1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CARMELA CISNEROS, individually, Case No.: 3:19-cv-01010-L-MSB and on behalf of all others similarly 12 situated, ORDER GRANTING PLAINTIFF'S 13 MOTION TO REMAND [ECF No. 8] Plaintiff, 14 v. 15 CENTENE CORPORATION, a Delaware 16 corporation; HEALTH NET FEDERAL SERVICES, LLC, a Delaware 17 corporation; MICHAELINE FLOWER, 18 an individual; and DOES 2 through 25, inclusive, 19 Defendants. 20
21 22 Pending before the Court is Plaintiff Carmela Cisneros’s (“Plaintiff”) Motion to 23 Remand [ECF No. 8]. The Court decides this matter on the papers submitted and without 24 oral argument. See Civ. L. R. 7.1(d)(1). For the reasons stated below, the Court GRANTS 25 Plaintiff’s motion. 26 // 27 // 28 // 1 I. BACKGROUND 2 From July 25, 2006, through March 7, 2018, Plaintiff was employed by Centene 3 Corporation (“Centene”) and Health Net Federal Services, LLC (“Health Net”) as a 4 Clerical Specialist in San Diego County. ECF No. 1-3, Ex. C at 36 ¶ 8. 5 On January 30, 2019, Plaintiff’s filed a complaint against Centene and Michaeline 6 Flower (“Flower”) in the Superior Court of California, County of San Diego, alleging 7 various claims relating from her termination of employment. See ECF No. 1-3, Exhibit A. 8 The complaint sought damages on the following bases: (1) associational disability 9 discrimination under the Fair Employment and Housing Act (“FEHA”), (2) failure to 10 engage in a good faith interactive process under FEHA, (3) failure to accommodate under 11 FEHA, (4) retaliation under FEHA, (5) unlawful workplace language policy under Cal. 12 Gov. Code § 12951, (6) national origin discrimination based on associational disability 13 under Cal. Gov. Code § 12900, (7) failure to take all reasonable steps to discrimination, 14 harassment and/or retaliation, (8) violation of the California Family Rights Act (“CFRA”), 15 (9) retaliation under CFRA, (10) wrongful termination against public policy, and (11) 16 defamation. See id. On March 25, 2019, Plaintiff amended that complaint and filed her 17 First Amended Complaint (“Complaint”) against Centene, Flower, and newly-added 18 defendant Health Net. See ECF No. 1-3, Ex. C. Plaintiff alleges that, in March 2018, she 19 took leave to care for her husband who suffered a shoulder injury. ECF No. 1-3, Ex. C at 20 36 ¶ 11. Upon returning from leave, she was terminated for falsifying medical documents 21 related to her husband’s injury. Id. at ¶ 12. Plaintiff claims she was terminated in 22 retaliation for taking leave to care for her injured husband. Id. at ¶¶ 94-101. Plaintiff alleges 23 the same eleven causes of action related to her termination of employment. See id. 24 25 26 27 28 1 On April 30, 2019, Health Net deposed Plaintiff in the related class action case. See 2 ECF No.1 at ¶ 6. On May 30, 2019, Centene2 removed the case to this Court, claiming 3 diversity jurisdiction pursuant to 28 U.S.C. §§§ 1332, 1441, 1446(b)(3). The timeliness of 4 Centene’s removal is not in dispute. Plaintiff now moves to remand. 5 II. LEGAL STANDARD 6 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. 7 Co. of Am., 511 U.S. 375, 377 (1994). “They possess only that power authorized by 8 Constitution or a statute, which is not to be expanded by judicial decree.” Id. (internal 9 citations omitted). “It is to be presumed that a cause lies outside this limited jurisdiction 10 and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Id. 11 (internal citations omitted); see also Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 12 684 (9th Cir. 2006). Consistent with the limited jurisdiction of federal courts, the removal 13 statute is strictly construed against removal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 14 566 (9th Cir. 1992); see also Sygenta Crop Prot. v. Henson, 537 U.S. 28, 32 (2002); 15 O'Halloran v. Univ. of Wash., 856 F.2d 1375, 1380 (9th Cir. 1988). “The strong 16 presumption against removal jurisdiction means that the defendant always has the burden 17 of establishing that removal is proper.” Gaus, 980 F.2d at 566; see also Nishimoto v. 18 Federman-Bachrach & Assoc., 903 F.2d 709, 712 n.3 (9th Cir. 1990); O'Halloran, 856 19 F.2d at 1380. “Federal jurisdiction must be rejected if there is any doubt as to the right of 20 removal in the first instance.” Gaus, 980 F.2d at 566. 21 22 23 24 1 On September 21, 2018, Plaintiff filed a class action complaint in the Superior Court of California, 25 County of San Diego, alleging violations of state wage and hour laws against Centene and Health Net. See Carmela Cisneros v. Centene Corporation et al., Case No. 3:18-cv-02489-L-JLB at ECF No. 1-2 at 26 4. On October 29, 2018, Centene and Health Net removed the case to this Court, where it is now pending. See id. 27 2 According to Centene’s Notice of Removal, Centene is “the only defendant that has been served in this 28 1 Diversity jurisdiction requires (1) complete diversity of citizenship between the 2 parties and (2) an amount in controversy exceeding $75,000. 28 U.S.C. § 1332. Diversity 3 jurisdiction does not exist if any defendant is of the same citizenship as any plaintiff. 28 4 U.S.C. § 1332; Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). Furthermore, removal 5 on diversity grounds is improper if any defendant is a citizen of the forum state. 28 U.S.C. 6 § 1441(b)(2). A court may disregard the citizenship of any fraudulently joined defendants. 7 Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). “Joinder of a non- 8 diverse defendant is deemed fraudulent . . . if the plaintiff fails to state a cause of action 9 against a resident defendant, and the failure is obvious according to the settled rules of the 10 state.” Id. (internal citations and quotation marks omitted). A defendant bears the burden 11 of proving fraudulent joinder by clear and convincing evidence. Hamilton Materials, Inc. 12 v. Dow Chemical Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). 13 III. DISCUSSION 14 Plaintiff contends there are two reasons the case must be remanded to state court. 15 First, Plaintiff contends that Flower is not a sham defendant; thus, there is not complete 16 diversity among the parties. ECF No. 8 at 9-14. Second, Plaintiff contends the amount in 17 controversy does not exceed $75,000. Id. at 7-9. 18 Sham Defendant 19 Plaintiff alleges two claims against Flower: (1) retaliation in violation of the CFRA 20 and (2) defamation under California law. See ECF No. 1, Ex. C. Centene asserts Flower 21 was fraudulently joined in the action and that her citizenship should be disregarded in 22 evaluating whether complete diversity exists. ECF No. 1 at 6-10. 23 A.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CARMELA CISNEROS, individually, Case No.: 3:19-cv-01010-L-MSB and on behalf of all others similarly 12 situated, ORDER GRANTING PLAINTIFF'S 13 MOTION TO REMAND [ECF No. 8] Plaintiff, 14 v. 15 CENTENE CORPORATION, a Delaware 16 corporation; HEALTH NET FEDERAL SERVICES, LLC, a Delaware 17 corporation; MICHAELINE FLOWER, 18 an individual; and DOES 2 through 25, inclusive, 19 Defendants. 20
21 22 Pending before the Court is Plaintiff Carmela Cisneros’s (“Plaintiff”) Motion to 23 Remand [ECF No. 8]. The Court decides this matter on the papers submitted and without 24 oral argument. See Civ. L. R. 7.1(d)(1). For the reasons stated below, the Court GRANTS 25 Plaintiff’s motion. 26 // 27 // 28 // 1 I. BACKGROUND 2 From July 25, 2006, through March 7, 2018, Plaintiff was employed by Centene 3 Corporation (“Centene”) and Health Net Federal Services, LLC (“Health Net”) as a 4 Clerical Specialist in San Diego County. ECF No. 1-3, Ex. C at 36 ¶ 8. 5 On January 30, 2019, Plaintiff’s filed a complaint against Centene and Michaeline 6 Flower (“Flower”) in the Superior Court of California, County of San Diego, alleging 7 various claims relating from her termination of employment. See ECF No. 1-3, Exhibit A. 8 The complaint sought damages on the following bases: (1) associational disability 9 discrimination under the Fair Employment and Housing Act (“FEHA”), (2) failure to 10 engage in a good faith interactive process under FEHA, (3) failure to accommodate under 11 FEHA, (4) retaliation under FEHA, (5) unlawful workplace language policy under Cal. 12 Gov. Code § 12951, (6) national origin discrimination based on associational disability 13 under Cal. Gov. Code § 12900, (7) failure to take all reasonable steps to discrimination, 14 harassment and/or retaliation, (8) violation of the California Family Rights Act (“CFRA”), 15 (9) retaliation under CFRA, (10) wrongful termination against public policy, and (11) 16 defamation. See id. On March 25, 2019, Plaintiff amended that complaint and filed her 17 First Amended Complaint (“Complaint”) against Centene, Flower, and newly-added 18 defendant Health Net. See ECF No. 1-3, Ex. C. Plaintiff alleges that, in March 2018, she 19 took leave to care for her husband who suffered a shoulder injury. ECF No. 1-3, Ex. C at 20 36 ¶ 11. Upon returning from leave, she was terminated for falsifying medical documents 21 related to her husband’s injury. Id. at ¶ 12. Plaintiff claims she was terminated in 22 retaliation for taking leave to care for her injured husband. Id. at ¶¶ 94-101. Plaintiff alleges 23 the same eleven causes of action related to her termination of employment. See id. 24 25 26 27 28 1 On April 30, 2019, Health Net deposed Plaintiff in the related class action case. See 2 ECF No.1 at ¶ 6. On May 30, 2019, Centene2 removed the case to this Court, claiming 3 diversity jurisdiction pursuant to 28 U.S.C. §§§ 1332, 1441, 1446(b)(3). The timeliness of 4 Centene’s removal is not in dispute. Plaintiff now moves to remand. 5 II. LEGAL STANDARD 6 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. 7 Co. of Am., 511 U.S. 375, 377 (1994). “They possess only that power authorized by 8 Constitution or a statute, which is not to be expanded by judicial decree.” Id. (internal 9 citations omitted). “It is to be presumed that a cause lies outside this limited jurisdiction 10 and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Id. 11 (internal citations omitted); see also Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 12 684 (9th Cir. 2006). Consistent with the limited jurisdiction of federal courts, the removal 13 statute is strictly construed against removal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 14 566 (9th Cir. 1992); see also Sygenta Crop Prot. v. Henson, 537 U.S. 28, 32 (2002); 15 O'Halloran v. Univ. of Wash., 856 F.2d 1375, 1380 (9th Cir. 1988). “The strong 16 presumption against removal jurisdiction means that the defendant always has the burden 17 of establishing that removal is proper.” Gaus, 980 F.2d at 566; see also Nishimoto v. 18 Federman-Bachrach & Assoc., 903 F.2d 709, 712 n.3 (9th Cir. 1990); O'Halloran, 856 19 F.2d at 1380. “Federal jurisdiction must be rejected if there is any doubt as to the right of 20 removal in the first instance.” Gaus, 980 F.2d at 566. 21 22 23 24 1 On September 21, 2018, Plaintiff filed a class action complaint in the Superior Court of California, 25 County of San Diego, alleging violations of state wage and hour laws against Centene and Health Net. See Carmela Cisneros v. Centene Corporation et al., Case No. 3:18-cv-02489-L-JLB at ECF No. 1-2 at 26 4. On October 29, 2018, Centene and Health Net removed the case to this Court, where it is now pending. See id. 27 2 According to Centene’s Notice of Removal, Centene is “the only defendant that has been served in this 28 1 Diversity jurisdiction requires (1) complete diversity of citizenship between the 2 parties and (2) an amount in controversy exceeding $75,000. 28 U.S.C. § 1332. Diversity 3 jurisdiction does not exist if any defendant is of the same citizenship as any plaintiff. 28 4 U.S.C. § 1332; Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). Furthermore, removal 5 on diversity grounds is improper if any defendant is a citizen of the forum state. 28 U.S.C. 6 § 1441(b)(2). A court may disregard the citizenship of any fraudulently joined defendants. 7 Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). “Joinder of a non- 8 diverse defendant is deemed fraudulent . . . if the plaintiff fails to state a cause of action 9 against a resident defendant, and the failure is obvious according to the settled rules of the 10 state.” Id. (internal citations and quotation marks omitted). A defendant bears the burden 11 of proving fraudulent joinder by clear and convincing evidence. Hamilton Materials, Inc. 12 v. Dow Chemical Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). 13 III. DISCUSSION 14 Plaintiff contends there are two reasons the case must be remanded to state court. 15 First, Plaintiff contends that Flower is not a sham defendant; thus, there is not complete 16 diversity among the parties. ECF No. 8 at 9-14. Second, Plaintiff contends the amount in 17 controversy does not exceed $75,000. Id. at 7-9. 18 Sham Defendant 19 Plaintiff alleges two claims against Flower: (1) retaliation in violation of the CFRA 20 and (2) defamation under California law. See ECF No. 1, Ex. C. Centene asserts Flower 21 was fraudulently joined in the action and that her citizenship should be disregarded in 22 evaluating whether complete diversity exists. ECF No. 1 at 6-10. 23 A. CFRA Claim 24 Centene contends that the CFRA does not allow for “individual liability for 25 retaliation.” ECF No. 1 at ¶ 20 (citing Nazir v. United Airlines, 178 Cal.App.4th 243, 287 26 (2009)). Alternatively, Plaintiff contends that the CFRA’s liability extends to individuals 27 because the Fair Employment and Housing Act (“FEHA”) incorporates most of the federal 28 Family and Medical Leave Act (“FMLA”) regulations into the CFRA. See ECF No. 8 at 1 12-13. However, the FMLA defines “employer” a “any person . . . who employs 50 or 2 more employees” and includes “any person who acts, directly or indirectly, in the interest 3 of an employer to any of the employer’s employees.” See 29 U.S.C. § 2611. Although 4 Plaintiff asserts that 2 Cal. Code Regs § 7297.7 unmistakably confirms that CFRA 5 retaliation liability extends to individuals, the regulation does not address the issue of 6 whether the supervisor of an employer may be held individually liable. Moreover, under 7 Nazir, 178 Cal.App.4th at 287, there is “not individual liability for retaliation [under 8 CFRA].” In light of settled California law on this issue, Plaintiff cannot establish a CFRA 9 retaliation claim against Flower, in Flower’s individual supervisor capacity. 10 B. Defamation Claim 11 Centene contends that, as a result of Plaintiff’s deposition testimony in the Class 12 Case, Plaintiff cannot establish that Flower defamed her. ECF No. 1 at ¶ 21. “To prove 13 defamation, a plaintiff must establish ‘(a) a publication that is (b) false, (c) defamatory, and 14 (d) unprivileged, and that (e) has a natural tendency to injure or that causes special 15 damage.’” Abir Cohen Treyzon Salo, LLP v. Lahiji, 2019 WL 4877286, at *4 (Cal. Dist. 16 Ct. App. October 3, 2019) (internal quotation marks omitted) (citing Taus v. Loftus, 40 17 Cal.4th 683, 720 (2007); Cal. Civ. Code §§ 44, 45, 45a). It is imperative that the plaintiff 18 establish that the person sued is the one legally responsible for the defamatory statement. 19 Id. (citing Westside Estate Agency, Inc. v. Randall, 6 Cal.App.5th 317, 329 (2016)). “In 20 deciding whether a cause of action is stated we have declared that we will look only to a 21 plaintiff’s pleadings to determine removability.” Ritchey v. Upjohn Drug Co., 139 F.3d 22 1313, 1318 (9th Cir. 1998) (internal quotations and citation omitted). However, where 23 fraudulent joinder is an issue, “[t]he defendant seeking removal to federal court is entitled 24 to present the facts showing the joinder to be fraudulent.” McCabe v. General Foods Corp., 25 811 F.2d 1336, 1339 (9th Cir. 1987). 26 Centene wholly relies on its Notice of Removal assertions as its proof that Plaintiff 27 fraudulently joined Flower in her defamation claim. ECF No. 10 at 8 fn.1. In its Notice 28 of Removal, Centene contends that Plaintiff has no viable defamation claim against Flower 1 because she does not have personal knowledge that Flower publicized the reasons for 2 Plaintiff’s termination. ECF No. 1 at 9. Centene provides the following testimony from 3 Plaintiff’s deposition: 4 Q. How about Ms. Flowers? [sic] Did she tell anybody why your employment 5 was terminated? 6 A. I have no idea. 7 Id. 8 Centene contends, as a result of this response, that “Plaintiff cannot possibly 9 maintain a defamation claim against Flower because Plaintiff is unable to attribute the 10 supposed defamatory statements to Flower.” See ECF No. 1 at 8. This Court disagrees. 11 Plaintiff’s admission that she lacks personal knowledge of Flower’s publication of the 12 alleged defamatory statements is insufficient to show that Plaintiff cannot establish a 13 defamation cause of action against Flower. Notably, the parties have yet to engage in 14 discovery from which evidence that Flower publicized defamatory statement(s) could be 15 revealed. 16 Moreover, while Centene asserts that Plaintiff fraudulently alleged she needed leave 17 to care for her husband due to her deposition testimony that she has not been married since 18 1980, Centene fails to provide any argument regarding how Plaintiff’s deposition 19 testimony about her marital status prohibits her from bringing a defamation claim against 20 Flower. See ECF Nos. 1 at 9, 1-3 at 121-24. The Court could infer that Centene believes 21 they have a complete defense of truth because, if Plaintiff was not married, the leave 22 paperwork she filed was in fact falsified. Smith v. Maldonado 85 Cal.Rptr.2d 397, 403 23 (Cal. Ct. App. 1999). On the other hand, the deposition testimony also reveals that Plaintiff 24 and her husband, Pablo Gonzalez, were never legally divorced. Nonetheless, an inference 25 will not satisfy the clear and convincing evidence standard. See Christian Research Inst. 26 V. Alnor, 55 Cal.Rptr.3d 600, 611-612, 615 (Cal. Ct. App. 2007). Plaintiff’s failure to 27 oppose Centene’s defamation contentions have no bearing on the Court’s analysis as the 28 burden remains with Centene to prove removal was proper. As such, the Court finds that 1 ||Centene has not proved by clear and convincing evidence that Flower was fraudulently 2 ||joined to the defamation claim to destroy diversity. 3 Accordingly, it is not clear and obvious that Plaintiff cannot establish a cause of 4 || action against Flower either for defamation. For that reason, the Court finds that Flower is 5 ||not a sham defendant. Thus, Flower shall remain as a party in this action and complete 6 diversity does not exists here. For that reason, the Court finds that complete diversity is 7 destroyed and federal subject matter jurisdiction is lacking. "If at any time before final 8 ||judgment it appears that the district court lacks subject matter jurisdiction, the case shall 9 remanded." 28 U.S.C. § 1447(c). 10 Sanctions 11 Plaintiff requests the court order for Centene to pay costs and attorney fees incurred 12 || by Plaintiff as a result of the removal pursuant to 28 U.S.C. § 1447(c). ECF No. 8 at 14- 13 || 15. The court declines to make such an award because the removal was not frivolous or 14 || filed for an improper purpose. 15 IV. CONCLUSION 16 For the reasons stated above, Plaintiff's motion to remand [ECF No.8] is 17 || GRANTED. Therefore, this action shall be remanded to the Superior Court of the State of 18 || California, County of San Diego. 19 20 IT IS SO ORDERED. 21 22 ||Dated: November 7, 2019 23 Y J 24 HY for é 25 H6nKY James#orenzH United States District Judge 26 27 28