Opinion
Case No. 3:20-cv-00125-SB
05-22-2020
LEONA MIOTKE, Plaintiff, v. CORIZON HEALTH, INC., a Delaware corporation; NAPHCARE, INC., an Alabama corporation; CLACKAMAS COUNTY, an Oregon county; NICHOLE BOSMA, RN, an individual; ANDREW ROBOTTOM, an individual; and DEBRA FYE, BA, RN, an individual, Defendants.
FINDINGS AND RECOMMENDATION
BECKERMAN, U.S. Magistrate Judge.
This matter comes before the Court on plaintiff Leona Miotke's ("Miotke") motion to remand to state court and defendants Corizon Health, Inc. ("Corizon"), Clackamas County (the "County"), Andrew Robottom ("Robottom"), and Debra Fye's ("Fye") (collectively, "Defendants") motion to dismiss. For the reasons explained below, the Court recommends that the district judge grant Miotke's motion to remand and deny as moot Defendants' motion to dismiss.
Miotke has agreed voluntarily to dismiss with prejudice her claims against defendants Robottom and Nichole Bosma ("Bosma"). (See Pl.'s Mot. Remand at 6; cf. Compl. at 1-2, ECF No. 1-1.)
BACKGROUND
In resolving Miotke's motion to remand, the Court may consider the allegations in Miotke's complaint, as well as extrinsic evidence. See Viramontes v. FCA US LLC, No. 20-2046, 2020 WL 2318203, at *2 (C.D. Cal. May 11, 2020) ("[I]n the context of a motion to remand due to lack of diversity jurisdiction, it is 'well established that courts may pierce the pleadings . . . and examine evidence,' [and] . . . ought to construe facts in favor of the plaintiff where there is disputed evidence.'") (citation omitted).
I. MIOTKE'S COMPLAINT
At some point prior to July 2011, the County contracted with Corizon, a Delaware corporation, to provide medical care to pretrial detainees and inmates held at the Clackamas County Jail. (Compl. ¶¶ 1, 3, 8.) During their time working together, the County "act[ed] jointly" with Corizon and "regulate[d] the hiring, management and training of all Corizon employees." (Compl. ¶ 9.)
In 2015, Corizon hired Miotke to serve as an administrative nursing assistant at the Clackamas County Jail. (Compl. at 1.) "As part of her employment, Miotke was required to follow all rules and regulations and policies of the Clackamas County Jail." (Compl. ¶ 10.) Miotke's duties included "tracking and administering the contract between [the] County and Corizon," "tracking and confirming time entities including lunch and other breaks for all healthcare employees," and ensuring that the County's "monies were [not] needlessly wasted." (Compl. ¶ 10.)
In May 2018, Miotke received a positive performance review from her supervisor, Robottom, a Corizon employee who served as the medical director of the medical lab at the Clackamas County Jail, and a corresponding raise. (Compl. ¶¶ 4, 11, 45.) Over the next few months, Miotke made several complaints to Robottom about Bosma, a Corizon employee and registered nurse who served as the director of nursing at the Clackamas County Jail. (Compl. ¶¶ 5, 12.) Specifically, Miotke informed Robottom that Bosma was (1) falsifying her timecards by "claiming to have taken no lunch when in fact she was actually taking [very] long lunches," and (2) "using company and public resources to complete tasks for another employer." (Compl. ¶ 12.)
Robottom did not follow-up on Miotke's complaints and instead instructed Miotke to "ease up" on Bosma. (Compl. ¶ 13.) Robottom did, however, reprimand Miotke after Bosma complained to Robottom about Miotke and claimed that Miotke was "out to get her." (Compl. ¶ 18.)
Thereafter, Miotke complained to Fye, a health services administrator for Corizon who served as Robottom's supervisor. (Compl. ¶¶ 6, 15.) Miotke informed Fye that Bosma was "taking double breaks and 2-hour lunches," and that Robottom and Bosma "treat[ed] her badly" when she complained to them about it. (Compl. ¶ 15.) Corizon responded by launching an investigation into Miotke's complaints about Robottom and Bosma. (Compl. ¶ 16.) During the investigation, Miotke's objections to "revealing her identity [were] ignored." (Compl. ¶ 17.) Miotke never learned about the results of the investigation or if it was completed. (Compl. ¶¶ 17-18.)
In mid-October 2018, Bosma directed several deputies to administer injections to inmates at the Clackamas County Jail, which Miotke "knew . . . was improper and unlawful . . . as only licensed caregivers are allowed to give injections." (Compl. ¶ 20.) In late October 2018, Miotke and the medical team at the Clackamas County Jail learned that the County declined to renew Corizon's contract and contracted with defendant Naphcare, Inc. ("Naphcare"), an Alabama corporation, to provide medical services at the Clackamas County Jail beginning on January 1, 2019. (Compl. ¶¶ 2, 21.)
In early November 2018, Miotke faxed a complaint to Corizon's headquarters about Bosma "direct[ing] some deputies to give injections to inmates," even though "only licensed personnel [can] give injections." (Compl. ¶ 22.) One week later, Miotke received a call from Naphcare. (Compl. ¶ 23.) During the call, Naphcare's representative offered Miotke a job to continue working at the Clackamas County Jail, Miotke accepted the job offer, and Naphcare's representative informed Miotke that Naphcare would be sending her a "welcome letter." (Compl. ¶ 23.) About two weeks later, Naphcare contacted Miotke and informed her that she had been "approved for hire" and would receive "the same pay as Corizon with the same terms." (Compl. ¶ 26.)
The next day, the Oregon State Board of Nursing received a copy of the complaint that Miotke sent to Corizon about injections being "given by unlicensed personnel." (Compl. ¶ 27.) Later that day, Robottom drafted "a memo for Miotke's file indicating that Miotke improperly filled out staff payroll papers by hand," and Robottom allegedly backdated the memo to November 1. (Compl. ¶ 28.) Miotke filled out the papers by hand because the computer systems were down and she "had previously been told to hand write payroll papers when the payroll system is not working." (Compl. ¶ 29.) This was only time Miotke was "written up" while working for Corizon. (Compl. ¶ 29.)
About a week later, Naphcare's director of operations, Melanie Menear ("Menear") informed Miotke that Naphcare was no longer extending Miotke an offer of employment. (Compl. ¶ 30.) When Miotke asked why Naphcare was withdrawing the offer, Menear stated that Robottom and Bosma had "shared with her that Miotke has had several performance issues." (Compl. ¶ 30.)
On December 31, 2018, the day Corizon's contract with the County expired, Miotke worked her last day at the Clackamas County Jail. (Compl. ¶ 32.) Miotke asserts that she was retaliated against for complaining about workplace misconduct, and that Naphcare revoked her offer to work at the Clackamas County Jail on "Defendants' recommendation." (Compl. ¶¶ 31, 42-46, 57.)
II. PROCEDURAL HISTORY AND MIOTKE'S EXTRINSIC EVIDENCE
Miotke originally filed this suit in Oregon state court on October 29, 2019. (Compl. at 1, 14; Notice of Removal ¶ 1.) In her complaint, Miotke alleged multiple claims, including two whistleblower retaliation claims against the County under Or. Rev. Stat. § 659A.203. (Compl. ¶¶ 37-60.)
This statute makes it unlawful for a "public employer" to "[p]rohibit any employee from disclosing, or take or threaten to take disciplinary action against an employee for the disclosure of any information that the employee reasonably believes is evidence of," among other things, "[m]ismanagement, gross waste of funds or abuse of authority," or "[a] violation of any federal, state or local law, rule or regulation by the public or nonprofit employer." Or. Rev. Stat. § 659A.203.
Corizon, Naphcare, and Fye (the diverse defendants named in the complaint) timely removed this suit to federal court on January 21, 2020, asserting diversity jurisdiction under 28 U.S.C. § 1332(a), and claiming that Miotke improperly joined the County and has not stated a claim against the County under Or. Rev. Stat. § 659A.203. (Notice of Removal at 2-3, 6-7.)
"Although the usual rule is that all defendants in an action in a state court must join in a petition for removal, . . . the 'rule of unanimity' does not apply to . . . 'fraudulently joined parties.'" United Computer Sys., Inc. v. AT&T Corp., 298 F.3d 756, 762 (9th Cir. 2002) (citation omitted).
On February 27, 2020, Miotke filed a motion to remand, arguing that she properly joined the County and that she has, or at least could, state a claim against the County. Miotke filed two declarations in support of her motion to remand, in further support of her allegations that the County violated Or. Rev. Stat. § 659A.203. (See Decl. of Leona Miotke in Supp. of Pl.'s Mot. to Remand ("First Miotke Decl.") at 1-3, ECF No. 17; Second Decl. of Leona Miotke in Supp. of Pl.'s Mot. to Remand ("Second Miotke Decl.") at 1-3, ECF No. 21). Miotke's declarations include these additional details about the County's involvement in the events underlying her claims:
1. Miotke talked to Jill Glashier ("Glaisher"), an administrative assistant for Captain Lee Eby ("Captain Eby") of the Clackamas County Sheriff's Office, "about all of [her] complaints regarding Bosma," including "timecard theft," "illegal conduct regarding the ordering of shots," and the "retaliation [Miotke] was experiencing";
2. Glaisher told Miotke "not to worry" and that the situation "would be taken care of";
3. Miotke believed that Glaisher "discussed [her] complaints, [her] situation, and the reasons for Robottom and Bosman's treatment of [her] with Captain Eby";
4. Miotke "understood that Captain Eby was going to intervene on [her] behalf";
5. Miotke "discussed Bosma's wrongful conduct," including "timecard fraud" and "illegal conduct regarding the ordering of shots," with "the
Clackamas County deputies and sergeants at the jail, with whom [she] worked closely";(Second Miotke Decl. ¶¶ 2-3, 6-9; First Miotke Decl. ¶ 7.)
6. Miotke complained about her problems to her "supervising lieutenants";
7. Miotke participated in monthly meetings with "Clackamas County leadership" to discuss Corizon and the County's "reporting requirements" and to ensure that the staff was meeting their "obligations for the provision of medical care to detainees";
8. Miotke submitted monthly reports to "Clackamas County lieutenants";
9. Miotke's performance review references her "leadership team," which is the "Clackamas County leadership team," not any leadership team from Corizon;
10. During her hiring process, the Clackamas County Sheriff's Office conducted a background check on Miotke; and
11. Miotke has "observed" the County "firing employees working in the medical department at the jail for failing to pass [the] County's background check."
LEGAL STANDARDS
"A defendant may remove an action to federal court based on federal question jurisdiction or diversity jurisdiction." Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (citing 28 U.S.C. § 1441). However, "'it is to be presumed that a cause lies outside the limited jurisdiction of the federal courts and the burden of establishing the contrary rests upon the party asserting jurisdiction.'" Abrego v. The Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (brackets omitted) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
This "'strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper,' and that the [district] court resolves all ambiguity in favor of remand to state court." Hunter, 582 F.3d at 1042 (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992)). Accordingly, "[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus, 980 F.2d at 566 (citing Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)). Relatedly, the Ninth Circuit has concluded that "doubtful question[s] of state law . . . should be tried in the state court and not determined in removal proceedings." Smith v. S. Pac. Co., 187 F.2d 397, 402 (9th Cir. 1951).
DISCUSSION
The parties' threshold dispute is whether Miotke fraudulently joined the County, and thus whether this case was properly removed to federal court based on diversity jurisdiction. As explained below, the Court concludes that Defendants have failed to meet their burden of demonstrating that Miotke fraudulently joined the County. Accordingly, the Court recommends that the district judge grant Miotke's motion to remand and deny as moot Defendants' motion to dismiss.
I. FRAUDULENT JOINDER
A. Applicable Law
"There are two ways to establish fraudulent joinder: '(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.'" Grancare, LLC v. Thrower, 889 F.3d 543, 548 (9th Cir. 2018) (quoting Hunter, 582 F.3d at 1044). Defendants rely on the second method of establishing fraudulent joinder. (See Notice of Removal ¶¶ 16, 18, asserting that Miotke's joinder of the County was fraudulent and that Miotke's complaint fails to state a plausible claim for relief against the County.)
"Fraudulent joinder is established the second way if a defendant shows that an 'individual[ ] joined in the action cannot be liable on any theory.'" Grancare, 889 F.3d at 548 (emphasis added) (quoting Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998)). The Ninth Circuit has "emphasized . . . that a [district] court must find that a defendant was properly joined and remand the case to state court if there is [even] a 'possibility that a state court would find that the complaint states a cause of action against any of the [non-diverse] defendants.'" Id. at 549 (quoting Hunter, 582 F.3d at 1046). Such a possibility exists when a deficiency in the complaint could be cured by amendment. See id. at 550 (explaining that even if the plaintiff fails to state a claim against the non-diverse defendant, "the fraudulent [joinder] inquiry does not end there," as "the district court must [also] consider . . . whether a deficiency in the complaint can possibly be cured by granting the plaintiff leave to amend"). The "relative stringency" of this "standard accords with the presumption against removal jurisdiction, under which [courts] 'strictly construe the removal statute,' and reject federal jurisdiction 'if there is any doubt as to the right of removal in the first instance.'" Id. (quoting Gaus, 980 F.2d at 566).
B. Analysis
Defendants argue that Miotke fraudulently joined the County, noting, among other things, that (1) Miotke fails to state a claim against the County under Or. Rev. Stat. § 659A.203, (2) Miotke fails to allege any connection between the County's conduct and Naphcare's decision to rescind Miotke's job offer, and (3) even if Miotke's claims could be based on the theory that the County is liable as a joint employer, Miotke's complaint fails adequately to allege facts that satisfy the "right to control" test under Oregon law. (Defs.' Opp'n to Pl.'s Mot. to Remand ("Defs.' Opp'n") at 4-11.)
1. The "Possibility" Standard
Miotke alleges that the County violated Or. Rev. Stat. § 659A.203, which makes it unlawful for a "public or nonprofit employer" to "[p]rohibit any employee from disclosing, or take or threaten to take disciplinary action against an employee for the disclosure of any information that the employee reasonably believes is evidence of," among other things, "[m]ismanagement, gross waste of funds or abuse of authority," or "[a] violation of any federal, state or local law, rule or regulation by the public or nonprofit employer." Or. Rev. Stat. § 659A.203. To establish a prima facie case under this statute, a plaintiff must demonstrate that "'[s]he (1) engaged in a protected activity, (2) suffered an adverse employment decision, and (3) there was a causal link between the protected activity and the adverse employment decision.'" Lindsey v. Clatskanie People's Util. Dist., 140 F. Supp. 3d 1077, 1092 (D. Or. 2015) (citation omitted).
The Court concludes that there is a possibility than an Oregon court would find that Miotke's allegations are sufficient to state a claim against the County. Taking Miotke's allegations as true and drawing all reasonable inferences in her favor, Miotke's complaint suggests that there may be a causal link between Miotke's whistleblowing activity and the adverse employment actions that Miotke experienced allegedly as a result of the County's conduct. (See Compl. ¶¶ 9-15, 20-21, 23, 30, 46, 57, alleging that the County acts jointly with its medical service providers such as Corizon and regulates the hiring, management, and training of all their employees, Miotke had to follow "all rules and regulations and policies of the Clackamas County Jail," Miotke's duties included ensuring that the County's "monies were [not] needlessly wasted," Miotke received a positive performance review and corresponding pay raise shortly before she reported that the County's deputies were unlawfully administering injections and a staff member was committing timecard fraud and using the County's resources for an improper purpose, Miotke was reprimanded and treated "badly," and Naphcare revoked her offer on "Defendants' recommendation").
Defendants argue that Miotke's complaint is deficient because it includes "generalized, collective allegations against 'Defendants,'" which, according to Defendants, "are precisely the types of 'label[s] or conclusion[s]' that do not pass muster," and because Miotke does not allege that the County "knew about her protected whistleblower activities, or offer any facts to suggest that the County was involved in Naphcare's decision not to hire her." (Defs.' Opp'n at 6, 10, quoting Thrower v. Pennsylvania, No. 3:10-cv-222, 2011 WL 4565774, at *3 (W.D. Pa. Sept. 29, 2011)).
The Ninth Circuit's opinion in Grancare is instructive here. In Grancare, a defendant removed a case to federal court on diversity grounds, arguing that the only non-diverse defendant was fraudulently joined. 889 F.3d at 546. The district court disagreed, remanded to state court, and awarded costs and attorney's fees to the plaintiffs. Id. The defendant appealed, arguing that the district court applied an improper standard for fraudulent joinder. Id. at 547-48. The Ninth Circuit rejected the defendant's argument that the district court applied an improper legal standard for fraudulent joinder, and distinguished between a challenge to the sufficiency of the complaint and a challenge to the possibility of stating a viable claim:
[Defendant] also makes a series of arguments to the effect that Plaintiffs have not adequately pleaded their claims against [the non-diverse defendant], and that the district court did not accord sufficient weight to deficiencies in the complaint. Specifically, [Defendant] argues that [Plaintiffs] erred in 'lumping' [the non-diverse defendant] with other defendants by alleging misconduct against all defendants collectively, that [Plaintiffs] did not plead their claims with sufficient particularity, and that [Plaintiffs] did
not sufficiently allege negligence. Because these arguments go to the sufficiency of the complaint, rather than to the possible viability of [Plaintiffs'] claims against [the non-diverse defendant], they do not establish fraudulent joinder.Id. at 552.
Consistent with Grancare, pleading deficiencies alone do not establish fraudulent joinder here. See Garey v. Abbott Labs., No. 19-7777, 2019 WL 6875342, at *1 (C.D. Cal. Dec. 16, 2019) ("The Court recognizes that the Complaint as it stands provides minimal factual allegations linking the alleged negligence to Mr. Garey's death. However, '[b]ecause these arguments go to the sufficiency of the complaint, rather than to the possible viability of the [plaintiffs'] claims . . . , they do not establish fraudulent joinder.'" (quoting Grancare, 889 F.3d at 552)).
Even if Miotke's complaint does not adequately state a claim against the County, there is at least a possibility that Miotke could amend her complaint to state a claim. To be sure, Miotke argues that the she could amend her complaint to allege the County's direct involvement in the events underlying her claims. (See Pl.'s Reply in Supp. of Pl.'s Mot. Remand ("Pl.'s Reply") at 4, stating that if necessary, Miotke can amend her complaint and "directly allege involvement" by the County.) Miotke filed two declarations in support of her proposed amendments, including the following additional facts:
1. Miotke talked to Captain Eby's administrative assistant, Glaisher, "about all of [her] complaints regarding Bosma," including "timecard theft," "illegal conduct regarding the ordering of shots," and the "retaliation [Miotke] was experiencing";
2. Glaisher told Miotke "not to worry" and that the situation "would be taken care of";
3. Miotke believed that Glaisher "discussed [her] complaints, [her] situation, and the reasons for Robottom and Bosman's treatment of [her] with Captain Eby";
4. Miotke "understood that Captain Eby was going to intervene on [her] behalf";
5. Miotke "discussed Bosma's wrongful conduct," including "timecard fraud" and "illegal conduct regarding the ordering of shots," with "the Clackamas County deputies and sergeants at the jail, with whom [she] worked closely";
6. Miotke complained about her problems to her "supervising lieutenants";
7. Miotke participated in monthly meetings with "Clackamas County leadership" to discuss Corizon and the County's "reporting requirements" and to ensure that the staff was meeting their "obligations for the provision of medical care to detainees";
8. Miotke submitted monthly reports to "Clackamas County lieutenants";
9. Miotke's performance review references her "leadership team," which is the "Clackamas County leadership team," not any leadership team from Corizon;
10. During her hiring process, the Clackamas County Sheriff's Office conducted a background check on Miotke;
11. Miotke used the County's computer system and technicians;
12. The County provided Corizon with medical beds, desks, chairs, computers, hardware and software, phones, fax and copy machines, security codes, and fobs; and(Second Miotke Decl. ¶¶ 2-3, 6-9; First Miotke Decl. ¶¶ 7-9.)
13. Miotke has "observed" the County "firing employees working in the medical department at the jail for failing to pass [the] County's background check."
Given the allegations in Miotke's complaint and her proffered extrinsic evidence, Defendants have "not demonstrated that there is no possibility that [Miotke] could prevail against [the County]." Grancare, 889 F.3d at 551. Miotke's allegations and extrinsic evidence suggest that the County was directly involved in and aware of the events underlying Miotke's claims, the County assured Miotke that her whistleblower retaliation complaints would be addressed, Miotke understood that the County was going to intervene on her behalf but the County took no action to address her complaints, and Naphcare revoked Miotke's job offer on "Defendants' recommendation." Based on these allegations, Miotke has "shown a possibility of recovery against [the County]." Id. at 550; cf. Lindsey, 140 F. Supp. 3d at 1092 (explaining that to establish a prima facie case under Or. Rev. Stat. § 659A.203, a plaintiff must show that "'[s]he (1) engaged in a protected activity, (2) suffered an adverse employment decision, and (3) there was a causal link between the protected activity and the adverse employment decision'") (citation omitted).
2. Joint Employer Liability
The County argues that the viability of Miotke's claims turn on whether the County is liable as a joint employer, and Oregon courts have not extended the joint employer doctrine to employment discrimination claims. (See, e.g., Defs.' Opp'n at 7 & n.4, arguing that this Court would need to "extend[] the joint employer doctrine to [Miotke's] employment discrimination claims" and noting that "no Oregon courts have extended the joint employer doctrine to employment discrimination claims, and federal courts in Oregon are split on the issue").
The parties have not cited, and the Court's research has not revealed, an Oregon case addressing whether the joint employer doctrine applies to employment discrimination claims. As the parties acknowledge, decisions from this district are split on that issue. See Ford-Torres v. Cascade Valley Telecom, Inc., No. 06-cv-914-AA, 2008 WL 551503, at *5 (D. Or. Feb. 26, 2008) (stating that "the 'joint employer' theory is not recognized by Oregon state law within the context of employment discrimination claims'"), aff'd, 374 F. App'x 698 (9th Cir. 2010); Prychyna v. Barrett Bus. Servs., Inc., No. 11-cv-122-HZ, 2011 WL 4498843, at *7 (D. Or. Sept. 27, 2011) (finding the plaintiff's joint employer theory "unavailing" because the plaintiff failed to "cite any authority stating that the joint employer theory applies to ORS 659A," and the Ford-Torres court stated that the "'joint employer theory is not recognized by Oregon state law within the context of employment discrimination claims'"); cf. Malcomson v. Daimler N. Am. Corp., No. 3:15-cv-02407-SB, 2016 WL 5867056, at *3-4 (D. Or. Aug. 3, 2016) (stating that this Court did not locate any Oregon authority holding that joint employer liability does not apply to claims under Chapter 659A, emphasizing that in Ford-Torres, the district court and Ninth Circuit "recognized that Oregon courts have not applied joint employer liability to Chapter 659A claims, but neither court cited any Oregon authority holding that joint employer liability does not apply to Chapter 659A claims," concluding that "Chapter 659A does not, by its statutory text or context, or its interpretation to date, prohibit a plaintiff from alleging that two companies have sufficient control over an employee to be held liable under a 'joint employer' theory," and noting that "Chapter 659A was modeled after Title VII, and courts have consistently recognized joint employer liability for Title VII employment discrimination claims") (footnote omitted), finding and recommendation adopted, 2016 WL 58674985, at *1 (D. Or. Oct. 5, 2016).
In light of no clear state authority resolving the issue, whether Oregon state courts would apply the joint employer doctrine to an employment discrimination claim presents a "doubtful question of state law," and the Ninth Circuit has clearly instructed that such questions should be evaluated by the state court and not determined in removal proceedings. See Smith, 187 F.2d at 402 (explaining that "doubtful question[s] of state law . . . should be tried in the state court and not determined in removal proceedings"); Chambers v. United Rentals, Inc., No. 10-00062-AA, 2010 WL 2730944, at *1 (D. Or. July 7, 2010) ("If doubt remains whether the complaint states a cause of action, it is resolved in favor of remanding the case to state court." (citing Smith, 187 F.2d at 400)). Thus, if there remains any doubt that Miotke has stated a viable claim against the County under Oregon law, that question should be resolved by the state court.
Accordingly, the Court recommends that the district judge grant Miotke's motion to remand. See Knutson v. Allis-Chalmers Corp., 358 F. Supp. 2d 983, 995 n.10 (D. Nev. 2005) ("The Ninth Circuit has previously indicated that a defendant is not fraudulently joined if there is either a factual or legal uncertainty regarding the claims against him. . . . Federal district courts are not entitled to determine uncertain issues of law in order to ascertain whether there has been a fraudulent joinder, as those such issues must be determined in state court." (citing Smith, 187 F.2d at 402)).
II. FEES AND COSTS
Miotke moves, pursuant to 28 U.S.C. § 1447(c), for an award of fees and costs. (Pl.'s Mot. Remand at 14.) The Court recommends that the district judge deny Miotke's request.
"An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." 28 U.S.C. § 1447(c). "Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal." Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). "[R]emoval is not objectively unreasonable solely because the removing party's arguments lack merit[.]" Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1065 (9th Cir. 2008); see also Burkholder v. Asbestos Claim Mgmt. Corp., No. 07-cv-781-BR, 2007 WL 2463307, at *5 (D. Or. Aug. 28, 2007) (explaining that a court's granting of a motion to remand does not mean the action was removed "without an objectively reasonable basis").
Here, the Court concluded that there is a possibility than Miotke can state a claim against the County, but the Court based that conclusion in large part on the extrinsic evidence Miotke submitted in support of her motion to remand. Given that Defendants did not have the benefit of Miotke's extrinsic evidence at the time of removal and were relying only on the sufficiency of the allegations in her complaint, the Court concludes that Defendants' basis for removal was objectively reasonable. Accordingly, the Court recommends that the district judge deny Miotke's request for fees and costs.
III. DEFENDANTS' MOTION TO DISMISS
In light of the Court's recommendation that the district judge remand this case to state court, the Court recommends that the district judge deny as moot Defendants' motion to dismiss. The Court does, however, note that Miotke has agreed voluntarily to dismiss with prejudice her claims against Bosma and Robottom. (Pl.'s Mot. Remand at 6.)
CONCLUSION
For the foregoing reasons, the Court recommends that the district judge GRANT Miotke's motion to remand (ECF No. 15) and DENY as moot Defendants' motion to dismiss (ECF No. 9).
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 22nd day of May, 2020.
/s/_________
STACIE F. BECKERMAN
United States Magistrate Judge