1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 HASIBULLAH ABDALI, No. 2:19-cv-02362-JAM-EFB 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION TO REMAND 14 AGILITI SURGICAL, INC.; UNIVERSAL HOSPITAL SERVICES, 15 INC.; RICHARD STEVENSON; and DOES 1 through 50, inclusive, 16 Defendants. 17 18 This matter is before the Court on Hasibullah Abdali’s 19 (“Plaintiff”) Motion to Remand. Mot. to Remand (“Mot.”), ECF 20 Nos. 15, 16. Agiliti Surgical, Inc. (“Agiliti”) filed an 21 opposition to Plaintiff’s motion. Opp’n, ECF No. 19. Plaintiff 22 did not file a reply. After consideration of the parties’ 23 briefing on the motion and relevant legal authority, the Court 24 DENIES Plaintiff’s Motion to Remand.1 25 26
27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for September 15, 2020. 1 I. BACKGROUND 2 Plaintiff worked as a radiology technologist for Agiliti, a 3 mobile lithotripsy services provider incorporated in Delaware 4 with its principal place of business in Minnesota. Compl. ¶¶ 13– 5 14, ECF No. 1-1; Notice of Removal ¶¶ 14–15, ECF No. 1. Richard 6 Stevenson (“Stevenson”), a citizen of California, was Plaintiff’s 7 supervisor. Compl. ¶ 4; Mot. at 2. Plaintiff was repeatedly 8 exposed to radiation when using radiological instruments at work. 9 Compl. ¶ 16. Repeated exposure can cause significant health 10 problems unless protective equipment is worn by those 11 administering radiological services. Id. Plaintiff alleges 12 Agiliti gave him inadequate protective equipment and refused to 13 provide him with anything better. See Compl. ¶¶ 16, 17, 18, 19. 14 On August 5, 2019, Plaintiff filed a lawsuit against 15 Agiliti, Universal Hospital Services, Inc. (“Universal”), and 16 Stevenson in Sacramento Superior Court. Plaintiff claimed 17 Agiliti, Universal, and Stevenson engaged in unfair business 18 practices in violation of various provisions of the California 19 Business & Professions Code § 17200, et seq. See Compl. ¶¶ 25– 20 34. Plaintiff also claimed Agiliti and Universal violated the 21 Fair Employment and Housing Act (“FEHA”), Cal. Gov’t Code 22 § 12940(h), by retaliating, and failing to prevent retaliation, 23 against him. See Compl. ¶¶ 35–48. 24 Agiliti received a copy of Plaintiff’s complaint on 25 September 16, 2019. Richardson Decl. ¶ 3, ECF No. 1-2. Agiliti 26 discovered the case was removable and filed a timely notice of 27 removal on November 21, 2019. See Notice of Removal ¶ 7; see 28 also 28 U.S.C. § 1446(b); Fed. R. Civ. Proc. 6(a). The notice 1 invoked the Court’s diversity jurisdiction, arguing (1) the Court 2 should dismiss Stevenson as fraudulently joined; and (2) the 3 amount in controversy exceeds $ 75,000. Notice of Removal ¶¶ 22- 4 58. In response, Plaintiff filed this motion to remand. See 5 Mot. 6 7 II. OPINION 8 A. Legal Standard 9 For a defendant to remove a civil case from state court, he 10 must prove the federal court has original jurisdiction over the 11 suit. 28 U.S.C. § 1441. A federal court may exercise 12 jurisdiction over a case involving purely state law claims when 13 there is complete diversity between the parties and an amount in 14 controversy exceeding $ 75,000. 28 U.S.C. § 1332(a). To 15 satisfy Section 1332’s diversity requirement, no plaintiff may 16 be a citizen of the same state as any defendant. Id. When a 17 case is removed on the basis diversity jurisdiction, no 18 defendant may be a citizen of the state where Plaintiff brought 19 the suit. 28 U.S.C. § 1441(b)(2). 20 A court will dismiss a fraudulently-joined defendant and 21 disregard its citizenship when determining whether the parties 22 are diverse. McCabe v. General Foods Corp., 811 F.2d 1336, 1339 23 (9th Cir. 1986). A joinder is fraudulent when (1) there is 24 actual fraud in the pleading of jurisdictional facts; or (2) a 25 plaintiff cannot establish a cause of action against the non- 26 diverse party in state court. Id. Courts do not often find 27 joinder fraudulent—the burden of persuasion is high and rests 28 squarely on defendants’ shoulders. Grancare, LLC v. Thrower by 1 and through Mills, 889 F.3d 543, 548 (9th Cir. 2018). A court 2 resolves “all disputed questions of fact and all ambiguities in 3 the controlling state law . . . in the plaintiff’s favor.” 4 Warner v. Select Portfolio Servicint, et al., 193 F. Supp. 3d 5 1132, 1135 (C.D. Cal. 2016). After which, it must “appear to 6 near certainty” that joinder was fraudulent. Diaz v. Allstate 7 Insur. Group, 185 F.R.D. 581, 586 (C.D. Cal. 1998). 8 When a defendant adopts the second approach to showing 9 fraudulent joinder, he must prove plaintiff “fail[ed] to state a 10 cause of action against a resident defendant . . . [that] is 11 obvious according to the settled rules of the state.” Hunter v. 12 Philip Morris USA, 582 F.3d 1039, 1043-44 (9th Cir. 2008). 13 Courts do not take this obviousness requirement lightly. If 14 there is even a “possibility that a state court would find that 15 the complaint states a cause of action against any of the [non- 16 diverse] defendants,” a federal court “must find the defendant 17 properly joined and remand the case to state court.” Grancare, 18 LLC, 889 F.3d at 549 (emphasis and modification in original) 19 (internal quotation marks and citation omitted). In making this 20 determination, “the district court must consider whether a 21 deficiency in the complaint can possibly be cured by granting 22 plaintiff leave to amend.” Id. 23 B. Analysis 24 Plaintiff’s only claim against Stevenson is for violations 25 of California’s unfair competition law, Cal. Bus. & Prof. Code 26 § 17200, et seq. Compl. ¶¶ 25–34. Agiliti contends this claim 27 obviously fails because the complaint is devoid of any facts 28 identifying the allegedly wrongful acts or unlawful conduct 1 specifically attributable to Stevenson. Notice of Removal ¶¶ 2 25-30. California Business & Professional Code § 17200 3 provides: “[U]nfair competition shall mean and include any 4 unlawful, unfair or fraudulent business act or practice and 5 unfair, deceptive, untrue or misleading advertisement.” Cal. 6 Bus. & Prof. Code § 17200. 7 To bring an unfair competition claim against an individual 8 defendant, the plaintiff must identify the defendant’s allegedly 9 wrongful acts. See Morfin v. Accredited Home Lenders, Inc., 10 Case No. 09-CV-792, 2010 WL 391838 at *7 (S.D. Cal. 2010). And 11 “a defendant’s liability must be based on his personal 12 participation in the unlawful practices and unbridled control 13 over the practices that are found to violate section[] 14 17200 . . . .” Emery v. Visa Internat. Service Ass’n, 95 15 Cal.App.4th 952, 960 (2002) (internal quotation marks and 16 citation omitted). “The concept of vicarious liability has no 17 application to actions brought under the unfair business 18 practices act.” Id. (quoting People v. Toomey, 157 Cal.App.3d 19 1, 14 (1984)).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 HASIBULLAH ABDALI, No. 2:19-cv-02362-JAM-EFB 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION TO REMAND 14 AGILITI SURGICAL, INC.; UNIVERSAL HOSPITAL SERVICES, 15 INC.; RICHARD STEVENSON; and DOES 1 through 50, inclusive, 16 Defendants. 17 18 This matter is before the Court on Hasibullah Abdali’s 19 (“Plaintiff”) Motion to Remand. Mot. to Remand (“Mot.”), ECF 20 Nos. 15, 16. Agiliti Surgical, Inc. (“Agiliti”) filed an 21 opposition to Plaintiff’s motion. Opp’n, ECF No. 19. Plaintiff 22 did not file a reply. After consideration of the parties’ 23 briefing on the motion and relevant legal authority, the Court 24 DENIES Plaintiff’s Motion to Remand.1 25 26
27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for September 15, 2020. 1 I. BACKGROUND 2 Plaintiff worked as a radiology technologist for Agiliti, a 3 mobile lithotripsy services provider incorporated in Delaware 4 with its principal place of business in Minnesota. Compl. ¶¶ 13– 5 14, ECF No. 1-1; Notice of Removal ¶¶ 14–15, ECF No. 1. Richard 6 Stevenson (“Stevenson”), a citizen of California, was Plaintiff’s 7 supervisor. Compl. ¶ 4; Mot. at 2. Plaintiff was repeatedly 8 exposed to radiation when using radiological instruments at work. 9 Compl. ¶ 16. Repeated exposure can cause significant health 10 problems unless protective equipment is worn by those 11 administering radiological services. Id. Plaintiff alleges 12 Agiliti gave him inadequate protective equipment and refused to 13 provide him with anything better. See Compl. ¶¶ 16, 17, 18, 19. 14 On August 5, 2019, Plaintiff filed a lawsuit against 15 Agiliti, Universal Hospital Services, Inc. (“Universal”), and 16 Stevenson in Sacramento Superior Court. Plaintiff claimed 17 Agiliti, Universal, and Stevenson engaged in unfair business 18 practices in violation of various provisions of the California 19 Business & Professions Code § 17200, et seq. See Compl. ¶¶ 25– 20 34. Plaintiff also claimed Agiliti and Universal violated the 21 Fair Employment and Housing Act (“FEHA”), Cal. Gov’t Code 22 § 12940(h), by retaliating, and failing to prevent retaliation, 23 against him. See Compl. ¶¶ 35–48. 24 Agiliti received a copy of Plaintiff’s complaint on 25 September 16, 2019. Richardson Decl. ¶ 3, ECF No. 1-2. Agiliti 26 discovered the case was removable and filed a timely notice of 27 removal on November 21, 2019. See Notice of Removal ¶ 7; see 28 also 28 U.S.C. § 1446(b); Fed. R. Civ. Proc. 6(a). The notice 1 invoked the Court’s diversity jurisdiction, arguing (1) the Court 2 should dismiss Stevenson as fraudulently joined; and (2) the 3 amount in controversy exceeds $ 75,000. Notice of Removal ¶¶ 22- 4 58. In response, Plaintiff filed this motion to remand. See 5 Mot. 6 7 II. OPINION 8 A. Legal Standard 9 For a defendant to remove a civil case from state court, he 10 must prove the federal court has original jurisdiction over the 11 suit. 28 U.S.C. § 1441. A federal court may exercise 12 jurisdiction over a case involving purely state law claims when 13 there is complete diversity between the parties and an amount in 14 controversy exceeding $ 75,000. 28 U.S.C. § 1332(a). To 15 satisfy Section 1332’s diversity requirement, no plaintiff may 16 be a citizen of the same state as any defendant. Id. When a 17 case is removed on the basis diversity jurisdiction, no 18 defendant may be a citizen of the state where Plaintiff brought 19 the suit. 28 U.S.C. § 1441(b)(2). 20 A court will dismiss a fraudulently-joined defendant and 21 disregard its citizenship when determining whether the parties 22 are diverse. McCabe v. General Foods Corp., 811 F.2d 1336, 1339 23 (9th Cir. 1986). A joinder is fraudulent when (1) there is 24 actual fraud in the pleading of jurisdictional facts; or (2) a 25 plaintiff cannot establish a cause of action against the non- 26 diverse party in state court. Id. Courts do not often find 27 joinder fraudulent—the burden of persuasion is high and rests 28 squarely on defendants’ shoulders. Grancare, LLC v. Thrower by 1 and through Mills, 889 F.3d 543, 548 (9th Cir. 2018). A court 2 resolves “all disputed questions of fact and all ambiguities in 3 the controlling state law . . . in the plaintiff’s favor.” 4 Warner v. Select Portfolio Servicint, et al., 193 F. Supp. 3d 5 1132, 1135 (C.D. Cal. 2016). After which, it must “appear to 6 near certainty” that joinder was fraudulent. Diaz v. Allstate 7 Insur. Group, 185 F.R.D. 581, 586 (C.D. Cal. 1998). 8 When a defendant adopts the second approach to showing 9 fraudulent joinder, he must prove plaintiff “fail[ed] to state a 10 cause of action against a resident defendant . . . [that] is 11 obvious according to the settled rules of the state.” Hunter v. 12 Philip Morris USA, 582 F.3d 1039, 1043-44 (9th Cir. 2008). 13 Courts do not take this obviousness requirement lightly. If 14 there is even a “possibility that a state court would find that 15 the complaint states a cause of action against any of the [non- 16 diverse] defendants,” a federal court “must find the defendant 17 properly joined and remand the case to state court.” Grancare, 18 LLC, 889 F.3d at 549 (emphasis and modification in original) 19 (internal quotation marks and citation omitted). In making this 20 determination, “the district court must consider whether a 21 deficiency in the complaint can possibly be cured by granting 22 plaintiff leave to amend.” Id. 23 B. Analysis 24 Plaintiff’s only claim against Stevenson is for violations 25 of California’s unfair competition law, Cal. Bus. & Prof. Code 26 § 17200, et seq. Compl. ¶¶ 25–34. Agiliti contends this claim 27 obviously fails because the complaint is devoid of any facts 28 identifying the allegedly wrongful acts or unlawful conduct 1 specifically attributable to Stevenson. Notice of Removal ¶¶ 2 25-30. California Business & Professional Code § 17200 3 provides: “[U]nfair competition shall mean and include any 4 unlawful, unfair or fraudulent business act or practice and 5 unfair, deceptive, untrue or misleading advertisement.” Cal. 6 Bus. & Prof. Code § 17200. 7 To bring an unfair competition claim against an individual 8 defendant, the plaintiff must identify the defendant’s allegedly 9 wrongful acts. See Morfin v. Accredited Home Lenders, Inc., 10 Case No. 09-CV-792, 2010 WL 391838 at *7 (S.D. Cal. 2010). And 11 “a defendant’s liability must be based on his personal 12 participation in the unlawful practices and unbridled control 13 over the practices that are found to violate section[] 14 17200 . . . .” Emery v. Visa Internat. Service Ass’n, 95 15 Cal.App.4th 952, 960 (2002) (internal quotation marks and 16 citation omitted). “The concept of vicarious liability has no 17 application to actions brought under the unfair business 18 practices act.” Id. (quoting People v. Toomey, 157 Cal.App.3d 19 1, 14 (1984)). 20 The only facts alleged in Plaintiff’s complaint involving 21 Stevenson are that (1) Stevenson laughed at Plaintiff when he 22 asked for protective eyeglasses; and (2) Agiliti retaliated 23 against Plaintiff after he complained to Stevenson about his 24 health and safety concerns. See Compl. ¶¶ 18, 23, 37. Neither 25 of these allegations establish an unfair competition claim 26 against Stevenson as an individual defendant. They fail to 27 suggest Stevenson personally participated in the alleged 28 unlawful practices or had unbridled control over any such 1 practices. These allegations likewise do not suggest Plaintiff 2 has a claim to recover money or property taken from him by 3 Stevenson through unfair or unlawful business practices. Manser 4 v. Sierra Foothills Public Utility Dist., Case No. 08-CV-1250, 5 2008 WL 5114619 at *8 (E.D. Cal. 2008) (An action under 6 California’s unfair competition law is “an equitable action by 7 means of which a plaintiff may recover money or property 8 obtained from the plaintiff through unfair or unlawful business 9 practices”). Thus, Plaintiff has failed to state a claim 10 against Stevenson under California law. 11 Moreover, notably absent from Plaintiff’s motion is any 12 argument to the contrary. Plaintiff failed to respond to 13 Agiliti’s opposition to this motion to remand including 14 Agiliti’s contention that Stevenson is fraudulently joined. 15 Therefore, it appears that Plaintiff has conceded the point by 16 silence. See Ardente, Inc. v. Shanley, Case No. 07-CV-4479-MHP, 17 2010 WL 546485 at *6 (N.D. Cal. 2010) (“Plaintiff fails to 18 respond to this argument and therefore concedes it through 19 silence.”); see also E.D. Cal. L.R. 230(c). This silent 20 concession confirms that a state court could not possibly find 21 that the complaint states a claim against Stevenson or that the 22 deficiencies in the complaint could be cured by amendment. See 23 Grancare, LLC, 889 F.3d at 549. As a result, the Court finds 24 that Stevenson is a fraudulently-joined defendant. 25 Plaintiff’s motion to remand is instead made on the grounds 26 that Cynthia Cabrera, a California resident and another one of 27 Plaintiff’s former supervisors, defamed him. See Mot. at 2–4. 28 Cabrera is not a defendant in this case. The possibility that WwOAOD 2.4h97 VV VOVUVO VEAAIVE VL MYVUULITIOCIIL Cae Voreeicy rPaye f vid
1 Plaintiff will request joinder of a non-diverse party at some 2 | point in the future is not a basis for remand. See Newcombe v. 3 Adolf Coors Co., 157 F.3d 686, 691 (9th Cir. 1998) (“28 U.S.C. 4 § 1447 provides that [i]Jf after removal the plaintiff seeks 5 to join additional defendants whose joinder would destroy 6 subject matter jurisdiction, the court may deny joinder, or 7 permit joinder and remand the action to State court.”). 8 Plaintiff’s request to have this Court consider Ms. Cabrera as a 9 | defendant (without first filing a properly noticed joinder 10 motion) iS an apparent ploy to defeat diversity jurisdiction 11 | which must be denied. 12 13 Til. ORDER 14 For the reasons set forth above, the Court dismisses Richard 15 Stevenson as fraudulently joined. As a result, the Court retains 16 subject-matter jurisdiction over this case and Plaintiff’s motion 17 to remand is DENIED. 18 IT IS SO ORDERED. 19 Dated: September 21, 2020 20 he Me 2 teiren staves odermacr 7008 22 23 24 25 26 27 28