notice to state court and to adverse party of removal of civil actionCal. Super. - 1st Dist.May 20, 2021NOTICE TO STATE COURT OF REMOVAL / CASE NO. CGC-20-586994 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 SEYFARTH SHAW LLP Chantelle C. Egan (SBN 257938) cegan@seyfarth.com Jaclyn A. Gross (SBN 323933) jgross@seyfarth.com 560 Mission Street, 31st Floor San Francisco, California 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 Attorneys for Defendants DENTSU AMERICA LLC (erroneously named as DENTSU AMERICA, INC.), DENTSU AEGIS NETWORK US HOLDINGS, INC., AMNET GROUP, INC., and CARAT USA, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO LAURENT OPPENHEIM, Plaintiff, v. DENTSU AMERICA, INC., a Delaware corporation; DENTSU AEGIS NETWORK US HOLDINGS, INC., a New Jersey corporation; AMNET GROUP, INC., a Delaware corporation; CARAT USA, INC., a California corporation; AMPLIFIUS, LLC, a Delaware limited liability company; and DOES 1-20, Defendants. Case No. CGC-20-586994 NOTICE TO STATE COURT AND TO ADVERSE PARTY OF REMOVAL OF CIVIL ACTION TO THE UNITED STATES DISTRICT COURT Date Action Filed: October 6, 2020 TO THE COURT AND TO PLAINTIFF AND HIS COUNSEL OF RECORD: PLEASE TAKE NOTICE that on November 25, 2020, Defendants DENTSU AMERICA LLC (erroneously named as DENSTU AMERICA, INC.), DENTSU AEGIS NETWORK US HOLDINGS, INC., AMNET GROUP, INC., and CARAT USA, INC. (collectively “Defendants”) filed a Notice of Removal with the Clerk of the United States District Court for the Northern District of California removing this action to the Court, pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. At the time of Defendants’ filing of the Notice of Removal, Defendant AMPLIFI, INC. (erroneously named as ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 11/30/2020 Clerk of the Court BY: JUDITH NUNEZ Deputy Clerk 2 NOTICE TO STATE COURT OF REMOVAL / CASE NO. CGC-20-586994 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 AMPLIFIUS, LLC) had not been served. A true and correct copy of that Notice of Removal without exhibits is attached hereto as Exhibit “A.” PLEASE TAKE FURTHER NOTICE that, pursuant to 28 U.S.C. § 1446, the filing of the Notice of Removal in the United States District Court effectuates the removal of this action. Accordingly, no further proceedings should take place in this Court unless and until the case has been remanded. DATED: November 30, 2020 Respectfully submitted, SEYFARTH SHAW LLP By: Chantelle C. Egan Jaclyn A. Gross Attorneys for Defendants DENTSU AMERICA LLC (erroneously named as DENTSU AMERICA, INC.), DENTSU AEGIS NETWORK US HOLDINGS, INC., AMNET GROUP, INC., and CARAT USA, INC. 66695823v.2 EXHIBIT A DEFENDANTS DENTSU AMERICA, LLC; DENTSU AEGIS NETWORK US HOLDINGS, INC.; AMNET GROUP, INC.; AND CARAT USA, INC.’S NOTICE OF REMOVAL / CASE NO. ________________ 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 SEYFARTH SHAW LLP Chantelle C. Egan (SBN 257938) cegan@seyfarth.com Jaclyn A. Gross (SBN 323933) jgross@seyfarth.com 560 Mission Street, 31st Floor San Francisco, California 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 Attorneys for Defendants DENTSU AMERICA, LLC (erroneously named as DENTSU AMERICA, INC.), DENTSU AEGIS NETWORK US HOLDINGS, INC., AMNET GROUP, INC., and CARAT USA, INC. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA LAURENT OPPENHEIM, Plaintiff, v. DENTSU AMERICA, INC., a Delaware corporation; DENTSU AEGIS NETWORK US HOLDINGS, INC., a New Jersey corporation; AMNET GROUP, INC., a Delaware corporation; CARAT USA, INC., a California corporation; AMPLIFIUS, LLC, a Delaware limited liability company; and DOES 1-20, Defendants. Case No. _____________ DEFENDANTS DENTSU AMERICA, LLC; DENTSU AEGIS NETWORK US HOLDINGS, INC.; AMNET GROUP, INC.; AND CARAT USA, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION TO THE UNITED STATES DISTRICT COURT Removed from San Francisco County Superior Court Case No. CGC-20-586994 Date Action Filed: October 6, 2020 Case 3:20-cv-08346 Document 1 Filed 11/25/20 Page 1 of 72 2 DEFENDANTS DENTSU AMERICA, LLC; DENTSU AEGIS NETWORK US HOLDINGS, INC.; AMNET GROUP, INC.; AND CARAT USA, INC.’S NOTICE OF REMOVAL / CASE NO. ________________ 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 TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA AND TO PLAINTIFF AND HIS COUNSEL OF RECORD: PLEASE TAKE NOTICE that Defendants DENTSU AMERICA, LLC (erroneously named as Dentsu America, Inc.) (“Dentsu America”), DENTSU AEGIS NETWORK US HOLDINGS, INC. (“Dentsu Aegis”), AMNET GROUP, INC. (“Amnet”), and CARAT USA, INC. (“Carat”) hereby file this Notice of Removal, pursuant to 28 U.S.C. Sections 1332, 1441, and 1446, based on diversity of citizenship jurisdiction, in order to effect the removal of the above-captioned action from the Superior Court of the State of California for the County of San Francisco, to the United States District Court for the Northern District of California, and state that the removal is proper for the following reasons: I. PLEADINGS AND PROCEEDINGS TO DATE 1. On September 18, 2020, Plaintiff Laurent Oppenheim (“Plaintiff”), through his current counsel, filed an administrative complaint with the California Department of Fair Employment and Housing (“DFEH”) against Dentsu America, Dentsu Aegis, Amnet, Carat, and Amplifi, Inc. (“Amplifi”) (erroneously named as Amplifius, LLC) (collectively, “Defendants”) alleging Defendants discriminated against him on the basis of national origin, and as a result of that discrimination, was terminated, denied hire or promotion, denied any employment benefit or privilege, and denied work opportunities or assignments. Plaintiff immediately received a right to sue notice. See Exhibit A, Complaint, Ex. 2. 2. On October 6, 2020, Plaintiff filed his Complaint and Demand for Jury Trial in the Superior Court of the State of California, County of San Francisco, entitled, “LAURENT OPPENHEIM, Plaintiff, v. DENTSU AMERICA, INC., a Delaware corporation; DENTSU AEGIS NETWORK US HOLDINGS, INC., a New Jersey corporation; AMNET GROUP, INC., a Delaware corporation; CARAT USA, INC., a California corporation; AMPLIFIUS, LLC, a Delaware limited liability company; and DOES 1-20” (the “Complaint”), designated San Francisco County Superior Court Case No. CGC-20-586994. 3. The Complaint alleges eight purported causes of action against all Defendants as follows: (1) Breach of Contract; (2) Breach of Covenant of Good Faith and Fair Dealing; (3) Penalties for Failure to Pay Earned Wages upon Discharge pursuant to California Labor Code § 203; (4) Penalties for Failure Case 3:20-cv-08346 Document 1 Filed 11/25/20 Page 2 of 72 3 DEFENDANTS DENTSU AMERICA, LLC; DENTSU AEGIS NETWORK US HOLDINGS, INC.; AMNET GROUP, INC.; AND CARAT USA, INC.’S NOTICE OF REMOVAL / CASE NO. ________________ 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 to Furnish Timely and Accurate Wage Statements Pursuant to California Labor Code § 226; (5) Discrimination Based on National Origin in Violation of the Fair Employment and Housing Act (“FEHA”): Disparate Treatment; (6) Failure to Prevent Discrimination in Violation of FEHA; (7) Wrongful Termination in Violation of Public Policy; and (8) Unlawful and/or Unfair Business Practices in Violation of California Bus. & Prof. Code §§ 17200, et seq. 4. On or about October 27, 2020 Carat was served with Plaintiff’s Summons and Complaint and accompanying documents. Likewise, Dentsu Aegis was served on October 28, 2020; Amnet was served on November 13, 2020; and Dentsu America was served on or about November 23, 2020. Defendant Amplifi has yet to be served in this matter. All process, pleadings, notices and orders in this action are attached as Exhibit A hereto, as required by 28 U.S.C. § 1446(a) and are incorporated by reference as though fully set forth herein. II. TIMELINESS OF REMOVAL 5. Without conceding that service of the Summons and Complaint was effective for purposes of 28 U.S.C. Section 1446(b), this Notice of Removal is timely because it is being filed within thirty (30) days of Defendants Carat, Dentsu Aegis, Amnet, and Dentsu America’s receipt of the Summons and Complaint on October 27 and 28, and November 13 and 23, 2020, respectively, and within one (1) year of the commencement of this action. Thus, removal is timely pursuant to 28 U.S.C. § 1446(b) and Federal Rule of Civil Procedure 6(a). See also Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354-56 (1999) (removal is timely if made within 30 days after complaint is served on defendant). 6. As of the date of this Notice, Defendants Dentsu America, Carat, Dentsu Aegis, and Amnet have not secured the consent of the other named Defendant, Amplifi, before removing this action because, as of the date of this Notice, Amplifi has not been served in this action. See 28 U.S.C. § 1446(b)(2)(A) (“When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.”) (emphasis added). Case 3:20-cv-08346 Document 1 Filed 11/25/20 Page 3 of 72 4 DEFENDANTS DENTSU AMERICA, LLC; DENTSU AEGIS NETWORK US HOLDINGS, INC.; AMNET GROUP, INC.; AND CARAT USA, INC.’S NOTICE OF REMOVAL / CASE NO. ________________ 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 III. DIVERSITY OF CITIZENSHIP JURISDICTION 7. This action may be properly removed on the basis of diversity of citizenship jurisdiction, in that it is a civil action between citizens of different states and the amount in controversy exceeds the sum of $75,000, exclusive of interest and costs. 28 U.S.C. §§ 1332(a)(1), 1441(a). A. Plaintiff’s Citizenship 8. Plaintiff is a French citizen, residing in California. For purposes of establishing diversity for a foreign citizen with permanent residency within the United States, Plaintiff’s state of domicile (California in this instance) controls. See 28 U.S.C. §§ 1332(a)(2) (“. . . district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State.”). 9. Here, Plaintiff is, and at the institution of this civil action was, a citizen of France and a resident of the State of California. See Exhibit A, Complaint at ¶¶ 5, 20. B. Defendant Dentsu America, LLC’s Citizenship 10. Dentsu America is now, and ever since this action commenced, a citizen of a state other than California. 11. A limited liability company, such as Dentsu America, is a citizen of every state of which its members are citizens. See Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). The sole member of Dentsu America is Dentsu Holdings USA, LLC. The sole member of Dentsu Holdings USA, LLC is Portman Square US Holdings Ltd. (“Portman Square”), a United Kingdom limited company. 12. An alien corporation has dual citizenship-i.e., it is a citizen of every U.S. state and foreign state in which it is incorporated, as well as the state or foreign state in which it has its principal place of business. 28 U.S.C. § 1332(c)(1); see also Danjaq, S.A. v. Pathe Communications Corp., 979 F.2d 772, 773-774 (9th Cir. 1992). Portman Square is incorporated in and has its principal place of business in the United Kingdom, where its corporate headquarters and all of its directors are located. Case 3:20-cv-08346 Document 1 Filed 11/25/20 Page 4 of 72 5 DEFENDANTS DENTSU AMERICA, LLC; DENTSU AEGIS NETWORK US HOLDINGS, INC.; AMNET GROUP, INC.; AND CARAT USA, INC.’S NOTICE OF REMOVAL / CASE NO. ________________ 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 13. Therefore, Dentsu America is not a citizen of California. Rather, Dentsu America, through its LLC membership, is a citizen of the United Kingdom for purposes of diversity. C. Defendant Dentsu Aegis Network US Holdings, Inc.’s Citizenship 14. Dentsu Aegis is now, and was at the time of the filing of this action, a citizen of a state other than California within the meaning of 28 U.S.C. Section 1332(c)(1), as it is a corporation, incorporated under the laws of New Jersey and has its principal place of business in New York. 15. Pursuant to 28 U.S.C. Section 1332(c), “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” The United States Supreme Court’s decision in The Hertz Corp. v. Friend, 559 U.S. 77 (2010), has now clarified the meaning of Section 1332(c). Specifically, the Supreme Court held that a corporation’s “principal place of business” for determining its citizenship is the corporation’s “nerve center”: We conclude that “principal place of business” is best read as referring to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. It is the place that Courts of Appeals have called the corporation’s “nerve center.” And 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, i.e., the “nerve center” …. Id. at 78 (emphasis added). 16. Dentsu Aegis’s principal place of business is in New York, which is where Dentsu Aegis’s corporate headquarters and executive offices are located and where Dentsu Aegis’s high-level officers direct, control, and coordinate its activities. 17. Therefore, Dentsu Aegis is not a citizen of California. Rather, Dentsu Aegis is a citizen of New Jersey and New York, pursuant to the Supreme Court’s holding in The Hertz Corp., 559 U.S. at 78. Case 3:20-cv-08346 Document 1 Filed 11/25/20 Page 5 of 72 6 DEFENDANTS DENTSU AMERICA, LLC; DENTSU AEGIS NETWORK US HOLDINGS, INC.; AMNET GROUP, INC.; AND CARAT USA, INC.’S NOTICE OF REMOVAL / CASE NO. ________________ 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 D. Defendant Amnet Group, Inc.’s Citizenship 18. Amnet is now, and was at the time of the filing of this action, a citizen of a state other than California, as it is incorporated under the laws of the State of Delaware and has its principal place of business in New York. See Exhibit A, Complaint at ¶ 8. 19. As New York is the site of Amnet’s corporate headquarters and executive offices, where Amnet’s high level officers direct, control, and coordinate Amnet’s activities, Amnet’s “nerve center” is in New York. The Hertz Corp., 559 U.S. at 78. 20. Therefore, Amnet is not a citizen of California. Rather, Amnet is a citizen of Delaware and New York. E. Defendant Amplifi, Inc.’s Citizenship 21. As of the filing of this Notice, Amplifi has not been served. 22. Amplifi is now, and was at the time of the filing of this action, a citizen of a state other than California, as it is incorporated under the laws of the State of Delaware and has its principal place of business in New York. 23. As New York is the site of Amplifi’s corporate headquarters and executive offices, where Amplifi’s high level officers direct, control, and coordinate Amplifi’s activities, Amplifi’s “nerve center” is in New York. The Hertz Corp., 559 U.S. at 78. 24. Therefore, Amplifi is not a citizen of California. Rather, Amplifi is a citizen of Delaware and New York. F. Defendant Carat USA, Inc.’s Citizenship 25. Carat is a California corporation. See Exhibit A, Complaint at ¶ 9. 26. A defendant’s citizenship, however, may be disregarded for diversity purposes if that party’s joinder is a “sham” or “fraudulent” in the sense that no cause of action has been properly stated against that party. McCabe v. General Foods Corp., 811 F.2d 1336, 1339-40 (9th Cir. 1987) (plaintiffs cannot derail a defendant’s absolute right to remove by the trick of naming a non-diverse defendant where no claim can properly be maintained against that non-diverse defendant); Zogbi v. Federated Case 3:20-cv-08346 Document 1 Filed 11/25/20 Page 6 of 72 7 DEFENDANTS DENTSU AMERICA, LLC; DENTSU AEGIS NETWORK US HOLDINGS, INC.; AMNET GROUP, INC.; AND CARAT USA, INC.’S NOTICE OF REMOVAL / CASE NO. ________________ 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 Dep’t Store, 767 F. Supp. 1037, 1041 (C.D. Cal. 1991) (non-diverse defendant may be disregarded if that person’s joinder is fraudulent in that no claim can be established against that party). 27. Carat is a sham defendant and, therefore, its citizenship must be disregarded for the purposes of determining diversity jurisdiction. See infra Section IV. G. Doe Defendants’ Citizenship 28. The presence of Doe defendants in this case has no bearing on diversity of citizenship for removal. See 28 U.S.C. § 1441(a) (“For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.”); see also Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1213 (9th Cir. 1980) (unnamed defendants are not required to join in a removal petition). Thus, the existence of Doe defendants one through twenty does not deprive this Court of jurisdiction. IV. NONE OF PLAINTIFF’S CAUSES OF ACTION MAY BE PROPERLY MAINTAINED AGAINST CARAT, AND THEREFORE, CARAT IS A SHAM DEFENDANT WHOSE CITIZENSHIP MUST BE DISREGARDED 29. Joinder of a defendant is fraudulent if the defendant cannot be liable to the plaintiff on any theory alleged in the complaint. See Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998) (quoting McCabe, 811 F.2d at 1339 (“If the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state, the joinder of the resident defendant is fraudulent.”)). 30. When determining whether a defendant is fraudulently joined, “[t]he court may pierce the pleadings, consider the entire record, and determine the basis of joinder by any means available.” Lewis v. Time Inc., 83 F.R.D. 455, 455 (E.D. Cal. 1979) (“[I]t is well settled that upon allegations of fraudulent joinder . . . federal courts may look beyond the pleadings to determine if the joinder . . . is a sham or fraudulent device to prevent removal.”), aff’d, 710 F.2d 549 (9th Cir. 1983); McCabe, 811 F.2d at 1339 (a defendant “is entitled to present the facts showing the joinder to be fraudulent”). 31. Here, Plaintiff joined Carat as a defendant to this lawsuit as a sham defendant for the purpose of avoiding this Court’s diversity jurisdiction. For each and every one of the Complaint’s eight causes of action, Plaintiff alleges they are “Against All [Five Entity] Defendants.” Assuming that Plaintiff intended to include Carat as a defendant in each of those claims, Carat cannot be found liable Case 3:20-cv-08346 Document 1 Filed 11/25/20 Page 7 of 72 8 DEFENDANTS DENTSU AMERICA, LLC; DENTSU AEGIS NETWORK US HOLDINGS, INC.; AMNET GROUP, INC.; AND CARAT USA, INC.’S NOTICE OF REMOVAL / CASE NO. ________________ 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 for any claim for relief set forth in the Complaint because each claim arises from Plaintiff’s employment, and more specifically, his 2019 termination. See Exhibit A, Complaint at ¶¶ 37-103; see also Exhibit A, Complaint, Ex. 1 (DFEH Charge). Carat, however, was not Plaintiff’s employer during the relevant time period. Indeed, Carat’s employment relationship with Plaintiff ended in June 2016- more than 4 years before the filing of this lawsuit. Thus, based on the pleadings and the documents submitted in support of this removal, Carat is not a proper defendant in this case and should be disregarded for purposes of determining diversity jurisdiction. A. Carat Has Not Been Plaintiff’s Employer Since June 2016 And Was Never Plaintiff’s Employer During The Period Relevant To This Lawsuit 32. On or about January 7, 2014, Plaintiff entered into a contract for employment with Carat (the “2014 Agreement”). See Exhibit A, Complaint, Ex. 3. 33. On or about June 8, 2016, Plaintiff executed a contract for employment with Amplifi (the “2016 Agreement”), explicitly modifying the terms of the 2014 Agreement, replacing Carat with Amplifi, as Plaintiff’s employer as of June 15, 2016. Exhibit A, Complaint, Ex. 4 (2016 Agreement) at 1. (“Every reference in the Employment Agreement to ‘Carat’ is hereby amended to read ‘Amplifi US, DAN Americas.’”); see also Complaint, Ex. 3 (2014 Agreement) at 1 (“[Amplifi] hereby, employs Employee [Plaintiff], and Employee hereby accepts such employment by [Amplifi]”) (replacing all references in the 2014 Agreement to Carat with Amplifi, as required by the 2016 Agreement). The 2016 Agreement also functionally removed Carat from Plaintiff’s employment, requiring that “[Plaintiff] now report to the Chief Digital Officer, Amplifi US.” The 2016 Agreement expressly and effectively ended Plaintiff’s employment relationship with Carat on June 15, 2016. 34. From June 15, 2016 through Plaintiff’s termination over three years later, Amplifi employed Plaintiff, pursuant to the terms of the 2016 Agreement. On August 28, 2019, Amplifi (not Carat) provided Plaintiff notice of his termination, effective November 28, 2019 (which was subsequently extended to December 6, 2019 due to the Thanksgiving holiday). See Exhibit B, Declaration of Erin Hummel, ¶ 2, Ex. 1. At no time after the effective date of the 2016 Agreement did an employment relationship exist between Carat and Plaintiff. Case 3:20-cv-08346 Document 1 Filed 11/25/20 Page 8 of 72 9 DEFENDANTS DENTSU AMERICA, LLC; DENTSU AEGIS NETWORK US HOLDINGS, INC.; AMNET GROUP, INC.; AND CARAT USA, INC.’S NOTICE OF REMOVAL / CASE NO. ________________ 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 1. Carat Cannot Be Liable for Plaintiff’s Claim for Discrimination Based On National Origin 35. “The FEHA predicates potential ‘liability on the status of the defendant as an “employer.” (§ 12926.)’” Vernon v. State of California, 116 Cal. App. 4th 114, 123 (2004) (quoting Kelly v. Methodist Hospital of So. California, 22 Cal. 4th 1108, 1116 (2000)); see also Reno v. Baird, 18 Cal. 4th 640, 645 (1998) (“The FEHA, however, prohibits only ‘an employer’ from engaging in improper discrimination.”). Additionally, an employment relationship must exist “between the one who discriminates against another and that other who finds himself the victim of that discrimination.” Vernon, 116 Cal. App. 4th at 123. 36. Plaintiff’s overreaching and unsubstantiated assertion in the Complaint that five separate entities are his employer and hence responsible for the claims at issue here is insufficient to justify Carat’s inclusion in this lawsuit, other than to compromise diversity. As detailed above, Carat was not Plaintiff’s employer at the time of his 2019 termination and had not been his employer since June 15, 2016. Furthermore, the Complaint’s allegations of bias are limited to the period after Plaintiff assumed the new role of Managing Director, pursuant to the 2016 Agreement with Amplifi and once his employment with Carat had ceased. See Exhibit A, Complaint at ¶ 28 (“Since taking on this new role as a Managing Director for Defendants, Plaintiff began to encounter blatant anti-European discrimination at the company.”) (emphasis added); see also Exhibit 4 (2016 Agreement) at 1 (Plaintiff’s “new title as EVP, Managing Director - West Coast, Amnet”) (emphasis added). Additionally, the Complaint pinpoints the first instance of purported bias in or around 2017, when Plaintiff did not receive “any increases to his base salary and bonuses for his work in 2016[.]” See Exhibit A, Complaint at ¶ 30; see also Complaint, Ex. 4 (2016 Agreement) at 1 (“[Amplifi] will provide you[, Plaintiff,] an Employee salary review after an initial period of 6 months in the role,” which would occur no earlier than December 15, 2016 per the June 15, 2016 effective date of the contract). By the plain language of the 2016 Agreement, Carat would not be responsible for providing compensation adjustment for Plaintiff’s prior performance in 2016. Case 3:20-cv-08346 Document 1 Filed 11/25/20 Page 9 of 72 10 DEFENDANTS DENTSU AMERICA, LLC; DENTSU AEGIS NETWORK US HOLDINGS, INC.; AMNET GROUP, INC.; AND CARAT USA, INC.’S NOTICE OF REMOVAL / CASE NO. ________________ 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 37. Even assuming that Plaintiff seeks relief for events prior to June 15, 2016, when Carat was his employer, he failed to timely administratively exhaust his purported discrimination claims against Carat. Prior to January 1, 2020, the deadline to file a complaint with the DFEH for employment discrimination was one year. Compare Cal. Gov’t Code § 12960(d) (2017) (“No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice”) with Cal. Gov’t Code § 12960(e) (2019; eff. 2020) (“A complaint . . . shall not be filed after the expiration of three years from the date upon which the unlawful practice”). Accordingly, Plaintiff was required to seek administrative relief from the DFEH no later than June 15, 2017 for any alleged discrimination during his employment with Carat, which ended a year earlier on June 15, 2016. However, even under the new three-year deadline, Plaintiff would have needed to file a complaint with the DFEH by June 15, 2019 to be timely. Id. 38. Absent an employment relationship during the relevant period in the Complaint, coupled with Plaintiff’s failure to timely exhaust his discrimination claims, Carat faces no liability for the alleged discrimination claim arising from Plaintiff’s 2019 termination, and Plaintiff cannot state a claim for discrimination against Carat. 2. Carat Is Not Liable, As A Matter Of Law, For Plaintiff’s Derivative Discrimination Claims For Wrongful Termination In Violation Of Public Policy And Failure To Prevent Discrimination 39. Plaintiff’s claim for wrongful termination in violation of public policy is redundant, because it arises from the allegation that Plaintiff’s termination by Amplifi was motivated by discriminatory animus concerning his national origin. See Exhibit A, Complaint at ¶¶ 34, 82-87. Likewise, this wrongful termination claim is based upon the same alleged misconduct as Plaintiff’s national origin discrimination claim in violation of FEHA. Compare id. with Exhibit A, Complaint at ¶¶ 66-72. Plaintiff’s claim for failure to prevent discrimination similarly arises from the allegation that his termination was a product of discrimination. See Exhibit A, Complaint at ¶¶ 73-81. 40. California courts have repeatedly held that superfluous wrongful termination claims should be dismissed where the underlying statutory claim is meritless. Shoemaker v. Myers, 52 Cal. 3d 1, 24 (1990) (claim dismissed because wrongful termination claim merely duplicated additional claims Case 3:20-cv-08346 Document 1 Filed 11/25/20 Page 10 of 72 11 DEFENDANTS DENTSU AMERICA, LLC; DENTSU AEGIS NETWORK US HOLDINGS, INC.; AMNET GROUP, INC.; AND CARAT USA, INC.’S NOTICE OF REMOVAL / CASE NO. ________________ 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 based on the termination); Muller v. Automobile Club of So. Cal., 61 Cal. App. 4th 431, 450-51 (1998) (claim for tortious discharge in violation of Cal. Govt. Code section 12940 dismissed due to lack of merit on underlying claim). Moreover, absent evidence of discrimination, a plaintiff cannot prevail on a cause of action for failure to prevent the alleged discrimination. See CACI No. 2527 (stating that a plaintiff must prove they were “subjected to [discrimination] in the course of employment” in order to prove their employer “failed to take all reasonable steps to prevent the [discrimination]”). 41. Here, Plaintiff’s wrongful termination claim simply duplicates his meritless FEHA claim for national origin discrimination against Carat. Since Plaintiff cannot state a claim against Carat for the statutory FEHA claim, his claims for wrongful termination and failure to prevent discrimination based on the same theory of liability-discrimination on the basis of national origin as the motivating factor behind Plaintiff’s 2019 termination-also fail. 3. Carat Is Not Liable For Plaintiff’s Claim For Breach Of His Employment Contract Or The Covenant Of Good Faith & Fair Dealing 42. Plaintiff’s Complaint asserts that all five Defendants (including Carat) are liable for the alleged breach of the 2016 Agreement for “fail[ure] to pay the moneys and provide all the consideration owed to him, including for all accrued but unused vacation days.” Exhibit A, Complaint at ¶¶ 38-44. Carat, however, is not a party to the 2016 Agreement. Indeed, the express terms of the 2016 Agreement remove any contractual responsibility from Carat. 43. Where suit is brought on a contract, a person who is not a party to the contract, and has no interest therein, is not a necessary or proper party to the suit. Hurlbutt v. N.W. Spaulding Saw Co., 93 Cal. 55, 58 (1892). Moreover, “only a signatory to a contract may be liable for any breach.” Clemens v. Am. Warranty Corp., 193 Cal. App. 3d 444, 452 (1987). There are only two signatories and thus, two parties to the 2016 Agreement: Plaintiff and Amplifi. See Exhibit A, Complaint, Ex. 4 (2016 Agreement) at 1. 44. According to the plain language of the written contract, Carat did not consent to be bound by its terms, nor did Carat offer any consideration, because it was being removed from the agreement entirely. As there is no objective evidence that Carat is a party to this written contract (or otherwise Case 3:20-cv-08346 Document 1 Filed 11/25/20 Page 11 of 72 12 DEFENDANTS DENTSU AMERICA, LLC; DENTSU AEGIS NETWORK US HOLDINGS, INC.; AMNET GROUP, INC.; AND CARAT USA, INC.’S NOTICE OF REMOVAL / CASE NO. ________________ 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 responsible for the performance), Carat cannot be responsible for any purported breach of this contract and Plaintiff’s breach of contract claim is fatally flawed as to Carat. 45. Likewise, a claim for breach of the implied covenant of good faith and fair dealing requires a contractual relationship between the plaintiff and the defendant. See Careau & Co. v. Sec. Pac. Bus. Credit, Inc., 222 Cal. App. 3d 1371, 1393 (1990) (quoting Rest. 2d, Contracts § 205 (“Every contract imposes upon each party a duty of good faith and fair dealing in each performance and in its enforcement.”)). As Carat is not a party to the 2016 Agreement, Plaintiff’s good faith covenant claim against Carat also fails. 46. Assuming, although not pled, that Plaintiff meant to allege that Carat breached the 2014 Agreement to which it was a party, his cause of action fails as the statute of limitations has run. As of June 15, 2016, Carat’s obligations pursuant to the 2014 Agreement ceased, meaning that Plaintiff would have needed to file a complaint pertaining to Carat’s purported breach of the 2014 Agreement by June 15, 2020, at the latest-almost four months prior to Plaintiff filing this lawsuit. See Cal. Code Civ. Proc. § 337(a) (actions arising from a written contract must be filed within four years from the date of the alleged breach). Therefore, even if pled to address Carat’s performance under the 2014 Agreement, Plaintiff’s October 6, 2020 Complaint would remain untimely and cannot support any causes of action against Carat. 4. Plaintiff’s Third And Fourth Causes Of Action For Failure To Pay Accrued But Unused Vacation At His 2019 Termination Also Fail Against Carat 47. Plaintiff alleges that Carat (along with all the other Defendants) is liable for alleged failure to pay earned wages upon discharge and furnish timely and accurate itemized wage statements. Exhibit A, Complaint at ¶¶ 51-59, 60-65. Similar to Plaintiff’s discrimination and breach of contract claims, these two causes of action arise from Plaintiff’s 2019 termination. Specifically, Plaintiff alleges that all five Defendants failed to pay him for all accrued, but unused vacation time when his employment ended in 2019. Case 3:20-cv-08346 Document 1 Filed 11/25/20 Page 12 of 72 13 DEFENDANTS DENTSU AMERICA, LLC; DENTSU AEGIS NETWORK US HOLDINGS, INC.; AMNET GROUP, INC.; AND CARAT USA, INC.’S NOTICE OF REMOVAL / CASE NO. ________________ 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 48. As established above, Carat was not Plaintiff’s employer at the time of his 2019 termination, nor had it been for the preceding three years. Accordingly, Plaintiff cannot properly maintain his third and fourth causes of action as to Carat. 5. Because Plaintiff Cannot Establish Any Unlawful And/Or Unfair Practices Against Carat, No Liability Exists Against Carat For Plaintiff’s Claim For Violation Of Business & Professions Code § 17200 et seq. 49. Plaintiff’s eighth cause of action for violation of Section 17200’s Unfair Competition Law (“UCL”) is derivative of other claims alleged in the Complaint. See Exhibit A, Complaint at ¶¶ 88- 103. As detailed above, Plaintiff cannot establish that Carat is liable for any of the alleged practices because Carat was not Plaintiff’s employer during the relevant period nor is it a party to the relevant contract. 50. Furthermore, under California’s UCL’s statute of limitations provision, “[a]ny action to enforce any cause of action pursuant to [the UCL] shall be commenced within four years after the cause of action accrued.” Cal. Bus. & Prof. Code § 17208. Being that Carat’s obligations to Plaintiff ceased no later than June 15, 2016 (the effective date of the 2016 Agreement), any action against Carat for UCL violations needed to be filed no later than June 15, 2020, four months prior to initiation of this lawsuit. Accordingly, Carat cannot be liable for Plaintiff’s UCL claim not only because Carat is not liable for the derivative claims, but because any UCL claim against Carat is untimely. V. AMOUNT IN CONTROVERSY 51. While Defendants deny any liability as to Plaintiff’s claims, the amount in controversy requirement is satisfied because “it is more likely than not” that the amount exceeds the jurisdictional minimum of $75,000. See Sanchez v. Monumental Life Ins., 102 F.3d 398, 404 (9th Cir. 1996) (“[D]efendant must provide evidence establishing that it is ‘more likely than not’ that the amount in controversy exceeds [the threshold] amount.”). The jurisdictional amount may be determined from the face of the complaint. Singer v. State Farm Mutual Automobile Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997). However, as explained by the Ninth Circuit, “the amount-in-controversy inquiry in the removal context is not confined to the face of the complaint.” Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004) (finding that the Court may consider facts presented in the removal petition). Case 3:20-cv-08346 Document 1 Filed 11/25/20 Page 13 of 72 14 DEFENDANTS DENTSU AMERICA, LLC; DENTSU AEGIS NETWORK US HOLDINGS, INC.; AMNET GROUP, INC.; AND CARAT USA, INC.’S NOTICE OF REMOVAL / CASE NO. ________________ 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 52. Although Plaintiff’s Complaint does not state a specific dollar amount of damages Plaintiff seeks, Plaintiff alleges eight causes of action related to his purported employment. Specifically, Plaintiff seeks unpaid wages, back pay, restitution, general damages for pain and suffering, compensatory damages, statutory damages, punitive damages, injunctive and declaratory relief, and attorney’s fees and costs. See Exhibit A, Complaint at 2:15-17, 8:11-13, 9:2-4, 10:16-19, 11:9-11, 12:1- 3, 12:20-22, 14:15-19. 53. Defendants, and each of them, deny that Plaintiff is entitled to any recovery in this action and by filing this Notice of Removal, Defendants do not waive any defenses that may otherwise be available to them. Without waiving this position and in light of the allegations in Plaintiff’s Complaint, Defendants aver that the amount in dispute is this matter exceeds $75,000. Prior to filing the Complaint this action, Plaintiff’s counsel, Yosef Peretz of the law firm Peretz & Associates, sent a demand letter, dated March 10, 2020, concerning some of the same claims that were later alleged in the Complaint. In this March 10, 2020 letter, Mr. Peretz provided calculations of the damages Plaintiff asserts against Defendants in support of Plaintiff’s settlement demand. See Cohn v. Petsmart, Inc., 281 F.3d 837, 840 n.3 (9th Cir. 2002) (court admitted settlement demand letter as evidence of amount in controversy, stating, “We reject the argument that Fed. R. Evid. 408 prohibits the use of settlement offers in determining the amount in controversy.”). Mr. Peretz’s letter calculated the damages arising from the claims at issue here as follows for Plaintiff: Unpaid Vacation & Waiting Time Penalty - $62,400 Compensatory Damages for Wrongful Termination - $864,600 General Damages for Emotional Distress - $300,000 Punitive Damages - $300,000 Attorneys’ Fees and Costs - $15,000 54. Based on the amounts set forth in Mr. Peretz’s letter on Plaintiff’s behalf, totaling $1,542,000, the amount in controversy in this action substantially exceeds the $75,000 amount in controversy required for federal diversity jurisdiction. Case 3:20-cv-08346 Document 1 Filed 11/25/20 Page 14 of 72 15 DEFENDANTS DENTSU AMERICA, LLC; DENTSU AEGIS NETWORK US HOLDINGS, INC.; AMNET GROUP, INC.; AND CARAT USA, INC.’S NOTICE OF REMOVAL / CASE NO. ________________ 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 VI. VENUE 55. Plaintiff filed this action in the Superior Court of California, County of San Francisco. 56. The County of San Francisco lies within the jurisdiction of the United States District Court, Northern District of California. 57. Therefore, without waiving Defendants’ right to challenge, among other things, personal jurisdiction and/or venue by way of a motion or otherwise, venue lies in the Northern District of California pursuant to 28 U.S.C. Sections 84(c), 1441(a), and 1446(a). This Court is the United States District Court for the district within which the State Court Action is pending. Thus, venue lies in this Court pursuant to 28 U.S.C. Section 1441(a). Pursuant to Civil Local Rule 3-2(c) and (d), this case should be assigned to the San Francisco or Oakland Division of this Court. VII. NOTICE OF REMOVAL 58. A true and correct copy of this Notice of Removal will be promptly served on Plaintiff and filed with the Clerk of the Superior Court of the State of California, County of San Francisco, as required under 28 U.S.C. Section 1446(d). VIII. PRAYER FOR REMOVAL 59. WHEREFORE, Defendant prays that this civil action be removed from the Superior Court of the State of California for the County of San Francisco, to the United States District Court for the Northern District of California. DATED: November 25, 2020 Respectfully submitted, SEYFARTH SHAW LLP By:/s/ Jaclyn A. Gross Chantelle C. Egan Jaclyn A. Gross Attorneys for Defendants DENTSU AMERICA, LLC (erroneously named as DENTSU AMERICA, INC.), DENTSU AEGIS NETWORK US HOLDINGS, INC., AMNET GROUP, INC., and CARAT USA, INC. 66930162v.3 Case 3:20-cv-08346 Document 1 Filed 11/25/20 Page 15 of 72 PROOF OF SERVICE 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 PROOF OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is 560 Mission Street, 31st Floor, San Francisco, California 94105. On November 30, 2020, I served the within document(s): NOTICE TO STATE COURT AND TO ADVERSE PARTY OF REMOVAL OF CIVIL ACTION TO THE UNITED STATES DISTRICT COURT by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Francisco, California, addressed as set forth below. by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. by placing the document(s) listed above in a sealed envelope or package provided by an overnight delivery carrier with postage paid on account and deposited for collection with the overnight carrier at San Francisco, California, addressed as set forth below. by transmitting the document(s) listed above, electronically, via the e-mail addresses set forth below. electronically by using the Court’s ECF/CM System. Yosef Peretz Shane Howarter PERETZ & ASSOCIATES 22 Battery Street, Suite 200 San Francisco, California 94111 Telephone: (415) 732-3777 Facsimile: (415) 732-3791 Email: yperetz@peretzlaw.com; showarter@peretzlaw.com Attorneys for Plaintiff I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 6 C1),-LQ,,, PROOF OF SERVICE 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 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on November 30, 2020, at San Francisco, California. Shari O’Brien 66976209v.1
