Opinion
2:22-CV-02894-MEMF (JCx)
07-13-2022
AMBER BENGTSSON, an individual, Plaintiff, v. CARIS MPI, INC., et al., Defendants.
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND [ECF NO. 12]
MAAME EWUSI-MENSAH FRIMPONG United States District Judge.
Before the Court is Plaintiff Amber Bengtsson's Motion to Remand. ECF No. 12. On June 27, 2022, the Court deemed this matter appropriate for resolution without oral argument and vacated the hearing set for June 30, 2022. ECF No. 18; see C.D. CAL. L.R. 7-15. For the reasons stated herein, the Court GRANTS the Motion to Remand.
All facts alleged herein are taken from Plaintiff Amber Bengtsson's Complaint. ECF No. 1-3, Ex. A (“Compl.”).
Plaintiff Amber Bengtsson (“Bengtsson”) is, and at all times mentioned herein was, a resident of Los Angeles County, California. Compl. ¶ 2. Bengtsson was employed by Defendant Caris MPI, Inc. (“Caris”) from October 29, 2019, to August 28, 2020, as an account manager. Id. ¶¶ 18, 28. Caris is a Texas corporation, specializing in providing laboratory testing. Id. ¶ 3. Defendant Mark Gresh (“Gresh”) was “an owner, director, officer, or managing agent” of Caris and resided in California. Id. ¶ 6.
On or about August 28, 2020, Gresh invited Bengtsson to a meeting, which she was unable to attend as she was experiencing pregnancy symptoms. Id. ¶ 26. On or about August 30, 2020, Bengtsson submitted a medical leave note to Gresh, indicating that she should be placed on leave from August 31, 2020, through September 25, 2020. Id. ¶ 27. On or about September 2, 2020, Bengtsson was informed that she was terminated effective August 28, 2020, due to her performance. Id. ¶ 28.
II. Procedural History
On November 23, 2021, Bengtsson filed this action in the Superior Court of California, County of Los Angeles, alleging causes of action for: (1) disability discrimination, CAL. GOV. CODE § 12940(a); (2) retaliation, CAL. GOV. CODE § 12940; (3) failure to prevent discrimination and retaliation in violation of Fair Employment and Housing Act (“FEHA”), CAL. GOV. CODE § 12940(k); (4) failure to provide reasonable accommodations, CAL. GOV. CODE § 12940; (5) failure to engage in good faith interactive process, CAL. GOV. CODE § 12940; (6) wrongful termination in violation of public policy; (7) declaratory judgment; (8) breach of oral contract; (9) breach of written contract; (10) breach of implied covenant of good faith and fair dealing; (11) failure to pay wages; and (12) failure to pay all wages at the time of termination, CAL. LAB. CODE §§ 201-203. See generally Compl. Caris is named as a defendant in all the causes of action; Gresh is only named in the eleventh and twelfth causes of action. See id. Caris filed and served its Answer on January 21, 2022. ECF No. 1 (“Notice of Removal”) ¶ 2; see also ECF No. 1-3, Declaration of Krystal Saleh (“Saleh Decl.”), Ex. B. Gresh filed and served his Answer on March 22, 2022. Notice of Removal ¶ 7; see also Saleh Decl., Ex. G.
On April 29, 2022, Gresh removed this action to federal court, citing diversity jurisdiction under 28 U.S.C. § 1441(a). Notice of Removal ¶ 9. In support of the Notice of Removal, Gresh submitted concurrently his own Declaration (“Gresh Decl.”), ECF No. 1-1, and the Declaration of Wendy Greer (“Greer Decl.”), ECF No. 1-2. Bengtsson filed the instant Motion to Remand on May 31, 2022. ECF No. 12. The Motion was fully briefed on June 16, 2022. See ECF Nos. 13 (“Opp'n”), 14 (“Reply”). The Motion was taken under submission on June 27, 2022.
III. Legal Standard
A. Diversity Jurisdiction
The “[f]ederal courts are courts of limited jurisdiction.” Corral v. Select Portfolio Servicing, Inc., 878 F.3d 770, 773 (9th Cir. 2017) (internal quotation marks omitted). Civil actions may be removed from state court if the federal court has original jurisdiction. See Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 33 (2002) (“Under the plain terms of § 1441(a), in order properly to remove [an] action pursuant to that provision, petitioners must demonstrate that original subject-matter jurisdiction must lie in the federal courts.”).
Removal of a state action may be based on either diversity or federal question jurisdiction. City of Chi. v. Int'l Coll. of Surgeons, 522 U.S. 156, 163 (1997); Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). The defendant seeking removal of an action from state court bears the burden of establishing grounds for federal jurisdiction. Geographic Expeditions, Inc. v. Est. of Lhotka, 599 F.3d 1102, 1106-07 (9th Cir. 2010). Courts resolve all ambiguities “in favor of remand to state court.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). A removed case must be remanded “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c).
Diversity jurisdiction exists where the suit is between citizens of different states and the amount in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a). When federal subject matter jurisdiction is predicated on diversity of citizenship, see 28 U.S.C. § 1332(a), complete diversity must exist between the opposing parties. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) (stating that the diversity jurisdiction statute “applies only to cases in which the citizenship of each plaintiff is diverse from the citizenship of each defendant.”).
The parties do not dispute that the amount in controversy exceeds $75,000. The Court finds that Gresh's calculations of Bengtsson's back pay establish that it is more probable than not that plaintiff s claim exceeds the jurisdictional minimum. Sanchez v. Monumental Life Ins. Co., 95 F.3d 856, 860-61 (9th Cir. 1996), amended by, reh 'g en banc denied by, 102 F.3d 398, 404 (9th Cir. 1996); see Notice of Removal ¶¶ 21-31.
B. Domicile of Corporate Defendant
To determine citizenship in the context of diversity jurisdiction, a corporation is a citizen of: (1) the state under whose laws it is organized or incorporated; and (2) the state of its “principal place of business.” 28 U.S.C. § 1332(c)(1). A corporation's principal place of business is solely determined by the state where its “nerve center” is located. Hertz Corp. v. Friend, 559 U.S. 77, 78 (2010). A corporation's nerve center is “where a corporation's officers direct, control, and coordinate the corporation's activities . . . [a]nd in practice it should normally be the place where the corporation maintains its headquarters-provided that the headquarters is the actual center of direction, control, and coordination.” Id. at 93.
C. Domicile of Individual Defendant
The defendant has the burden of establishing its domicile when a removal action is commenced. Lew v. Moss, 797 F.2d 747, 750 (9th Cir.1986). The existence of domicile “is determined as of the time the lawsuit is filed.” Id.
“[A] person is ‘domiciled' in a location where he or she has established a ‘fixed habitation or abode in a particular place, and [intends] to remain there permanently or indefinitely.'” Id. at 749-50 (quoting Owens v. Huntling, 115 F.2d 160, 162 (9th Cir.1940)). However, “[a] person residing in a given state is not necessarily domiciled there, and thus is not necessarily a citizen of that state.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir.2001); see also Mondragon v. Capital One Auto Fin., 736 F.3d 880, 885-86 (9th Cir.2013) (noting that the Ninth Circuit has “not yet” adopted the presumption that evidence of a person's residence is “prima facie evidence of the person's domicile”). Rather, a determination of domicile involves a number of factors including: (1) current residence; (2) voting registration and voting practices; (3) location of personal and real property; (4) location of spouse and family; (5) membership in unions and other organizations; (6) place of employment or business; (7) driver's license and automobile registration; and (8) payment of taxes. Id. at 750. Domicile must be evaluated in terms of objective fact; statements of intent should be accorded little weight if in conflict with objective fact. Lew, 797 F.2d at 750 .
IV. Discussion
Bengtsson argues that remand is warranted because: (1) the Motion is timely-which this Court notes is not in dispute; (2) Caris fails to set forth any admissible evidence that it is not a citizen of California and is instead domiciled in Arizona; and (3) Gresh fails to set forth any objective or subjective evidence that he is not a citizen of California and is instead domiciled in Arizona. Mot. at 1. Furthermore, Bengtsson submitted evidentiary objections to the Gresh Declaration and Greer Declaration, filed by Gresh in support of his Notice of Removal. ECF No. 12-1 (“Objections”).
A. Evidentiary Objections
i. Evidentiary Objection to the Gresh Declaration Is Overruled
Before addressing the merits of the Motion to Remand, the Court first considers various evidentiary objections Bengtsson asserts against declarations submitted by Gresh in support of his notice of removal. See generally Objections. Bengtsson objects to consideration of Paragraph 3 of the Gresh Declaration. Id. at 2.
Bengtsson objects to this paragraph on the grounds that it: (1) constitutes inadmissible hearsay under Rules 801 and 802 of the Federal Rules of Evidence; and (2) lacks foundation under Rule 602 of the Federal Rules of Evidence. Id.
Bengtsson first objects that Paragraph 3 contains inadmissible hearsay. The Court finds that the statements are not hearsay. Gresh is not recounting an out-of-court statement to prove the truth of the matter asserted. Rather, he testifies based on personal knowledge of his residence. See FED. R. EVID. 801(c) (“‘Hearsay' means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement”).
Bengtsson also objects that Gresh lacks foundation and personal knowledge of the matter in Paragraph 3. However, Gresh states, under penalty of perjury, that the statements in the Declaration are based on his personal knowledge. Gresh Decl. ¶ 1; see also FED. R. EVID. 602 (“A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony”). The Court finds this objection meritless as Gresh has personal knowledge of where he has lived since 2013.
For the reasons stated, the Court OVERRULES Bengtsson's objection to Gresh's Declaration and will consider the Declaration in its entirety in ruling on the Motion to Remand.
ii. Evidentiary Objections to the Greer Declaration Are Overruled
Bengtsson also objects to portions of the Greer Declaration filed in support of Gresh's Notice of Removal. Objections at 2-6. Specifically, she objects to Paragraphs 1, 3, 4, and 5 of Greer's Declaration. Bengtsson objects to these paragraphs on the grounds that it: (1) constitutes inadmissible hearsay under Rules 801 and 802 of the Federal Rules of Evidence; and (2) lacks foundation and personal knowledge under Rule 602 of the Federal Rules of Evidence. Id. 1. The Hearsay Objections Are Overruled
Bengtsson first objects that the challenged paragraphs of Wendy Greer's (“Greer”) Declaration contain inadmissible hearsay. The Court finds that the statements in Paragraphs 1 and 3 are not hearsay. Greer is not recounting out-of-court statements to prove the truth of the matter asserted; rather, she testifies based on personal knowledge of Caris's corporate records. See FED. R. EVID. 801(c). For this reason, the statements are admissible.
Because the Court finds that the challenged paragraphs are not hearsay, the Court need not consider Gresh's argument that the statements fall within the business records exception to hearsay. ECF No. 13-1.
On the other hand, the Court finds that the statements contained in Paragraphs 4 and 5 constitute hearsay that may still be properly admitted under the business records exception. A hearsay statement is admissible as a business record pursuant to Federal Rule of Evidence 803(6) if the following foundational facts are proven: (1) the writing is made or transmitted by a person with knowledge at or near the time of the incident recorded; and (2) the record is kept in the course of regularly conducted business activity. United States v. Ordonez, 737 F.2d 793, 805 (9th Cir. 1983). “These facts must be shown by the testimony of the custodian or other qualified witness.” Id. Here, Greer properly testifies that the information in Paragraphs 4 and 5 are drawn from records that “are kept in the regular course of business” and were made in “a timely manner by people with knowledge of the information being entered.” Greer Decl. ¶ 2. As such, the Court finds that Paragraphs 4 and 5 of Greer's Declaration meets the business records exception.
2. The Foundation and Personal Knowledge Objections Are Overruled
Bengtsson also objects that Greer lacks foundation and personal knowledge of the challenged paragraphs. Greer states, under penalty of perjury, that the statements in the Declaration are based on personal knowledge she has gained as Caris's Vice President, Human Resources; this provides adequate foundation for the statements. Greer Decl. ¶ 1; see also FED. R. EVID. 602; Barthelemy v. Air Line Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir.1990) (concluding that a CEO's personal knowledge of various corporate activities could be presumed). Indeed, Greer explains that her statements are based on a review of Caris's corporate records that she has access to and is familiar with in the scope of her job duties as Vice President. Greer Decl. ¶¶ 1, 2. Moreover, where Caris is organized and incorporated and its principal place of business is the type of information that would reasonably be known to its Vice President. See, e.g., In re Kaypro, 218 F.3d 1070, 1075 (9th Cir.2000) (“Griesbach's five-year tenure as Arrow's credit manager lends support to his claim of ‘personal knowledge' of industry practice”); Barthelemy, 897 F.2d at 1018; United States v. Thompson, 559 F.2d 552, 554 (9th Cir.1977) (finding that an employee familiar with “normal company procedures . . . had ample personal knowledge to testify on that subject”). As discussed above, see supra Section IV.A.ii.1, the Court finds that Greer would not have personal knowledge of the statements made in Paragraphs 4 and 5, concerning Gresh's employment records. However, these statements may still be properly admitted under the business records exception to hearsay.
For the reasons stated above, the Court OVERRULES each of Bengtsson's objections to Greer's Declaration and will consider the Declaration in its entirety in ruling on the Motion to Remand.
B. Gresh Has Sufficiently Established That Caris Is Domiciled In Arizona
Bengtsson argues that Gresh fails to establish that Caris is not domiciled in California by offering only “conclusory allegations of the citizenship of Caris” in the Greer Declaration. Mot. at 5. As discussed above, the Court overrules Bengtsson evidentiary objections to the Greer Declaration and considers the Declaration in its entirety for the purpose of determining Caris's domicile. See supra Section IV.A.ii.
Caris is incorporated and organized under the laws of the State of Texas. Compl. ¶ 3; Greer Decl. ¶ 3. However, to fully resolve the jurisdictional issue, the Court must also determine the state in which Caris has its principal place of business. California district courts have found that reliance on a single piece of evidence, such as a Secretary of State printout, is insufficient for a party to prove the location of its headquarters under the Hertz “nerve center.” See, e.g., L 'Garde, Inc. v. Raytheon Space & Airborne Sys., 805 F.Supp.2d 932, 940 (C.D. Cal. 2011) (relying on the defendant's corporate forms and a declaration to find the location of its headquarters); N. Cal. Power Agency v. AltaRockEnergy, Inc., No. 11-1749, 2011 WL 2415748, at *2-3 (N.D. Cal. June 15, 2011) (finding a Secretary of State printout insufficient as sole piece of evidence to prove a party's nerve center). However, here, like in L 'Garde, Caris pleads a variety of facts indicating that Caris's headquarters are located in Phoenix, Arizona. Specifically, Greer identifies in her Declaration that:
Caris performs the vast majority of its executive and administrative functions at its corporate headquarters in Phoenix, Arizona, where its executive offices, as well as its administrative offices, are located. Phoenix, Arizona is the actual center of direction, control and coordination for Caris' operations.
Greer Decl. ¶ 3. Gresh has sufficiently alleged that Caris's nerve center is “where [its] corporation's officers direct, control, and coordinate the corporation's activities [and] . . . where [Caris] maintains its headquarters.” Hertz, 559 U.S. at 93.
Accordingly, based on the totality of the above referenced facts from the Greer Declaration, the Court finds that Caris's principal place of business is in Phoenix, Arizona.
C. Gresh Has Failed To Establish That He Is Domiciled In Arizona
Bengtsson argues that Gresh fails to set forth sufficient evidence to establish that he is domiciled in California. Mot. at 6. As discussed above, the Court overrules Bengtsson evidentiary objection to the Gresh Declaration and considers the Declaration in its entirety for the purpose of determining Caris's domicile. See supra section IV.A.ii.
Gresh asserts that at the time of filing this action and at all times relevant to the allegations contained in the Complaint, he has been domiciled in Tempe, Arizona. Notice of Removal ¶ 18; Gresh Decl. ¶ 3. In support of this assertion, Gresh submits that he “[has] lived in Tempe, Arizona since 2013.” Gresh Decl. ¶ 3. However, “[a] person residing in a given state is not necessarily domiciled there, and thus is not necessarily a citizen of that state.” Kanter, 265 F.3d at 857. Absent any further facts on his activities in Arizona-such as his voting registration and voting practices; location of personal and real property; location of spouse and family; membership in unions and other organizations; place of employment or business; driver's license and automobile registration; and payment of taxes-the Court finds that Gresh has failed to proffer sufficient facts to establish that he is a citizen of Arizona. See Lew, 797 F.2d at 750 (“[D]omicile is evaluated in terms of objective facts and . . . statements of intent are entitled to little weight when in conflict with facts.”) (internal quotations and citations omitted).
Because Gresh has failed to meet his burden to demonstrate complete diversity between Gresh and Bengtsson, the Court REMANDS this case. See Caterpillar Inc. v. Lewis, 519 U.S. at 68 (stating that the diversity jurisdiction statute “applies only to cases in which the citizenship of each plaintiff is diverse from the citizenship of each defendant.”).
V. Conclusion
In light of the foregoing, the Court hereby GRANTS the Motion to Remand.
IT IS SO ORDERED.