Removal to Federal Court

Cal. Super. - 6th Dist.July 23, 2018

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dylan B. Carp (Cal. Bar No. 196846) Electronically Filed JACKSON LEWIS PC by Superior Court of CA, 50 Cahfornla Street, 9th Floor county of Santa Clara San Francisco, California 941 11 _ ’ . on 8/30/2018 5.39 PM Telephone. (415) 394-9400 . _ SFacsimile; (415) 394-9401 ReV'ewed By- - A'Va'ez E-mail: Dylan.Carp@iacks0nlewis.com case #1 8cva32079 Envelope: 1897270 David K. Montgomery (Cal. Bar N0. 120066) JACKSON LEWIS P.C. 201 E. Fifth Street, 26th Floor Cincinnati, Ohio 45202 Telephone: (513) 898-0050 Facsimile: (5 13) 898-0051 E-mail: David.Montgomerv@iacksonlewis.com Attorneys for Defendants CARDINAL HEALTH 200, LLC and BRADLY COLLINS SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA COCO DEY, an individual, Case N0. 18CV332079 Plaintiff, DEFENDANTS CARDINAL HEALTH 200, LLC AND BRADLY COLLINS’ NOTICE V. TO STATE COURT AND TO ADVERSE PARTY OF FILING OF NOTICE OF CARDINAL HEALTH 200 LLC, a Delaware REMOVAL OF ACTION TO FEDERAL Corporation; BRADLY COLLINS, an COURT individual, and DOES 1-10, inclusive, Defendants. Complaint Filed: July 23, 201 8 Trial Date: None Set TO THE SUPERIOR COURT OF THE STATE OF CALIFORNLA FOR THE CITY AND COUNTY 0F SANTA CLARA AND TO PLAINTIFF COCO DEY, AND HER ATTORNEY OF RECORD: PLEASE TAKE NOTICE that 0n August 30, 201 8, Defendants CARDINAL HEALTH 200 LLC and BRADLY COLLINS filed a Notice ochmoval of this action in thc United States District Court for thc Northern District of California. A truc and correct copy of Dcfcndants’ Notice 0f Removal, excluding all exhibits, is attached hcrcto and incorporated hcrcin by rcfcrcncc and scrvcd and filed hcrcwith as Exhibit 1. 1 Case N0. 18CV332079 NOTICE TO STATE COURT AND TO ADVERSE PARTY OF FILING OF NOTICE OF REMOVAL OF ACTION TO FEDERAL COURT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Case No. 18CV332079 NOTICE TO STATE COURT AND TO ADVERSE PARTY OF FILING OF NOTICE OF REMOVAL OF ACTION TO FEDERAL COURT Pursuant to 28 U.S.C. Sections 1332 and 1441(b), the filing of the attached Notice of Removal with the United States District Court effects the removal of this action. The above- captioned Court may proceed no further unless and until the case is remanded by the federal court. Dated: August 30, 2018 JACKSON LEWIS P.C. By: _____________________________________ Dylan B. Carp David K. Montgomery Attorneys for Defendants CARDINAL HEALTH 200, LLC and BRADLY COLLINS EXHIBIT 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:18-cv-05348 Document 1 Filed 08/30/18 Page 1 of 6 Dylan B. Carp (Cal. Bar No. 196846) JACKSON LEWIS P.C. 50 California Street, 9th Floor San Francisco, California 941 11 Telephone: (415) 394-9400 Facsimile: (415) 394-9401 E-mail: Dylan.Carp@iacksonlewis.com David K. Montgomery (Cal. Bar N0. 120066) JACKSON LEWIS P.C. 201 E. Fifth Street, 26th Floor Cincinnati, Ohio 45202 Telephone: (513) 898-0050 Facsimile: (513) 898-0051 E-mail: David.Montgomery@jacksonlewis.c0m Attorneys for Defendants CARDINAL HEALTH 200, LLC and BRADLY COLLINS UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA COCO DEY, an individual, Case N0. Plaintiff, DEFENDANTS CARDINAL HEALTH 200, LLC AND BRADLY COLLINS’ NOTICE OF REMOVAL OF ACTION V. TO FEDERAL COURT UNDER 28 U.S.C. §§ 1332 AND 1441 CARDINAL HEALTH 200, LLC, a Delaware Corporation; BRADLY COLLINS, an individual, and DOES 1-10, inclusive, Complaint Filed: July 23, 201 8 Santa Clara County Superior Court Defendants. TO THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, PLAINTIFF COCO DEY, AND HER ATTORNEY OF RECORD: PLEASE TAKE NOTICE that Defendant CARDINAL HEALTH 200, LLC (“Cardinal Hcalt ”), a Delaware limited liability company whose sole mcmbcr is a citizen of Ohio and Delaware, and Defendant BRADLY COLLINS (“Collins”), an individual citizen of Texas (collectively, “Dcfcndants”), hcrcby invokc this Court’s jurisdiction undcr thc provisions 0f 28 U.S.C. §§ 1332 and 1441(a) and remove thc abovc-cntitlcd action to this Court from thc Superior 1 Case No. DEFENDANTS’ NOTICE OF REMOVAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Case No. ___________ DEFENDANTS’ NOTICE OF REMOVAL Court of the State of California in and for the County of Santa Clara. I. PRELIMINARY STATEMENT OF JURISDICTION 1. This Court has original jurisdiction over this action under 28 U.S.C. § 1332(a), and this action is therefore one that may be removed to this Court by Defendants under 28 U.S.C. § 1441(a), in that it is a civil action between citizens of different states and the matter in controversy exceeds the sum of $75,000, exclusive of interest and costs. II. VENUE 2. Although Defendants reserve the right to move for a transfer of venue to the one and most appropriate and convenient for all parties, they allege that venue lies in the United States District Court for the Northern District of California under 28 U.S.C. § 1441(a), which provides in pertinent part that “any civil action brought in State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” As stated above, Plaintiff brought this action in the Superior Court of the State of California in and for the County of Santa Clara. Thus, venue properly lies in the United States District Court for the Northern District of California under 28 U.S.C. §§ 84(b), 1391(a) and 1441(a). III. PLEADINGS 3. On July 23, 2018, Plaintiff filed an action in the Superior Court of the State of California in and for the County of Santa Clara, entitled Coco Dey v. Cardinal Health 200, LLC, Bradly Collins and DOES 1-10, as Case No. 18CV332079. A true and correct copy of the Complaint (“Complaint”), Summons, and related papers served in this matter are attached as Exhibit A. 4. Plaintiff filed suit against her former employer, Defendant CARDINAL HEALTH 200, LLC, and Cardinal Health employee Defendant BRADLY COLLINS alleging claims for (1) Sexual Harassment in Violation of the California Fair Employment and Housing Act (against both Defendants); (2) Sex Discrimination in Violation of the California Fair Employment and Housing Act (against both Defendants); (3) Failure to Take All Reasonable Steps to Prevent Sexual Harassment in Violation of the Fair Employment and Housing Act (against Cardinal Health); Case 5:18-cv-05348 Document 1 Filed 08/30/18 Page 2 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Case No. ___________ DEFENDANTS’ NOTICE OF REMOVAL (4) Retaliation in Violation of the California Fair Employment and Housing Act (against both Defendants); (5) Intentional Infliction of Emotional Distress (against both Defendants); and (6) Wrongful Termination in Violation of Public Policy (against Cardinal Health). See Ex. A, Complaint. 5. Plaintiff effected service of the Summons and Complaint on July 31, 2018 on Cardinal Health via service on Cardinal Health’s registered agent. (Declaration of Dylan Carp (“Carp Decl.”), ¶ 2.) Plaintiff served the Summons and Complaint on Collins on August 2, 2018. (Id.) Therefore, the time for Defendants to file a responsive pleading to Plaintiff’s Complaint or removal has not yet expired. 6. Defendants answered Plaintiff’s Complaint on August 30, 2018. (Carp Decl. ¶ 3.) A copy of Defendants’ Answer is attached as Exhibit B. IV. TIMELINESS OF REMOVAL 7. This Notice of Removal is timely under 28 U.S.C. 1446(b)(3) in that Defendants filed it within 30 days after July 31, 2018, which is the date that Plaintiff effected service of the Summons and Complaint on Defendant CARDINAL HEALTH 200, LLC. V. DIVERSITY OF CITIZENSHIP 8. Plaintiff Coco Dey was, at the time of filing of the Complaint, and upon information and belief still is, a resident of the State of California. See Ex. A., Complaint, ¶ 2. 9. Defendant BRADLY COLLINS is an individual citizen of the State of Texas. (Declaration of Bradly Collins (“Collins Decl.”), ¶ 2.) 10. Defendant CARDINAL HEALTH 200, LLC is a limited liability company organized under the laws of the State of Delaware. (Declaration of Christina Pate (“Pate Decl.”) ¶ 2.) The sole member of Defendant CARDINAL HEALTH 200, LLC is Allegiance Corporation, a Delaware corporation with its principal place of business in Ohio. (Id.) 11. “Like a partnership” a limited liability company (“LLC”) “is a citizen of every state of which its owners/members are citizens.” Johnson v. Columbia Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). A party may establish the citizenship of members of an LLC that are business entities by establishing state of organization of those business entities and their Case 5:18-cv-05348 Document 1 Filed 08/30/18 Page 3 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Case No. ___________ DEFENDANTS’ NOTICE OF REMOVAL principal place of business. Id.; Buie v. Extended Stay Hotels, 2018 U.S. Dist. LEXIS 82834, * 5-6 (E.D. Cal. May 16, 2018.) 12. Here, Defendant CARDINAL HEALTH 200, LLC is a limited liability company organized in the State of Delaware. (See Pate Decl. ¶ 2.) The only member of CARDINAL HEALTH 200, LLC is Allegiance Corporation. (Id.) Allegiance Corporation is incorporated in the State of Delaware and maintains its principal place of business in the State of Ohio. (Id.) Accordingly, Defendant CARDINAL HEALTH 200, LLC is a citizen of Delaware and Ohio for diversity purposes. Johnson, 437 F.3d at 899. 13. The only other defendants named in Plaintiff’s Complaint are fictitious parties identified as “DOES 1-10,” whose citizenship shall be disregarded for the purpose of removal. 28 U.S.C. § 1441(a). Thus, there are no other defendants to join in the removal of this action. 14. Therefore, the diversity element of § 1332 removal is satisfied as Plaintiff is a citizen of California and Defendants are citizens of Texas, Delaware, and Ohio. VI. AMOUNT IN CONTROVERSY 15. Without conceding that Plaintiff is entitled to damages or can recover damages in any amount whatsoever, the amount in controversy in this action exceeds $75,000. 28 U.S.C. §1332(a). Plaintiff’s Complaint does not specify an amount in controversy, and only states that Plaintiff seeks general, special, and punitive damages, in addition to pre-judgment and post- judgment interest, fees, and costs. See Ex. A., Complaint, Prayer for Relief at pp. 16-17. Where a plaintiff’s state court complaint is silent as to the amount of damages claimed, the United States Supreme Court has held “a defendant’s notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold,” but the statement need not contain evidentiary submissions. See Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 549, 554 (2014). If plaintiff contests a defendant’s allegations, defendant need only demonstrate by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional threshold. See id. at *12; see also Sanchez v. Monumental Life Ins. Co., 95 F.3d 856, 860-861 (9th Cir. 1996); Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001) (courts may consider factual statements in defendant’s notice of removal in assessing removal Case 5:18-cv-05348 Document 1 Filed 08/30/18 Page 4 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Case No. ___________ DEFENDANTS’ NOTICE OF REMOVAL jurisdiction). 16. Defendants deny the validity and merit of the entirety of all of Plaintiff’s alleged claims, the legal theories upon which they are ostensibly based, and the alleged claims for monetary and other relief that flow therefrom. For purposes of removal only, however, and without conceding that Plaintiff is entitled to any damages or penalties whatsoever, Plaintiff’s settlement demand establishes that the amount in controversy exceeds the jurisdictional minimum of $75,000. A. Plaintiff’s settlement demand exceeds the $75,000 minimum. 17. Plaintiff’s own damages analysis and demand show that the amount in controversy exceeds the $75,000 minimum to grant this Court jurisdiction under 28 U.S.C. § 1332. 18. A defendant may establish the amount in controversy based on a party’s settlement demand. The Ninth Circuit held that a settlement letter can be used to establish the amount in controversy for purposes of removal. Cohn v. Petsmart, Inc., 281 F.3d 837, 839-840 (9th Cir. 2002); see also Munoz v. J.C. Penney Corp., 2009 U.S. Dist. LEXIS 36362, *9-10 (C.D. Cal. Apr. 9, 2009) (holding “the Ninth Circuit has upheld the use of settlement letters in showing a sufficient amount in controversy for purposes of removal” and finding plaintiff’s “settlement offer . . . made the amount in controversy ascertainable and as such, [was] properly recognized by this Court”). 19. In an email dated June 25, 2018, counsel for Plaintiff alleged that Plaintiff was subjected to unlawful sexual harassment and a hostile work environment, and was wrongfully terminated. (Pate Decl. ¶ 3.) Attached to this email correspondence was a copy of the draft Complaint that counsel for Plaintiff had prepared. A copy of the June 25, 2018 email is attached as Exhibit C. 20. In an email dated July 12, 2018, counsel for Plaintiff advised Cardinal Health that Plaintiff would settle her claims against Cardinal Health for $415,000 (the “Settlement Demand”). (Pate Decl. ¶ 4.) A copy of the Settlement Demand is attached as Exhibit D. 21. Thus, the Settlement Demand establishes that the amount in controversy for Plaintiff’s claims exceeds $75,000. VII. CONSENT TO REMOVAL 22. All named defendants in this action consent to this removal. (Carp. Decl. ¶ 4.) Case 5:18-cv-05348 Document 1 Filed 08/30/18 Page 5 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Case No. ___________ DEFENDANTS’ NOTICE OF REMOVAL VIII. CONCLUSION Defendants have shown that they are diverse from Plaintiff, it is more likely than not that Plaintiff has more than $75,000 in controversy, and that Defendants consent to removal. Additionally, Defendants have timely removed. Accordingly, Defendants respectfully request that the above action now pending against them in the Superior Court of the State of California for the County of Santa Clara be removed to this Court. Dated: August 30, 2018 JACKSON LEWIS P.C. By: s/Dylan B. Carp Dylan B. Carp David K. Montgomery Attorneys for Defendants CARDINAL HEALTH 200, LLC and BRADLY COLLINS Case 5:18-cv-05348 Document 1 Filed 08/30/18 Page 6 of 6 Schroder, Bryana (San Francisco) From: ECF-CAND@cand.uscourts.gov Sent: Thursday, August 30, 2018 11:35 AM To: efiling@cand.uscourts.gov Subject: Activity in Case 5:18-cv-05348 Dey v. Cardinal Health 200, LLC et al Notice of Removal This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND t0 this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference 0f the United States policy permits attorneys 0f record and parties in a case (including pro se litigants) to receive one free electronic copy 0f all documents filed electronically, if receipt is required by law 0r directed by the filer. PACER access fees apply t0 all other users. T0 avoid later charges, download a copy ofeach document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply. U.S. District Court California Northern District Notice of Electronic Filing The following transaction was entered by Carp, Dylan 0n 8/30/201 8 at 11:35 AM and filed 0n 8/30/201 8 Case Name: Dey v. Cardinal Health 200, LLC et a1 Case Number: 5: 18-cv-05348 Filer: Bradly Collins Cardinal Health 200, LLC Document Number: l Docket Text: NOTICE OF REMOVAL from Santa Clara County Superior Court. Their case number is 18CV332079. (Filing fee $400 receipt number 0971-1 2640239). Filed byBradly Collins, Cardinal Health 200, LLC. (Attachments: # (1) Civil Cover Sheet, # (2) Exhibit A, # (3) Exhibit B, # (4) Exhibit C, # (5) Exhibit D, # (6) Declaration of Carp, # (7) Declaration of Collins, # (8) Declaration of Pate)(Carp, Dylan) (Filed on 8/30/2018) 5:18-cv-05348 Notice has been electronically mailed t0: Dylan B. Carp carpd@jacksonlewis.c0m, SanFranciscoDocketing@JacksonLewis.com, schroderb@jacksonlewis.com 5:18-cv-05348 Please see Local Rule 5-5; Notice has NOT been electronically mailed to: Coco Dey The following document(s) are associated with this transaction: 2 Document description: Original filename: Electronic document Stamp: [STAMP CANDStamp_ID=977336130 [Date=8/30/2018] [FileNumber=15119184-0] [5a02ac97e5263926e6375201fe564152e6b65483f11bf741ab496ac78c0bfbc29019 44010e928cd963943e630c881f6ea9d1bb4f26e56fc6ad22eb603e4cfe63]] Document description:Civil Cover Sheet Original filename:S:\SchroderB\Removal -- Civil Cover Sheet.pdf Electronic document Stamp: [STAMP CANDStamp_ID=977336130 [Date=8/30/2018] [FileNumber=15119184-1] [697dc80be8e929ada7ed25cbe2c81b7809ecd7611282fcb99036cee52a34f17581e6 5dffc40e7490ceb21941a007b2b371e67990df20912568686811b56b5c50]] Document description:Exhibit A Original filename:S:\SchroderB\Removal -- Exhibit A.pdf Electronic document Stamp: [STAMP CANDStamp_ID=977336130 [Date=8/30/2018] [FileNumber=15119184-2] [8d36987298be681d09ace8af71c4ae809c7d3e994a9a55e9b92231de28495b04bbc7 cc0a13e04d03ba34743de05de416e0d62d5551b7e0d87b5fcc5dbfe1ec21]] Document description:Exhibit B Original filename:S:\SchroderB\Removal -- Exhibit B.pdf Electronic document Stamp: [STAMP CANDStamp_ID=977336130 [Date=8/30/2018] [FileNumber=15119184-3] [67721253e58229896388ed88c1b730273eb0be9c9ae1f6c2740d1f9d2b27f645bba9 3ef91fdd206390ce9c3309640bea98a0c33a4e20b9c71ea31ca9a4a807ac]] Document description:Exhibit C Original filename:S:\SchroderB\Removal -- Exhibit C.pdf Electronic document Stamp: [STAMP CANDStamp_ID=977336130 [Date=8/30/2018] [FileNumber=15119184-4] [3f0008657297a46b702c4feb2ca369bd174b3ea6658ca5e39947db7d7fc8f9fa4c93 e13c5422248b13a99cbdca683443014d2d3e00f93d800728e62a916ac10f]] Document description:Exhibit D Original filename:S:\SchroderB\Removal -- Exhibit D.pdf Electronic document Stamp: [STAMP CANDStamp_ID=977336130 [Date=8/30/2018] [FileNumber=15119184-5] [6b1621be624f35cafae95b09ae06a2f7ae2e4492e42a90a7bd344f278e136e56873a 350a35b6dcbc20f4a56b5d21a68ade49344926fafabca4bd2637222ecd51]] Document description:Declaration of Carp Original filename:S:\SchroderB\Removal -- Carp Declaration.pdf Electronic document Stamp: [STAMP CANDStamp_ID=977336130 [Date=8/30/2018] [FileNumber=15119184-6] [a38ede6a6529cba580754f9d54dca0bda9be38587fe0b2f7af571ad485d658705cc6 612785fbc78097e0815b856f1d87c3503a6077d7341c99ddab025997b454]] Document description:Declaration of Collins Original filename:S:\SchroderB\Removal -- Collins Declaration.pdf Electronic document Stamp: [STAMP CANDStamp_ID=977336130 [Date=8/30/2018] [FileNumber=15119184-7] [60f455249bec3e1776cd1ded71edecb09a6499fed82549b49d6ac6bd28d8d774dd2d 5b5805df28506a458988d60311190f39f8e2fd194f9ab42ca916cec9d2d8]] Document description:Declaration of Pate Original filename:S:\SchroderB\Removal -- Pate Declaration.pdf Electronic document Stamp: 3 [STAMP CANDStamp_ID=977336130 [Date=8/30/2018] [FileNumber=15119184-8] [693c91b7f39808bde3dea67ce8bbaae0abd428f852b704617c1d2cbeb143eb6f9097 57531c8977358af7859b6238bf469664bbffb08d88a9418cb702099884e7]] Main Document S:\SchroderB\Removal -- Notice.pdf PROOF OF SERVICE Case No. l 8CV332079 m~M~ Lauretta Adams BY .;LECTRONlC TRANSMISSION: I caused such document(s) to be electronically transmitted to ~the e-mail addressies) registered through the Court's e-filing/e-service program. I declare under penalty of perjury, under the laws of the State of California, that the above is true and correct. Executed on August 30, 2018, at San Francisco, California. D BY FACSilvIILE TRAN8MISSJON: I caused such document(s) to be transmitted by facsimile from our fu number (4 ~ 5) 394-9401 to the fax number indicated above (by written agreement, confirming letter dated and signed MM/DD/YY}. D BY OVERNIGHT DELIVERY: I caused such envelope(s) to be delivered to the above address within 24 business hours by overnight delivery service. D BY MAIL: United States Postal Service by placing a sealed envelope(s) with the postage thereon fully prepaid, placed for collection and mailing on this date, following ordinary business practices, in the United States mail at San Francisco, California. [( ) Courtesy copy by e-mall.i BY 1-]AND DELIVERY: I caused such envelope(s) to be delivered by hand to the above address. D Attorneys for Plaintiff COCO DEY Matthew S. Da Vega DA VEGA FISHER MECHTENBERG LLP 232 E. Anapamu Street Santa Barbara, CA 93101 Telephone: (805) 232-044 71 Facsimile: (877) 535-9358 E-mail: mdavega@mdmflaw.com 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 in this action by placing a true and correct copy thereof, enclosed in a sealed envelope, and 9 addressed as follows: 2 I, Lauretta Adams, declare that I am employed with the law firm of Jackson Lewis P.C., 3 whose address is 50 California Street, 9th Floor, San Francisco, California, 94111-4615; I am over 4 the age of eighteen (18) years and am not a party to this action. 5 On August 30, 2018, I served the attached DEFENDANTS CARDINAL HEALTH 200, 6 LLC AND BRADLY COLLINS' NOTICE TO STATE COURT AND TO ADVERSE 7 PARTY OF FILING OF NOTICE OF REMOVAL OF ACTION TO FEDERAL COURT 1 PROOF OF SERVICE