Opposition Brief — Azadpour v. Sun Micro Microsystems, Inc. (No. 08-995)

Supreme Court, U.S.

FILED

FEB 2 7 2009

No. 08-995 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

i

MOSTAFA ARAM AZADPOUR,

Petotroner,

v.

SUN MICROSYSTEMS, INC.,

MATRIX ABSENCE MANAGEMENT, INC.,

BABU TURUMELLA and NORMAN YEUNG,

Respondents.

On PETITION FOR A Writ OF CERTIORARI TO THE

UNITED STATES Court OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

MICHAEL W. FosTEeR

Davip J. CARDIFF*

Foster & ASSOCIATES

3000 Lakeshore Avenue

Oakland, CA 94610

(510) 763-1900

* Counsel of Record Counsel for Respondents

221292 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

1

QUESTIONS PRESENTED

Whether Petitioner provided a compelling reason

for the granting of this Petition for Writ of

Certiorari pursuant to Rules of the Supreme Court,

Rule 10.

Whether the district court is deprived of jurisdiction

when, subsequent to removal, a litigant dismisses

the claims that gave rise to removal jurisdiction.

Ht)

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT RULE 29.6

Respondents Sun Microsystems, Inc. and Matrix

Absence Management, Inc., state that they have no

parent corporations, nor are there any publicly held

companies that owns 10% or more of the stock or equity

interest of either of these Respondents.

lil

TABLE OF CONTENTS

QUESTIONS PRESENTED

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT

RULE 29.6

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

A. Proceedings Below

B. Factual Summary

SUMMARY OF ARGUMENT

REASONS FOR DENYING THE PETITION

Absence Of Compelling Reasons To Grant

Petition

II. Petitioner’s Subject Matter Jurisdiction

Claims Are Wholly Without Merit

III. Petitioner Distorts The District Court’s

Ruling On His FEHA Claims

CONCLUSION

iv

TABLE OF CITED AUTHORITIES

Cases:

Devoll v. Burdick Painting, Inc.,

35 F. 3d 408 (9 Cir. 1994)

Ellenburg v. Brockway, Inc.,

763 F.2d 1091 (9 Cir. 1985)

Ingersoll-Rand Co. v. McClendon,

498 U.S. 133 (1990)

Lea v. Republic Airlines, Inc.,

903 F.2d 624 (9"" Cir. 1990)

Reddam v. KPMG LLP,

457 F.3d 1054 (9 Cir. 2006)

Sparta Surgical Corp.

v. National Ass’n of Securities Dealers, Inc.,

159 F.3d 1209 (9" Cir. 1998)

V

Cited Authorities

Federal Statutes:

29 U.S.C. § 1001

29 U.S.C. § 2101

42 U.S.C. § 13820d

State Statutes:

California Government Code § 12940 ..........

Rules:

United State Supreme Court Rule 10

l

STATEMENT OF THE CASE

A. Proceedings Below

On September 12, 2005, Petitioner filed his original

complaint in the Superior Court of the State of

California, Santa Clara County, alleging, in part, that

Respondent Sun Microsystems, Inc. (“Sun”) wrongfully

denied him long-term disability benefits pursuant to the

Employee Retirement Income Security Act of 1974

(“ERISA,” 29 U.S.C. section 1001 et seq.), 401k matching

funds, and education-related reimbursements.

Petitioner sought injunctive relief, including supervision

of Sun’s ERISA plans, and an order directing Sun to

amend its “benefits manual.” The remainder of the

complaint sought relief for alleged employment

discrimination in violation of the California Fair

Employment and Housing Act (“FEHA,” California

Government Code section 12940 et seq.) against Sun and

Petitioner’s former supervisors and managers.

On October 11, 2005, Respondents removed the case

to the United States District Court, Northern District

of California, arguing that Petitioner’s attempt to

recover long-term disability benefits pursuant to

ERISA fell “within the scope of ERISA’s civil

enforcement provisions,” making the matter completely

preempted by f: jeral law and conferring original subject

matter jurisdiction on the district court.

On November 1, 2005, Petitioner filed a motion to

remand, in which he expressly conceded that his

complaint implicated ERISA, but argued that “a state

court is not explicitly barred from hearing an ERISA

2

related case” and that his ERISA claim was “not an

overarching matter eclipsing other counts.” On January

30, 2006, the district court denied Petitioner’s remand

motion on the grounds that subject matter jurisdiction

existed.

Petitioner responded by filing a first amended

complaint that removed all references to ERISA, but

included claims for violation of the federal Worker

Adjustment and Retraining Notification Act (““WARN,”

29 U.S.C. § 2101 et seg.) and Health Insurance Portability

and Accountability Act of 1996 (““HIPAA,” 42 U.S.C. § 1320d

et seq.) On April 24, 2006, Petitioner filed a “Motion to

Consider Question of Jurisdiction,” in which he argued

that, due to his voluntary dismissal of claims for disability

benefits, the district court no longer had subject matter

jurisdiction, and the matter should be remanded to state

court. The court, construing Petitioner’s motion as a

renewed motion to remand, issued an order dated June

13, 2006, denying said motion. See Petition, Appendix N(2).

Specifically, the court held that the subsequent amendment

of Petitioner’s complaint did not deprive the court of

subject matter jurisdiction, if said jurisdiction existed at

the time of removal and, regardless, Petitioner’s

amendments contained claims based upon federal statutes,

including WARN and HIPAA.

On July 21, 2006, Respondents filed a motion for

summary judgment setting forth numerous grounds for

dismissal, including Petitioner’s lack of evicence to support

his claims, as well as various legal defenses. On September

26, 2006, the district court issued a written order

granting Respondents’ motion in its entirety. See Petition,

Appendix J.

3

On April 17, 2006, Petitioner initiated a second action

against Respondents in state court, imwhich ERISA was

not expressly mentioned, but in which Petitioner again

sought relief for alleged denial of lon;-term disability

benefits (under a breach of contract theory). Again,

Respondents removed the matter and, on November

28, 2006, the district court denied Petitioner’s motion

to remand. See Petition, Appendix G (2). Thereafter, on

April 2, 2007, the district court granted Respondent’s

motion to dismiss this second action, based largely on

res judicata grounds. See Petition, Appendix G.

Petitioner appealed both the summary judgment

order in his first action and the dismissal order in his

second action, and those two appeals were consolidated

into a single appellate docket. On July 11, 2008, the Ninth

Circuit Court of Appeals affirmed both decisions of the

district court. See Petition, Appendix D. On October 15,

2008, the circuit court denied Petitioner’s petition for

panel rehearing. See Petition, Appendix B.

B. Factual Summary

Sun hired Petitioner in May 2002 to work on its

Millennium Project. In March 2003, less than a year

after his hire, Petitioner took medical leave based on a

foot injury. At some point thereafter, his claim morphed

into one for depression and, in June 20038, Petitioner

begas receiving benefits under Sun’s long-term

disability plan, an ERISA covered benefits plan.

In August 2003, Respondent Matrix Absence

Management, Inc. (“Matrix’’) determined that Petitioner

no longer qualified for long-term disability benefits

4

based on reports by Petitioner’s physician that he was

fully able to work. Petitioner responded by submitting

a “Progress Report,” in which he disputed his own

physician’s conclusions. Thereafter, Matrix sought and

received a further report from Petitioner’s physician

confirming that Petitioner could immediately return to

work. Thus, on September 30, 2003, Matrix notified

Petitioner that, as of August 15, 2003, he was no longer

eligible for long-term disability benefits.

Rather than returning to work, Petitioner appealed

Matrix’s decision by requesting an Independent Medical

Examination (“IME”) under the appeal provisions of the

long-term disability plan. In December 2003, the IME

report again concluded that Petitioner could return to

work effective January 22, 2004. Nonetheless, Petitioner

again refused to return to work, claiming that he was

totally disabled.

In early March 2004, notwithstanding Petitioner’s

continued assertion that he was totally disabled, Sun’s

human resources department attempted to engage him

in a reasonable accommodation interactive process. As

part of this process, Sun requested a return to work

certification verifying the existence of a qualifying

disability, and asked Petitioner to state the anticipated

duration of the disability, identify the extent to which

said disability limited essential job functions, and provide

any specific recommendations on accommodation.

Petitioner refused to provide any such information,

stating instead that he would return to work only if he

was assigned a new manager.

D

In April 2004, Sun announced the cancellation of the

Millennium Project. Sun advised Petitioner that he

should provide the medical information requested as

part of its interactive process, and return to work to

look for other opportunities within the company.

Petitioner responded that he had not been released to

work from his physician and, thus, he refused to provide

the information and/or seek other job opportunities

within Sun. Petitioner’s position was eliminated as a

result of the cancellation of the Millennium Project, and

his employment was terminated after he refused to

return from leave for over 24 months.

SUMMARY OF ARGUMENT

Despite the complete absence of any meaningful

reason for this matter to be heard by the United States

Supreme Court, this Petition rehashes unmeritorious

claims related to the district court’s refusal to remand

a case after Petitioner amended his complaint. This case

does not involve a conflict in decisions made by different

Circuit courts, an important federal question decided

in a way that conflicts with a decision by a state court of

last resort, an important question of federal law that

has not been, but should be, settled by this Court, or a

departure from well-settled law calling for an exercise

of this Court’s supervisory power.

Moreover, the decision about which Petitioner

complains was properly reached by the district court

and properly affirmed on appeal. Specifically, Petitioner

contends that the district court erred in refusing to

remand his complaint, despite that it contained

allegations of ERISA violations, because he removed

said allegations in subsequent amendments. Petitioner

6

ignores long standing precedent that a district court

may retain jurisdiction regardless of pleading

amendments, if jurisdiction existed at the time of

removal. Finally, Petitioner distorts the ruling of the

district court to argue that ERISA cannot preempt

claims brought under state anti-discrimination laws,

despite that said court made no such ruling. Instead,

summary judgment on Petitioner’s discrimination

claims was granted based on the lack of evidence in

support submitted by Petitioner.

REASONS FOR DENYING THE PETITION

I. Absence Of Compelling Reasons To Grant

Petition

The decisions of the courts below do not involve a

conflict with any decision of this Court, any courts of

appeal, or any state courts of last resort. Moreover,

Petitioner does not allege that the case involves an

important question of federal law that has not been, but

should be, settled by this Court. Instead, Petitioner

merely asserts that the district court and Ninth Circuit

“got it wrong” when they concluded that subject matter

jurisdiction existed in this case. Further, Petitioner

contends that the district court misapplied well-settled

law to this particular set of facts when granting summary

judgment in favor of Respondents. These are grounds

on which a petition is “rarely granted.” Accordingly, the

Petition fails to establish “compelling reasons” for

review, and must be denied.

7

II. Petitioner’s Subject Matter Jurisdiction Claims

Are Wholly Without Merit

Throughout the litigation and appeals process,

Petitioner has consistently failed to convince any court

that the district court reached a wrong decision on an

issue it faces on a daily basis: federal subject matter

jurisdiction. At the time Respondents removed

Petitioner’s state court complaint to the district court,

ERISA preemption existed — this has never been

disputed by Petitioner. The law is clear that, where

removal jurisdiction exists, the district court may elect

to retain jurisdiction, even where the original cause of

action that prompted removal is later dismissed.

As Respondents have consistently pointed out in

response to various motions and the two appeals filed

by Petitioner, preemption under ERISA Section 514(a)

is very broad. See, e.g., DeVoll v. Burdick Painting, Inc.,

35 F.3d 408, 412 (9% Cir. 1994). ERISA, by its terms,

“supersedes any and all state laws insofar as they...

relate to any employee benefit plan... .” 29 U.S.C.

§ 1144(a). ERISA’s preemption clause contains

“deliberately expansive language” that was “designed

to establish pension plan regulation as exclusively a

federal concern.” DeVoll, supra, 35 F.3d at 412, quoting

Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S.Ct.

478, 482, 112 L. Ed. 2d 474 (1990) (internal quotations

omitted). The Ninth Circuit has expressly held that this

clause preempts state law claims founded on theories of

negligence, breach of contract, breach of covenant, and

civil conspiracy. See, e.g., DeVoll, 35 F.3d at 412, citing

Ellenburg v. Brockway, Inc., 763 F.2d 1091, 1095 (9 Cir.

1985) (breach of contract); Lea v. Republic Airlines, Inc.,

8

903 F.2d 624, 631-32 (9'* Cir. 1990) (negligence). Under

the circumstances of this case, there was simply no

dispute that many of Petitioner’s state law claims in both

lawsuits implicated ERISA preemption.

Petitioner contends .that his decision to amend his

pleadings post-removal required the district court to

remand the matter to state court: Yet, as confirmed by

the Ninth Circuit in this case, for purposes of

determining whether a district court retains jurisdiction

of a case following removal, a litigant’s amendment of

pleadings or dismissal of particular causes of action does

not control. Simply put, jurisdiction is determined at

the time of removal, and not thereafter. See Reddam v.

KPMG LLP, 457 F'3d 1054, 1058 n. 6 (9 Cir. 2006). Thus,

even had Petitioner, subsequent to removal, completely

excised all allegations that implicated ERISA, and not

included his WARN ov HIPPA claims (leaving only state

court claims), the district court would not have been

deprived of subject matter jurisdiction. See, e.g., Sparta

Surgical Corp. v. National Ass’n of Securities Dealers,

Inc., 159 F.3d 1209, 1213 (9 Cir. 1998) (a “plaintiff may

not may not compel remand by amending a complaint

to eliminate the federal question upon which removal

was based.”)

III. Petitioner Distorts The District Court’s Ruling

On His FEHA Claim

In his Petition, Petitioner suggests that the district

court granted summary judgment on his FEHA

discrimination claims based on ERISA preemption.

Nothing could be further from the truth.

9

As stated in the district court’s order on summary

judgment, Petitioner’s disability discrimination claim

was not dismissed on procedural grounds but, instead,

the court expressly held that no evidence existed that

Sun failed to engage in the interactive process, failed to

provide a reasonable accommodation, or otherwise

discriminated against Petitioner. The court stated:

In the current case, the Court finds that Sun

provided reasonable accommodations to

Plaintiff and that Sun properly engaged in the

interactive process. Defendants not only

provided Plaintiff with the opportunity to take

extended medica] leave, but also engaged in an

interactive process in attempting to help

Plaintiff return to work. (Cites omitted.) Despite

Sun’s willingness to assist Plaintiff, Plaintiff

failed to obtain and/or provide Sun with the

required return-to-work authorization... .

Moreover, the Court finds Plaintiff has failed to

present any evidence indicating that Sun failed

to accommodate him. See Petition, Appendix J

(15 & 16).

As ERISA preemption was not the grounds for

dismissal of Petitioner’s FEHA claims, Petitioner’s

argument is without merit.

10

CONCLUSION

Petitioner has not met his burden to establish any

compelling reasons for this court to grant the Petition.

Therefore, Respondents respectfully request that the

Petition be denied.

Respectfully submitted,

MICHAEL W. FosTER

DavIpD J. CARDIFF*

FosTer & ASSOCIATES

3000 Lakeshore Avenue

Oakland, CA 94610

(510) 763-1900

Counsel for Respondents

* Counsel of Record