Havekorst v. Southern Trinity Health Services, Inc.

Filing 28

ORDER signed by District Judge Kimberly J. Mueller on 6/16/17, ORDERING that defendant's 18 Motion to Dismiss is GRANTED, without prejudice to plaintiff's refilling his case in state court. CASE CLOSED (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WALTER HAVEKORST,

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No. 2:17-cv-00622-KJM-EFB

Plaintiff,
v.

ORDER

SOUTHERN TRINITY HEALTH
SERVICES, INC.,
Defendant.

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Having reviewed the allegations of the complaint and the parties’ briefing on

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defendant’s motion to dismiss, and heard argument from counsel at hearing on the motion, the

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court orders as follows:

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The right to remove a state court case to federal court is clearly limited to

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defendants. 28 U.S.C. § 1441; Am. Int’l Underwriters (Philippines), Inc. v. Cont’l Ins. Co., 843

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F.2d 1253, 1260 (9th Cir. 1988) [hereinafter AIU]. Although here plaintiff has not technically

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removed his case to federal court, the Ninth Circuit has made clear the rule prohibiting plaintiffs

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“from removing cases to federal court under 28 U.S.C. § 1441 also bars [plaintiffs] from bringing

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[a] repetitive lawsuit in federal court.” AIU, 843 F.2d at 1260.

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Here, the complaint plaintiff previously filed in state court and his federal suit

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brought here articulate the same legal theory and claims: Plaintiff, an 82-year old dentist, was
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fired in July 2015 while on temporary disability leave. See State Compl. ¶¶ 26–29, ECF No. 20;

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Compl. ¶¶ 23–31, ECF No. 1. As did plaintiff’s state court complaint, plaintiff’s federal

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complaint makes the following six claims: (1) Violation of the Age Discrimination in

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Employment Act; (2) Violation of the Americans with Disabilities Act; (3) Age Discrimination in

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Violation of the California Fair Employment and Housing Act; (4) Disability Discrimination in

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Violation of the California Fair Employment and Housing Act; (5) Wrongful Termination in

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Violation of Public Policy; and (6) Conversion. Plaintiff’s counsel conceded at hearing that the

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complaints are identical.

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Procedurally, plaintiff commenced his action in state court with the filing of a

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miscellaneous motion fourteen weeks before he filed his federal complaint. In the interim,

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plaintiff filed his state complaint, which defendant answered. The state court resolved plaintiff’s

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motion to set aside the parties’ arbitration agreement, and defendant served discovery. Mack

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Decl. ¶¶ 5–7, ECF No. 24. Plaintiff filed his federal complaint a day before his discovery

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responses in the state action were due, and he dismissed his state complaint a day after he filed

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the federal action here. Pl.’s RJN Ex. E, ECF No. 25 at 41.1

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Here, dismissal is warranted for several reasons. First, the state suit proceeded on

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the same legal theories and claims as now pled in this action. See Ryder Truck Rental, Inc. v.

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Acton Foodservices Corp., 554 F. Supp. 277, 279 (C.D. Cal. 1983) (dismissing federal case as

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repetitive of state suit for “breach of the same lease and service agreement at issue in the instant

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[state] case”). Second, the parties are identical in both cases, and a state court decision would be

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res judicata in the federal proceeding. Id. Third, as plaintiff concedes, his claims allow for

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concurrent state and federal jurisdiction; plaintiff could have chosen to maintain the entirety of

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his action in state court, but did not. Cf. Oregon Egg Producers v. Andrew, 458 F.2d 382, 383

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(9th Cir. 1972) (“A plaintiff who commences his action in a state court cannot effectuate removal

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to a federal court even if he could have originated the action in a federal court.”). Having elected

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to litigate in state court, plaintiff is “bound by [his] choice.” Ryder Truck Rental, Inc., 554 F.

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The court takes judicial notice of the state court proceeding granting plaintiff’s request to
dismiss. Fed. R. Evid. 201.
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Supp. at 280; accord Robinson v. Nestle Waters N. Am., Inc., No.11–856, 2011 WL 2174375, at

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*6 (E.D. Cal. June 1, 2011). Moreover there is no compelling reason for plaintiff’s case to be

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allowed to proceed here, that might provide an exception to dismissal. In particular, when asked

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at hearing whether statutes of limitation would preclude plaintiff from refiling any of his claims in

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state court, counsel indicated there are not.

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Defendant’s motion is GRANTED, without prejudice to plaintiff’s refiling his case
in state court.

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This resolves ECF No. 18.

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IT IS SO ORDERED.

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DATED: June 16, 2017.

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UNITED STATES DISTRICT JUDGE

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