissed without
prejudice on the terms outlined in that order. As such, on remand, the only remaining defendant
is the California Department of Consumer Affairs.
5
Stipulation to Remand and Order (2:15-CV-01321-TLN-KJN)

1

5.

The Clerk of Court shall vacate all dates and deadlines in this court, and close this

2

case.

3

IT IS SO ORDERED.

4
5

Dated: January 29, 2016

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
Stipulation to Remand and Order (2:15-CV-01321-TLN-KJN)