PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO REMAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Carney R. Shegerian, Esq., State Bar No. 150461 [email protected]SHEGERIAN & ASSOCIATES, INC. 225 Santa Monica Boulevard, Suite 700 Santa Monica, California 90401 Telephone Number: (310) 860-0770 Facsimile Number: (310) 860-0771 Attorneys for Plaintiff, PAUL ALLEN WEXLER IN THE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION PAUL ALLEN WEXLER, Plaintiff, vs. JENSEN PHARMACEUTICALS, INC., JOHNSON & JOHNSON, INC., JOHNSON & JOHNSON SERVICES, INC., JASON PLUMLEY, and DOES 1 to 100, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 2:15-CV-03518-AB(AJWx) The Honorable Andre Birotte, Jr. PLAINTIFF PAUL ALLEN WEXLER’S REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER TO REMAND TO STATE COURT; MEMORANDUM OF POINTS AND AUTHORITIES Date: October 19, 2015 Time: 10:00 p.m. Ctrm.: 4 Action Filed: April 6, 2015 Removal: May 11, 2015 Case 2:15-cv-03518-AB-AJW Document 35 Filed 10/05/15 Page 1 of 15 Page ID #:308
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PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO REMAND
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Carney R. Shegerian, Esq., State Bar No. 150461 [email protected] SHEGERIAN & ASSOCIATES, INC. 225 Santa Monica Boulevard, Suite 700 Santa Monica, California 90401 Telephone Number: (310) 860-0770 Facsimile Number: (310) 860-0771
Attorneys for Plaintiff, PAUL ALLEN WEXLER
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
PAUL ALLEN WEXLER, Plaintiff, vs. JENSEN PHARMACEUTICALS, INC., JOHNSON & JOHNSON, INC., JOHNSON & JOHNSON SERVICES, INC., JASON PLUMLEY, and DOES 1 to 100, inclusive, Defendants.
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
Case No.: 2:15-CV-03518-AB(AJWx) The Honorable Andre Birotte, Jr. PLAINTIFF PAUL ALLEN WEXLER’S REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER TO REMAND TO STATE COURT; MEMORANDUM OF POINTS AND AUTHORITIES Date: October 19, 2015 Time: 10:00 p.m. Ctrm.: 4 Action Filed: April 6, 2015 Removal: May 11, 2015
Case 2:15-cv-03518-AB-AJW Document 35 Filed 10/05/15 Page 1 of 15 Page ID #:308
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO REMAND
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TABLE OF CONTENTS
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1. INTRODUCTION 1
2. ARGUMENT 3
A. Plaintiff’s Remand Motion is Premature. 3
B. Defendants Fail to Satisfy Their Heavy Burden of Showing that Complete Diversity Existed at the Time of Removal. 4
(1) Defendant Cannot Establish Under Their Heavy Burden that the Plumley Is a “Sham” Defendant. 4
(a) Defendants Have Not Shown that Plaintiff Cannot Allege a Claim of Harassment Against Plumley. 6
C. Defendant’s Reliance on the California Worker’s Compensation Act is Entirely Misplaced. 7
D. Plaintiff Is Entitled to an Award of His Actual Expenses, Including Reasonable Attorneys’ Fees, Because of Defendant’s Removal and Refusal to Agree to Remand. 8
E. In the Alternative, Plaintiff Respectfully Requests that the Court Continue the Hearing on Plaintiff’s Remand Motion Until Plaintiff Can Re-serve All Remaining Defendants With the Complaint along with a Federal Summons. 9
3. CONCLUSION 9
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO REMAND
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TABLE OF AUTHORITIES
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Cases
Accardi v. Superior Court (1993) 17 Cal.App.4th 341 7
Albi v. Street & Smith Publ’ns, 140 F.2d 310 (9th Cir. 1944) 5
Ballesteros v. Am. Standard Ins. Co. of Wis., 436 F.Supp.2d 1070 (D. Ariz. 2006) 2, 5
Circle Industries USA, Inc. v. Parke Construction Group, Inc., 183 F.3d 105 (2nd Cir. 1999) 8
Davis v. Prentiss Props. Ltd., 66 F.Supp.2d 1112 (C.D. Cal. 1999) 5
in order to answer a discrete threshold question of whether the joinder of an in-state
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defendant is fraudulent. The only issue the court should address is that of its own
jurisdiction. Green v. Amerada Hess Corp., 707 F.2d 201, 204 (5th Cir. 1983).
(a) Defendants Have Not Shown that Plaintiff Cannot Allege a Claim
of Harassment Against Plumley.
Defendant’s contentions that Plaintiff’s Complaint would not permit liability
against Plumley lack merit. Despite defendant’s contentions, plaintiff has alleged that
Plumley harassed plaintiff under FEHA and, on the basis of the facts at hand, certainly is
not a “sham” defendant for purposes of such a claim. First, plaintiff’s Complaint clearly
shows that plaintiff’s work environment was affected by Plumley’s unwarranted and
sudden onslaught of write-ups and counselings when he becomes plaintiff’s supervisor,
beginning from the time he indicated his ageist bias to plaintiff through his ageist
comments. Plumley then informed Plumley’s coworkers about plaintiff’s performance
issues and that he issued plaintiff a PIP, violating plaintiff’s privacy. (Complaint ¶ 23).
Even Plumley’s actions that did not directly involve overt comments are sufficient to
support a harassment claim under FEHA. California law provides that managers may be
individually liable for harassment where the personnel decisions “have a secondary
effect of communicating a hostile message [e.g., that his age and disability were
unwelcome in the work place]. This occurs when the actions establish a widespread
pattern of bias.” Roby v. McKesson Corp., 47 Cal.4th at pp. 708-09; Janken v. GM
Hughes Elecs., 46 Cal.App.4th 55, 63 (1996).
Furthermore, Defendant’s contention that Padilla is distinguishable lacks merit. In
Padilla, the court found that the individual defendant’s acts of intentionally using false
statements regarding plaintiff against him is harassing conduct that falls outside the
scope of necessary job performance. Padilla, 697 F.Supp.2d at 1158-59. Contrary to
defendant’s contentions, plaintiff here alleges the same type of conduct that the court in
Padilla found harassing: that Plumley was condoning the statements made to plaintiff
that were offensive, underserved, and abusive. (Complaint, ¶¶ 14-26.) Just as in
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Padilla, condoning false statements regarding plaintiff’s employment performance and
used against him is harassing conduct that falls outside the scope of necessary job
performance, is conduct presumably engaged in for personal gratification or motive, and
is sufficient to state a harassment claim. See also Roby v. McKesson Corp., supra, 47
Cal.4th at pp. 708-09. Such conduct, as was also clarified in Roby, establishes that even
“management” activity can be construed as harassing conduct.
It is further clear that, like the individual defendant in Padilla, Plumley “played an
integral role in plaintiff’s [employment] termination.” Id. Specifically, Plumley was the
one who issued the write-ups and performance improvement plans to plaintiff and
ultimately terminated him. (Complaint ¶ 14-26.)
Accordingly, defendants have failed to meet their heavy burden of establishing that
there is no possibility Plaintiff will be able to establish a harassment claim against
Plumley in state court.
C. Defendant’s Reliance on the California Worker’s Compensation Act is
Entirely Misplaced.
Defendant’s reliance on the exclusivity rule of the California Worker’s
Compensation Act (“WCA”) is entirely misplaced. While recovery for injuries sustained
in the course of employment may be exclusively subjected to the WCA, the WCA does
not allow an employer “to raise the exclusivity rule for the purposes of deflecting a claim
of discriminatory practices.” Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 352;
see also Watson v. Dep’t of Rehab. (1989) 212 Cal.App.3d 1271, 1287 (“[T]he
allegations and evidence in this case do not involve conduct which can be expected
normally to occur in the workplace and which is part of the employment risk. Prohibited
racial and age discrimination are against the law and policy of this state. Such
discrimination is not a normal incident of employment, no less for an employee of the
state than for one employed in the private sector. We therefore conclude that Watson is
not limited to worker’s compensation for her injuries.) (emphasis added). Additionally,
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discriminatory conduct that results in widespread pattern of bias can create a hostile work
environment, which is not a normal incident of employment. Roby v. McKesson Corp.
(2009) 47 Cal.4th 686, 709.
Here, plaintiff’s intentional infliction of emotional distress claim arises from
discriminatory practices outside of the normal course of employment and in violation of
California’s anti-discrimination laws under FEHA. Such discrimination claims are also
necessarily intertwined with plaintiff’s harassment claims and form the basis for her
intentional infliction of emotional distress claim. Therefore, plaintiff’s intentional
infliction of emotional distress claim is not preempted by the WCA.
D. Plaintiff Is Entitled to an Award of His Actual Expenses, Including
Reasonable Attorneys’ Fees, Because of Defendant’s Removal and Refusal
to Agree to Remand.
28 U.S.C. section 1447(c) provides in relevant part:
If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses including attorney fees, incurred as a result of the removal.
The statutory purpose of such an award of costs and attorneys’ fees is to avoid the
possibility of abuse, unnecessary expense, and harassment if a party removes a case
improperly. Circle Industries USA, Inc. v. Parke Construction Group, Inc., 183 F.3d
105, 109 (2nd Cir. 1999). While an award of costs and fees under 28 U.S.C. section
1447(c) is not mandatory, such an award does not require a showing of bad faith. Moore
v. Permanente Medical Group, Inc., 981 F.2d 443, 448 (9th Cir. 1992). “Absent unusual
circumstances, courts may award attorney’s fees under section 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, defendant has no objectively reasonable basis for seeking removal. The facts
in the Complaint and admitted to in the Notice of Removal are more than sufficient to
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show that Plumley shared the same state of residence as Plaintiff. Furthermore, as was
discussed above, there is absolutely no reasonable basis on which to contend that
Plumley was a “sham” defendant. It is clear that defendant’s removal of this case to
federal court is a classic example of forum shopping, without support in law or fact.
Defendant’s subsequent failure to stipulate to remand this case to state court has
resulted in this reply to defendant’s opposition to plaintiff’s remand motion, which has
cost plaintiff $1,200.00 in attorneys’ fees to research and prepare. Additionally,
plaintiff has also incurred $2,400.00 in attorney’s fees to research and prepare the
Motion to Remand. Accordingly, plaintiff respectfully request that the Court award
them attorneys’ fees in the total amount of $3,600.00 that were incurred because of
defendants’ improper removal under 28 U.S.C. section 1447(c).
E. In the Alternative, Plaintiff Respectfully Requests that the Court Continue
the Hearing on Plaintiff’s Remand Motion Until Plaintiff Can Re-serve All
Remaining Defendants With the Complaint along with a Federal Summons.
In the alternative, if the Court is inclined to find plaintiff’s service of all remaining
defendants as ineffective, then plaintiff respectfully requests that the hearing on his motion
to remand be continued to provide plaintiff the opportunity to re-serve the remaining
defendants, including Plumley, with his complaint along with a federal summons and refile
his federal proofs of summons for these defendants in order to cure this issue.
3. CONCLUSION
Neither the “four corners” of the Complaint nor the Notice of Removal contains
sufficient allegations or evidence to establish federal diversity court jurisdiction. This,
along with defendant’s complete failure to meet their heavy burden of establishing a
proper basis for removal and the understanding that “Federal jurisdiction must be
rejected if there is any doubt as to the right of removal in the first instance” and that, for
purposes of establishing a “sham” defendant, all questions of facts and ambiguities are
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resolved in favor of plaintiff, makes clear that defendant’s removal was wholly improper
and that remanding this matter to state court is necessary. Accordingly, plaintiff
respectfully requests that this Court remand this matter to state Court and award him
attorneys’ fees in the total amount of $3,600.00 that were incurred because of defen-
dant’s improper removal under 28 U.S.C. section 1447(c).
Dated: October 5, 2015 SHEGERIAN & ASSOCIATES, INC.
By: Carney R. Shegerian, Esq.
Attorneys for Plaintiff, PAUL ALLEN WEXLER
Case 2:15-cv-03518-AB-AJW Document 35 Filed 10/05/15 Page 14 of 15 Page ID #:321
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WEXLER v. JENSEN, et al. USDC Case No. 2:15-cv-03518 AB(AJWx)
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am an employee in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 225 Santa Monica Boulevard, Suite 700, Santa Monica, California 90401.
On October 5, 2015, I served the foregoing document, described as “PLAINTIFF PAUL ALLEN WEXLER’S REPLY IN SUPPORT OF MOTION FOR AN ORDER TO REMAND TO STATE COURT; MEMORANDUM OF POINTS AND AUTHORITIES” on all interested parties in this action by placing a true copy thereof in a sealed envelope, addressed as follows:
Linda Miller Savitt, Esq. BALLARD ROSENBERG
GOLPER & SAVITT, LLP. 500 North Brand Boulevard, 20th Floor Glendale, California 91203-9946 Kathryn H. Levering DRINKER BIDDLE & REATH LLP One Logan Square, Suite 2000 Philadelphia, Pennsylvania 19103-6996
BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed the document(s) with the Clerk of the Court by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. Participants in the case who are not registered CM/ECF users will be served by mail or by other means permitted by the court rules.
Executed on October 5, 2015, at Santa Monica, California.
Kristine Nicolas
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