McGrath v. Home Depot USA, Inc.

298 F.R.D. 601, 88 Fed. R. Serv. 3d 671, 2014 WL 1404741, 2014 U.S. Dist. LEXIS 50153
CourtDistrict Court, S.D. California
DecidedApril 10, 2014
DocketNo. 14cv0071-GPC-JMA
StatusPublished
Cited by66 cases

This text of 298 F.R.D. 601 (McGrath v. Home Depot USA, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGrath v. Home Depot USA, Inc., 298 F.R.D. 601, 88 Fed. R. Serv. 3d 671, 2014 WL 1404741, 2014 U.S. Dist. LEXIS 50153 (S.D. Cal. 2014).

Opinion

ORDER:

1) DENYING MOTION REMAND

2) GRANTING MOTION TO DISMISS

3) REMANDING THIS ACTION TO SAN DIEGO COUNTY SUPERIOR COURT

GONZALO P. CURIEL, District Judge.

Presently before the Court is Plaintiff Michael McGrath’s (“Plaintiff’) Second Amended Complaint (“SAC”). (Dkt. No. 16.) Defendants Home Depot USA, Inc., Jim Hopper, Armando Peralta, and Brian Korhummel (collectively, “Defendants”) have filed a motion to dismiss the SAC in its entirety for lack of subject matter pursuant to Federal Rules of Civil Procedure (“FRCP”) 12(b)(1) and for failure to state a claim pursuant to FRCP 12(b)(6). (Dkt. No. 18.) In response, Plaintiff has filed a motion to remand this action to state court. (Dkt. No. 20.) The parties have fully briefed both motions. (See Dkt. Nos. 27, 28, 30, 32.) The Court finds the matters suitable for resolution without oral argument pursuant to Local Civil Rule 7.1(d)(1). Based on the briefing and applicable law, the Court DENIES Plaintiffs motion to remand, (Dkt. No. 20), and GRANTS Defendants’ motion to dismiss Plaintiffs SAC. (Dkt. No. 18.)

FACTUAL BACKGROUND

This action arises from Plaintiffs experiences as a customer of Defendant Home Depot USA, Inc.’s stores from 1994 until at least July, 2013. (Dkt. No. 16, “SAC” ¶ 164, 177.) Plaintiff alleges that he is currently employed as a project manager for a general contractor and that Plaintiff was directed to shop at Home Depot stores to purchase goods necessary for residential and commercial construction projects. (Id. ¶¶ 164, 168, 171.) Plaintiff alleges conducting “hundreds [604]*604of transactions” with Home Depot Stores, purchasing materials from “almost all of the Home Depot facilities in the County of San Diego.” (Id. ¶ 164.)

Plaintiff alleges observing “serious safety hazards” at many Home Depot retail facilities that “potentially could affect plaintiff, store employees, and customers of the stores.” (Id. ¶ 165.) These safety hazards include: obstruction of the means of egress; obstruction of fire lane access and fire department connections and control valves; failure to provide proper fire watch when automatic sprinkler systems were out of service; failing to provide backflow prevention to potable water systems; failure to provide minimum clearance from electrical service panel transformers; unlawful dumping of automatic sprinkler system water into public storm drains; and failure to provide best management practices during construction activity. (Id. ¶241.) Plaintiff alleges he “has multiple medical comorbidities of both physical and psychological disorders,” including Parkinsonism, bipolar disorder, anxiety, obsessive-compulsive disorder (“OCD”), and post-traumatic stress disorder (“PTSD”), which in conjunction with Defendants’ behavior causes Plaintiff “anxiety, stress, helplessness, panic attacks and inability to accept the conditions.” (Id. at 296.)

Plaintiff alleges Defendant Home Depot USA, Inc. has ignored repeated requests for reasonable accommodation “to the means of egress and to the right to obtain safety for himself and others.” (Id. ¶ 167.) Plaintiff claims to have voiced his concerns to many Home Depot store associates, employees, managers, asset protection associates, assistant managers, general managers, directors on the Board of Directors, as well as to specific Home Depot-affiliated individuals such as Chief Executive Officer Frank Blake, the Western Regional Manager, and the senior legal counsel. (Id. ¶ 165.) In particular, Plaintiff alleges speaking with Defendant Jim Hopper, Assistant Manager of the Fairmont Avenue Home Depot in San Diego, in July 2011. (Id. ¶¶ 177-78, 303.) Plaintiff claims that he requested store and product placement modifications to comply with fire code regulations, most of which were denied. (Id. ¶ 303-04.) Plaintiff alleges Home Depot’s lack of safety and Plaintiffs interaction with Defendant Hopper “aggravated and contributed to the plaintiffs anxiety and PTSD.” (Id. ¶ 177.)

In addition, Plaintiff alleges filing complaints regarding his safety concerns to the Department of Industrial Labor Division of Occupational Safety and Health (“OSHA”) in October, 2012. (Id. ¶ 322.) In response to these complaints, “Defendant and their agents” sent OSHA a two page response. (Id. ¶324.) This response, sent via email, carbon copied various Home Depot employees, including Defendants Armando Peralta, a Home Depot Store Manager, and Brian Korhummel, a Home Depot Assistant Store Manager. (Id. ¶ 324.) Plaintiff alleges this response contained untrue statements. (Id.)

PROCEDURAL BACKGROUND

On December 4, 2013, Plaintiff filed an initial complaint on behalf of the “people of the State of California” against Home Depot USA, Inc. before the San Diego County Superior Court. (Dkt. No. 1-1.) On January 10, 2014, Defendant Home Depot USA, Inc. (“Home Depot”) removed this action to federal court pursuant to 28 U.S.C. § 1332 as well as the Class Action Fairness Act, 28 U.S.C. §§ 1332(d)(2), (d)(5). (Dkt. No. 1.) On January 16, 2014, Defendant Home Depot filed a motion to dismiss Plaintiffs Complaint for failure to state a claim. (Dkt. No. 3.) On January 21, 2014, Plaintiff filed an amended complaint, adding three individual Defendants: Jim Harper; Armando Peralta; and Brian Korhummel. (Dkt. No. 8.) The Court therefore dismissed Defendant Home Depot’s Motion to Dismiss the Complaint, without prejudice, as moot. (Dkt. No. 10.) On January 28, 2014, Plaintiff filed a motion to file a Second Amended Complaint, seeking: (1) to correct the spelling of Defendant “Jim Harper” to “Jim Hopper”; (2) to conform the font size to the requirements of the local rules; and (3) a revised summons reflecting the correct spelling of Defendant Jim Hopper’s name. (Dkt. No. 11.) The Court granted Plaintiffs motion to file a Second Amended Complaint (“SAC”) for these three purposes only. (Dkt. No. 12.) On January [605]*60531, 2014, Plaintiff filed an SAC, the current operative complaint. (Dkt. No. 16.)

On February 3, 2014, Defendants Home Depot, Jim Hopper, Armando Peralta, and Brian Korhummel jointly filed a motion to dismiss Plaintiffs SAC. (Dkt. No. 18.) On February 6, 2014, Plaintiff filed a motion to remand the above-captioned matter to state court due to a lack of complete diversity and the “local controversy” exception to the CAFA. (Dkt. No. 20.) On March 3, 2014, Plaintiff filed a notice to the Court of his Constitutional challenge to state statutes pursuant to Federal Rules of Civil Procedure 5.1 and 28 U.S.C. § 2403. (Dkt. No. 29.) On April 4, 2014, this Court certified his Constitutional challenge to the California Attorney General. (Dkt. No. 33.) To this date, the Attorney General has not sought to intervene.

DISCUSSION

As set forth above, Defendant Home Depot USA, Inc. removed this action pursuant to the diversity jurisdiction statute, 28 U.S.C.

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298 F.R.D. 601, 88 Fed. R. Serv. 3d 671, 2014 WL 1404741, 2014 U.S. Dist. LEXIS 50153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgrath-v-home-depot-usa-inc-casd-2014.