Maisel v. AEH Company, Inc. ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WALTER MAISEL, PhD, an individual, ) Case No.: 3:21-cv-01493-BEN-DEB ) Plaintiff, 12 ) ORDER GRANTING DEFENDANTS’ 13 v. ) MOTION ) 14 AEH COMPANY, INC. doing business as ) [ECF No. 6] SERAPH CONSULTING, a California 15 corporation; TRINET HR III-A, INC., a ) ) 16 California corporation; AMBROSE ) CONROY, an individual; and DOES 1 17 through 10, Inclusive, ) ) 18 Defendant. ) 19 I. INTRODUCTION 20 Plaintiff WALTER MAISEL, Ph.D. (“Plaintiff”) brings this action for breach of 21 contract due to failure to pay wages and a bonus for work performed in 2019 against 22 Defendants AEH COMPANY, INC. doing business as SERAPH CONSULTING, a 23 California corporation (“Seraph”); TRINET HR III-A, INC., a California corporation 24 (“TriNet”); and AMBROSE CONROY, an individual (“Conroy”) (collectively, 25 “Defendants”). ECF No. 1-4 at 65-66.1 26 Before the Court is the Joint Motion of Defendants to Remand the Action to State 27 1 Unless otherwise indicated, all page number references are to the ECF-generated 28 1 Court (the “Motion” 2). ECF No. 6. After considering the papers submitted, supporting 2 documentation, and applicable law, the Court GRANTS the Joint Motion. 3 II. BACKGROUND 4 A. Statement of Facts 5 Plaintiff alleges that on or about April 10, 2017, Conroy offered him a position at 6 Seraph as President of Internal Operations. Complaint, ECF No. 1-2 (“Compl.”) at 5, ¶¶ 7 15-17. On or about January 1, 2018, he accepted the terms of employment, which 8 included a salary of $300,000.00 and a bonus of ten percent of the distributable profits 9 from the consulting business during his term of his employment, which would be paid at 10 the end of the year in which it is earned and pro-rated by the full month worked. Id. at 5, 11 ¶ 16. On or about December 2, 2019, Conroy informed Plaintiff that allegedly there were 12 some red flags with his expense reimbursements, and he would have to be terminated. Id. at 6, ¶ 24. Plaintiff alleges that Defendants required him to continue to work until at least 13 December 21, 2019, but only paid him through December 2, 2019. Id. at 6, ¶ 25. 14 15 16 2 “Defendants’ indication that the present motion is brought as a ‘joint’ motion is somewhat misleading.” Harville v. Cty. Comm’n of Lawrence Cty., Alabama, No. cv-08- 17 C-0222-NE, 2008 WL 11379962, at *1 n. 3 (N.D. Ala. Nov. 19, 2008). “Typically, ‘joint’ 18 motions are brought by all parties to a particular lawsuit and not, as here, by only the defendants.” Id. Here, the Joint Motion acknowledges that “[a]s Plaintiff has not yet 19 appeared in the instant matter, he is not a party to the instant joint motion.” ECF No. 6 at 20 2, ¶ 7. However, it states that “Plaintiff has, however, agreed that a joint motion to remand is appropriate under the circumstances.” Id. There is no declaration from Defendants’ 21 counsel stating under penalty of perjury that they have spoken with Plaintiff’s counsel. See, 22 e.g., Daniel F. v. Blue Shield of Cal., 305 F.R.D. 115, 122-23 (N.D. Cal. 2014) (noting that 23 “courts will “not consider any arguments based on factual assertions that are unsupported by evidence”); see also FED. R. CIV. P. 43(c); S.D. Cal. Civ. R. 7.1(f)(1)-(3). Further, the 24 statement in the Joint Motion that Plaintiff agrees with the Joint Motion is hearsay. 25 Compare Fed. R. Evid. 801(c) with Smith v. Walsh, 833 F. Supp. 844, 850 (W.D. Okla. 1993), aff’d, 48 F.3d 1233 n.4 (10th Cir. 1995). Thus, even though “joint motions” require 26 neither a hearing date for the motion nor a “a separate points and authorities or declaration 27 unless required by the nature of the motion or requested by the assigned judicial officer,” S.D. Cal. Civ. R. 7.2(b), it appears this motion needed to be filed as a regularly noticed 28 1 B. Procedural History 2 On December 2, 2020, Plaintiff filed suit against Defendants in the San Diego 3 Superior Court, Case No. 37-2020-00044075-CU-BC-CTL, alleging six causes of action 4 for (1) breach of contract; (2) failure to pay all wages; (3) false promise; (4) breach of 5 covenant of good faith and fair dealing; (5) failure to provide timely personnel file and 6 payroll records; and (6) violation of California’s Unfair Competition Law, Cal. Bus. & 7 Prof. Code § 17200 et seq. ECF No. 1-4 at 5. 8 On December 9, 2020, Plaintiff served TriNet. ECF No. 1-4 at 25-26. On January 9 5, 2021, Seraph accepted service of the Complaint through a Notice of Acknowledgement 10 and Receipt. ECF No. 1 at 2, ¶ 3. On January 8, 2021, TriNet filed an Answer to 11 Plaintiff’s Complaint. ECF No. 1-4 at 27. On February 16, 2021, Seraph filed a Joint 12 Answer to Plaintiff’s Complaint. Id. at 34. On July 21, 2021, Conroy accepted service 13 of the Complaint through a Notice of Acknowledgement and Receipt. ECF No. 1 at 2, ¶ 14 4. On August 13, 2021, Conroy filed a separate Answer to Plaintiff’s Complaint. ECF 15 No. 1-4 at 80. 16 On August 23, 2021, Conroy removed the case to the Southern District of 17 California on the basis of diversity jurisdiction. ECF No. 1 at 3, ¶ 9. Conroy alleges that 18 the amount in controversy exceeds $75,000.00, and diversity of citizenship exists because 19 (1) Plaintiff alleges he is a resident and citizen of Michigan; (2) AEH and Conroy are both 20 citizens of California; (3) Seraph is a citizen of Nevada; and (4) TriNet is a citizen of 21 Delaware. Id. at 3, ¶¶ 10-14. That same day, Defendants Seraph and Conroy also filed 22 answers to the Complaint. ECF Nos. 2, 3. However, on September 10, 2021, all three 23 Defendants filed a Joint Motion to Remand to State Court. ECF No. 6. 24 III. LEGAL STANDARD 25 Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. 26 Co. of Am., 511 U.S. 375, 377 (1994). Consequently, district courts are presumed to lack 27 jurisdiction unless the Constitution or a statute expressly provides otherwise. Stock West, 28 Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). Generally, federal 1 || subject matter jurisdiction exists due to the presence of a federal question, see 28 U.S.C. 2 ||§ 1331, or complete diversity between the parties, see 28 U.S.C. § 1332. 3 “Except as otherwise expressly provided by Act of Congress,” where a plaintiff 4 || files in state court a civil action over which the district courts of the United States have 5 || original jurisdiction, the defendant may remove that case “to the district court of the 6 ||United States for the district and division embracing the place where such action is 7 || pending.” 28 U.S.C. § 1441(a). However, removing a case does not deprive another party 8 his right to move to remand the case.” 28 U.S.C. § 1448. Courts strictly construe the 9 ||removal statute against removal jurisdiction. See, e.g., Provincial Gov't of Marinduque 10 || v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). 11 DISCUSSION 12 “A motion to remand the case on the basis of any defect other than lack of subject 13 || matter jurisdiction must be made within 30 days after the filing of the notice of removal 14 || under section 1446(a).” 28 U.S.C. § 1447(c). Here, Defendants jointly move to remand 15 || within thirty (30) days of Conroy removing the case. Thus, the Motion to remand is 16 ||timely. Neither Plaintiff nor Plaintiff's counsel has submitted a declaration in support of 17 || the Motion, and the Court cannot rely on a statement by opposing counsel indicating that 18 || Plaintiff supports the remand. To provide Plaintiff with an opportunity to object if the 19 representation is not correct, the Court GRANTS the Motion unless Plaintiff files an 20 || objection within five (5) courts days of this order. CONCLUSION 22 For the above reasons, the Court GRANTS the Motion as follows: If no objection is 23 || received by Monday, October 11, 2021, this case is remanded to the San Diego Superior 24 || Court. 25 IT IS SO ORDERED. 26 || DATED: October 4, 2021 77 HON. ROGER T. BENITEZ United States District Judge 28 _4-