O 1 JS-6 2 3 4 5 6 7 United States District Court 8 Central District of California 9 10 11 ALMA DELGADO, Case № 5:20-cv-01988-ODW (SPx) 12 Plaintiff, 13 v. ORDER REMANDING ACTION and DENYING MOTION TO DISMISS 14 SCHNEIDER LOGISTICS AS MOOT [8] TRANSLOADING & DISTRIBUTION, 15 INC. et al., 16 Defendants. 17 18 I. INTRODUCTION 19 Plaintiff Alma Delgado filed this wrongful termination action in the Superior 20 Court of California, County of San Bernardino, against Defendant Schneider Logistics 21 Transloading and Distribution, Inc. (“Schneider”) and individual Defendants Karla 22 Torres, Evelyn Harris, Melizza St. Andrew, Anissa Gauthier, and Cynthia Gonzalez. 23 (Notice of Removal (“NOR”) ¶ 1, Ex. A (“Compl.”), ECF Nos. 1, 1-1.) Schneider 24 removed the matter based on alleged diversity jurisdiction. (NOR ¶¶ 9–11.) After 25 removal, Delgado filed a First Amended Complaint (“FAC”), reasserting claims 26 against only Schneider, Gonzalez, and St. Andrew (collectively for the purposes of 27 this Order, “Defendants”). (FAC, ECF No. 7.) Now, Defendants move to dismiss the 28 FAC. (See Mot. to Dismiss (“Motion” or “Mot.”), ECF No. 8.) 1 However, after reviewing Schneider’s Notice of Removal and Delgado’s 2 Complaint and FAC, the Court finds it lacks subject matter jurisdiction over this 3 action because the Court cannot determine that the parties are completely diverse.1 4 Consequently, the Court REMANDS this action to state court, and DENIES 5 Defendants’ Motion as moot. See 28 U.S.C. § 1447(c).2 6 II. BACKGROUND 7 Delgado sued her former employer for alleged discrimination and harassment 8 based on her religious faith and beliefs, her disability or perceived disability, and other 9 protected statuses and associations. (See Compl. ¶¶ 13, 36; see also FAC ¶¶ 10, 37.)3 10 Delgado alleges she was ostracized, denied medical leave and accommodations, and 11 her employment was ultimately terminated as part of this “on-going and continuing” 12 discrimination and harassment. (Compl. at 2, ¶¶ 12–23; see also FAC at 2, ¶¶ 9–23.) 13 Delgado also asserted two of the causes of action against the individual Defendants, 14 for harassment in violation of FEHA (second cause of action) and intentional 15 infliction of emotional distress (“IIED”) (tenth cause of action). (Compl. ¶¶ 30–48, 16 95–99.) Delgado omits several individual Defendants from her FAC but maintains the 17 harassment and IIED causes of action against St. Andrew and Gonzalez. (See FAC 18 ¶¶ 30–53, 99–118.) 19 III. LEGAL STANDARD 20 Federal courts have subject matter jurisdiction only as authorized by the 21 Constitution and Congress. U.S. Const. art. III, § 2, cl. 1; see also Kokkonen v. 22 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A suit filed in state court 23 1 For jurisdictional allegations, the Court looks to the Complaint and Notice of Removal, because 24 diversity jurisdiction “is determined (and must exist) as of the time the complaint is filed and 25 removal is effected.” Strotek Corp. v. Air Transp. Ass’n. of Am., 300 F.3d 1129, 1131–32 (9th Cir. 2002). 26 2 After carefully considering the record, the Court deems the matter appropriate for sua sponte decision. United Inv’rs Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). 27 3 All of Delgado’s causes of action arise under California law, specifically the California 28 Government Code section 12940 et seq., the Fair Employment and Housing Act (“FEHA”), the California Labor Code, the California Family Rights Act, and common law. (See Compl. ¶¶ 24–99.) 1 may be removed to federal court only if the federal court would have had original 2 jurisdiction over the suit. 28 U.S.C. § 1441(a). Federal courts have original 3 jurisdiction where an action arises under federal law or where each plaintiff’s 4 citizenship is diverse from each defendant’s citizenship and the amount in controversy 5 exceeds $75,000. Id. §§ 1331, 1332(a). 6 The removal statute is strictly construed against removal, and “[f]ederal 7 jurisdiction must be rejected if there is any doubt as to the right of removal in the first 8 instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The party seeking 9 removal bears the burden of establishing federal jurisdiction. Id. The court must 10 remand the action sua sponte “[i]f at any time before final judgment it appears that the 11 district court lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c); United Inv’rs, 12 360 F.3d at 967. 13 IV. DISCUSSION 14 Schneider invokes diversity as the basis of the Court’s subject matter 15 jurisdiction. (NOR ¶ 11.) The Supreme Court has “consistently interpreted § 1332 as 16 requiring complete diversity: In a case with multiple plaintiffs and multiple 17 defendants, the presence in the action of a single plaintiff from the same State as a 18 single defendant deprives the district court of original diversity jurisdiction over the 19 entire action.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 20 (2005). 21 “An exception to the requirement of complete diversity exists where it appears 22 that a plaintiff has fraudulently joined a ‘sham’ non-diverse defendant.” Sanchez v. 23 Lane Bryant, Inc., 123 F. Supp. 3d 1238, 1241 (C.D. Cal. 2015). “If the plaintiff fails 24 to state a cause of action against a resident defendant, and the failure is obvious 25 according to the settled rules of the state, the joinder of the resident defendant is 26 fraudulent.” Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 27 (9th Cir. 2007) (quoting McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 28 1987)). There is a strong presumption against fraudulent joinder, and thus, 1 “[f]raudulent joinder must be proven by clear and convincing evidence.” Hamilton 2 Materials, 494 F.3d at 1206. 3 Merely showing that an action is likely to be dismissed against the alleged sham 4 defendant does not demonstrate fraudulent joinder. See Grancare, LLC v. Thrower by 5 & through Mills, 889 F.3d 543, 550 (9th Cir. 2018). This is because the standard for 6 establishing fraudulent joinder is more exacting than that for dismissal for failure to 7 state a claim. Id. at 549. “[I]f there is a possibility that a state court would find that 8 the complaint states a cause of action against any of the resident defendants, the 9 federal court must find that the joinder was proper and remand the case to the state 10 court.” Id. at 548 (quoting Hunter v. Philip Morris USA, 582 F.3d 1039, 1046 11 (9th Cir. 2009)).
Free access — add to your briefcase to read the full text and ask questions with AI
O 1 JS-6 2 3 4 5 6 7 United States District Court 8 Central District of California 9 10 11 ALMA DELGADO, Case № 5:20-cv-01988-ODW (SPx) 12 Plaintiff, 13 v. ORDER REMANDING ACTION and DENYING MOTION TO DISMISS 14 SCHNEIDER LOGISTICS AS MOOT [8] TRANSLOADING & DISTRIBUTION, 15 INC. et al., 16 Defendants. 17 18 I. INTRODUCTION 19 Plaintiff Alma Delgado filed this wrongful termination action in the Superior 20 Court of California, County of San Bernardino, against Defendant Schneider Logistics 21 Transloading and Distribution, Inc. (“Schneider”) and individual Defendants Karla 22 Torres, Evelyn Harris, Melizza St. Andrew, Anissa Gauthier, and Cynthia Gonzalez. 23 (Notice of Removal (“NOR”) ¶ 1, Ex. A (“Compl.”), ECF Nos. 1, 1-1.) Schneider 24 removed the matter based on alleged diversity jurisdiction. (NOR ¶¶ 9–11.) After 25 removal, Delgado filed a First Amended Complaint (“FAC”), reasserting claims 26 against only Schneider, Gonzalez, and St. Andrew (collectively for the purposes of 27 this Order, “Defendants”). (FAC, ECF No. 7.) Now, Defendants move to dismiss the 28 FAC. (See Mot. to Dismiss (“Motion” or “Mot.”), ECF No. 8.) 1 However, after reviewing Schneider’s Notice of Removal and Delgado’s 2 Complaint and FAC, the Court finds it lacks subject matter jurisdiction over this 3 action because the Court cannot determine that the parties are completely diverse.1 4 Consequently, the Court REMANDS this action to state court, and DENIES 5 Defendants’ Motion as moot. See 28 U.S.C. § 1447(c).2 6 II. BACKGROUND 7 Delgado sued her former employer for alleged discrimination and harassment 8 based on her religious faith and beliefs, her disability or perceived disability, and other 9 protected statuses and associations. (See Compl. ¶¶ 13, 36; see also FAC ¶¶ 10, 37.)3 10 Delgado alleges she was ostracized, denied medical leave and accommodations, and 11 her employment was ultimately terminated as part of this “on-going and continuing” 12 discrimination and harassment. (Compl. at 2, ¶¶ 12–23; see also FAC at 2, ¶¶ 9–23.) 13 Delgado also asserted two of the causes of action against the individual Defendants, 14 for harassment in violation of FEHA (second cause of action) and intentional 15 infliction of emotional distress (“IIED”) (tenth cause of action). (Compl. ¶¶ 30–48, 16 95–99.) Delgado omits several individual Defendants from her FAC but maintains the 17 harassment and IIED causes of action against St. Andrew and Gonzalez. (See FAC 18 ¶¶ 30–53, 99–118.) 19 III. LEGAL STANDARD 20 Federal courts have subject matter jurisdiction only as authorized by the 21 Constitution and Congress. U.S. Const. art. III, § 2, cl. 1; see also Kokkonen v. 22 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A suit filed in state court 23 1 For jurisdictional allegations, the Court looks to the Complaint and Notice of Removal, because 24 diversity jurisdiction “is determined (and must exist) as of the time the complaint is filed and 25 removal is effected.” Strotek Corp. v. Air Transp. Ass’n. of Am., 300 F.3d 1129, 1131–32 (9th Cir. 2002). 26 2 After carefully considering the record, the Court deems the matter appropriate for sua sponte decision. United Inv’rs Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). 27 3 All of Delgado’s causes of action arise under California law, specifically the California 28 Government Code section 12940 et seq., the Fair Employment and Housing Act (“FEHA”), the California Labor Code, the California Family Rights Act, and common law. (See Compl. ¶¶ 24–99.) 1 may be removed to federal court only if the federal court would have had original 2 jurisdiction over the suit. 28 U.S.C. § 1441(a). Federal courts have original 3 jurisdiction where an action arises under federal law or where each plaintiff’s 4 citizenship is diverse from each defendant’s citizenship and the amount in controversy 5 exceeds $75,000. Id. §§ 1331, 1332(a). 6 The removal statute is strictly construed against removal, and “[f]ederal 7 jurisdiction must be rejected if there is any doubt as to the right of removal in the first 8 instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The party seeking 9 removal bears the burden of establishing federal jurisdiction. Id. The court must 10 remand the action sua sponte “[i]f at any time before final judgment it appears that the 11 district court lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c); United Inv’rs, 12 360 F.3d at 967. 13 IV. DISCUSSION 14 Schneider invokes diversity as the basis of the Court’s subject matter 15 jurisdiction. (NOR ¶ 11.) The Supreme Court has “consistently interpreted § 1332 as 16 requiring complete diversity: In a case with multiple plaintiffs and multiple 17 defendants, the presence in the action of a single plaintiff from the same State as a 18 single defendant deprives the district court of original diversity jurisdiction over the 19 entire action.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 20 (2005). 21 “An exception to the requirement of complete diversity exists where it appears 22 that a plaintiff has fraudulently joined a ‘sham’ non-diverse defendant.” Sanchez v. 23 Lane Bryant, Inc., 123 F. Supp. 3d 1238, 1241 (C.D. Cal. 2015). “If the plaintiff fails 24 to state a cause of action against a resident defendant, and the failure is obvious 25 according to the settled rules of the state, the joinder of the resident defendant is 26 fraudulent.” Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 27 (9th Cir. 2007) (quoting McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 28 1987)). There is a strong presumption against fraudulent joinder, and thus, 1 “[f]raudulent joinder must be proven by clear and convincing evidence.” Hamilton 2 Materials, 494 F.3d at 1206. 3 Merely showing that an action is likely to be dismissed against the alleged sham 4 defendant does not demonstrate fraudulent joinder. See Grancare, LLC v. Thrower by 5 & through Mills, 889 F.3d 543, 550 (9th Cir. 2018). This is because the standard for 6 establishing fraudulent joinder is more exacting than that for dismissal for failure to 7 state a claim. Id. at 549. “[I]f there is a possibility that a state court would find that 8 the complaint states a cause of action against any of the resident defendants, the 9 federal court must find that the joinder was proper and remand the case to the state 10 court.” Id. at 548 (quoting Hunter v. Philip Morris USA, 582 F.3d 1039, 1046 11 (9th Cir. 2009)). 12 Here, Schneider attempts to invoke diversity jurisdiction because Delgado is a 13 California citizen, and Schneider is considered a Wisconsin citizen. In its Notice of 14 Removal, Schneider does not identify the individual Defendants’ citizenships and 15 instead asserts that the Court should disregard their citizenships because they were 16 fraudulently joined. (NOR ¶¶ 13–16.) However, Schneider fails to show there is no 17 possibility that Delgado can state a claim against the individual Defendants.4 18 As to the harassment cause of action, Schneider argues that the individual 19 Defendants’ personnel management decisions (concerning issues such as attendance, 20 leave requests, and exclusion from work meetings) are not actionable harassment 21 under FEHA. (See NOR ¶¶ 16–23.) However, the California Supreme Court has 22 expressly acknowledged that personnel management decisions can be evidence of 23 harassment where they are used as the means to communicate a harassing message or 24 create a hostile work environment. See Roby v. McKesson Corp., 47 Cal. 4th 686, 708 25
26 4 As the Court finds there is a possibility that Delgado could state a harassment cause of action, the individual Defendants are not fraudulently joined and the Court need not consider the IIED cause of 27 action. See Jacobson v. Swisher Int’l, No. CV 20-01504-CJC (SKx), 2020 WL 1986448, at *4, n.2 28 (C.D. Cal. Apr. 27, 2020) (declining to consider plaintiff’s remaining claims after finding there was a possibility that plaintiff could state a single claim against non-diverse defendant). 1 (2009), as modified (Feb. 10, 2010) (“[I]n some cases the hostile message that 2 constitutes the harassment is conveyed through official employment actions, and 3 therefore evidence that would otherwise be associated with a discrimination claim can 4 form the basis of a harassment claim.”). Thus, allegations “of biased personnel 5 management actions” may support a claim of harassment so long as they are “relevant 6 to prove the communication of a hostile message.” Id. Schneider concedes as much, 7 as it acknowledges that “individuals may be held liable for claims of harassment” 8 under FEHA. (NOR ¶ 17.) 9 To the extent Schneider argues Delgado’s allegations are nevertheless 10 insufficient to state a cause of action for harassment, this argument is unavailing. 11 Schneider must do more than merely show Delgado’s allegations are insufficient 12 because the standard to establish fraudulent joinder is more exacting than that under 13 Rule 12(b)(6). See Grancare, 889 F.3d at 549–50 (discussing that a defendant must 14 show by clear and convincing evidence that there is no possibility a plaintiff could 15 recover against a non-diverse defendant to establish fraudulent joinder). And even 16 assuming Delgado’s allegations are insufficient, Schneider fails to establish that 17 Delgado could not cure any potential deficiency in a future amendment.5 See id. 18 at 550 (“[T]he district court must consider . . . whether a deficiency in the complaint 19 can possibly be cured by granting the plaintiff leave to amend.”); Revay v. Home 20 Depot U.S.A., Inc., No. 2:14-CV-03391-RSWL (ASx), 2015 WL 1285287, at *3 21 (C.D. Cal. Mar. 19, 2015) (emphasis added) (quoting Hunter, 582 F.3d at 1044) (“If 22 there is ‘any possibility that the state law might impose liability on a resident 23 defendant under the circumstances alleged in the complaint,’ or in a future amended 24 complaint, ‘the federal court cannot find that joinder of the resident defendant was 25
26 5 In a footnote in the Notice of Removal, Schneider contends many of Delgado’s allegations of harassing conduct are time-barred. (NOR ¶ 22 n.5.) But Delgado alleges the conduct was “on-going 27 and continuing” and argues, in opposition to the Motion, that the continuing violation doctrine 28 permits consideration of those allegations. (Compl. at 2; FAC at 2; Opp’n to Mot. 14–16, ECF No. 9.) Thus, the possibility exists that a state court could find those allegations not time-barred. 1 || fraudulent, and remand is necessary.’”). Indeed, Delgado has already shown a desire 2 || to amend her claims. (See generally FAC; Opp’n 2, 16-19 (requesting leave to file a 3 || Second Amended Complaint).) 4 In short, Schneider has failed to show by clear and convincing evidence that 5 || there is no possibility Delgado could state a claim against the individual Defendants. 6 || Accordingly, the Court finds the individual Defendants were properly joined, and the 7 || Court cannot disregard their citizenship. As neither the Complaint nor the Notice of 8 | Removal provides a plausible allegation of the individual Defendants’ citizenship, the 9 || Court cannot find it has subject matter jurisdiction. Therefore, the Court must 10 | remand. See Gaus, 980 F.2d at 566. 11 Vv. CONCLUSION 12 For the reasons discussed above, the Court REMANDS this action to the San 13 || Bernardino Superior Court, 247 W. Third St., San Bernardino, California, Case No. CIV DS 2005744. The Court DENIES Defendants’ Motion to Dismiss as moot. 15 || (ECF No. 8.) The Clerk of the Court shall close the case. 16 17 IT IS SO ORDERED. 18 19 March 22, 2021 ss 20 wx Gédiod OTIS D. WRIGHT, II 33 UNITED STATES DISTRICT JUDGE
24 25 26 27 28