Tanner v. Kaiser Foundation Health Plan Inc. et al

Northern District of California, cand-4:2015-cv-02763

ORDER DENYING MOTION TO REMAND by Hon. Saundra Brown Armstrong denying {{19}} Motion.

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 OAKLAND DIVISION 9 10 DR. SCOTT TANNER, an individual, Case No: C 15-02763-SBA 11 Plaintiff, ORDER DENYING PLAINTIFF'S MOTION TO REMAND 12 v. 13 KAISER FOUNDATION HEALTH PLAN, INC., a California corporation, KAISER 14 FOUNDATION HOSPITALS, a California corporation, NORTHERN CALIFORNIA 15 PERMANENTE MEDICAL GROUP, INC., a California corporation, and DOES 1-50, 16 Defendants. 17 18 19 Plaintiff Scott Tanner ("Plaintiff") filed the instant pro se action against Kaiser 20 Foundation Health Plan, Inc. ("Health Plan"), Kaiser Foundation Hospitals, ("Hospitals"), 21 and The Permanente Medical Group, Inc. ("TPMG") (erroneously sued as Northern 22 California Permanente Medical Group, Inc. ("NCPMG") (collectively "Defendants"). 23 Defendants removed the action to this Court based on federal-question jurisdiction, see 28 24 U.S.C. § 1331. Dkt. 1. The parties are presently before the Court on Plaintiff's Motion to 25 Remand. Dkt. 19. Having read and considered the papers filed in connection with this 26 matter, and being fully informed, the Court hereby DENIES Plaintiff's motion. The Court, 27 in its discretion, finds this matter suitable for resolution without oral argument. See Fed. R. 28 Civ. P. 78(b); N.D. Cal. Civ. R. 7-1(b). 1 I. BACKGROUND 2 A. FACTUAL SUMMARY 3 In 2000, Plaintiff began working for the Kaiser Permanente Pharmacy Department 4 ("Kaiser"). Compl. ¶ 13.1 Plaintiff served as a staff pharmacist, a lead pharmacist, and 5 finally, a Pharmacist Supervisor at Kaiser's Manteca location. Id. The allegations in 6 Plaintiff's 70-page Complaint are profuse and wide-ranging. In brief, Plaintiff alleges that 7 he was subject to harassment, discrimination, and retaliation at work beginning in 2010. Id. 8 ¶¶ 13-73. Plaintiff is a white male, over the age of 40, with an undisclosed "physical 9 disability/physiological health condition." Id. ¶¶ 87, 98, 107. According to Plaintiff, 10 Kaiser's pharmacy staff in Manteca is 85-90% Asian, 85-90% female, and 90-100% under 11 the age of forty. Id. ¶¶ 89, 107. Plaintiff asserts that he suffered adverse employment 12 consequences based on his color, gender, and age, as well as his disability, for which 13 Defendants allegedly failed to provide adequate accommodation. Id. ¶¶ 87, 98, 107, 121. 14 Plaintiff further asserts that he suffered retaliation based on these same factors, as well as 15 for reporting "Defendants['] misconduct affecting patient safety and care." Id. ¶ 130. 16 On November 15, 2012, Plaintiff was suspended from work at Kaiser. Compl. ¶ 71. 17 According to Plaintiff, Defendants explained the basis for his suspension. Id. ¶ 72. 18 Although it is clear Plaintiff subsequently separated from Kaiser, the Complaint is not a 19 model of clarity regarding the specifics of Plaintiff's separation. It appears Plaintiff 20 executed a separation agreement in or about December 2012, and separated from Kaiser in 21 or about February 2013. Id. ¶¶ 75-85. Plaintiff alleges that he executed the separation 22 agreement under duress, and is therefore entitled to rescind the same. Id. Plaintiff further 23 alleges that Defendants constructively discharged him in violation of public policy. Id. 24 ¶¶ 173-179. Plaintiff seeks an array of damages, costs, and an order permanently enjoining 25 Kaiser from committing certain further acts of retaliation and discrimination. Id. at 68. 26 27 28 1 The Complaint is attached as Exhibit A to Defendants' Notice of Removal, Dkt. 1. -2- 1 B. PROCEDURAL HISTORY 2 On April 21, 2015, Plaintiff filed suit in the Alameda County Superior Court, 3 alleging causes of action for: (1) Unlawful Attainment of Invalid Separation Agreement; 4 (2) Age Discrimination in Violation of ADEA and FEHA; (3) Disability Discrimination in 5 Violation of ADA and FEHA; (4) Race, Color, Gender, and National Origin Discrimination 6 in Violation of Title VII of the Civil Rights Act and FEHA; (5) Failure to Accommodate 7 Disability; (6) Retaliation; (7) Failure to Prevent Discrimination, Harassment or 8 Retaliation; (8) Unlawful Business Practices; and (9) Constructive Discharge in Violation 9 of Public Policy. The majority of Plaintiff's claims allege violations of both state and 10 federal law. For example, the second cause of action alleges violations of both 29 U.S.C. 11 § 621 et seq. and Cal. Gov.'t Code § 12940(a). Compl. ¶¶ 87- 88. In his prayer for relief, 12 Plaintiff seeks an array of damages, including "all damages available for violations of" 13 certain federal statutes, i.e., damages available under 29 U.S.C. §§ 216(b), 626(b), and 14 2617(a)), and 42 U.S.C. §§ 1981a, 2000-e, and 12177(a). Compl. at 68. 15 Plaintiff served the Health Plan and Hospitals with the Complaint on May 21, 2015, 16 and filed a proof of service as to those entities on June 8, 2015. Notice of Removal, ¶ 3 & 17 Ex. B. Plaintiff also filed a proof of service as to NCPMG on June 15, 2015. As noted by 18 Defendants, however, NCPMG is not a legal entity. On June 19, 2015, Defendants 19 removed the action to this Court. The Notice of Removal avers that this Court has 20 jurisdiction pursuant to 28 U.S.C. § 1331 because "Plaintiff specifically and unambiguously 21 alleges claims arising under federal law in his Second, Third, Fourth, Fifth, Sixth, and 22 Seventh Causes of Action. . . ." Id. ¶ 8. On July 13, 2015, Plaintiff filed the instant motion 23 to remand, arguing that removal was "procedurally defective" and that "exclusive federal 24 question jurisdiction" is lacking. Mtn. at 3. On July 27, 2015, Defendants filed their 25 Opposition, Dkt. 24, and Request for Judicial Notice, Dkt. 25. Plaintiff filed his Reply and 26 Response to the Request for Judicial Notice on August 3, 2015. Dkt. 26. 27 28 -3- 1 II. LEGAL STANDARD 2 "A motion to remand is the proper procedure for challenging removal." Moore- 3 Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). The Court may 4 order remand either for defects in the removal procedure or lack of subject matter 5 jurisdiction. See 28 U.S.C. § 1447(c). "[R]emoval statutes are strictly construed against 6 removal." Luther v. Countrywide Home Loans Servicing, LP, 533 F.3d 1031, 1034 (9th 7 Cir. 2008). "The presumption against removal means that 'the defendant always has the 8 burden of establishing that removal is proper.'" Moore-Thomas, 553 F.3d at 1244 (citation 9 omitted). As such, any doubts regarding the propriety of the removal favor remanding the 10 case. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 11 III. DISCUSSION 12 A. REQUEST FOR JUDICIAL NOTICE 13 As a threshold matter, Defendants request that the Court take judicial notice of the 14 Proofs of Service filed by Plaintiff in the Alameda County Superior Court. Defs.' Request 15 for Judicial Notice ("RJN"), Dkt. 25. Specifically, Defendants request that the Court take 16 notice of the fact that Plaintiff filed a Proof or Service for the Health Plan and Hospitals on 17 June 8, 2015, and filed a Proof of Service for NCPMG on June 15, 2015. Id. ¶¶ 1-3. A 18 court "may judicially notice a fact that is not subject to reasonable dispute because it. . . 19 can be accurately and readily determined from sources whose accuracy cannot reasonably 20 be questioned." Fed. R. Evid. 201(b)(2). Such noticeable facts include "proceedings in 21 other courts, both within and without the federal judicial system, if those proceedings have 22 a direct relation to matters at issue." Bennett v. Medtronic, Inc., 285 F.3d 801, 803 (9th 23 Cir. 2002). Here, service of process in the state court bears on the procedural propriety of 24 removal. Accordingly, the Court GRANTS Defendants' request for judicial notice. 25 B. PROCEDURAL REQUIREMENTS FOR REMOVAL 26 Plaintiff contends removal was improper due to procedural defects. Specifically, 27 Plaintiff argues that Defendants failed to file: (1) the Alameda County Superior Court 28 Alternative Dispute Resolution Information Packet (the "ADR Packet"); and (2) "copies of -4- 1 the six documents served upon [TPMG]," i.e., the Civil Case Cover Sheet, Notice of Case 2 Management Conference and Order, Notice of Assignment of Judge for All Purposes, 3 Summons, Complaint and ADR Packet. Mtn. at 9-10. These contentions are without merit. 4 A defendant or defendants removing a civil action must file a notice of removal 5 along with "a copy of all process, pleadings, and orders served upon such defendant or 6 defendants" in the state court. 28 U.S.C. § 1446(a). As persuasively argued by 7 Defendants, however, the ADR Packet does not constitute process, pleadings, or orders. 8 Cf. Visicorp v. Software Arts, Inc., 575 F. Supp. 1528, 1531 (N.D. Cal. 1983) (holding that 9 discovery requests filed in state court did not constitute process, pleadings, or orders) 10 (abrogated on another ground by Stewart Org. v. Ricoh Corp., 487 U.S. 22 (1988)). Thus, 11 Defendants were not required to file the ADR Packet in this Court. 12 Furthermore, Plaintiff did not name TPMG as a defendant in this action, and it does 13 not appear that Plaintiff served TPMG with any papers related thereto. See RJN, Ex. 1. On 14 June 15, 2015, Plaintiff filed in state court a Proof of Service regarding NCPMG. Id. ¶ 3 & 15 Ex. 1. As averred by Defendants, however, NCPMG "is not a legal entity" and "was never 16 served." Opp'n at 1. Clearly, Defendants cannot file copies of papers they never received. 17 In any event, it appears the allegedly omitted documents are identical to those Defendants 18 have filed--i.e., the documents Plaintiff successfully served upon the Health Plan and 19 Hospitals. See Notice of Removal, ¶ 3 (acknowledging service of a Civil Case Cover 20 Sheet, Notice of Case Management Conference and Order, Notice of Assignment of Judge 21 for All Purposes, Summons, and Complaint) & Ex. B (attaching same). It thus appears that 22 no pertinent documents have been omitted. 23 Finally, the Court notes that failure to file all necessary state court papers is a de 24 minimis defect that is curable in the district court, even after expiration of the thirty-day 25 removal period. Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136, 1142 (9th Cir. 26 2013). Accordingly, the Court finds that remand on this ground is unjustified. 27 28 -5- 1 C. FEDERAL QUESTION JURISDICTION 2 Plaintiff contends removal was improper because "exclusive federal question 3 jurisdiction" is lacking. Mtn. at 4. Plaintiff argues that, although he asserts claims arising 4 under federal law, he does so in the alternative to claims arising under state law. Id. at 4. 5 Plaintiff further argues that he is the "master" of his own complaint, and may defeat 6 removal by abjuring any and all federal claims. Id. at 5. The Court finds that Plaintiff's 7 arguments are misguided. 8 A defendant may remove an action filed in state court if "the case originally could 9 have been filed in federal court." In re NOS Commc'ns, MDL No. 1357, 495 F.3d 1052, 10 1057 (9th Cir. 2007) (citing 28 U.S.C. § 1441(a), (b)). "The basic statutory grants of 11 federal-court subject-matter jurisdiction are contained in 28 U.S.C. §§ 1331 and 1332." 12 Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006). Section 1331 confers federal question 13 jurisdiction in "all civil actions arising under the Constitution, laws, or treaties of the 14 United States." (Emphasis added). The "'arising under' qualification" of Section 1331 15 confers upon district courts the jurisdiction to hear only those cases in which a well-pleaded 16 complaint establishes either that: (1) federal law creates the cause of action; or (2) the 17 plaintiff's right to relief necessarily depends on resolution of a substantial question of 18 federal law. Armstrong v. N. Mariana Islands, 576 F.3d 950, 954-55 (9th Cir. 2009). 19 On its face, Plaintiff's complaint states causes of action arising under both federal 20 and state law, setting forth such allegations in the conjunctive, not the disjunctive. 21 Specifically, the second through seventh causes of action allege violations of the Age 22 Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq.; the Americans with 23 Disabilities Act of 1990, 42 U.S.C. § 12111 et seq.; and the Civil Rights Act of 1964, 42 24 U.S.C. §§ 2000e-2, 2000e-3. Compl. ¶¶ 87, 95, 105, 117, 131, 141. As Plaintiff argues, he 25 is the "master of [his own] complaint," and could have "avoid[ed] federal jurisdiction by 26 exclusive reliance on state law." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) 27 (emphasis added). This, however, Plaintiff did not do. Consequently, the action is 28 removable based on federal question jurisdiction. See Vaden v. Discover Bank, 556 U.S. -6- 1 49, 59-60 (2009) (a suit arises under federal law when "the plaintiff's statement of his own 2 cause of action shows that it is based upon [federal law]"); Abada v. Charles Schwab & 3 Co., 300 F.3d 1112, 1118 (9th Cir. 2002) ("The presence or absence of federal-question 4 jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal 5 jurisdiction exists only when a federal question is presented on the face of the plaintiff's 6 well-pleaded complaint.") (quoting Caterpillar, 482 U.S. at 392-93). 7 Plaintiff nonetheless argues that federal law serves only as "an alternative" to state 8 law, and relies on Rains v. Criterion Sys., Inc., 80 F.3d 339 (9th Cir. 1996) for the 9 proposition that federal question jurisdiction does not attach unless it is exclusive. Mtn. at 10 6. This argument is without merit. When a state law claim "can be supported by 11 alternative and independent theories--one of which is a state law theory and one of which is 12 a federal law theory--federal question jurisdiction does not attach because federal law is not 13 a necessary element of the claim." Rains, 80 F.3d at 345-46 (emphasis added). Where, as 14 here, the complaint states both state and federal law claims, however, Rains' holding is 15 inapposite. The question is not whether Plaintiff's state law claims necessarily raise a 16 substantial federal question, but whether Plaintiff alleges independent federal law claims. 17 He does, as evidenced by Plaintiff's request for damages under the various federal statutes 18 listed above. Furthermore, contrary to Plaintiff's contention, federal question jurisdiction 19 need not be exclusive. See 28 U.S.C. § 1441(a) (requiring only "original jurisdiction"); see 20 also Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 748 (2012) (recognizing the 21 presumption in favor of "concurrent" jurisdiction). In view of the foregoing, Plaintiff's 22 motion for remand is DENIED. 23 D. MEET AND CONFER 24 Defendants note that Plaintiff's Motion to Remand does not contain a certification of 25 compliance with this Court's meet and confer requirement, and urges the Court to disregard 26 or strike Plaintiff's motion on this ground. Pursuant to paragraph 4 of the Court's Standing 27 Orders for Civil Cases: "All parties shall meet and confer before filing any motion or other 28 non-stipulated request. Any motion or request shall include a certification, which may be -7- 1 submitted separately or included in the body of the document, that the parties have 2 complied with the meet and confer requirement. The Court may disregard and/or strike any 3 papers submitted that do not comply with this rule." Plaintiff has indeed failed to comply 4 with the meet and confer requirement. Because the Court finds that Plaintiff's motion lacks 5 merit, however, the Court declines to disregard or strike the motion on procedural grounds. 6 Nevertheless, Plaintiff should be aware that although he is acting pro se (i.e., without 7 an attorney) he remains obligated to follow the same rules as represented parties. See 8 Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) ("Although we construe pleadings 9 liberally in their favor, pro se litigants are bound by the rules of procedure."). Plaintiff's 10 failure to comply with any procedural requirements, including any Court order, may result 11 in the imposition of sanctions up to and including dismissal of the action. See Ferdik v. 12 Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). Accordingly, Plaintiff is hereby warned 13 that further failure to comply with any order or applicable procedural rule, including the 14 failure to meet and confer, may result in sanctions. 15 IV. CONCLUSION 16 Although not explicitly stated in the Motion to Remand, it appears Plaintiff may 17 wish to proceed solely on his state law claims. The Court notes that, in the event Plaintiff 18 were to abandon his federal law claims, the Court would need to address whether it is 19 appropriate to exercise its supplemental jurisdiction over the remaining causes of action, 20 which then would be based entirely on state law. See Nishimoto v. Federman-Bachrach & 21 Assocs., 903 F.2d 709, 715 (9th Cir. 1990) (although abandonment of federal law claims 22 does not deprive a district court of the power to adjudicate remaining state law claims, the 23 court in its discretion may decline to exercise supplemental jurisdiction over such claims); 24 Cal. Dept. of Water Res. v. Powerex Corp., 533 F.3d 1087, 1091 (9th Cir. 2008) ("Because 25 the Amended Complaint did not present a federal question, the district court had the 26 discretion to decline supplemental jurisdiction."). Accordingly, the Court will provide 27 Plaintiff an opportunity to clarify his intentions with respect to his federal claims. 28 For the reasons stated above, -8- 1 IT IS HEREBY ORDERED THAT: 2 1. Defendants' Request for Judicial Notice is GRANTED. 3 2. Plaintiff's Motion to Remand is DENIED. 4 3. Plaintiff shall have fourteen (14) days from date of entry of this Order to file 5 a notice dismissing all federal claims, if he so chooses. 6 4. Defendants' Motion to Dismiss and Motion to Strike Pursuant to Rule 7 12(b)(6), Dkt. 6, has been held in abeyance pending resolution of the Motion to Remand. 8 Defendants shall have twenty-eight (28) days from date of entry of this Order to file a 9 Reply in support of the Motion to Dismiss. 10 5. This Order terminates Docket No. 19. 11 IT IS SO ORDERED. 12 Dated: 10/15/15 ______________________________ SAUNDRA BROWN ARMSTRONG 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-