Riggs v. Plaid Pantries, Inc.

• Decision Date: 12 September 2001
• Docket Number: No. CIV-01-338-HU.,CIV-01-338-HU.
• Citation: 233 F.Supp.2d 1260
• Parties: Lalanya RIGGS, Plaintiff, v. PLAID PANTRIES, INC., et al., Defendants.
• Court: U.S. District Court — District of Oregon

233 F.Supp.2d 1260

Lalanya RIGGS, Plaintiff, v. PLAID PANTRIES, INC., et al., Defendants.

No. CIV-01-338-HU.

United States District Court, D. Oregon.

September 12, 2001.

COPYRIGHT MATERIAL OMITTED

Heather E. Carey, Green & Markley, P.C., Portland, OR, for Plaintiff.

David G. Hosenpud, Lane Powell Spears Lubersky, Karen O'Kasey, Schwabe Williamson & Wyatt, Michael J. Wiswall, Hoffman Hart & Wagner, David B. Wagner, Portland, OR, for Defendants.

ORDER

ROBERT E. JONES, District Judge.

Magistrate Judge Dennis James Hubel filed Findings and Recommendation (# 43) on July 26, 2001, in the above-entitled case. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). No objections have been timely filed. This relieves me of my obligation to give the factual findings de novo review. Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.1983). Having reviewed the legal principles de novo, I find no error.

Accordingly, I ADOPT Magistrate Judge Hubel's Findings and Recommendation (# 43) dated July 25, 2001, in its entirety. Plaintiff's motion to remand (# 10) is DENIED.

IT IS SO ORDERED.

FINDINGS & RECOMMENDATION

HUBEL, United States Magistrate Judge.

Plaintiff Lalanya Riggs brings this employment discrimination and tort action against her former employer Plaid Pantries, Inc., her former supervisor Ali Karimi-Beikabaki, and two of his friends. Plaid Pantries removed the case from state court to this court. Plaintiff moves to remand the case back to state court. I recommend that the motion be denied.

BACKGROUND

In her Complaint, plaintiff alleges that shortly after beginning to work for Plaid Pantries in April 2000, Karimi-Beikabaki began soliciting her for dates. Compl. at ¶ 6. Although plaintiff rebuffed his sexual overtures and advances which she found unwelcome, he continued making inappropriate and offensive sexual advances and comments to plaintiff. Id. at ¶ 20. Karimi-Beikabaki intimated to plaintiff that her continued refusal of his offers for a date could affect her job security and working conditions, such as the amount of hours she worked. Id. at ¶ 22. On May 4, 2000, fearing that her job may be in jeopardy if she did not agree to his advances, plaintiff agreed to accompany Karimi-Beikabaki to dinner at a public restaurant in Portland. Id. at ¶ 32. Unknown to her, Karimi-Beikabaki asked two friends, defendants Scott Wang and Don Johnson, to join him. Id. at ¶¶ 32, 33. After dinner, they refused to take plaintiff home and instead took her to Wang's apartment, forced her to ingest a "date rape" drug, and then proceeded to take turns having vaginal and oral sex with plaintiff. Id. at ¶¶ 35, 36. They drove her home about 4:00 a.m. Id. at ¶ 47.

The next day, Karimi-Beikabaki called plaintiff to see if she would be in to work. Id. at ¶ 48. She reported for work at 2:00 p.m. and informed one of her co-workers of Karimi-Beikabaki's conduct. Id. at ¶ 66. The co-worker told plaintiff to call the store manager and wait in the back room for him to arrive. Id. at ¶ 66. He arrived after dark, did not call the police, take a statement from plaintiff, question Karimi-Beikabaki, or take plaintiff to the hospital. Id. at ¶ 67. At about 11:00 p.m., a woman from Plaid Pantries's human resources department took plaintiff to the hospital where she was treated. Id. at ¶¶ 68, 69. She returned home about 4:00 a.m. on May 6, 2000. Id. at ¶ 70.

After taking two weeks off from work, plaintiff returned to work on May 19 or May 20, 2000. Id. at ¶ 78. On or about June 1, 2000, Tiki Gosser, the temporary assistant manager of the store, told plaintiff to come to work the next day at 9:00 a.m. instead of 8:00 a.m. Id. at ¶ 79. When the new manager Sheila Bruce arrived, she sent plaintiff home early, after having drastically cut plaintiff's hours. Id. at ¶ 81. Bruce told plaintiff to report to work at 9:00 a.m. the next day. Id. When plaintiff did so, Bruce yelled at her for being late. Id. at ¶ 82. Shortly thereafter, Plaid Pantries terminated plaintiff. Id. at ¶ 83.

Based on these allegations, plaintiff brings the following claims for relief: (1) sex harassment based on hostile environment against Plaid Pantries under Oregon Revised Statute § (O.R.S.) 659.030 and Title VII (Claims One and Two); (2) sex harassment based on a quid pro quo theory against Plaid Pantries under O.R.S. 659.030 and Title VII (Claims Three and Four); (3) sexual battery against the individual defendants (Claim Five); (4) sexual assault against the individual defendants (Claim Six); (5) intentional infliction of emotional distress against the individual defendants (Claim Seven); (6) negligent infliction of emotional distress against the individual defendants (Claim Eight); (7) respondeat superior for torts of sexual battery and sexual assault against Plaid Pantries (Claim Nine); (8) intentional infliction of emotional distress against Plaid Pantries (Claim Ten); (9) negligent infliction of emotional distress against Plaid Pantries (Claim Eleven); (10) retaliation under O.R.S. 659.030 against Plaid Pantries (Claim Twelve); (11) retaliation under Title VII against Plaid Pantries (Claim Thirteen); and (12) common law wrongful discharge against Plaid Pantries (Claim Fourteen).¹

The Complaint was filed in state court on February 16, 2001. Plaid Pantries removed it here on March 13, 2001. On April 4, 2001, plaintiff moved for an order of default and for default judgment against Karimi-Beikabaki. Plaintiff moved to remand the action on April 11, 2001. On that same date, I granted the motion for order of default. Later, on April 18, 2001, plaintiff withdrew her motion for default judgment. On April 19, 2001, Karimi-Beikabaki filed an unopposed motion to set aside the order of default. On April 25, 2001, I granted the unopposed motion to set aside the order of default. On May 1, 2001, Karimi-Beikabaki filed an Answer to the Complaint and on May 14, 2001, he filed a joinder in the notice of removal.

DISCUSSION

Remand is governed by 28 U.S.C. § 1447(c) which provides, in pertinent part, that [a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). 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.

28 U.S.C. § 1447(c).

"The burden of establishing federal jurisdiction is on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction." Prize Frize, Inc. v. Matrix (U.S.), Inc., 167 F.3d 1261, 1265 (9th Cir.1999). The defendant also has the burden of showing that it has complied with the procedural requirements for removal. Schwartz v. FHP Int'l Corp., 947 F.Supp. 1354, 1360 (D.Ariz. 1996).

Plaintiff moves to remand the case back to state court based on three alleged defects: (1) Plaid Pantries failed to join the proper parties in its removal; (2) Plaid Pantries failed to explain the co-defendants' failure to join in the notice of removal; (2) and (3) Plaid Pantries failed to state the grounds for the court's removal jurisdiction. Defendants contend that plaintiff has waived her right to challenge any procedural defects by seeking and obtaining the default order. I address the arguments in turn.

I. Joinder of Fewer Than All Defendants

"Ordinarily, under 28 U.S.C. § 1446(a), all defendants in a state action must join in the petition for removal, except for nominal, unknown or fraudulently joined parties." Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n. 1 (9th Cir.1988). Other exceptions to this general rule are for doe defendants and unserved defendants. See Salveson v. Western States Bankcard Ass'n, 731 F.2d 1423, 1429 (9th Cir.1984) (unserved defendants need not be joined); 28 U.S.C. § 1441(a) (defendants sued under fictitious names disregarded).

Plaintiff acknowledges that the failure of Wang and Johnson to join in the removal is not a defect because they have not been served. She asserts, however that Karimi-Beikabaki was served before removal and none of the exceptions to joinder apply to him.² Thus, she argues, because Karimi-Beikabaki did not join in the removal petition, it is invalid.

Plaid Pantries argues that Karimi-Beikabaki was not required to join in the removal because Plaid Pantries has federal claims brought against it which are separate and independent of other non-removable claims against the other defendants. For the reasons explained below, I agree with Plaid Pantries at least as to the retaliation claim.

The federal removal statutes provide that

Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates. 28 U.S.C. § 1441(c). Claims are not separate and independent in the Ninth Circuit "`where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions[.]'" Emrich, 846 F.2d at 1197 (quoting American Fire & Cas. Co. v. Finn, 341 U.S. 6, 14, 71 S.Ct. 534, 95 L.Ed. 702 (1951)).

Given that section 1441(c) applies to separate and independent claims under 28 U.S.C. § 1331 which governs federal question jurisdiction, only the federal claims brought against Plaid Pantries are relevant to this issue. There are three federal question jurisdiction claims against Plaid Pantries: sexual harassment (hostile environment) under Title VII; sexual harassment (quid pro quo) under Title VII; and retaliation under Title VII. Plaintiff...