Bogart v. Shriners Hosps. for Children

Full title: DOREEN BOGART, Plaintiff, v. SHRINERS HOSPITALS FOR CHILDREN, a foreign…

Court: United States District Court, District of Oregon

Date published: Mar 9, 2021

3:20-cv-02023-BR (D. Or. Mar. 9, 2021)

Opinion

3:20-cv-02023-BR

03-09-2021

DOREEN BOGART, Plaintiff, v. SHRINERS HOSPITALS FOR CHILDREN, a foreign business entity, Defendant.

CAMERON L. RAMELLI Ramelli Law LLC Attorney for Plaintiff JOHN M. KREUTZER AMANDA BRYAN Bulivant Houser Bailey PC Attorneys for Defendant

ANNA J. BROWN, UNITED STATES SENIOR DISTRICT JUDGE

CAMERON L. RAMELLI

Ramelli Law LLC

Attorney for Plaintiff

JOHN M. KREUTZER

AMANDA BRYAN

Bulivant Houser Bailey PC

Attorneys for Defendant

OPINION AND ORDER

ANNA J. BROWN, UNITED STATES SENIOR DISTRICT JUDGE

This matter comes before the Court on Plaintiff Doreen Bogart's Motion (#5) to Remand to State Court. The Court concludes the record is sufficiently developed, and, therefore, oral argument would not be helpful to resolve this Motion. For the reasons that follow, the Court DENIES Plaintiff's Motion to Remand.

BACKGROUND

The following facts are taken from Defendant Shriners Hospitals for Children's Notice of Removal, documents attached to the Notice of Removal, and the parties' filings related to Plaintiff's Motion to Remand.

Plaintiff began working for Shriners in 2006 as a Registrar/Patient Access Representative.

In 2016 Plaintiff developed carpal-tunnel syndrome (CTS). At some point Plaintiff sought medical treatment, and her “chiropractor recommended she file for Workmen's Compensation.” Decl. of Cameron Ramelli, Ex. 1 at ¶ 7.

On September 3, 2018, Plaintiff sent Tiffany Webster, Plaintiff's supervisor, “and Plaintiff's manager an email informing them of [Plaintiff's] diagnosis of CTS” and advising them that “she was planning on filing for Workmen's Compensation.” Ramelli Decl., Ex. 1 at ¶ 8.

At some point after Plaintiff filed her workers' compensation claim Shriners's Human Resources Department “sent Plaintiff an email regarding her claim.” Id. at ¶ 10. Plaintiff “was consistently busy at work, so she did not reply immediately. . . . Webster came out of her office and verbally reprimanded Plaintiff in front of co-workers, patients, and patients' families for not immediately responding [to the email].” Id. at ¶ 10. Shriners required Plaintiff “to go to their doctor[, who] asserted . . . Plaintiff did not have CTS.” Id. at 11.

“In the last two years of Plaintiff's employment . . . Webster regularly harassed and disciplined Plaintiff for issues that younger employees were not harassed or disciplined for . . . . Webster consistently complained about Plaintiff being ‘slow.'” Id. at ¶ 12. Webster also “blamed Plaintiff for errors that were outside of her control” and publicly reprimanded Plaintiff for errors. Id. at ¶ 13.

On November 6, 2018, Webster and Shriners' Human Resources Manager “pulled Plaintiff into a meeting where they terminated her. The reason given was that Plaintiff was too slow and had too many errors in her work.” Id. at ¶ 18.

On September 29, 2020, Plaintiff filed a complaint in Multnomah County Circuit Court against Shriners alleging claims for (1) age discrimination in violation of 29 U.S.C. § 621 and Oregon Revised Statutes § 659A.030; (2) disability discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 12112, and Oregon Revised Statutes § 659A.112; and (3) workers' compensation discrimination in violation of Oregon Revised Statutes § 659A.030.

On October 21, 2020, Plaintiff served her complaint on Shriners.

On November 20, 2020, at 9:45 a.m. Plaintiff filed an amended complaint in Multnomah County Circuit Court in which she removed the federal claims and added Tiffany Webster, who is an Oregon resident, as a defendant.

On November 20, 2020, at 11:54 a.m. Shriners removed the original complaint to this Court on the basis of federal-question and diversity jurisdiction. Specifically, Shriners stated in its Notice of Removal that Plaintiff alleges federal claims in her original complaint, Shriners and Plaintiff are citizens of different states, and the amount in controversy exceeds $75,000.

On November 20, 2020, at 3:13 p.m. Plaintiff notified Shriners via email that Plaintiff had filed an amended complaint in Multnomah County Circuit Court in which she had removed the federal claims and added Webster as a defendant. Plaintiff attached a copy of her amended complaint to the email. Shriners asserts, and Plaintiff does not appear to contest, that Shriners did not have notice of Plaintiff's amended complaint before Plaintiff's 3:13 p.m. email.

On December 11, 2020, Plaintiff filed a Motion to Remand in which Plaintiff seeks an order remanding this matter to state court on the ground that Shriners has not established this Court has jurisdiction because in her amended complaint Plaintiff removed the federal claims and added Tiffany Webster, a nondiverse defendant.

The Court took Plaintiff's Motion under advisement on January 11, 2020.

STANDARDS

28 U.S.C. § 1446(a) provides in pertinent part: “A defendant or defendants desiring to remove any civil action . . . from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal."

A motion to remand is the proper procedure for challenging removal. Babasa v. LensCrafters, Inc., 498 F.3d 972, 974 (9^thCir. 2007). “Removal and subject matter jurisdiction statutes are strictly construed, and a defendant seeking removal has the burden to establish that removal is proper and any doubt is resolved against removability.” Hawaii ex rel. Louie v. HSBC Bank Nev., N.A., 761 F.3d 1027, 1034 (9^th Cir. 2014)(quotation omitted). 28 U.S.C. § 1441(a) is strictly construed against removal jurisdiction, and federal jurisdiction must be rejected “if there is any doubt as to the right of removal.” Geographic Expeditions, Inc. v. Est. of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1106-07 (9^th Cir. 2010)(citation omitted). “This gives rise to a strong presumption against removal jurisdiction[, which] means that the defendant always has the burden of establishing that removal is proper” and the court “strictly construe[s] the removal statute against removal jurisdiction.” Id.

DISCUSSION

As noted, Plaintiff moves to remand this matter on the ground that at the time Shriners removed Plaintiff's complaint to this Court, Plaintiff had already filed an amended complaint that deprived this Court of both federal-question and diversity jurisdiction. Shriners, however, asserts this Court has jurisdiction because Plaintiff had not filed her amended complaint at the time of removal, courts evaluate jurisdiction at the time of removal, and this Court had both federal-question and diversity jurisdiction at the time of removal.

I. Standards.

A defendant may remove an action to federal court only if the district court has original jurisdiction over the matter. 28 U.S.C. § 1441(a). “Removal statutes are to be ‘strictly construed' against removal jurisdiction.” Nev. v. Bank of Am. Corp., 672 F.3d 661, 667 (9^th Cir. 2012)(quoting Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002)). The party asserting federal jurisdiction bears the burden of overcoming the presumption against federal jurisdiction. Kokkonen, 511 U.S. at 377. Federal courts must reject federal jurisdiction “if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, 980 F.2d 564, 566 (9^th Cir. 1992).

“[J]urisdiction must be analyzed on the basis of the pleadings filed at the time of removal without reference to subsequent amendments. . . . Because of this rule, a plaintiff may not compel remand by amending a complaint to eliminate the federal question upon which removal was based." Sparta Surgical Corp. v. Nat'l Ass'n of Sec. Dealers, 159 F.3d 1209, 1213 (9^thCir. 1998)(citation omitted), abrogated on other grounds by Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, 136 S.Ct. 1562 (2016). See also Spencer v. U.S. Dist. Court for N. Dist. of Ca., 393 F.3d 867, 871 (9^th Cir. 2004)(“Challenges to removal jurisdiction require an inquiry into the circumstances at the time the notice of removal is filed. When removal is proper at that time, subsequent events, at least those that do not destroy original subject-matter jurisdiction, do not require remand.”); Williams v. Costco Wholesale Corp., 471 F.3d 975, 976 (9^th Cir. 2006) (“We have long held that post-removal amendments to the pleadings cannot affect whether a case is removable, because the propriety of removal is determined solely on the basis of the pleadings filed in state court.”).

II. The Court's Jurisdiction at the Time of Removal.

As noted, Shriners asserts this Court has jurisdiction because Plaintiff's amended complaint was not filed at the time of removal, and, therefore, Plaintiff's original complaint, which included bases for federal-question and diversity jurisdiction, was the operative complaint.

“As a general rule, ‘an amended complaint supercedes [sic] the original complaint and renders it without legal effect.'” Exeltis USA, Inc. v. First Databank, Inc., 779 Fed.Appx. 486, 487 (9^th Cir. 2019)(quoting Lacey v. Maricopa Cty, 693 F.3d 896, 927 (9^th Cir. 2012)). Although the Ninth Circuit has not addressed the issue in a published opinion, other circuit courts as well as district courts in the Ninth Circuit have held “an amended complaint does not supersede the original complaint until [it is] properly served.” Wahoo Int'l, Inc. v. Phix Doctor, Inc., No. 13CV1395-GPC BLM, 2014 WL 6810663, at *2 (S.D. Cal. Dec. 2, 2014), amended sub nom. Wahoo Int'l, Inc, v. Phix Doctor, Inc., No. 13CV1395-GPCBLM, 2015 WL 410347 (S.D. Cal. Jan. 29, 2015) (citing J & J Sports Prods., Inc. v. Mac's Bar and Grille, LLC, No. 12cv1584-GMN-DW, 2014 WL 650854, at *8 (D. Nev. Feb. 11, 2014)); Smith v. Toreh, No. 2:10-CV-0732-LDG-PAL, 2011 WL 776167, at *2 (D. Nev. Feb. 28, 2011)(“[A]n original complaint is only superseded by an amended complaint that is properly served, and simply filing the amended complaint is not sufficient to supersede the original.”); Bricklayers and Allied Craftworkers Local Union No. 3 v. Palomino, No. C-09-1589-CS(DMR), 2010 WL 2219595, at *5 n.8 (N.D. Cal. June 2, 2010)). See also Blair v. City of Worcester, 522 F.3d 105, 109 (1^st Cir. 2008)(“[I]t is doubtful that the unserved complaint in fact superseded the original complaint.”); Int'l Controls Corp. v. Vesco, 556 F.2d 665, 669 (2d Cir. 1977)(an amended complaint only supersedes the original complaint when it is effectively served); Doe v. Unocal Corp., 27 F.Supp.2d 1174, 1180 (CD. Cal. 1998)(“An original complaint is only superseded, however, when the amended complaint is properly served, not when it is filed.”).

The Second Circuit explained in Vesco that it adopted the rule requiring effective service of an amended complaint before it supersedes the original complaint because if it concluded an amended complaint supersedes the original complaint when the amended complaint was filed, that “would leave [the] case in a state of suspended animation in the interim between filing and service of the amended complaint, with the court perhaps even lacking personal jurisdiction over the defendant.” 556 F.2d at 669. In addition, the Second Circuit noted such a rule

would . . . introduce a substantial risk factor into a plaintiff's decision whether to amend his complaint.” Id. Specifically, when “it appeared that service [of an amended complaint] on even one defendant would be difficult . . . the plaintiff might . . . decide not to file an amended complaint, since failure to serve it would . . . leave the plaintiff, which had once had an effective complaint (the original), without any remaining effective complaint on which it could obtain judgment.

Id. It seems likely the Ninth Circuit would adopt the rule set out in Vesco based on its expression of similar concerns in an unpublished decision:

To hold that an original complaint is superseded upon the filing of an amended complaint would leave a case in a state of suspended animation in the interim between filing and service of the amended complaint, with the court perhaps even lacking personal jurisdiction over the defendant. The initial complaint in the present case remained viable because the amended complaint was never effectively served.

Anunciation v. W. Capital Fin. Servs. Corp., 97 F.3d 1458 (9^th Cir. 1996). Although this Court may not rely on the Ninth Circuit's unpublished decision in Anunciation because it was issued prior to 2007, the Court has the same concerns as those expressed in Vesco and Anunciation. In fact, the Blair and Toreh courts also had the same concerns, relied in part on the Ninth Circuit's decision in Anunciation, and reached the same conclusion.

Oregon courts have also adopted the reasoning of Vesco. In Portland General Electric Company v. Ebasco Services, Incorporated, the Oregon Court of Appeals addressed whether “an amended complaint that ha[d] been filed but not yet served on a defendant supersede[d] the original complaint that was served on the defendant.” 263 Or.App. 53, 70 (2014). The court declined to adopt the reasoning of a case from the Western District of Missouri in which the court held an amended complaint became the operative complaint when it was filed. Instead the Oregon Court of Appeals, noting “the reasoning in Vesco is persuasive and consistent with [Oregon's] established procedural rules, ” held an amended complaint “do[es] not become operative until served.” Id.

This Court finds Vesco, Wahoo Int'l, J & J Sports, Toreh, and Portland General Electric to be well-reasoned and adopts their reasoning. The Court, therefore, concludes an original complaint is superseded only after an amended complaint has been filed and served on the defendant.

In addition, Oregon Rule of Civil Procedure 9A provides: “[E]very pleading subsequent to the original complaint . . . shall be served on each of the parties.” Oregon Rule of Civil Procedure 9B provides: “Whenever under these rules service is required . . . to be made on a party, and that party is represented by an attorney, the service shall be made on the attorney. . . . Service on the attorney . . . shall be made by . . . e-mail as provided in section G of this rule.” In turn, Oregon Rule of Civil Procedure 9G states: “Service is complete . . . on confirmation of receipt of the e-mail or, if the receiving party has consented to service by e-mail, on transmission of the e-mail.”

The record reflects Plaintiff's counsel emailed Shriners' counsel advising them that Plaintiff had filed an amended complaint and transmitting a copy of the amended complaint at 3:13 p.m. on November 20, 2020, which was approximately three hours after Shriners removed this case to this Court. The Court, therefore, finds on this record that Plaintiff's original complaint was not superseded at the time Shriners removed the matter to this Court. Accordingly, Plaintiff's amended complaint withdrawing her federal claims and adding a nondiverse defendant did not divest this Court of jurisdiction. The Court, therefore, DENIES Plaintiff's Motion to Remand.

III. Plaintiff's Proposed Amended Complaint.

Oregon Rule of Civil Procedure 23A permits a “pleading [to be] amended by a party once as a matter of course at any time before a responsive pleading is served.” If, therefore, this matter had not been removed to this Court, Plaintiff's amended complaint likely would have been permitted in state court. This matter, however, had been properly removed to this Court at the time Plaintiff filed her amended complaint in Multnomah County Circuit Court. The Federal Rules of Civil Procedure, therefore, govern the filing of Plaintiff's amended complaint. Federal Rules of Civil Procedure 15(a)(1) and (2) provide:

(1) A party may amend its pleading once as a matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a after service of a responsive pleading.

* * *

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

As noted, Plaintiff served her original complaint on Shriners on October 21, 2020. Plaintiff, however, did not amend her complaint until November 20, 2020, which is more than 21 days after service. Federal Rule of Civil Procedure 15(a)(2), therefore, governs the filing of Plaintiff's amended complaint. Accordingly, to the extent that Plaintiff seeks to file her amended complaint, Plaintiff must either obtain Shriners' consent to do so or file a motion for leave to file an amended complaint no later than March 30, 2021.

CONCLUSION

For these reasons, the Court DENIES Plaintiff's Motion (#5) to Remand to State Court.

IT IS SO ORDERED.