Crippen v. International Paper Co. ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARINA CRIPPEN, No. 2:23-cv-01107-DAD-CKD 12 Plaintiff, 13 v. ORDER GRANTING PLANTIFF’S MOTION TO REMAND THIS ACTION AND 14 INTERNATIONAL PAPER CO., et al., DENYING DEFENDANT HENDERSON’S MOTION TO DISMISS 15 Defendants. (Doc. Nos. 16, 28) 16 17 18 This matter is before the court on the plaintiff’s motion to remand this action to the San 19 Joaquin County Superior Court. (Doc. No. 16.) On September 7, 2023, the pending motion was 20 taken under submission on the papers pursuant to Local Rule 230(g). (Doc. No. 22.) For the 21 reasons explained below, the court will grant plaintiff’s motion to remand. 22 BACKGROUND 23 On May 5, 2023, plaintiff filed a complaint initiating this action against her former 24 employer International Paper Co. (“IPC”) and unnamed defendants Does 1–10 in the San Joaquin 25 County Superior Court. (Doc. No. 1 at 17.) In her original complaint, plaintiff asserted the 26 following ten causes of action: (1) failure to provide required meal periods in violation of 27 California Labor Code §§ 226.7 and 512 and Wage Order No. 1; (2) failure to provide adequate 28 wage statements in violation of California Labor Code § 226; (3) failure to pay all wages due 1 upon separation of employment in violation of California Labor Code §§ 201 and 202; 2 (4) employment discrimination based on pregnancy in violation of 42 U.S.C. § 2000e(k); 3 (5) employment discrimination based on pregnancy in violation of California Government Code 4 § 12940(a); (6) failure to reasonably accommodate in violation of California Government Code 5 § 12945(a)(3); (7) retaliation for requesting or using protected leave in violation of California 6 Government Code § 12940(h); (8) failure to take all reasonable steps to prevent discrimination in 7 violation of California Government Code § 12940(k); (9) wrongful termination in violation of 8 public policy; and (10) intentional infliction of emotional distress (“IIED”). (Doc. No. 1 at 21– 9 26.) 10 On June 9, 2023, IPC removed this action to this federal court pursuant to the court’s 11 federal question jurisdiction under 28 U.S.C. §§ 1331, 1441, and 1446, as well as this court’s 12 supplemental jurisdiction under 28 U.S.C. § 1367(a), on the grounds that federal question 13 jurisdiction exists because plaintiff’s fourth cause of action for discrimination in violation of Title 14 VII of the Civil Rights Act arises under the laws of the United States. (Doc. No. 1 at 4.) IPC’s 15 notice of removal stated that removal is also proper pursuant to 28 U.S.C. §§ 1332, 1441, and 16 1446, on the grounds that diversity jurisdiction exists because plaintiff and IPC are citizens of 17 different states and the amount in controversy exceeds $75,000. (Id. at 5–6.) 18 On July 7, 2023, IPC filed a motion to dismiss the first, second, and third causes of action 19 of plaintiff’s complaint pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(6). (Doc. 20 No. 10-1 at 1–2.) On July 20, 2023, plaintiff filed her first amended complaint (“FAC”) pursuant 21 to FRCP 15(a)(1), further explicating her California Labor Code claims, removing her fourth 22 cause of action for discrimination in violation of 42 U.S.C. § 2000e(k), and adding her former 23 supervisor, Marvin Henderson, as a named defendant in this action and asserting her first three 24 state law causes of action against him as well. (Doc. No. 11.) In her FAC, plaintiff specifies that 25 she believes that defendant Henderson resides in California, in or around San Joaquin County. 26 (Id. at ¶ 3.) On July 21, 2023, plaintiff filed an opposition to IPC’s motion to dismiss, responding 27 substantively but also contending that this court does not have jurisdiction over this action and 28 requesting that the court remand this action to state court sua sponte. (Doc. No. 13 at 2.) On the 1 same day, the court issued a minute order denying IPC’s motion to dismiss as moot in light of 2 plaintiff’s FAC superseding the original complaint. (Doc. No. 11.) On August 10, 2023, plaintiff 3 filed the pending motion to remand, asserting that the court lacks diversity jurisdiction or federal 4 question jurisdiction. (Doc. No. 16-1 at 4–5.) IPC filed an opposition to this motion on August 5 24, 2023, and plaintiff filed her reply thereto on September 5, 2023. (Doc. Nos. 18, 21.) 6 Subsequently, defendant Henderson filed a motion to dismiss all three claims asserted against him 7 on November 7, 2023. (Doc. No. 28.) Plaintiff filed an opposition to this motion on November 8 21, 2023, and defendant Henderson filed his reply thereto on December 1, 2023. (Doc. Nos. 30, 9 31.) 10 LEGAL STANDARD 11 A suit filed in state court may be removed to federal court if the federal court would have 12 had original jurisdiction over the suit. 28 U.S.C. § 1441(a). Removal is proper when a case 13 originally filed in state court presents a federal question or where there is diversity of citizenship 14 among the parties and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 15 1332(a). An action may be removed to federal court on the basis of diversity jurisdiction only 16 where there is complete diversity of citizenship. Hunter v. Phillip Morris USA, 582 F.3d 1039, 17 1043 (9th Cir. 2009). 18 “If at any time before final judgment it appears that the district court lacks subject matter 19 jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). “The removal statute is strictly 20 construed against removal jurisdiction, and the burden of establishing federal jurisdiction falls to 21 the party invoking the statute.” California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th 22 Cir. 2004) (citation omitted); see also Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 23 F.3d 1083, 1087 (9th Cir. 2009) (“The defendant bears the burden of establishing that removal is 24 proper.”). If there is any doubt as to the right of removal, a federal court must reject jurisdiction 25 and remand the case to state court. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 26 1090 (9th Cir. 2003); see also Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1118 (9th Cir. 2004). 27 ///// 28 ///// 1 ANALYSIS 2 In her pending motion to remand, plaintiff argues that this case should be remanded to 3 state court because this court does not have diversity jurisdiction, does not have federal question 4 jurisdiction, and should decline to exercise supplemental jurisdiction over her state law claims. 5 (Doc. No. 16-1 at 4–9.) In its opposition, IPC advances a number of arguments against remand, 6 including that the joinder of defendant Henderson does not eliminate subject matter jurisdiction, 7 that post-removal amendments have no effect on jurisdiction, and that the court should retain 8 supplemental jurisdiction over plaintiff’s state law claims. (Doc. No. 18 at 2–9.) The court will 9 address these arguments and the status of the court’s jurisdiction below. 10 A. Diversity Jurisdiction 11 An action may be removed to federal court on the basis of diversity jurisdiction only 12 where there is complete diversity of citizenship. Hunter, 582 F.3d at 1043. Diversity jurisdiction 13 is based on the citizenship of the parties at the time the complaint is filed. Co-Efficient Energy 14 Sys. v. CSL Indus., Inc., 812 F.2d 556, 557 (9th Cir. 1987). However, “[i]f after removal the 15 plaintiff seeks to join additional defendants whose joinder would destroy subject matter 16 jurisdiction, the court may deny joinder or permit joinder and remand the action to the State 17 court.” 28 U.S.C. § 1447(e). “If diversity is the only basis for a district court’s subject matter 18 jurisdiction in a removed case, the joinder of a non-diverse defendant divests the district court of 19 jurisdiction.” Reagan v. Jackson Nat’l Life Ins. Co., No. 1:19-cv-1417-AWI-EPG, 2020 WL 20 1028421, at *1 (E.D. Cal. Mar. 3, 2020) (citing Morris v. Princess Cruises, Inc., 236 F.3d 1061, 21 1068 (9th Cir. 2001)). 22 In her pending motion to remand, plaintiff argues that this court does not have diversity 23 jurisdiction because both she and defendant Henderson are domiciled in California. (Doc. No. 24 16-1 at 4–5.) In its opposition, IPC does not dispute the citizenship of the parties and also does 25 not argue that this court should deny joinder of defendant Henderson. (Doc. No. 18.) Instead, 26 IPC argues that because there has been no service of process on defendant Henderson, this court 27 is not divested of subject matter jurisdiction. (Id. at 4.) IPC also argues that even if defendant 28 ///// 1 Henderson were served, this court still should not remand the case to state court because his 2 joinder would not deprive this court of subject matter jurisdiction. (Id. at 5.) 3 First, IPC’s argument regarding the status of service of process on defendant Henderson is 4 not relevant to the resolution of the pending motion. IPC argues that “remanding this case would 5 be improper because Defendant Henderson has not been served, as required by 24 U.S.C. 6 § 1441(b).” (Doc. No. 18 at 2.) However, the statute that IPC cites to states that “[a] civil action 7 otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may 8 not be removed if any of the parties in interest properly joined and served as defendants is a 9 citizen of the State in which such action is brought.” 24 U.S.C. § 1441(b)(2). This statute is a 10 limitation on removal, but it provides no limitation or instruction regarding remand following 11 proper removal and subsequent amendment. IPC does not attempt to explain how the statutory 12 language upon which it relies applies to remand. (Doc. No. 18.) As such, the court finds that 13 lack of service on defendant Henderson is not dispositive here. 14 Second, IPC argues that even if defendant Henderson were served, the court should still 15 deny plaintiff’s motion to remand because Henderson’s joinder “does not affect the propriety of 16 this [c]ourt’s original subject matter jurisdiction.” (Id. at 5.) IPC points to a Ninth Circuit 17 decision affirming the district court’s determination that diversity jurisdiction was not destroyed 18 by a post-removal joinder. Spencer v. U.S. Dist. Ct. for N. Dist. of Cal., 393 F.3d 867, 871 (9th 19 Cir. 2004). However, in Spencer, the newly joined party was diverse and the court’s diversity 20 jurisdiction was maintained even after joinder of the new defendants. See id. at 868 (explaining 21 that the plaintiffs were citizens of Alaska, the defendant was a citizen of Alabama, and the 22 defendant added in place of a Doe defendant was a citizen of California). In contrast, here, 23 plaintiff is a citizen of California, and the party she added in place of a Doe defendant, defendant 24 Henderson, is also a citizen of California, thus destroying diversity jurisdiction. (Doc. No. 11 at 25 ¶¶ 1, 3.) The decision in Spencer is therefore simply not applicable here. See McNamara v. 26 Wells Fargo Bank, N.A., No. 18-cv-07962-MWF-AGR, 2018 WL 6435323, at *3–5 (C.D. Cal. 27 Dec. 7, 2018) (Noting that the Ninth Circuit in Spencer declined to decide whether post-removal 28 joinder of a non-diverse defendant was governed by 28 U.S.C. § 1447(e) which states that “[i]f 1 after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject 2 matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the 3 State court” but acknowledging that all California district courts to have addressed the question 4 had determined that § 1447(e) applied in such circumstances and that if the joinder that would 5 destroy jurisdiction is allowed, remand is mandatory.); Macut by and through Mebane v. Wabash 6 National Corporation, 1:22-cv-00231-JLT-CDB, 2022 WL 17752116, at *3 (E.D. Cal. 2022) 7 (“However, Spencer dealt with an entirely different question not at issue here: whether the post- 8 removal joinder of a fully-diverse ‘forum defendant’ ousted the district court of subject matter 9 jurisdiction under 28 U.S.C. § 1441(b).”). 10 As noted above, IPC makes no argument that the court should deny joinder of defendant 11 Henderson. Instead, IPC simply instructs the court that it has discretion in deciding whether to 12 permit or deny the joinder of a non-diverse defendant. (Doc. No. 18 at 5)(citing Newcombe v. 13 Adolf Coors Co., 157 F.3d 686, 691 (9th Cir. 1998). In her reply, plaintiff states that she properly 14 joined defendant Henderson as a matter of course pursuant to FRCP 15(a)(1), implying that the 15 court lacks the discretion to permit or deny joinder. (Doc. No. 21 at 2.) 16 As alluded to above, there has been something of a split of authority amongst district 17 courts in the Ninth Circuit as to whether an amendment to add a non-diverse defendant is 18 governed by Federal Rule of Civil Procedure 15(a) or 28 U.S.C. § 1447(e). See, e.g., McGrath v. 19 Home Depot USA, Inc., 298 F.R.D. 601, 606 (S.D. Cal. 2014) (stating that “[t]here is a split in 20 authorities” and collecting cases that similarly refer to a split of authority). However, “[t]he 21 weight of the authority holds that the standards of 28 U.S.C. § 1447(e) apply.” Marroquin v. 22 Target Corp., No. 19-cv-00341-JAK-SS, 2019 WL 2005793, at *4 (C.D. Cal. May 7, 2019); see 23 also Reyes v. FCA US LLC, No. 1:20-cv-00833-DAD-SKO, 2020 WL 7224286, at *3 n.1 (E.D. 24 Cal. Dec. 8, 2020) (“This court joins the majority of district courts in the Ninth Circuit in 25 choosing to analyze joinder or amendment of claims to add a non-diverse defendant under 26 § 1447(e) as opposed to Rule 15(a)(1)’s amendment as-of-right standard. . . . [T]his approach 27 permits courts to determine whether any amendment as of right to add non-diverse defendants is 28 intended to destroy diversity jurisdiction or otherwise thwart federal jurisdiction and allows 1 courts to consider the full context of the attempted joinder of a non-diverse defendant.”) (internal 2 citations and quotations omitted). Indeed, as also noted above, it appears that all California 3 district courts have determined that § 1447(e) applies in this situation. See Macut by and through 4 Mebane, 2022 WL 17752116, at *3; McNamara, 2018 WL 6435323, at *3-5. The court will 5 again adopt this view and apply the standards of 28 U.S.C. § 1447(e). 6 According to § 1447(e), “[i]f after removal the plaintiff seeks to join additional defendants 7 whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit 8 joinder and remand the action to the State court.” 28 U.S.C. § 1447(e). Whether to permit 9 joinder of a party that will destroy diversity remains in the sound discretion of the court after 10 consideration of six factors: 11 (1) [W]hether the party to be joined is needed for just adjudication and would be joined under Federal Rule of Civil Procedure 19(a); 12 (2) whether the statute of limitations would preclude an original action against the new defendants in state court; (3) whether there 13 has been an unexplained delay in requesting joinder; (4) whether joinder is intended solely to defeat federal jurisdiction; (5) whether 14 the claims against the new defendant appear valid; and (6) whether denial of joinder will prejudice the plaintiff. 15 16 Macut by and through Mebane, 2022 WL 17752116, at *2 (citations omitted). 17 1. Need for Joinder under Rule 19(a) 18 In determining whether to permit joinder of a non-diverse party after removal, the court 19 considers whether the added party would meet Rule 19’s standard for a necessary party. Jones v. 20 Thyssenkrupp Elevator, No. 05-cv-03539-EMC, 2005 WL 8177458, at *17 n.5 (N.D. Cal. Dec. 21 22, 2005). A proper party for joinder under Rule 19(a) is one “having an interest in the 22 controversy, and who ought to be made a party, in order that the court may act on that rule which 23 requires it to decide and finally determine the entire controversy, and do complete justice, by 24 adjusting all the rights involved in it.” IBC Aviation Servs., Inc. v. Compania Mexicana de 25 Aviacion, S.A. de C.V., 125 F. Supp. 2d 1008, 1011 (N.D. Cal. 2000) (citing CP Natl. Corp. v. 26 Bonneville Power Admin., 928 F.2d 905, 912 (9th Cir.1991)). Courts have held that this factor 27 favors joinder and remand “when failure to join will lead to separate and redundant actions,” but 28 ///// 1 not when “defendants are only tangentially related to the cause of action or would not prevent 2 complete relief.” Boon v. Allstate Co., 229 F. Supp. 2d 1016, 1022 (C.D. Cal. 2002). 3 In the court’s view, defendant Henderson likely bears more than a tangential relationship 4 to the causes of action in which he is named. In her FAC, plaintiff alleges that defendant 5 Henderson gave her explicit instructions and warnings regarding her break times. (Doc. No. 11 at 6 ¶ 6.) She also alleges that he is the one who instructed her not to return to work shortly after she 7 discovered she was pregnant. (Id. at ¶¶ 8, 11.) Based on these allegations, a failure to join could 8 lead to a redundant action filed in a different court, as defendant Henderson is not merely 9 tangentially related to the alleged wrongdoing. Further, neither defendant has argued that IPC 10 would be able to fully satisfy any judgment rendered in plaintiff’s favor. (Doc. Nos. 18, 28-1.) 11 Together, these considerations weigh in favor of permitting joinder. See Reynolds v. Diamond 12 Pet Food Processors of California, LLC, No. 2:15-cv-02118-JAM-AC, 2016 WL 1711671, at *5 13 (E.D. Cal. Apr. 29, 2016) (finding that this factor weighed in favor of joinder where the 14 individual defendants were not tangentially related to the alleged wrongdoing, even though 15 addition of the individual defendants was not necessary to the rendering of judgment as to all of 16 the plaintiff’s causes of action); cf. Baker v. Nutrien Ag Sols., Inc., No. 1:21-cv-01490-DAD- 17 SKO, 2022 WL 3142065, at *4 (E.D. Cal. Aug. 5, 2022) (finding that this factor weighed against 18 joinder where the court concluded that the plaintiff could obtain complete relief from the 19 defendant company because it asserted that it would be able to fully satisfy any judgment). 20 2. Whether the Statute of Limitations Would Preclude a New Action in State Court 21 As for the second factor, joinder is favored if plaintiff would be time-barred from bringing 22 a new action against defendant Henderson by the applicable statute of limitations. See Rosas v. 23 NFI Indus., No. 2:21-cv-00046-WBS-CKD, 2021 WL 1264921, at *3 (E.D. Cal. Apr. 6, 2021). 24 Indeed, here some of plaintiff’s causes of action may be time-barred if brought separately. 25 Plaintiff’s wage statement claim has a one-year statute of limitations, and her other Labor Code 26 claims are governed by a three-year statute of limitations. See Howell v. Leprino Foods Co., No. 27 1:18-cv-01404-AWI-BAM, 2020 WL 704778, at *4 (E.D. Cal. Feb. 12, 2020) (citing Naranjo v. 28 Spectrum Sec. Servs., Inc., 40 Cal. App. 5th 444, 468 (2019) (finding the one-year statute of 1 limitations applies to a penalty claim brought under § 226) (reversed in part on other grounds); 2 Montecino v. Spherion Corp., 427 F. Supp. 2d 965, 967 (C.D. Cal. 2006) (concluding that a three- 3 year statute of limitations applies to claims brought under §§ 201, 202, and 203); Murphy v. 4 Kenneth Cole Prods., Inc., 40 Cal. 4th 1094, 1099 (2007) (determining that a three-year statute of 5 limitations governs claims brought under §§ 1194, 226.7)). Several events alleged in plaintiff’s 6 FAC occurred more than one year before the filing of this motion and the issuing of this order, 7 and some allegedly occurred even more than three years prior. (See Doc. No. 11 at ¶ 5 (alleging 8 that “[p]laintiff was required to sign a ‘2nd Meal Period Waiver’ on July 10, 2020” and that 9 “[p]laintiff’s last day actually worked with IPC was June 30, 2021.”)). Thus, the court finds that 10 consideration of this factor also weighs in favor of permitting the joinder of defendant Henderson. 11 3. Timeliness of Joinder 12 As for the third factor, plaintiff filed her FAC less than three months after filing her 13 original complaint and just over a month after the case was removed to this federal court. (Doc. 14 Nos. 1, 11.) Three months does not constitute a facially unreasonable delay. See Boon, 229 F. 15 Supp. 2d at 1023. However, “under § 1447(e), [the] court has discretion to deny joinder of a 16 party whose identity was ascertainable and thus could have been named in the first complaint.” 17 Calderon v. Lowe’s Home Ctrs., LLC, No. 2:15-cv-01140-ODW, 2015 WL 3889289, at *5 (C.D. 18 Cal. June 24, 2015) (internal citations and quotations omitted). The allegations in plaintiff’s 19 original complaint reveal that she has been aware of Mr. Henderson’s identity from the outset of 20 this case. (Doc. No. 1 at ¶ 6.) Plaintiff provides no reasonable justification for her delay in 21 seeking to join him as a defendant in this action, which may weigh towards denying joinder. See 22 Maldonado v. City of Oakland, 01-cv-01970-MEJ, 2002 WL 826801, at *6 (N.D. Cal. Apr. 29, 23 2002) (denying a motion for leave to amend to add three individual defendants where the plaintiff 24 knew their identities eight months prior to the start of the case and could not “adequately explain 25 the undue delay in finally naming them now”); see also Baker, 2022 WL 3142065, at *5 (finding 26 consideration of this factor weighed against joinder where the plaintiff filed a FAC joining a non- 27 diverse defendant that she had prior knowledge of over two months after filing her original 28 complaint). On the other hand, unlike in Maldonado or Baker, plaintiff filed her FAC within the 1 21-day window provided by Rule 15(a) following IPC’s motion to dismiss, which would weigh in 2 favor of permitting joinder. (See Doc. Nos. 10, 11; see also Jackson v. Dollar Tree Distribution, 3 Inc., No. 18-cv-02302-PSG-SK, 2018 WL 2355983, at *4 (C.D. Cal. May 23, 2018) (permitting 4 joinder of the plaintiff’s known supervisor and finding no undue delay where the FAC was filed 5 within the time allowed by Rule 15(a))). Thus, in total, the short time frame of the delay here 6 weighs towards permitting joinder, but plaintiff’s failure to identify any reason for the delay in 7 naming Henderson as a defendant weighs against it. Accordingly, the court concludes that 8 consideration of this factor weighs neutrally. 9 4. Whether Joinder is Intended Solely to Defeat Jurisdiction 10 For the fourth factor, the court evaluates the motive of a plaintiff in seeking joinder of an 11 additional defendant. See IBC Aviation Servs., 125 F. Supp. 2d at 1012 (citing Desert Empire 12 Bank v. Ins. Co. of N. Am., 623 F.2d 1371, 1376 (9th Cir. 1980)). Courts “should look with 13 particular care at such motive in removal cases, when the presence of a new defendant will defeat 14 the court’s diversity jurisdiction and will require a remand to the state court.” Desert Empire 15 Bank, at 1376. “However, suspicion of amendment for the purpose of destroying diversity is not 16 an important factor in this analysis, as section 1447(e) gives courts flexibility in determining how 17 to handle addition of diversity-destroying defendants.” Dordoni v. FCA US LLC, No. 5:20-cv- 18 01475-JGB-SHK, 2020 WL 6082132, at *4 (C.D. Cal. Oct. 15, 2020) (citing IBC Aviation Servs., 19 125 F. Supp. 2d at 1012 (noting that “[t]he legislative history to § 1447(e) . . . suggests that it was 20 intended to undermine the doctrine employed by some courts that amendments which destroyed 21 diversity were to be viewed with suspicion”)). Courts should “decline[] to impute an improper 22 motive to [p]laintiff simply because [p]laintiff seeks to add a non-diverse defendant post- 23 removal.” IBC Aviation Servs., 125 F.Supp.2d at 1012. Therefore, to evaluate a plaintiff’s 24 motivation the court must not operate off suspicion and should instead consider factors such as 25 the plaintiff’s awareness of removal, the timing of adding the new defendant, the changes made to 26 the original complaint, and the validity of the claims against the new defendant. Baker, 2022 WL 27 3142065, at *5–6. 28 ///// 1 As mentioned, in evaluating motive the court will first consider whether the plaintiff was 2 “aware of the removal” at the time the plaintiff amended her complaint. Clinco v. Roberts, 41 F. 3 Supp. 2d 1080, 1083 (C.D. Cal. 1999). Here, because plaintiff filed her FAC over a month after 4 IPC removed this case, plaintiff was undoubtedly “aware of the removal” and the bases of the 5 removal at the time that she amended her complaint. See Boon, 229 F. Supp. 2d at 1024. Next, 6 as to timing, courts evaluating a plaintiff’s motive for joinder can consider whether the plaintiff 7 provided an explanation as to the wait before asserting claims against the new defendant. See 8 Chan v. Bucephalus Alternative Energy Grp., LLC, No. 08-cv-04537 JW, 2009 WL 1108744, at 9 *5 (N.D. Cal. Apr. 24, 2009) (finding consideration of this factor to weigh in favor of joinder 10 where the court was persuaded by plaintiff’s reason for not including the new defendant in her 11 original complaint). Here, plaintiff “has not explained why [she] waited to bring claims against 12 [Henderson] until after this action was removed.” Murphy v. Am. Gen. Life Ins. Co., 74 F. Supp. 13 3d 1267, 1284 (C.D. Cal. 2015). In fact, she noted in her FAC that IPC did not give her copies of 14 or allow inspection of all her time records, suggesting that she did not receive access to additional 15 information outside of her control after the filing of her original complaint. (Doc. No. 11 at ¶ 6.) 16 However, the court notes that because IPC conducted no joinder analysis in its opposition to the 17 pending motion to remand, plaintiff may simply not have had an appropriate opportunity to 18 explain the timing of her joinder of Henderson. 19 Next, in considering motive for joinder, “courts have inferred an improper motive where 20 the plaintiff’s proposed amended complaint contained only minor or insignificant changes to the 21 original complaint.” Forward-Rossi v. Jaguar Land Rover N. Am., LLC, 2:16-cv-00949-CAS- 22 KS, 2016 WL 3396925, at *4 (C.D. Cal. June 13, 2016). In other words, courts evaluate whether 23 “the original and first amended complaints are substantially similar.” Clinco, 41 F. Supp. 2d at 24 1083. Here, in comparing the allegations in plaintiff’s original complaint to that of the FAC, 25 there are only a few such changes. First, plaintiff has added allegations that she was under the 26 direct supervision of defendant Henderson, who resides in California, acted as an employer or 27 person acting on behalf of an employer, and is still employed by IPC. (Doc. No. 11 at ¶ 3.) Next, 28 she has added allegations that defendant Henderson instructed her that she could not take certain 1 breaks and would be subject to reprimand if she took a break longer than ten minutes. (Doc. No. 2 11 at 6.) Finally, plaintiff has now provided three examples based on her records of specific dates 3 in which she worked 12 hours or more without being provided sufficient breaks. (Id.) Otherwise, 4 plaintiff’s FAC contains the same factual allegations as her original complaint. This court has 5 previously found, when facing a similar level of modification, that because the changes were 6 minor and the two complaints substantially similar, the court could infer an improper motive on 7 behalf of the plaintiff. Baker, 2022 WL 3142065, at *6. 8 However, courts are less likely to find an improper motive, even when an amended 9 complaint contains only minor changes, if the plaintiff has alleged a valid claim against the newly 10 named defendant. See Armstrong v. FCA US LLC, No. 1:19-cv-01275-DAD-SAB, 2020 WL 11 6559232, at *7 (E.D. Cal. Nov. 9, 2020) (finding the motive factor to tip slightly in favor of 12 permitting joinder despite the substantial similarity of the two complaints). The validity of the 13 claims brought by plaintiff against defendant Henderson is discussed further below as a separate 14 factor in the six-part analysis. However, for the purposes of determining motive, the court notes 15 that while plaintiff’s claims are not facially invalid, there are significant questions as to whether 16 her factual allegations are sufficient to state a claim. Thus, the court cannot find that the validity 17 of the claims against the new defendant necessarily saves plaintiff from a finding of improper 18 motive. 19 In sum, the court finds that plaintiff’s awareness of removal, her lack of explanation for 20 the timing of the joinder, her limited changes to her original complaint, and the questionable 21 sufficiency of her additional claims brought against the newly added defendant weigh towards a 22 finding of improper motive. However, her possible lack of an opportunity to explain the timing 23 of the joinder, as well as the lack of facial invalidity of her new claims, tilt away from finding an 24 improper motive. On the whole, the court concludes that consideration of the factor as to 25 plaintiff’s motive weighs mildly against permitting joinder. 26 5. Validity of Plaintiff’s Claims Against the Non-Diverse Defendant 27 The fifth factor asks whether the claims brought against the new defendant appear valid 28 and meritorious. See Freeman v. Cardinal Health Pharmacy Servs., LLC, No. 2:14-cv-01994- 1 JAM, 2015 WL 2006183, at *2–4 (E.D. Cal. May 1, 2015). “The existence of a facially 2 legitimate claim against the putative defendant weighs in favor of permitting joinder under 3 [Section] 1447(e).” Westberg v. FCA US LLC, No. 1:18-cv-01509-BAM, 2019 WL 3500559, at 4 *3 (E.D. Cal. Aug. 1, 2019) (internal citation and quotation marks omitted). “For the purposes of 5 joinder under § 1447(e), a plaintiff’s claim need only be facially viable—the claim need not be 6 plausible nor stated with” particularity. Reyes, 2020 WL 7224286, at *8 (citing Dordoni, 2020 7 WL 6082132, at *5). This is “not the same as the standard in either a motion to dismiss or a 8 motion for summary judgment.” Sabag v. FCA US, LLC, No. 2:16-cv-06639-CAS-RAO, 2016 9 WL 6581154, at *6 (C.D. Cal. Nov. 7, 2016). 10 As noted previously, in her FAC plaintiff has joined defendant Henderson and asserted 11 three claims against him under various California Labor Codes. (Doc. No. 11 at 1–2, 5–6.) IPC 12 makes no argument in its opposition to remand that defendant Henderson should not be joined 13 due to the invalidity of the claims asserted against him. (Doc. No. 18.) However, defendant 14 Henderson has filed a motion to dismiss as to all three claims. (Doc. No. 28.) In it, he argues that 15 plaintiff has “fail[ed] to establish” his individual liability under California Labor Code § 558.1. 16 (Doc. No. 28-1 at 10.) In the alternative, he argues that plaintiff’s claims against him must be 17 dismissed because her FAC lacks sufficient factual allegations that her lack of meal periods was 18 the result of his conduct, or that his actions were willful, as required under the relevant California 19 Labor Codes. (Id. at 14–18.) 20 California Labor Code § 558.1, provides that “[a]ny employer or other person acting on 21 behalf of an employer, who violates, or causes to be violated [various wage and hour provisions] 22 may be held liable as the employer for such violation.” Under the applicable Wage Order, an 23 employer is one “who directly or indirectly, or through an agent or any other person, employs or 24 exercises control over the wages, hours, or working conditions of any person.” Cal. Code Regs. 25 tit. 8, § 11040(2)(H). An “other person acting on behalf of an employer” is defined as “a natural 26 person who is an owner, director, officer, or managing agent of the employer.” Cal. Lab. Code 27 § 558.1(b). “Supervisors who have broad discretionary powers and exercise substantial 28 discretionary authority in the corporation could be managing agents.” White v. Ultramar, Inc., 21 1 Cal. 4th 563, 577 (1999). However, “supervisors who have no discretionary authority over 2 decisions that ultimately determine corporate policy would not be considered managing agents 3 even though they may have the ability to hire or fire other employees.” Id. 4 In this case, plaintiff has made few allegations regarding defendant Henderson’s role at 5 IPC. She alleges that he gave her explicit instructions and warnings regarding her breaks and that 6 he was the person who informed her not to report to work. (Doc. No. 11 at ¶¶ 6, 11.) In addition, 7 she alleges that he “acted as an employer or person acting on behalf of an employer.” (Id. at ¶ 3.) 8 These brief and conclusory allegations may indeed fall short of stating a claim against defendant 9 Henderson. Plaintiff does not allege anything else about Henderson’s role, such as in what other 10 specific ways he may have exercised control over plaintiff’s wages, hours, and working 11 conditions, for the purposes of asserting his liability as an employer. Further, she does not allege 12 in what specific ways Henderson had substantial discretionary authority over significant aspects 13 of IPC’s business, for the purposes of asserting his liability as a “managing agent” within the 14 “other person acting on behalf of an employer” category. 15 Despite these apparent deficiencies, the court is unable to conclude that plaintiff’s claims 16 brought against defendant Henderson are facially invalid for the purposes of a joinder analysis. 17 See Reyes, 2020 WL 7224286, at *9 (citing Millican v. Ford Motor Co., No. 19-cv-05348-WHA, 18 2019 WL 7020214, at *2 (N.D. Cal. Dec. 20, 2019) (finding that even though the plaintiffs’ claim 19 “may be threadbare . . . the question is not whether plaintiffs will prevail on the merits, or even 20 withstand a Rule 12(b)(6) motion — the question is whether California law obviously forecloses 21 plaintiffs’ claim”)). Importantly, while defendant Henderson argues that plaintiff’s claims against 22 him should be dismissed without leave to amend, Doc. No. 28-1 at 13–19, he makes no argument 23 that as a matter of law plaintiff “could not possibly recover” against him for Labor Code 24 violations. Lytle v. Ford Motor Co., No. 2:18-cv-01628-WBS-EFB, 2018 WL 4793800, at *2 25 (E.D. Cal. Oct. 2, 2018); see also Mireles v. Wells Fargo Bank, N.A., 845 F. Supp. 2d 1034, 1063 26 (C.D. Cal. 2012) (“Defendants must show that the relevant state law is so well settled that 27 plaintiff would not be afforded leave to amend his complaint to cure th[e] purported deficiency.”). 28 ///// 1 While the specific pleading deficiencies defendant Henderson points out could result in 2 plaintiff’s claims against him being dismissed under Rule 12(b)(6), it is also certainly possible 3 that each deficiency could be cured by amendment. In plaintiff’s opposition to defendant 4 Henderson’s motion to dismiss, plaintiff argues that Henderson exercised control over her wages, 5 hours, and working conditions “because he controlled her work hours, rest/lunch breaks, and her 6 attendance.” (Doc. No. 30 at 10.) She also argues that an inference to be drawn from her FAC is 7 that Henderson “possessed a degree of discretion in making decisions over significant aspects of 8 IPC’s business (i.e., its personnel).” (Id. at 12.) While the FAC itself may not contain sufficient 9 factual allegations to survive a motion under Rule 12(b)(6), California law certainly does not 10 foreclose the causes of action plaintiff has brought, and her arguments suggest to the court that if 11 granted leave to amend, plaintiff may be able to properly state a claim against defendant 12 Henderson under California Labor Code § 558.1 as an employer and/or a managing agent.1 13 Thus, the court cannot conclude that plaintiff’s claims are facially invalid, because to do 14 so “would have the court impose a more stringent pleading standard than what is required under 15 § 1447(e).” Reyes, 2020 WL 7224286, at *9 (citing Hall v. Kraft Heinz Food Co. (LLC), No. 16 1:19-cv-00565-LJO-BAM, 2019 WL 2598764, at *3 (E.D. Cal. June 25, 2019) (“Even where 17 presently deficiently pled, where Plaintiffs may amend that claim to cure any arguable defects, it 18 may not be said that it is impossible for them to state a claim against [a non-diverse 19 defendant].”)). Notably, other district courts in California have permitted joinder of non-diverse 20 defendant managers for wage-and-hour claims and concluded that their “citizenship must be 21 considered for diversity purposes.” Guzman v. Peri & Sons Farms of California, LLC, No. 1:21- 22 cv-00348-JLT-SKO, 2022 WL 17852041, at *7 (E.D. Cal. Dec. 22, 2022) (granting remand 23 where the plaintiff joined her superior and asserted wage and hour violations against him by 24 virtue of California Labor Code § 558.1, and noting that “even very general allegations that a 25 1 This distinguishes plaintiff’s case from that in which the court has previously found the validity 26 of the claims factor to weigh against joinder. See Baker, 2022 WL 3142065, at *7 (denying 27 remand where the plaintiff joined an employee and asserted her negligence claim against him, because under those circumstances individual liability is not available under California Labor 28 Codes and requires additional elements not present in that case). 1 defendant was a supervisor” can be sufficient for a joinder analysis, “even where the court finds 2 that allegations would likely not survive a Rule 12(b)(6) motion”); see also Ramirez v. Quad 3 Graphics, Inc., No. 23-cv-00062-JGB-KK, 2023 WL 3254979, at *10 (C.D. Cal. May 4, 2023) 4 (granting remand where the plaintiff joined two of his supervisors and asserted wage and hour 5 claims again them pursuant to California Labor Code § 558.1, noting that even if a state court 6 found that the allegations in the complaint were not sufficient to state a claim against them as 7 managing agents, such “a court would likely grant Plaintiff leave to amend” and thereby could 8 find the individual defendants liable). Accordingly, while the allegations against defendant 9 Henderson appear somewhat slim, the court is not convinced that “there is no possibility that the 10 plaintiff could prevail on any cause of action [she] brought against the non-diverse defendant.” 11 Hall, 2019 WL 2598764, at *3. 12 In the end, the court concludes that this factor tips in favor of permitting joinder here. As 13 stated above, the court cannot conclude that the claims asserted against defendant Henderson are 14 facially invalid, as they are not “impossible as a matter of California law.” Reyes, 2020 WL 15 7224286, at *9. Even though these claims may not be facially valid as currently asserted, given 16 the paucity of allegations stated against defendant Henderson in plaintiff’s FAC, the court 17 concludes that this factor slightly favors permitting joinder in light of the standard by which 18 claims are evaluated in making this determination. 19 6. Prejudice to Plaintiff 20 Finally, the last relevant factor courts consider is whether plaintiff will “suffer undue 21 prejudice if the Court chooses not to exercise its discretion to allow joinder.” Boon, 229 F. Supp. 22 2d at 1025 (finding this factor weighed against permitting joinder where the plaintiff alleged a 23 different type of claim, requiring mostly different evidence, against the joined defendant than the 24 original defendant). In this context, prejudice to a plaintiff “exists if the proposed defendant is 25 ‘crucial’ to the case” and “does not exist if complete relief can be afforded without that 26 defendant.” McCarty v. Johnson & Johnson, No. 1:10-cv-00350, 2010 WL 2629913, at *9 (E.D. 27 Cal. June 29, 2010); see also Vasquez v. Wells Fargo Bank, Nat’l Ass’n, 77 F. Supp. 3d 911 (N.D. 28 Cal. 2015) (finding no prejudice in denying joinder of a holding company that the plaintiff 1 asserted an unpaid wages claim against without alleging that the holding company was an 2 employer). In connection with this factor, courts also consider whether denying joinder would 3 have practical effects on the plaintiff’s ability to receive relief. Reynolds, 2016 WL 1711671, at 4 *6. 5 Here, the court does have some question as to whether defendant Henderson is crucial to 6 this case, due to the thin nature of plaintiff’s allegations for individual liability against him. 7 However, as noted previously, IPC has made no argument or suggestion that complete relief can 8 be afforded without defendant Henderson, and denying joinder may impact plaintiff’s ability to 9 file a timely claim against him. See id. at *6 (permitting amendment and granting remand where 10 the applicable statute of limitations was two years and several events alleged in the plaintiff’s 11 FAC occurred more than two years prior). Further, plaintiff’s claims against defendant 12 Henderson arose out of the same set of circumstances as her claims asserted against IPC. (Doc. 13 No. 11 at 2–5.) If the court were to deny joinder, plaintiff may face significant expenses 14 associated with pursuing similar litigation in separate forums. See Reyes, 2020 WL 7224286, at 15 *10 (finding the prejudice factor to weigh in favor of permitting joinder where the plaintiff’s 16 claims against the original defendant and the added individual defendant arose “out of the same 17 transaction or occurrence”). Accordingly, the court concludes that consideration of this final 18 factor also tips slightly in favor of permitting joinder. 19 In considering all six § 1447(e) factors, the court finds that this case presents a somewhat 20 close call as to joinder, with four factors pointing towards permitting joinder but to varying 21 degrees, one factor weighing neutrally, and one factor pointing against. There is little guidance 22 from the Ninth Circuit as to how a court should weigh these factors against each other, and as a 23 result some courts assign each factor equal weight, and some do not. See McNamara, 2018 WL 24 6435323, at *5 (permitting joinder where the majority, or four of the six factors, weighed in favor 25 of doing so); Righetti v. Shell Oil Co., 711 F. Supp. 531 (N.D. Cal. 1989) (deciding only to give 26 weight to the timing, validity of claims, and prejudice factors in analyzing under § 1447(e)); see 27 also Jackson, 2018 WL 2355983, at *7 (finding that the two factors regarding plaintiff’s lack of 28 delay and assertion of one “potentially valid” claim against the joined defendant outweighed the 1 other four factors). In the absence of a clear standard, the court will consider each factor with 2 approximately equal weight and conclude that on the whole they suggest permitting joinder in 3 this case, although not overwhelmingly so. 4 Plaintiff’s joinder of defendant Henderson is therefore proper and the court will exercise 5 its discretion to permit joinder in this action, which destroys complete diversity of citizenship. 6 To determine if the court nonetheless has subject matter jurisdiction over this action, the 7 court will address the existence of federal question jurisdiction below. 8 B. Federal Question Jurisdiction 9 “The presence or absence of federal question jurisdiction is governed by the ‘well-pleaded 10 complaint rule,’ which provides that federal jurisdiction exists only when a federal question is 11 presented on the face of the plaintiff’s properly pleaded complaint.” California v. United States, 12 215 F.3d 1005, 1014 (9th Cir. 2000); see also Dynegy, 375 F.3d at 838. Under the well-pleaded 13 complaint rule, courts look to what “necessarily appears in the plaintiff’s statement of his own 14 claim in the bill or declaration, unaided by anything in anticipation of avoidance of defenses 15 which it is thought the defendant may interpose.” California, 215 F.3d at 1014. 16 In her motion to remand, plaintiff argues that this court does not have federal question 17 jurisdiction because none of the causes of action asserted in her FAC are created by federal law 18 and there are no significant federal issues implicated. (Doc. No. 16-1 at 5.) In its opposition, IPC 19 argues that post-removal amendments to the pleadings have no effect on removal. (Doc. No. 18 20 at 3.) IPC’s argument is based on Ninth Circuit precedent holding that for federal question 21 jurisdiction, “the propriety of removal is determined solely on the basis of the pleadings filed in 22 state court.” Williams v. Costco Wholesale Corp., 471 F.3d 975, 976 (9th Cir. 2006) (citing 23 Sparta Surgical Corp. v. Nat’l Ass’n of Sec. Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir. 1998), 24 abrogated on other grounds by Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, 578 U.S. 25 374 (2016)); see also Sparta Surgical, 159 F.3d at 1213 (noting that “jurisdiction must be 26 analyzed on the basis of the pleadings filed at the time of removal without reference to 27 subsequent amendments” and “[b]ecause of this rule, a plaintiff may not compel remand by 28 amending a complaint to eliminate the federal question upon which removal was based”). 1 However, “[d]istrict courts have interpreted Sparta to leave room for discretionary 2 remand.” Herd v. Smart & Final Stores LLC, No. 20-cv-08873-MWF-SK, 2020 WL 6940699, at 3 *2 (C.D. Cal. Nov. 25, 2020). While the court in Sparta held that “no right to remand existed, the 4 Ninth Circuit did not address whether the court could have remanded by exercising its 5 discretion.” Bay Area Surgical Mgmt., LLC. v. United Healthcare Ins. Co., No. 12-cv-01421-SI, 6 2012 WL 3235999, at *5 (N.D. Cal. Aug. 6, 2012) (granting remand and noting that “although 7 Sparta held that no right to remand existed, the Ninth Circuit did not address whether the court 8 could have remanded by exercising its discretion to decline supplemental jurisdiction over the 9 remaining state court claims”) (internal quotations and citations omitted); Hodges v. In Shape 10 Health Clubs, LLC, No. 2:17-cv-01274-JAM-DB, 2017 WL 4386052, at *2 (E.D. Cal. Oct. 3, 11 2017). Indeed, the Ninth Circuit has held that remand may still be appropriate where the plaintiff 12 amends her complaint to remove federal claims and moves for remand without delay. Baddie v. 13 Berkeley Farms, Inc., 64 F.3d 487, 490–91 (9th Cir. 1995) (granting remand where the plaintiffs 14 “dismissed their federal claims and moved for remand with all due speed after removal”). 15 Here, plaintiff amended her complaint to remove her federal claim on July 20, 2023. 16 (Doc. No. 11.) The next day, plaintiff filed an opposition to IPC’s motion to dismiss, in which 17 she requested the court to remand this action sua sponte. (Doc. No. 13.) When the court denied 18 IPC’s motion to dismiss without addressing the request to remand sua sponte, plaintiff filed her 19 pending motion to remand within three weeks. (Doc. Nos. 14, 16.) Thus, remand may still be 20 proper and the decision in Sparta “is not determinative of this motion.” Moyles v. Johnson 21 Controls, Inc., No. cv-05885-FCD-KJM, 2005 WL 1561519, at *3 (E.D. Cal. June 29, 2005) 22 (“[T]he Ninth Circuit [in Baddie] has acknowledged, in a case analogous to the present one, that 23 remand is proper where plaintiffs amend their complaint to remove their federal claims and move 24 for remand without delay.”); see also Dirauf v. Berger, 57 F.4th 101, 109 & n. 8 (3d. Cir. 2022); 25 Harris v. City of San Diego, No. 23-cv-739-LL-SBC, 2023 WL 5202261, at *2 (S.D. Cal. Aug. 26 14, 2023) (“A plaintiff can make a tactical decision to abandon a federal claim after removal.”) 27 ///// 28 ///// 1 In her FAC plaintiff no longer raises a federal claim. Accordingly, the court finds that it 2 has the discretion to remand this case to state court and will next turn to the question of whether it 3 should elect to exercise supplemental jurisdiction over plaintiff’s remaining state law claims. 4 C. Supplemental Jurisdiction 5 Because the court had jurisdiction over plaintiff’s claims at the time of removal, IPC asks 6 the court to retain supplemental jurisdiction over plaintiff’s current claims under 28 U.S.C. 7 § 1367. (Doc. No. 18 at 6.) Federal courts have “supplemental jurisdiction over all other claims 8 that are so related to claims in the action within such original jurisdiction that they form part of 9 the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. 10 § 1367(a). However, as the parties agree, “[t]he decision whether to continue to exercise 11 supplemental jurisdiction over state law claims after all federal law claims have been dismissed 12 lies within the district court’s discretion.” Satey v. JPMorgan Chase & Co., 521 F.3d 1087, 1091 13 (9th Cir. 2003). Typically, when “all federal-law claims are eliminated before trial, the balance of 14 factors to be considered under the pendent jurisdiction doctrine—judicial economy, convenience, 15 fairness, and comity—will point toward declining to exercise jurisdiction over the remaining 16 state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). 17 The court finds that this is such a typical case. Litigating plaintiff’s state law claims in 18 federal court would not further judicial economy due to this case still being in its early stages. 19 See Brooks v. FCI Lender Servs., Inc, No. 2:16-cv-02598-KJM-KJN, 2018 WL 495634, at *2 20 (E.D. Cal. Jan. 22, 2018) (declining to exercise supplemental jurisdiction where the case was still 21 in the pleading stages); Gonzalez v. Cal. Highway Patrol, No. 2:21-cv-00287-KJM-JDP, 2021 22 WL 3565306, at *2 (E.D. Cal. Aug. 12, 2021) (remand is favored where “[t]he court has 23 expended few judicial resources on the action”). As to convenience, plaintiff argues that the state 24 forum is more convenient than the federal forum, and defendant IPC advances no argument in 25 response to that assertion. (See Doc. No. 21 at 4) (arguing that San Joaquin County is where the 26 alleged “unlawful actions occurred” and where most witnesses are located). As to fairness, “there 27 is no reason to doubt that the state court will provide an equally fair adjudication of the plaintiff’s 28 claims.” Ramos v. Los Rios Cmty. Coll. Dist., No. 2:17-cv-01458-WBS-KJN, 2018 WL 5809279, 1 at *1 (E.D. Cal. Nov. 6, 2018) (granting remand to the Sacramento County Superior Court). As 2 to comity, this factor “weighs in favor of declining to exercise supplemental jurisdiction over 3 plaintiff’s remaining state law claim because the state court is competent to hear such claims and 4 may have a better understanding of the relevant state law.” Escobar v. Capstone Logistics, LLC, 5 No. 2:20-cv-02501-WBS-JDP, 2021 WL 913174, at *4 (E.D. Cal. Mar. 10, 2021) (granting 6 remand of the plaintiff’s state law wage-and-hour claims to the San Joaquin County Superior 7 Court). 8 Finally, IPC urges the court to exercise supplemental jurisdiction because plaintiff 9 dropped her federal claim in an “attempt to manipulate the forum.” (Doc. No. 18 at 7.) However, 10 plaintiff’s choice in moving to remand after amending out her lone federal cause of action is a 11 “straight-forward tactical decision.” Baddie, 64 F.3d at 491. The court thus finds that “there has 12 been no showing that there was anything manipulative” about plaintiff’s actions in this regard. 13 Metcalf v. Countrywide Fin. Corp., No. 09-cv-02707-EDL, 2009 WL 2485750, at *3 (N.D. Cal. 14 Aug. 11, 2009) (granting remand where the plaintiff made the tactical decision to eliminate her 15 federal claims). 16 In total, the court concludes that the balance of the factors weighs in favor of remand. 17 Accordingly, the court will decline to exercise supplemental jurisdiction over plaintiff’s state law 18 claims. In the absence of subject matter jurisdiction, the court will grant plaintiff’s motion to 19 remand this action. Due to lack of jurisdiction, defendant Henderson’s pending motion to dismiss 20 will also be denied as moot. 21 CONCLUSION 22 For the reasons set forth above, 23 1. Plaintiff’s motion to remand this action (Doc. No. 16) is granted; 24 2. Defendant Henderson’s motion to dismiss (Doc. No. 28) is denied as moot; 25 ///// 26 ///// 27 ///// 28 ///// 1 3. This action is remanded to the San Joaquin County Superior Court, pursuant to 28 2 U.S.C. § 1447(c), for lack of subject matter jurisdiction; and 3 4. The Clerk of the Court is directed to close this case. 4 IT IS SO ORDERED. > | Dated: □ March 18, 2024 Dab A. 2, sxe 6 DALE A. DROZD 5 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22