1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ) 11 ) Case No.: CV 20-03133-CJC(KSx) DIEDRA WASHINGTON, ) 12 ) ) 13 ) Plaintiff, ) 14 ) v. ) 15 ) ORDER GRANTING PLAINTIFF’S MERCEDES-BENZ USA, LLC, ) MOTION TO REMAND [Dkt. 8] 16 ) DIAMARA DESOUZA, and DOES 1-50, ) 17 ) ) 18 Defendants. ) ) 19 ) ) 20 ) 21 22 I. INTRODUCTION 23 24 Plaintiff Diedra Washington filed this employment discrimination and wrongful 25 termination action against Defendants Mercedes-Benz USA, LLC (“Mercedes”), Diamara 26 Desouza, and unnamed Does in Los Angeles County Superior Court. (Dkt. 1-1 27 [Complaint, hereinafter “Compl.”].) Mercedes removed to this Court. (Dkt. 1 [Notice of 1 Removal, hereinafter “NOR”].) Now before the Court is Plaintiff’s motion to remand. 2 (Dkt. 8 [hereinafter “Mot.”].) For the following reasons, the motion is GRANTED.1 3 4 II. BACKGROUND 5 6 This case arises from Plaintiff’s employment in Mercedes’s marketing department 7 in Long Beach, California. (Compl. ¶ 10; Mot. at 7.) Desouza was Plaintiff’s direct 8 supervisor. (Compl. ¶ 3.) Around January 2017, Plaintiff became pregnant. (Id. ¶ 11.) 9 She alleges that Defendants repeatedly denied her lactation accommodations required by 10 California law and forced her to lactate in her car and in bathrooms. (Id. ¶¶ 11–13, 18– 11 22, 27.) Plaintiff also alleges that she was forced to cancel medical appointments and 12 was disciplined for scheduling medical appointments during work hours. (Id. ¶¶ 14–16.) 13 Desouza allegedly berated Plaintiff for requesting lactation accommodations and 14 retaliated against her by restricting opportunities for bonuses and putting her on a 30-day 15 performance plan. (Id. ¶¶ 23–26.) Plaintiff claims that she was ultimately forced to 16 resign because of this mistreatment. (Id. ¶ 28.) 17 18 On March 2, 2020, Plaintiff filed this action in Los Angeles County Superior 19 Court. (See id.) She asserts twelve state law claims for violations of California’s Fair 20 Employment and Housing Act, Cal. Gov. Code § 12940, et seq., intentional infliction of 21 emotional distress, negligence, negligent infliction of emotional distress, constructive 22 termination, and failure to provide meal and rest breaks. (See id.) Plaintiff served 23 Mercedes on March 4, 2020. (Dkt. 1-2.) To date, Plaintiff has not served Desouza, but is 24 attempting to do so. (See Mot. at 7.) On April 3, 2020, Mercedes removed to this court, 25 invoking diversity jurisdiction. (NOR.) 26
27 1 Having read and considered the papers presented by the parties, the Court finds this matter appropriate 1 III. LEGAL STANDARD 2 3 A defendant may remove a civil action filed in state court to a federal district court 4 if the federal court would have had original jurisdiction over it. 28 U.S.C. § 1441. 5 Federal courts have diversity jurisdiction over cases between completely diverse parties 6 that involve an amount in controversy exceeding $75,000. 28 U.S.C. § 1332. Principles 7 of federalism and judicial economy require courts to “scrupulously confine their 8 [removal] jurisdiction to the precise limits which [Congress] has defined.” See Shamrock 9 Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941). Indeed, “[n]othing is to be more 10 jealously guarded by a court than its jurisdiction.” See United States v. Ceja-Prado, 333 11 F.3d 1046, 1051 (9th Cir. 2003) (internal quotations omitted). The party removing the 12 action to federal court bears the burden of establishing that the district court has subject 13 matter jurisdiction over the action, and the removal statute is strictly construed against 14 removal jurisdiction. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 15 16 IV. DISCUSSION 17 18 The parties dispute whether there is complete diversity and whether the amount in 19 controversy requirement has been met. Because the Court finds that Mercedes has not 20 satisfied its burden of establishing diversity of citizenship, it need not address whether the 21 amount in controversy is satisfied. 22 23 Federal courts only have diversity jurisdiction over a matter if the parties are 24 completely diverse. 28 U.S.C. § 1332(a). For the purposes of diversity jurisdiction, 25 Plaintiff is a California citizen. (Compl. ¶ 1.) Mercedes is a Limited Liability Company 26 organized under the laws of the state of Delaware. (Dkt. 1-8 [Declaration of Cynthia 27 1 Gore, hereinafter “Gore Decl.”] ¶ 3, Ex. 1.)2 It asserts that it has only one member— 2 Daimler North America Corporation—a Delaware corporation with its principal place of 3 business in Michigan. (NOR ¶ 8.) In her Complaint, Plaintiff alleges that Defendant 4 Desouza is a California citizen and resident. (Compl. ¶ 3.) Thus, unless Mercedes can 5 establish that Desouza is not a California citizen, her presence destroys complete 6 diversity. See 28 U.S.C. § 1332(a); Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th 7 Cir. 2004). Mercedes has not carried this burden. 8 9 “Absent unusual circumstances, a party seeking to invoke diversity jurisdiction 10 should be able to allege affirmatively the actual citizenship of the relevant parties.” 11 Kanter v. Warner–Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). And alleging 12 diversity of citizenship upon “information and belief” cannot support removal. See 13 Balandra v. Kindred Healthcare Operating, Inc., 2016 WL 6953430, at *1 (C.D. Cal. 14 Jan. 12, 2016); Trampolines Unlimited, Inc. v. Epic Air, LLC, 2012 WL 12953406, at *1 15 (C.D. Cal. May 3, 2012); Rohr v. Target Corp., 2009 WL 10672156, at *3 (C.D. Cal. Jan. 16 13, 2009) (“[T]he allegations of the petition for removal are jurisdictional, and they must 17 be positive and certain, because the court cannot well proceed to take jurisdiction of a 18 case and try the same as long as there is any doubt upon the question of jurisdiction.”) 19 Am.’s Best Inns, Inc. v. Best Inns of Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir. 1992).3 20 21 2 Plaintiff alleges that Mercedes is a California LLC, (Compl. ¶ 2; Mot. at 15), but the evidence in the 22 record shows that it is a Delaware LLC authorized to do business in California, (see Gore Decl.). The Court also takes judicial notice of the California Secretary of State’s records for Mercedes (Business 23 Entity No. 200015210035), which reflect this designation. See Fed. R. Evid. 201(b) (authorizing courts 24 to take judicial notice of facts that are “not subject to reasonable dispute” and that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”); Interstate 25 Natural Gas Co. v. So. Cal.
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1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ) 11 ) Case No.: CV 20-03133-CJC(KSx) DIEDRA WASHINGTON, ) 12 ) ) 13 ) Plaintiff, ) 14 ) v. ) 15 ) ORDER GRANTING PLAINTIFF’S MERCEDES-BENZ USA, LLC, ) MOTION TO REMAND [Dkt. 8] 16 ) DIAMARA DESOUZA, and DOES 1-50, ) 17 ) ) 18 Defendants. ) ) 19 ) ) 20 ) 21 22 I. INTRODUCTION 23 24 Plaintiff Diedra Washington filed this employment discrimination and wrongful 25 termination action against Defendants Mercedes-Benz USA, LLC (“Mercedes”), Diamara 26 Desouza, and unnamed Does in Los Angeles County Superior Court. (Dkt. 1-1 27 [Complaint, hereinafter “Compl.”].) Mercedes removed to this Court. (Dkt. 1 [Notice of 1 Removal, hereinafter “NOR”].) Now before the Court is Plaintiff’s motion to remand. 2 (Dkt. 8 [hereinafter “Mot.”].) For the following reasons, the motion is GRANTED.1 3 4 II. BACKGROUND 5 6 This case arises from Plaintiff’s employment in Mercedes’s marketing department 7 in Long Beach, California. (Compl. ¶ 10; Mot. at 7.) Desouza was Plaintiff’s direct 8 supervisor. (Compl. ¶ 3.) Around January 2017, Plaintiff became pregnant. (Id. ¶ 11.) 9 She alleges that Defendants repeatedly denied her lactation accommodations required by 10 California law and forced her to lactate in her car and in bathrooms. (Id. ¶¶ 11–13, 18– 11 22, 27.) Plaintiff also alleges that she was forced to cancel medical appointments and 12 was disciplined for scheduling medical appointments during work hours. (Id. ¶¶ 14–16.) 13 Desouza allegedly berated Plaintiff for requesting lactation accommodations and 14 retaliated against her by restricting opportunities for bonuses and putting her on a 30-day 15 performance plan. (Id. ¶¶ 23–26.) Plaintiff claims that she was ultimately forced to 16 resign because of this mistreatment. (Id. ¶ 28.) 17 18 On March 2, 2020, Plaintiff filed this action in Los Angeles County Superior 19 Court. (See id.) She asserts twelve state law claims for violations of California’s Fair 20 Employment and Housing Act, Cal. Gov. Code § 12940, et seq., intentional infliction of 21 emotional distress, negligence, negligent infliction of emotional distress, constructive 22 termination, and failure to provide meal and rest breaks. (See id.) Plaintiff served 23 Mercedes on March 4, 2020. (Dkt. 1-2.) To date, Plaintiff has not served Desouza, but is 24 attempting to do so. (See Mot. at 7.) On April 3, 2020, Mercedes removed to this court, 25 invoking diversity jurisdiction. (NOR.) 26
27 1 Having read and considered the papers presented by the parties, the Court finds this matter appropriate 1 III. LEGAL STANDARD 2 3 A defendant may remove a civil action filed in state court to a federal district court 4 if the federal court would have had original jurisdiction over it. 28 U.S.C. § 1441. 5 Federal courts have diversity jurisdiction over cases between completely diverse parties 6 that involve an amount in controversy exceeding $75,000. 28 U.S.C. § 1332. Principles 7 of federalism and judicial economy require courts to “scrupulously confine their 8 [removal] jurisdiction to the precise limits which [Congress] has defined.” See Shamrock 9 Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941). Indeed, “[n]othing is to be more 10 jealously guarded by a court than its jurisdiction.” See United States v. Ceja-Prado, 333 11 F.3d 1046, 1051 (9th Cir. 2003) (internal quotations omitted). The party removing the 12 action to federal court bears the burden of establishing that the district court has subject 13 matter jurisdiction over the action, and the removal statute is strictly construed against 14 removal jurisdiction. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 15 16 IV. DISCUSSION 17 18 The parties dispute whether there is complete diversity and whether the amount in 19 controversy requirement has been met. Because the Court finds that Mercedes has not 20 satisfied its burden of establishing diversity of citizenship, it need not address whether the 21 amount in controversy is satisfied. 22 23 Federal courts only have diversity jurisdiction over a matter if the parties are 24 completely diverse. 28 U.S.C. § 1332(a). For the purposes of diversity jurisdiction, 25 Plaintiff is a California citizen. (Compl. ¶ 1.) Mercedes is a Limited Liability Company 26 organized under the laws of the state of Delaware. (Dkt. 1-8 [Declaration of Cynthia 27 1 Gore, hereinafter “Gore Decl.”] ¶ 3, Ex. 1.)2 It asserts that it has only one member— 2 Daimler North America Corporation—a Delaware corporation with its principal place of 3 business in Michigan. (NOR ¶ 8.) In her Complaint, Plaintiff alleges that Defendant 4 Desouza is a California citizen and resident. (Compl. ¶ 3.) Thus, unless Mercedes can 5 establish that Desouza is not a California citizen, her presence destroys complete 6 diversity. See 28 U.S.C. § 1332(a); Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th 7 Cir. 2004). Mercedes has not carried this burden. 8 9 “Absent unusual circumstances, a party seeking to invoke diversity jurisdiction 10 should be able to allege affirmatively the actual citizenship of the relevant parties.” 11 Kanter v. Warner–Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). And alleging 12 diversity of citizenship upon “information and belief” cannot support removal. See 13 Balandra v. Kindred Healthcare Operating, Inc., 2016 WL 6953430, at *1 (C.D. Cal. 14 Jan. 12, 2016); Trampolines Unlimited, Inc. v. Epic Air, LLC, 2012 WL 12953406, at *1 15 (C.D. Cal. May 3, 2012); Rohr v. Target Corp., 2009 WL 10672156, at *3 (C.D. Cal. Jan. 16 13, 2009) (“[T]he allegations of the petition for removal are jurisdictional, and they must 17 be positive and certain, because the court cannot well proceed to take jurisdiction of a 18 case and try the same as long as there is any doubt upon the question of jurisdiction.”) 19 Am.’s Best Inns, Inc. v. Best Inns of Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir. 1992).3 20 21 2 Plaintiff alleges that Mercedes is a California LLC, (Compl. ¶ 2; Mot. at 15), but the evidence in the 22 record shows that it is a Delaware LLC authorized to do business in California, (see Gore Decl.). The Court also takes judicial notice of the California Secretary of State’s records for Mercedes (Business 23 Entity No. 200015210035), which reflect this designation. See Fed. R. Evid. 201(b) (authorizing courts 24 to take judicial notice of facts that are “not subject to reasonable dispute” and that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”); Interstate 25 Natural Gas Co. v. So. Cal. Gas Co., 209 F.2d 380, 385 (9th Cir. 1953) (taking judicial notice of records and reports of administrating bodies). 26
27 3 Mercedes cites Carolina Casualty Insurance Co. v. Team Equipment, Inc., 741 F.3d 1082 (9th Cir. 2014), for the proposition that it is “permitted to plead allegations of citizenship on the basis of 1 In its notice of removal and opposition to the instant motion, Mercedes asserts “on 2 information and belief” that Defendant Desouza is resident and citizen of Georgia. 3 (Dkt. 12-2 [Supplemental Declaration of Cynthia Gore, hereinafter “Gore Supp. Decl.”] 4 ¶ 4; see also NOR ¶ 9.) This qualified assertion is insufficient. As explained above, 5 absent “unusual circumstances,” a party invoking diversity jurisdiction must affirmatively 6 allege the actual citizenship of the parties. See Kanter, 265 F.3d at 857. Mercedes has 7 not identified any unusual circumstances here, and, given the presumption against 8 removal jurisdiction, the Court cannot accept Mercedes’s allegations against Plaintiff’s. 9 See Rohr, 2009 WL 10672156, at *3 (citing Gaus, 980 F.2d at 566). If Mercedes is 10 unable to positively allege Desouza’s citizenship, it should have delayed removal until it 11 determined that she was not a California citizen. See id. at *3, n.2; 28 U.S.C. 12 § 1446(b)(3) (“[I]f the case stated by the initial pleading is not removable, a notice of 13 removal may be filed within 30 days after receipt by the defendant, through service or 14 otherwise, of a copy of an amended pleading, motion, order or other paper from which it 15 may first be ascertained that the case is one which is or has become removable.”) 16 17 In support of removal, Mercedes submits two declarations from Cynthia Gore, its 18 Department Manager of Human Resources Operations. These declarations set out the 19 basis for Mercedes’s “information and belief” regarding Desouza’s citizenship. 20 According to Ms. Gore, Mercedes “last employed [Desouza] on July 9, 2019,” and “[a]t 21 that time, Ms. Desouza worked out of [Mercedes’s] Georgia office and was domiciled in 22 the state of Georgia.” (Gore Supp. Decl. ¶ 3.) As an initial matter, the Court notes that 23 Ms. Gore’s declaration appears to rely on employment records that Mercedes has not 24 submitted to the Court. (See id.; see also Gore Decl. ¶ 5 [“Given my position at 25 [Mercedes], I have access to and personal knowledge of the employment records of 26 Defendant Diamara Desouza. Ms. Desouza worked with [Mercedes] in Atlanta, 27 1 ||Georgia.”].) Testimony describing the contents of regularly kept records is generally 2 |}inadmissible under the Federal Rules of Evidence. See Fed. R. Evid. 801-05. In any 3 |}event, Mercedes has not presented any evidence regarding Desouza’s citizenship at the 4 || time the Complaint was filed or at the time of removal—the relevant inquiries for this 5 ||motion. See Strotek Corp. v. Air Transp. Ass’n. of Am., 300 F.3d 1129, 1131 (9th Cir. 6 2002) (explaining that complete diversity must exist at the time the complaint is filed and 7 || at the time of removal). Instead, Ms. Gore can only declare “[o]n information and belief” 8 Desouza is currently a resident and citizen of Georgia. (Gore Supp. Decl. □ 4.) The 9 || Court finds this insufficient to support removal. Accordingly, it lacks subject matter 10 || jurisdiction over this case, and Plaintiff’s motion to remand is GRANTED. 1 12 ||} V. CONCLUSION 13 14 For the foregoing reasons, Plaintiff’s motion to remand is GRANTED. This 15 || action is hereby remanded to Los Angeles County Superior Court. 16 17 DATED: — June 3, 2020 / fe 18 Zz a ff (— we 19 CORMAC J. CARNEY 20 CHIEF UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28