Opinion
N99-2 CV (JWS)
November 15, 1999
I. MOTION PRESENTED
At docket 6, plaintiff Ethel Toshvik ("Toshvik") moves to remand this case to state court. Defendant Alaska Airlines, Inc. ("Alaska Airlines") opposes the motion. Defendant Tim Edenshaw ("Edenshaw") has not joined or opposed the motion to remand. Oral argument has not been requested and would not assist the court.
II. BACKGROUND
This is an employment dispute. Toshvik worked for Alaska Airlines as a customer service agent in Kotzebue, Alaska, from 1995 through 1998. Edenshaw was a co-employee. Toshvik's complaint alleges that Edenshaw sexually harassed her during her entire course of employment. Toshvik filed suit on August 17, 1999, in the Superior Court for the State of Alaska, Second Judicial District at Kotzebue. The complaint was served on Alaska Airlines on August 26, 1999. Toshvik's complaint alleges seven state law claims: (1) sexual harassment under Alaska law Title 18.80; (2) constructive discharge; (3) intentional infliction of emotional distress; (4) assault and battery; (5) negligent retention of Edenshaw; (6) breach of the implied covenant of good faith and fair dealing; and (7) sexual abuse under Alaska law Title 11. Alaska Airlines filed a timely notice of removal to this court on September 22, 1999. Edenshaw did not join the notice of removal. Alaska Airlines based removal on federal question jurisdiction. Alaska Airlines specifically based removal on the contention that Toshvik's implied covenant claim was preempted by federal labor law, thus, rendering the claim a federal claim for purposes of removal. Other facts are noted below.
Notice of Removal, docket 1, ¶ 1 at 2.
Docket 1.
III. STANDARD OF REVIEW
Removal statutes are strictly construed against removal and any doubts regarding removal must be resolved against removal and in favor of remand. If at anytime after removal "it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." The removing party bears the burden of proof and persuasion. Doubtful or close cases should be remanded.
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
14C Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure, § 3739, at 424, 470 (3d ed. 1998) ("Wright").
Wright, § 3739, at 446.
IV. DISCUSSION
The parties overlook a fundamental issue which must be addressed. As an ordinary matter of principle, all defendants must join a notice of removal. Professor Wright observes:Ordinarily, all of the defendants in the state court action must consent to the removal and the notice must be signed by all of the defendants, although other forms of acknowledging consent may be acceptable to the federal court. As the numerous case citations in the note below indicates [sic], this judicial insistence on the participation of all of the defendants in the notice of removal filed with the district court has been required by courts at all levels of the federal judiciary. The rule applies to all forms of defendants-whether they are characterized as indispensable, necessary, or proper parties-over whom the state court has acquired jurisdiction at the time of removal.
14C Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure, § 3731 at 258-65 (3d. ed. 1998) (citing authorities) ("Wright").
The Ninth Circuit follows this rule. Failure to join all defendants renders a removal notice procedurally defective. At least three exceptions to the rule are recognized. First, the rule does not apply if the non-joining defendants were never properly served before the notice was filed. Only defendants who have been properly joined and served must join the notice of removal. Second, nominal defendants need not join in a notice of removal. Third, when a separate and independent claim which is removable under 28 U.S.C. § 1441 (c) is joined with other, non-removable claims, "only the defendants to the separate and independent claim need seek removal." However, for purposes of removal, a claim is separate and independent only if "[t]he claim is transactionally unrelated to the other claims in the complaint." If the complaint "is based on an interlocked series of transactions and results in only one wrong to [the] plaintiff, there is no `separate and independent claim.'"
See, e.g., Emrich v. Touche Ross Co., 846 F.2d 1190, 1193 n. 1 (9th Cir. 1988) (for discussion of relevant principles with citation to authority).
Parrino v. FHP, Inc., 146 F.3d 699, 703 (9th Cir. 1998).
Salveson v. Western States Bankcard Ass'n, 731 F.2d 1423, 1429 (9th Cir. 1984).
Emrich, 846 F.2d at 1193 n. 1.
See Hewitt v. City of Stanton, 798 F.2d 1230, 1232-33 (9th Cir. 1986) (nominal party need not join notice of removal).
Wright, § 3731 at 267.
See Zaustinsky v. Allied Van Lines, Inc., 1996 WL 193856 at *2 (N.D.Cal. 1996).
Id. (citing Emrich v. Touche Ross Co., 846 F.2d 1190, 1197 (9th Cir. 1988)); accord Hemphill v. Transfresh Corp., 1998 WL 320840 at *5 (N.D.Cal. 1998).
Based on the facts that (1) a summons for Edenshaw was issued in state court on August 25, 1999, the same date the summons was issued for Alaska Airlines, and (2) that Edenshaw's answer does not raise insufficiency of service of process as an affirmative defense, the court concludes that Edenshaw was almost certainly served with process prior to filing the notice of removal on September 22, 1999. Because of the possibility that service on Edenshaw occurred after September 22, 1999, the court will not act on the ruling below by remanding this case for a period of ten (10) days. If within that time evidence is presented to show that Edenshaw was not timely served, the court will reconsider this order. If not, the court will issue an order of remand.
Edenshaw is not a nominal defendant. Is there a "separate and independent claim" against Alaska Airlines? Alaska Airlines bases removal on the alleged breach of the implied covenant of good faith and fair dealing, a claim which only pertains to the employer's conduct. Alaska Airlines, not Edenshaw, was the employer. One might argue that Edenshaw's non-joinder is excused. On the other hand, Toshvik's claims allege an interlocked series of transactions (sexual harassment) and result in only one wrong (discharge from her job). In such a case, the "separate and independent claim" exception does not apply.
In Hummel v. Kamehameha Schools, plaintiff filed suit for wrongful discharge alleging breach of contract, sexual harassment, age discrimination, unlawful termination for a work-related injury (retaliatory discharge), and other civil rights claims. The court held that the retaliatory discharge claim was not removable because it was based on a state workers' compensation statute. The court then analyzed whether the other claims were "separate and independent claims" for purposes of removal jurisdiction. The court concluded they were not. The court noted:
749 F. Supp. 1023 (D. Haw. 1990).
A claim is not "separate and independent" if it arises from a single wrong. Plaintiff's non-removable state law claims and her claims under 42 U.S.C. § 1983 and 1985 all arise from a single alleged wrong-the termination of her employment with Kamehameha Schools. All of her claims arise from substantially the same set of facts; therefore, her removable federal claims are not "separate and independent" from her state claims.
Hummel, 749 F. Supp. at 1028.
Hummel establishes that Toshvik's claims are not separate and independent. All of Toshvik's claims arise from a single series of transactions-sexual harassment or sexual discrimination-and result in one alleged wrong-employment termination. However, if Edenshaw was not properly served at the time Alaska Airlines filed its notice of removal, the question of whether the removable claim is "separate and independent" is moot. If Edenshaw was not properly served before the notice of removal was filed, Alaska Airlines also needs to file a complete copy of the collective bargaining agreement and an affidavit, declaration, or some other form of admissible evidence establishing that Toshvik was a member of the collective bargaining unit subject to the terms and conditions of the collective bargaining agreement.
V.CONCLUSION
For the foregoing reasons, the pending motion at docket 6 is GRANTED, but remand shall be held in abeyance for ten (10) days at which time an order of remand shall be issued unless proof is sooner filed that Edenshaw had not been properly served at the time the notice of removal was filed.