Tanner v. Kaiser Found. Health Plan, Inc.
| Decision Date | 15 October 2015 |
| Docket Number | Case No: C 15-02763-SBA |
| Court | U.S. District Court — Northern District of California |
| Parties | DR. SCOTT TANNER, an individual, Plaintiff, v. KAISER FOUNDATION HEALTH PLAN, INC., a California corporation, KAISER FOUNDATION HOSPITALS, a California corporation, NORTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, INC., a California corporation, and DOES 1-50, Defendants. |
Plaintiff Scott Tanner ("Plaintiff") filed the instant pro se action against Kaiser Foundation Health Plan, Inc. ("Health Plan"), Kaiser Foundation Hospitals, ("Hospitals"), and The Permanente Medical Group, Inc. ("TPMG") (erroneously sued as Northern California Permanente Medical Group, Inc. ("NCPMG") (collectively "Defendants"). Defendants removed the action to this Court based on federal-question jurisdiction, see 28 U.S.C. § 1331. Dkt. 1. The parties are presently before the Court on Plaintiff's Motion to Remand. Dkt. 19. Having read and considered the papers filed in connection with this matter, and being fully informed, the Court hereby DENIES Plaintiff's motion. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b); N.D. Cal. Civ. R. 7-1(b).
In 2000, Plaintiff began working for the Kaiser Permanente Pharmacy Department ("Kaiser"). Compl. ¶ 13.1 Plaintiff served as a staff pharmacist, a lead pharmacist, and finally, a Pharmacist Supervisor at Kaiser's Manteca location. Id. The allegations in Plaintiff's 70-page Complaint are profuse and wide-ranging. In brief, Plaintiff alleges that he was subject to harassment, discrimination, and retaliation at work beginning in 2010. Id. ¶¶ 13-73. Plaintiff is a white male, over the age of 40, with an undisclosed "physical disability/physiological health condition." Id. ¶¶ 87, 98, 107. According to Plaintiff, Kaiser's pharmacy staff in Manteca is 85-90% Asian, 85-90% female, and 90-100% under the age of forty. Id. ¶¶ 89, 107. Plaintiff asserts that he suffered adverse employment consequences based on his color, gender, and age, as well as his disability, for which Defendants allegedly failed to provide adequate accommodation. Id. ¶¶ 87, 98, 107, 121. Plaintiff further asserts that he suffered retaliation based on these same factors, as well as for reporting "Defendants['] misconduct affecting patient safety and care." Id. ¶ 130.
On November 15, 2012, Plaintiff was suspended from work at Kaiser. Compl. ¶ 71. According to Plaintiff, Defendants explained the basis for his suspension. Id. ¶ 72. Although it is clear Plaintiff subsequently separated from Kaiser, the Complaint is not a model of clarity regarding the specifics of Plaintiff's separation. It appears Plaintiff executed a separation agreement in or about December 2012, and separated from Kaiser in or about February 2013. Id. ¶¶ 75-85. Plaintiff alleges that he executed the separation agreement under duress, and is therefore entitled to rescind the same. Id. Plaintiff further alleges that Defendants constructively discharged him in violation of public policy. Id. ¶¶ 173-179. Plaintiff seeks an array of damages, costs, and an order permanently enjoining Kaiser from committing certain further acts of retaliation and discrimination. Id. at 68.
On April 21, 2015, Plaintiff filed suit in the Alameda County Superior Court, alleging causes of action for: (1) Unlawful Attainment of Invalid Separation Agreement; (2) Age Discrimination in Violation of ADEA and FEHA; (3) Disability Discrimination in Violation of ADA and FEHA; (4) Race, Color, Gender, and National Origin Discrimination in Violation of Title VII of the Civil Rights Act and FEHA; (5) Failure to Accommodate Disability; (6) Retaliation; (7) Failure to Prevent Discrimination, Harassment or Retaliation; (8) Unlawful Business Practices; and (9) Constructive Discharge in Violation of Public Policy. The majority of Plaintiff's claims allege violations of both state and federal law. For example, the second cause of action alleges violations of both 29 U.S.C. § 621 et seq. and Cal. Gov.'t Code § 12940(a). Compl. ¶¶ 87- 88. In his prayer for relief, Plaintiff seeks an array of damages, including "all damages available for violations of" certain federal statutes, i.e., damages available under 29 U.S.C. §§ 216(b), 626(b), and 2617(a)), and 42 U.S.C. §§ 1981a, 2000-e, and 12177(a). Compl. at 68.
Plaintiff served the Health Plan and Hospitals with the Complaint on May 21, 2015, and filed a proof of service as to those entities on June 8, 2015. Notice of Removal, ¶ 3 & Ex. B. Plaintiff also filed a proof of service as to NCPMG on June 15, 2015. As noted by Defendants, however, NCPMG is not a legal entity. On June 19, 2015, Defendants removed the action to this Court. The Notice of Removal avers that this Court has jurisdiction pursuant to 28 U.S.C. § 1331 because "Plaintiff specifically and unambiguously alleges claims arising under federal law in his Second, Third, Fourth, Fifth, Sixth, and Seventh Causes of Action . . . ." Id. ¶ 8. On July 13, 2015, Plaintiff filed the instant motion to remand, arguing that removal was "procedurally defective" and that "exclusive federal question jurisdiction" is lacking. Mtn. at 3. On July 27, 2015, Defendants filed their Opposition, Dkt. 24, and Request for Judicial Notice, Dkt. 25. Plaintiff filed his Reply and Response to the Request for Judicial Notice on August 3, 2015. Dkt. 26.
"A motion to remand is the proper procedure for challenging removal." Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). The Court may order remand either for defects in the removal procedure or lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c). "[R]emoval statutes are strictly construed against removal." Luther v. Countrywide Home Loans Servicing, LP, 533 F.3d 1031, 1034 (9th Cir. 2008). "The presumption against removal means that 'the defendant always has the burden of establishing that removal is proper.'" Moore-Thomas, 553 F.3d at 1244 (citation omitted). As such, any doubts regarding the propriety of the removal favor remanding the case. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
As a threshold matter, Defendants request that the Court take judicial notice of the Proofs of Service filed by Plaintiff in the Alameda County Superior Court. Defs.' Request for Judicial Notice ("RJN"), Dkt. 25. Specifically, Defendants request that the Court take notice of the fact that Plaintiff filed a Proof or Service for the Health Plan and Hospitals on June 8, 2015, and filed a Proof of Service for NCPMG on June 15, 2015. Id. ¶¶ 1-3. A court "may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(2). Such noticeable facts include "proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." Bennett v. Medtronic, Inc., 285 F.3d 801, 803 (9th Cir. 2002). Here, service of process in the state court bears on the procedural propriety of removal. Accordingly, the Court GRANTS Defendants' request for judicial notice.
Plaintiff contends removal was improper due to procedural defects. Specifically, Plaintiff argues that Defendants failed to file: (1) the Alameda County Superior Court Alternative Dispute Resolution Information Packet (the "ADR Packet"); and (2) "copies of the six documents served upon [TPMG]," i.e., the Civil Case Cover Sheet, Notice of Case Management Conference and Order, Notice of Assignment of Judge for All Purposes, Summons, Complaint and ADR Packet. Mtn. at 9-10. These contentions are without merit.
A defendant or defendants removing a civil action must file a notice of removal along with "a copy of all process, pleadings, and orders served upon such defendant or defendants" in the state court. 28 U.S.C. § 1446(a). As persuasively argued by Defendants, however, the ADR Packet does not constitute process, pleadings, or orders. Cf. Visicorp v. Software Arts, Inc., 575 F. Supp. 1528, 1531 (N.D. Cal. 1983) () (abrogated on another ground by Stewart Org. v. Ricoh Corp., 487 U.S. 22 (1988)). Thus, Defendants were not required to file the ADR Packet in this Court.
Furthermore, Plaintiff did not name TPMG as a defendant in this action, and it does not appear that Plaintiff served TPMG with any papers related thereto. See RJN, Ex. 1. On June 15, 2015, Plaintiff filed in state court a Proof of Service regarding NCPMG. Id. ¶ 3 & Ex. 1. As averred by Defendants, however, NCPMG "is not a legal entity" and "was never served." Opp'n at 1. Clearly, Defendants cannot file copies of papers they never received. In any event, it appears the allegedly omitted documents are identical to those Defendants have filed--i.e., the documents Plaintiff successfully served upon the Health Plan and Hospitals. See Notice of Removal, ¶ 3 () & Ex. B (attaching same). It thus appears that no pertinent documents have been omitted.
Finally, the Court notes that failure to file all necessary state court papers is a de minimis defect that is curable in the district court, even after expiration of the thirty-day removal period. Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136, 1142 (9th Cir. 2013). Accordingly, the Court finds that remand on this ground is unjustified.
Plaintiff contends removal was improper because "exclusive federal question...
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