1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 HERMAN MORALES, Case No. 2:22-cv-08081-FLA (MAAx)

12 Plaintiff,

ORDER DENYING PLAINTIFF’S

13 v. MOTION TO REMAND [DKT. 8] 14

QUEST DIAGNOSTICS

15 INCORPORATED, et al., 16 Defendants. 17

18 19 20 RULING 21 Before the court is Plaintiff Herman Morales’ (“Plaintiff” or “Morales”) Motion 22 to Remand (“Motion”). Dkt. 8 (“Mot.”). Defendants Quest Diagnostics Incorporated 23 and Quest Diagnostics Clinical Laboratories, Inc. (collectively, “Defendants” or 24 “Quest”) oppose the Motion. Dkt. 11 (“Opp’n”). Plaintiff did not file a reply in 25 support of the Motion. On January 17, 2023, the court found this matter appropriate 26 for resolution without oral argument and vacated the hearing scheduled for January 27 20, 2023. Dkt. 18; see Fed. R. Civ. P. 78(b); Local Rule 7-15. 28 For the reasons stated herein, the court DENIES the Motion in its entirety. 1 BACKGROUND 2 On February 4, 2022, Plaintiff commenced this action in the Los Angeles 3 County Superior Court against Quest and former Defendant Hagop Timourian 4 (“Timourian”). Dkt. 1-2 (“Compl.”). On June 1, 2022, Plaintiff filed the operative 5 First Amended Complaint (“FAC”), asserting eleven causes of action for: (1) 6 discrimination in violation of California’s Fair Employment and Housing Act 7 (“FEHA”); (2) hostile work environment harassment in violation of FEHA; (3) 8 retaliation in violation of FEHA; (4) failure to provide reasonable accommodation in 9 violation of FEHA; (5) failure to engage in the interactive process in violation of 10 FEHA; (6) failure to prevent discrimination, harassment, or retaliation in violation of 11 FEHA; (7) retaliation in violation of the California Family Rights Act (“CFRA”); (8) 12 negligent hiring, supervision, and retention; (9) wrongful termination of employment 13 in violation of public policy; (10) whistleblower retaliation in violation of California 14 Labor Code § 1102.5; and (11) intentional infliction of emotional distress (“IIED”). 15 Dkt. 1-3, Ex. B (“FAC”). Plaintiff asserted the second and eleventh causes of action 16 against Quest and Timourian, and asserted the remaining causes of action against 17 Quest alone. Id. 18 On July 6, 2022, Defendants and Timourian filed a demurrer to the FAC in state 19 court. Dkt. 11-2 (“Brenner Decl.”) ¶ 8. The state court sustained Quest’s demurrer to 20 the eighth cause of action without leave to amend, and sustained Timourian’s 21 demurrer to the second and eleventh causes of action with leave to amend. Id., Ex. D. 22 Plaintiff did not file an amended complaint. On October 6, 2022, Defendants filed an 23 ex parte application for Timourian’s dismissal from the action. Id. ¶¶ 11, 13. Plaintiff 24 did not file an opposition. Id. ¶ 13; Dkt. 11-5 (“Shams Decl.”) ¶ 3. At the October 7, 25 2022 hearing on Defendants’ ex parte application, the state court asked Plaintiff 26 whether he opposed Timourian’s dismissal, and Plaintiff responded he did not. Shams 27 Decl. ¶ 4. Id. Accordingly, the state court dismissed Timourian from the action with 28 prejudice. Brenner Decl. ¶ 14, Ex. E. 1 On November 4, 2022, Defendants removed the action to this court, invoking 2 this court’s diversity jurisdiction under 28 U.S.C. § 1332 (“Section 1332”). Dkt. 1 3 (“NOR”). Plaintiff moves to remand the action for lack of subject matter jurisdiction. 4 See generally Mot. 5 DISCUSSION 6 I. Legal Standard 7 Federal courts are courts of “limited jurisdiction,” possessing “only that power 8 authorized by the Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of 9 Am., 511 U.S. 375, 377 (1994); U.S. Const. art. III, § 2, cl. 1. District courts are 10 presumed to lack jurisdiction unless the contrary appears affirmatively from the 11 record. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n. 3 (2006). 12 Additionally, federal courts have an obligation to examine jurisdiction sua sponte 13 before proceeding to the merits of a case. See Ruhrgas AG v. Marathon Oil Co., 526 14 U.S. 574, 583 (1999). 15 Federal courts have jurisdiction where an action arises under federal law or 16 where each plaintiff’s citizenship is diverse from each defendant’s citizenship and the 17 amount in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. 18 §§ 1331, 1332(a). Thus, a notice removing an action from state court to federal court 19 must include “a plausible allegation that the amount in controversy exceeds the 20 jurisdictional threshold.” Dart Cherokee Basin Operating Co., LLC v. Owens, 574 21 U.S. 81, 89 (2014). Where “the plaintiff contests, or the court questions, the 22 defendant’s allegation” concerning the amount in controversy, “both sides [shall] 23 submit proof,” and the court may then decide whether the defendant has proven the 24 amount in controversy “by a preponderance of the evidence.” Id. at 88–89. “Federal 25 jurisdiction must be rejected if there is any doubt as to the right of removal in the first 26 instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). As the removing 27 parties, Defendants bear the burden to establish the court’s subject matter jurisdiction 28 over this action. See id. at 567. 1 II. Analysis 2 Plaintiff contends Defendants have not met their burden to establish the 3 diversity of citizenship and amount in controversy requirements for the court to have 4 diversity jurisdiction under Section 1332. Mot. at 6–7.1 The court will address the 5 parties’ arguments regarding each requirement in turn. 6 A. Diversity of Citizenship 7 The NOR alleges complete diversity exists between the parties because Plaintiff 8 is a citizen of California while both Defendants are citizens of Delaware and New 9 Jersey. NOR ¶ 11. Plaintiff does not challenge these allegations or the existence of 10 complete diversity between the current parties. Rather, Plaintiff argues there is a lack 11 of complete diversity because former Defendant Timourian is a citizen of California 12 and was involuntarily dismissed from the action following the state court’s ruling on 13 Defendants’ demurrer to the FAC. Mot. at 10. Defendants respond that complete 14 diversity exists because Timourian’s dismissal was voluntary. Opp’n at 12–15. 15 “It is well established that diversity of citizenship, as the basis of removal 16 jurisdiction, must exist both when an action is filed in state court and when defendant 17 petitions for removal to federal court.” Strasser v. KLM Royal Dutch Airlines, 631 F. 18 Supp. 1254, 1256 (C.D. Cal. 1986) (citation omitted). “An exception to this rule 19 applies when a plaintiff, by a ‘voluntary act,’ terminates his state court action against 20 all non-diverse parties.” Id.; see also Self v. Gen. Motors Corp., 588 F.2d 655, 657 21 (9th Cir. 1978) (“[T]he ‘voluntary-involuntary’ rule … requires that a suit remain in 22 state court unless a ‘voluntary’ act of the plaintiff brings about a change that renders 23 the case removable.”). 24 It is undisputed the state court sustained Timourian’s demurrer to the FAC with 25 leave to amend, which was granted at Plaintiff’s request. Dkt. 1-5 at 127–28, 155–56. 26

27 1 The court cites documents by the page numbers added by the court’s CM/ECF 28 system, rather than any page numbers included natively. 1 It is also undisputed Timourian was dismissed from the action after Plaintiff failed to 2 file an amended complaint timely and stated affirmatively to the state court that he did 3 not oppose the dismissal. See id. at 263; Brenner Decl. ¶¶ 10–14; Shams Decl. ¶¶ 3– 4 4. Plaintiff’s decision not to amend his claims against Timourian, after requesting and 5 being granted leave to amend, constituted a voluntary abandonment of his claims 6 against Timourian which rendered the action removable. See Strasser, 631 F. Supp. at 7 1256; Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 696 (9th Cir. 2005) (finding 8 action removable when it became apparent plaintiff abandoned his claims against 9 diversity-defeating defendant); Blankenberg v. Com. Ins. Co. of Newark, N.J., 655 F. 10 Supp. 223, 227 (N.D. Cal. 1987) (“Some clear action indicating severance or 11 abandonment of the unserved defendants is sufficient” for removal.); cf. Self, 588 F.2d 12 at 659 (remanding action where plaintiff “neither dismissed nor discontinued” the 13 action against diversity-defeating defendant voluntarily) (emphasis added). 14 Accordingly, the court finds the state court’s dismissal of Timourian from the 15 action does not destroy the existence of complete diversity between the parties. The 16 court will not grant the Motion on this basis. 17 B. Amount in Controversy 18 “In determining the amount in controversy, courts first look to the complaint.” 19 Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015) (citing 28 U.S.C. 20 § 1446(a)). “Generally, ‘the sum claimed by the plaintiff controls if the claim is 21 apparently made in good faith.’” Id. (quoting St. Paul Mercury Indem. Co. v. Red Cab 22 Co., 303 U.S. 283, 289 (1938)). “[A]s specified in [28 U.S.C.] § 1446(a), a 23 defendant’s notice of removal need include only a plausible allegation that the amount 24 in controversy exceeds the jurisdictional threshold.” Dart Cherokee, 574 U.S. at 89. 25 “Evidence establishing the amount is required by §1446(c)(2)(B) only when the 26 plaintiff contests, or the court questions, the defendant’s allegation.” Id. 27 “[T]he plaintiff can contest the amount in controversy by making either a 28 ‘facial’ or a ‘factual’ attack on defendant’s jurisdictional allegations.” Harris v. KM 1 Indus., Inc., 980 F.3d 694, 699 (9th Cir. 2020). “A ‘facial’ attack accepts the truth of 2 the defendant’s allegations but asserts that they are insufficient on their face to invoke 3 federal jurisdiction.” Id. (quotation marks and brackets omitted). “For a facial attack, 4 the court, accepting the allegations as true and drawing all reasonable inferences in the 5 defendant’s favor, determines whether the allegations are sufficient as a legal matter 6 to invoke the court’s jurisdiction.” Salter v. Quality Carriers, Inc., 974 F.3d 959, 964 7 (9th Cir. 2020) (quotation marks omitted). “A factual attack, by contrast, contests the 8 truth of the factual allegations, usually by introducing evidence outside the pleadings.” 9 Id. (quotation marks omitted); Harris, 980 F.3d at 699. “When a factual attack is 10 mounted, the responding party must support her jurisdictional allegations with 11 ‘competent proof’ under the same evidentiary standard that governs in the summary 12 judgment context.” Salter, 974 F.3d at 964 (quotation marks and ellipses omitted). 13 Plaintiff contends Defendants fail to meet their burden to establish the amount 14 in controversy exceeds $75,000. Mot. at 14–15. Defendants respond that the 15 jurisdictional threshold is met based on Plaintiff’s requests for economic, emotional 16 distress, punitive damages, and attorney’s fees. Opp’n at 16–22; NOR ¶¶ 19–25. As 17 Plaintiff challenges only whether Defendants have met their burden to establish the 18 amount in controversy, and does not present evidence or argue that the amount in 19 controversy is lower than $75,000, Plaintiff mounts only a facial attack on 20 Defendants’ jurisdictional allegations. See Mot. 21 In the FAC, Plaintiff seeks economic damages including “lost past and future 22 income.” FAC ¶ 16. “In unlawful termination cases, courts commonly look to the 23 value of the wages plaintiffs may have earned after they were terminated in evaluating 24 the amount of backpay placed in controversy.” Leon-Calderon v. Old Dominion 25 Freight Line, Inc., Case No. 2:22-cv-08930-MCS (KSx), 2023 WL 1931328, at *2 26 (C.D. Cal. Feb. 10, 2023) (quotation marks omitted); see also Walters v. Dollar Tree 27 Distrib., Inc., Case No. 2:21-cv-02299-JAM-JDP, 2022 WL 1449187, at *2 (E.D. Cal. 28 1 May 9, 2022) (“Defendant is justified in including lost wages in its amount-in- 2 controversy calculations, because it is an available remedy for FEHA violations.”). 3 Defendants submit the declaration of Scott Brady (“Brady”), the Senior 4 Director, HR Business Partner, Western Region, for Quest, as evidence of the amount 5 in controversy. Dkt. 11-3 (“Brady Decl.”) ¶ 2. Brady attests that based on his review 6 of Plaintiff’s personnel records, which were created and maintained in the ordinary 7 course of Quest’s business, Plaintiff was employed as a non-exempt, full-time 8 employee scheduled to work approximately 40 hours per week. Id. ¶ 4. Brady further 9 states Plaintiff’s regular base rate of pay was $17.51 per hour when he went on a leave 10 of absence on or about August 15, 2019, which increased to $18.73 per hour as of the 11 date of his termination. Id. ¶¶ 5–6. Plaintiff did not object or otherwise respond to 12 Defendants’ evidence. 13 Plaintiff alleges he was terminated on August 14 or 28, 2020. FAC ¶¶ 14(k), 14 15(a). Calculating Plaintiff’s potential recovery for lost past income from August 28, 15 2020 to November 4, 2022, the date of removal (114 weeks), using the lower rate of 16 pay of $17.51 per hour results in $79,845.60—which reflects the minimum amount of 17 economic damages in controversy based on the evidence submitted. See NOR ¶ 19. 18 This evidence is sufficient to establish the amount in controversy exceeds the 19 jurisdictional minimum for diversity jurisdiction. 20 Plaintiff argues this calculation is insufficient to meet Defendants’ burden, as 21 Defendants fail to account for any mitigation of past economic damages. Mot. at 14. 22 Plaintiff, however, does not present any evidence or argument to establish any such 23 mitigation. “[M]itigation of damages is an affirmative defense, and a ‘potential 24 defense does not reduce the amount in controversy for purposes of establishing federal 25 jurisdiction.’” Jackson v. Compass Grp. USA, Inc., Case No. 2:19-cv-04678-PSG 26 (GJSx), 2019 WL 3493991, at *4 (C.D. Cal. July 31, 2019) (citing Perez v. Alta-Dena 27 Certified Dairy, LLC, 647 F. App’x 682, 684 (9th Cir. 2016)). 28 1 As the above calculation of Plaintiff's past lost income claimed is alone 2 | sufficient to establish the amount in controversy exceeds $75,000, the court need not 3 | assess the parties’ arguments regarding Plaintiffs requests for non-economic 4 || damages, punitive damages, and attorney’s fees. See Hopper v. STS Distribs., Inc., 5 || Case No. 8:20-cv-02302-CJC (ADSx), 2021 WL 569026, at *1 (C.D. Cal. Feb. 16, 6 | 2021) (denying motion to remand finding defendant’s $78,000 calculation for 7 || plaintiffs potential lost wages sufficient to establish amount in controversy without 8 | considering non-economic damages. ). 9 CONCLUSION 10 For the aforementioned reasons, the court finds: (1) complete diversity exists 11 | between the parties, and (2) Defendants meet their burden to demonstrate the amount 12 | in controversy exceeds the jurisdictional minimum under Section 1332. The court, 13 | therefore, DENIES Plaintiff's Motion to Remand (Dkt. 8) in its entirety. Having 14 | denied the Motion on these grounds, the court need not address the parties’ remaining 15 | arguments. 16 17 IT IS SO ORDERED. 18 19 | Dated: October 26, 2023

1 FERNANDO‘L. AENLLE-ROCHA United States District Judge 22 23 24 25 26 27 28