Felipe Trujillo v. Morgan Truck Body, LLC

• Court: District Court, C.D. California
• Decided: February 14, 2022
• Docket: 5:21-cv-01873
• Status: Unknown

Opinion

Case 5:21-cv-01873-JWH-SHK Document 44 Filed 02/14/22 Page 1 of 13 Page ID #:734

JS -6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 11 FELIPE TRUJILLO, an individual, Case No. 5:21-cv-01873-JWH-SHKx

12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. MOTION FOR ORDER REMANDING ACTION TO STATE 14 MORGAN TRUCK BODY, LLC. dba COURT [ECF NO. 20] AND MORGAN CORPORATION, a DENYING DEFENDANTS’ 15 Delaware limited liability company; MOTION TO DISMISS AND THOMAS JORDAN an individual; and STRIKE FIRST AMENDED 16 DOES 1 through 100, inclusive, COMPLAINT [ECF NO. 30]

17 Defendants.

18 19 20 21 22 23 24 25 26 27 28 Case 5:21-cv-01873-JWH-SHK Document 44 Filed 02/14/22 Page 2 of 13 Page ID #:735

1 Before the Court are two motions: (1) the motion of Plaintiff Felipe 2 Trujillo to remand the case to the Riverside County Superior Court;1 and (2) the 3 motion of Defendants Morgan Truck Body, LLC, d/b/a Morgan Corporation 4 (“Morgan Truck Body”) and Thomas Jordan to dismiss Trujillo’s First 5 Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil 6 Procedure and, additionally, to strike it pursuant to Rule 12(f).2 The Court finds 7 this matter appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; 8 L.R. 7-15. After considering the papers filed in support and in opposition,3 the 9 Court orders that the Motion to Remand is GRANTED, and the Motion to 10 Dismiss is DENIED as moot, as set forth herein. 11 I. BACKGROUND 12 A. Factual Summary 13 As alleged in the Amended Complaint, Trujillo worked for Morgan Truck 14 Body as a production associate, starting around January 2019.4 That May, 15 Trujillo was involved in a work-related accident, which left him injured in his 16 back, shoulder, and bicep.5 Trujillo notified his supervisors, as well as Jordan, of 17 1 Pl.’s Mot. for an Order Remanding Action to State Ct. (the “Motion to 18 Remand”) [ECF No. 20]. 19 2 Defs.’ Notice of Mot. to Dismiss and to Strike the First. Am. Compl. [ECF No. 30]; see also Defs.’ Mem. of P. & A. in Supp. of the Motion to Dismiss 20 (“Motion to Dismiss”) [ECF No. 31] 3 The Court considered the following papers: (1) Compl. (the 21 “Complaint”) [ECF No. 1-2]; (2) the Notice of Removal of Action Under 28 U.S.C. § 1441(b) (the “Removal Notice”) [ECF No. 1]); (3) the Motion to 22 Remand (including its attachments); (4) Def.’s Opp’n to the Motion to Remand (the “Remand Opposition”) [ECF No. 21]; (5) First Am. Compl. (the 23 “Amended Complaint”) [ECF No. 25]; (6) Pl.’s Reply to Defs.’ Opposition to Remand (the “Remand Reply”) [ECF No. 28]; (7) the Motion to Dismiss 24 (including its attachments); (8) Defs.’ Suppl. Opp’n to the Motion to Remand (“Supplemental Remand Opposition”) [ECF No. 36]; (9) Pl.’s Opp’n to the 25 Motion to Dismiss (the “Dismiss Opposition”) [ECF No. 38]; (10) Pl.’s Suppl. Reply in Supp. of the Motion to Remand (the “Supplemental Remand Reply”) 26 [ECF No. 41]; and (11) Defs.’ Reply in Supp. of the Motion to Dismiss (the “Dismiss Reply”) [ECF No. 42]. 27 4 Amended Complaint ¶ 8. 28 5 Id. at ¶ 9. -2- Case 5:21-cv-01873-JWH-SHK Document 44 Filed 02/14/22 Page 3 of 13 Page ID #:736

1 his injuries and the physical limitations that they imposed; e.g., reaching 2 overhead and pulling or lifting certain amounts of weight.6 However, 3 Defendants failed to accommodate the work restrictions prescribed by Trujillo’s 4 doctor and “mocked him” for his requests.7 Furthermore, Trujillo contends 5 that Defendants suspended him for requesting intermittent leave to tend to his 6 medical care.8 7 By that August, Defendants terminated Trujillo—which he believes was 8 in retaliation for his requests for accommodation and complaints regarding his 9 suspension.9 Trujillo contacted the Department of Fair Employment and 10 Housing and received a Right to Sue Notice on August 21, 2020.10 11 B. Procedural History 12 In September 2020, Trujillo filed a class-action complaint against Morgan 13 Truck Body and Jordan in state court, entitled Trujillo v. Morgan Truck Body, 14 LLC dba Morgan Corporation, Case No. RIC2003486 (“Trujillo I”).11 Trujillo 15 subsequently moved to voluntarily dismiss that class action without prejudice, 16 which the court granted on July 30, 2021.12 17 On August 26, 2021, Trujillo filed a new complaint in the Riverside 18 County Superior Court, in which he asserted seven claims for relief against 19 Defendants: (1) disability discrimination; (2) failure to accommodate; (3) failure 20 to engage in the interactive process; (4) failure to provide medical leave; 21

22 6 Id. at ¶¶ 10-12. 23 7 Id. at ¶ 13; see also id. at ¶ 16. 8 Id. at ¶¶ 13 & 14. 24 9 Id. at ¶¶ 15 & 16. 25 10 Id. at ¶ 18. 26 11 See Defs.’ Req. Judicial Notice in Opp’n to the Motion to Remand (the “RJN”) [ECF No. 23], Ex. 1. Because the exhibits are all court-related 27 documents, the Court GRANTS the RJN pursuant to Rule 201 of the Federal Rules of Evidence. 28 12 See RJN, Ex. 2 & Ex. 3. -3- Case 5:21-cv-01873-JWH-SHK Document 44 Filed 02/14/22 Page 4 of 13 Page ID #:737

1 (5) retaliation; (6) wrongful termination; and (7) wrongful termination in 2 violation of public policy.13 On November 4, Morgan Truck Body removed the 3 action to this Court.14 Morgan Truck Body premised its removal on diversity 4 jurisdiction, contending that fellow Defendant Thomas Jordan is a sham 5 defendant brought into the lawsuit only for the purpose of destroying diversity.15 6 On December 9, 2021, Morgan Truck Body moved to dismiss the case.16 7 The next day, Trujillo moved to remand the action to state court.17 While 8 parties briefed both motions, Trujillo amended his complaint.18 Trujillo added a 9 claim for harassment, intentional infliction of emotional distress, and 10 whistleblower liability for retaliation in violation of Section 1102.5 of the 11 California Labor Code.19 In view of that amendment, on January 3, 2022,20 the 12 Court denied Defendants’ first motion to dismiss as moot and directed the 13 parties to file supplemental briefing on the Motion to Remand.21 Morgan Truck 14 Body provided its Supplemental Opposition on January 21, and Trujillo 15 submitted his Supplemental Reply on January 27. 16 In parallel, Morgan Truck Body revived its motion to dismiss, moving 17 once again to dismiss the complaint under Rule 12(b)(6)—and now moving to 18 19 20 21 13 See generally Complaint. 22 14 See generally Removal Notice. 23 15 Id. at ¶¶ 14-22. 24 16 See Defs.’ Mot. to Dismiss [ECF No. 16]. 17 See generally Motion to Remand. 25 18 See generally Amended Complaint. 26 19 Id. at ¶¶ 70-82 & 101-109. 27 20 Hereinafter, all dates are in 2022 unless otherwise specified. 21 Min. Order Re: Briefing Schedule of Pl.’s Mot. to Remand [ECF No. 29] 28 2. -4- Case 5:21-cv-01873-JWH-SHK Document 44 Filed 02/14/22 Page 5 of 13 Page ID #:738

1 strike under Rule 12(f) as well.22 Trujillo opposed the instant Motion to Dismiss 2 on January 21,23 and Morgan Truck Body replied on January 28.24 3 II. LEGAL STANDARD 4 A. Remand 5 Federal courts are courts of limited jurisdiction. Accordingly, “[t]hey 6 possess only that power authorized by Constitution and statute.” Kokkonen v. 7 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “The right of removal is 8 entirely a creature of statute and a suit commenced in a state court must remain 9 there until cause is shown for its transfer under some act of Congress.” 10 Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002) (internal quotation 11 marks omitted). 12 To remove an action to federal court under 28 U.S.C. § 1441, the 13 removing defendant “must demonstrate that original subject-matter jurisdiction 14 lies in the federal courts.” Syngenta, 537 U.S. at 33. As such, a defendant may 15 remove civil actions where complete diversity of citizenship between the parties 16 exists and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332. 17 “Complete diversity” means that “each defendant must be a citizen of a 18 different state from each plaintiff.” In re Digimarc Corp. Derivative Litigation, 19 549 F.3d 1223, 1234 (9th Cir. 2008). 20 It should be noted the right to remove is not absolute, even where original 21 jurisdiction exists. In other words, the removing defendant bears the burden of 22 establishing that removal is proper. See Abrego Abrego v. The Dow Chem. Co., 443 23 F.3d 676, 684 (9th Cir. 2006) (noting the “longstanding, near-canonical rule 24 that the burden on removal rests with the removing defendant”); Gaus v. Miles, 25 Inc., 980 F.2d 564, 566 (9th Cir. 1992) (“The strong presumption against 26 22 See generally Motion to Dismiss. 27 23 See generally Dismiss Opposition. 28 24 See generally Dismiss Reply. -5- Case 5:21-cv-01873-JWH-SHK Document 44 Filed 02/14/22 Page 6 of 13 Page ID #:739

1 removal jurisdiction means that the defendant always has the burden of 2 establishing that removal is proper.” (quotation marks omitted)). Any doubts 3 regarding the existence of subject matter jurisdiction must be resolved in favor 4 of remand. See id. (“Federal jurisdiction must be rejected if there is any doubt 5 as to the right of removal in the first instance.”). 6 In particular, a defendant asserting fraudulent joinder “carries the heavy 7 burden of establishing the absence of any possibility of recovery.” Lighting Sci. 8 Grp. Corp. v. Koninklijke Philips Elecs. N.V., 624 F. Supp. 2d 1174, 1179 9 (E.D. Cal. 2008) (citing Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 10 1998)). “Remand must be granted unless the defendant establishes that there is 11 no possibility that the plaintiff could prevail on any cause of action it asserted 12 against the non-diverse defendant.” Gonzalez v. J.S. Paluch Co., 2013 WL 13 100210, at *4 (C.D. Cal. Jan. 7, 2013) (emphasis added). 14 B. Rule 12(b)(6) 15 Defendants move to dismiss Trujillo’s Amended Complaint under 16 Rule 12(b)(6) of the Federal Rules of Civil Procedure. A claim should be 17 dismissed under Rule 12(b)(6) where the plaintiff fails to assert a “cognizable 18 legal theory” or the complaint contains “[in]sufficient facts . . . to support a 19 cognizable legal theory.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 20 To survive a motion to dismiss, the complaint must allege “more than labels and 21 conclusions, and a formulaic recitation of the elements of a cause of action.” 22 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The claim must be pleaded 23 with “sufficient factual matter, accepted as true, to state a claim to relief that is 24 plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and that rises 25 “above the speculative level,” Twombly, 550 U.S. at 555. “A claim has facial 26 plausibility when the plaintiff pleads factual content that allows the court to 27 draw the reasonable inference that the defendant is liable for the misconduct 28 alleged.” Iqbal, 556 U.S. at 678. -6- Case 5:21-cv-01873-JWH-SHK Document 44 Filed 02/14/22 Page 7 of 13 Page ID #:740

1 Importantly, the Court must construe all factual allegations and “draw all 2 reasonable inferences from them in favor of the nonmoving party.” Tinoco v. 3 San Diego Gas & Elec. Co., 327 F.R.D. 651, 656 (S.D. Cal. 2018) (emphasis 4 added) (quoting Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 5 1996)); see also Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005). “[A] 6 well-pleaded complaint may proceed even if it strikes a savvy judge that actual 7 proof of those facts is improbable, and that a recovery is very remote and 8 unlikely.” Twombly, 550 U.S. at 544 (internal quotations omitted). 9 Importantly here, “the test for fraudulent joinder and for failure to state a 10 claim under Rule 12(b)(6) are not equivalent.” Grancare, LLC v. Thrower by & 11 through Mills, 889 F.3d 543, 549 (9th Cir. 2018). “Because the purpose of the 12 fraudulent joinder doctrine is to allow a determination whether the district court 13 has subject matter jurisdiction, the standard is similar to the “wholly 14 insubstantial and frivolous” standard for dismissing claims under Rule 12(b)(1) 15 for lack of federal question jurisdiction.” Id. (quoting Bell v. Hood, 327 U.S. 678, 16 682–83, (1946)). 17 C. Rule 12(f) 18 Lastly, Defendants ask this Court to strike the Amended Complaint on 19 the basis of fraudulent joinder.25 “The court may strike from a pleading an 20 insufficient defense or any redundant, immaterial, impertinent, or scandalous 21 matter.” Fed. R. Civ. P. 12(f). “The court may act: (1) on its own; or (2) on 22 motion made by a party either before responding to the pleading or, if a response 23 is not allowed, within 21 days after being served with the pleading.” Id. 24 “The purpose[] of a Rule 12(f) motion is to avoid spending time and 25 money litigating spurious issues.” Barnes v. AT & T Pension Ben. Plan- 26 Nonbargained Program, 718 F. Supp. 2d 1167, 1170 (N.D. Cal. 2010). Motions to 27

28 25 Motion to Dismiss 19:13-23:8. -7- Case 5:21-cv-01873-JWH-SHK Document 44 Filed 02/14/22 Page 8 of 13 Page ID #:741

1 strike are generally disfavored, and they “only are appropriate when the movant 2 can show that the challenged matter has no bearing on the subject matter of the 3 litigation.” Sultan v. Medtronic Inc., 2011 WL 13131112, at *2 (C.D. Cal. Nov. 16, 4 2011). 5 III. DISCUSSION 6 Before reaching the merits of the Motion to Dismiss or Defendants’ 7 request to strike the Amended Complaint, the Court must first evaluate whether 8 it even has jurisdiction over the action. See Grancare, LLC, 889 F.3d at 549 (“A 9 standard that equates fraudulent joinder with Rule 12(b)(6) conflates a 10 jurisdictional inquiry with an adjudication on the merits.”). As such, the Court 11 will first evaluate the Motion to Remand to determine whether Trujillo could 12 prevail on any claim for relief that he asserted against Jordan. See Gonzalez, 13 2013 WL 100210, at *4. 14 A. Motion to Remand 15 In his Motion to Remand, Trujillo does not contest that the citizenship of 16 Morgan Truck Body or its members are completely diverse. Nor does Trujillo 17 dispute that the amount in controversy exceeds the statutory threshold. Rather, 18 Trujillo contends he can state a claim against, and may recover from, Jordan.26 19 Because Jordan is domiciled in California,27 his joinder would necessarily divest 20 this Court of subject matter jurisdiction. 21 Trujillo would need only one viable claim for relief against Jordan. As 22 such, the Court’s inquiry begins and ends with Trujillo’s sixth claim for relief 23 for harassment under California’s Fair Employment and Housing Act 24 (“FEHA”).28 25

26 26 Motion to Remand 5:16-13:4. 27 27 Id. at 5:26-6:1; Complaint ¶ 4; Amended Complaint ¶ 4; see also Removal Notice ¶¶ 14-32 (implicitly conceding that Jordan resides in California). 28 28 Amended Complaint ¶¶ 70-77. -8- Case 5:21-cv-01873-JWH-SHK Document 44 Filed 02/14/22 Page 9 of 13 Page ID #:742

1 The FEHA makes it illegal “[f]or an employer . . . or any other person” to 2 harass an employee “because of . . . physical disability.” Cal. Gov’t Code 3 § 12940(j)(1). A disability harassment claim under the FEHA requires showing 4 “that the conduct complained of was severe enough or sufficiently pervasive to 5 alter the conditions of employment and create a work environment that qualifies 6 as hostile or abusive to employees because of their [disability].” Cornell v. 7 Berkeley Tennis Club, 18 Cal. App. 5th 908, 927 (2017) (internal quotations 8 omitted). 9 Defendants make two arguments against Trujillo’s claim of harassment. 10 Their first argument is that Trujillo’s initial complaint does not allege 11 sufficiently frequent, severe, and harassing conduct on the part of Jordan.29 But 12 the Court finds three flaws with this line of argument. 13 First, while neither the Complaint nor the Amended Complaint qualify as 14 illustrations of model pleading, a liberal construction of the Amended Complaint 15 suggests that there were multiple instances of harassment or ridicule. See 16 Fed. R. Civ. P. 8(e); Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (holding that 17 a complaint is to be “liberally construed”). For example, Trujillo alleges that 18 the “harassment and retaliation only grew,” implying that the harassment was 19 continuous and on-going rather than happening once on a one-off occasion.30 20 Second, California’s legislature recently amended Section 12923 of the 21 Government Code to provide that “a single incident of harassing conduct is 22 sufficient to create a triable issue regarding the existence of a hostile work 23 environment if the harassing conduct has unreasonably interfered with the 24 plaintiff’s work performance or created an intimidating, hostile, or offensive 25 working environment.” See Cal. Gov’t Code § 12923(b). Thus, even if there 26 27 29 Remand Opposition 10:21-22. 28 30 See, e.g., Amended Complaint ¶ 16. -9- Case 5:21-cv-01873-JWH-SHK Document 44 Filed 02/14/22 Page 10 of 13 Page ID #:743

1 was only one incident of harassment alleged, Trujillo could still have a viable 2 claim in view of that guidance from California’s legislature—especially since 3 Trujillo’s Amended Complaint implies that his suspension and the ridicule that 4 he endured were linked.31 5 Third, the most fundamental flaw is that Defendants invite the Court to 6 insert its own subjective viewpoint and to prejudge the severity of whatever 7 “ridicule” Trujillo alleges that he suffered from Jordan and others.32 Making 8 determinations on Trujillo’s allegations, at this stage of the litigation, would be 9 improper. See, e.g., Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243, 286 10 (2009) (noting that issues like hostile work environment are ones “not 11 determinable on paper”). Even if the Court believed that the ridicule that 12 Trujillo faced was insufficiently extreme or severe to be actionable, such a 13 determination would still require making a judgment call—one where reasonable 14 people could disagree. In view of that possibility, it is too early to say, at the 15 pleading stage, that Trujillo could not possibly recover on his harassment claim. 16 Defendants’ second argument against the viability of Trujillo’s 17 harassment claim is that his Amended Complaint contradicts his initial 18 Complaint.33 The Court finds this argument unpersuasive, as the Amended 19 Complaint does not plainly contradict the allegations in the first.34 The 20 Amended Complaint clarifies Trujillo’s allegations, rather than making 21

22 31 See, e.g., id. ¶ 13. 32 Id. at ¶ 16. 23 33 Motion to Dismiss 13:15-14:16; Supplemental Remand Opposition 5:1- 24 6:13. 34 The statements are not facially inconsistent. Compare Amended 25 Complaint ¶ 4 (“Plaintiff is further informed and believes that JORDAN is or was the person in charge of Plaintiff’s supervisors, all of whom were responsible 26 for Plaintiff’s harassment, retaliation, infliction of emotional distress, and termination, including JORDAN himself.”) with Complaint ¶ 4 (“Plaintiff is 27 further informed and believes that JORDAN is or was the person in charge of other employees responsible for Plaintiff’s termination, including his 28 supervisors.”). -10- Case 5:21-cv-01873-JWH-SHK Document 44 Filed 02/14/22 Page 11 of 13 Page ID #:744

1 contradictory ones.35 Moreover, Defendants rely on Ellingson v. Burlington N., 2 Inc., 653 F.2d 1327, 1329 (9th Cir. 1981), for the proposition that contradictions 3 in subsequent pleadings can demonstrate implausibility.36 But that case dealt 4 with the Court’s authority to strike pleadings under Rule 11, and it is no longer 5 good law. See PAE Gov’t Servs., Inc. v. MPRI, Inc., 514 F.3d 856, 859 n.3 (9th 6 Cir. 2007) (“Ellingson is no longer good law after the amendment to Rule 11.”). 7 As such, Trujillo’s amendment to his pleadings is no bar to a potentially viable 8 claim. 9 In conclusion, the Court finds that Trujillo has a potentially viable claim 10 against Jordan, and, therefore, Jordan is not fraudulently joined. “A defendant 11 is not a fraudulently joined or sham defendant simply because the facts and law 12 may further develop in a way that convinces the plaintiff to drop that 13 defendant.” Padilla v. AT & T Corp., 697 F. Supp. 2d 1156, 1159 (C.D. Cal. 14 2009). And even if Trujillo’s allegations do not pan out—as Defendants 15 surmise they will not—a “plaintiff engaging in a common strategy of pleading 16 broadly does not engage in a fraud or sham.” Id. at 1160. Thus, the parties are 17 not completely diverse, and the Court lacks jurisdiction over this lawsuit; the 18 Court is compelled to GRANT the Motion to Remand. 19 B. Motion to Dismiss 20 In addition to arguing why Jordan is not liable under various theories of 21 liability, Defendants raise three other issues in their Motion to Dismiss: (1) that 22 Trujillo’s claims are time-barred under the FEHA because he did not commence 23 this action within one year of the date of his Right to Sue Notice,37 see 24 35 A contradictory allegation would, in this instance, look like “Jordan was at 25 all times the supervisor” and then, subsequently, “Jordan was not at all times the supervisor.” 26 36 Motion to Dismiss 13:21-23. Defendants also cite Stanislaus Food Prod. 27 Co. v. USS-POSCO Indus., 782 F. Supp. 2d 1059, 1075 (E.D. Cal. 2011), which itself cites Ellingson. 28 37 Motion to Dismiss 10:23-11:16. -11- Case 5:21-cv-01873-JWH-SHK Document 44 Filed 02/14/22 Page 12 of 13 Page ID #:745

1 Cal. Gov’t Code § 12965(b); (2) that all of Trujillo’s claims should be barred 2 under the “claim-splitting” doctrine, see United States v. Haytian Republic, 154 3 U.S. 118, 125 (1894), because they should have been raised in his first lawsuit, 4 Trujillo I;38 and (3) that Trujillo should be estopped from arguing for any 5 equitable tolling of the statute of limitations.39 6 Having found that it is possible that Trujillo might recover on at least one 7 claim for relief against Jordan, thus divesting the Court of subject-matter 8 jurisdiction, the Court cannot rule on these matters, even if they are meritorious 9 and dispositive. Those matters may be properly raised and adjudicated in state 10 court. The Motion to Dismiss is therefore DENIED as moot. 11 C. Motion to Strike 12 Lastly, Defendants argue that 28 U.S.C. § 1447(e) should control the 13 joinder of Jordan—which they say requires more exacting scrutiny for joinder 14 than the liberal amending standard under Rule 15(a)—because Trujillo filed his 15 Amended Complaint for the sole purpose of destroying diversity.40 For that 16 reason, Defendants say, Trujillo’s Amended Complaint should be stricken 17 because it is therefore (somehow) “redundant, immaterial, impertinent or 18 scandalous.”41 19 Again, not only does the Court lack jurisdiction to rule on any further 20 procedural motions, such as a motion to strike, but the Court also finds that this 21 argument is shaky. The removal statute provides that “if after removal the 22 plaintiff seeks to join additional defendants whose joinder would destroy subject 23 matter jurisdiction, the court may deny joinder, or permit joinder and remand 24 the action to the State court.” 28 U.S.C. § 1447(e) (emphasis added). 25

26 38 Id. at 11:17-12:15. 39 Id. at 12:16-13:10. 27 40 Id. at 19:25-20:9. 28 41 Id. at 19:22-23. -12- Case 5:41-cv-01873-JWH-SHK Document 44 Filed 02/14/22 Page 130f13 Page ID #:746

1|| Defendants ignore that Jordan was included in the initial Complaint, rather 2|| than joined after removal, so that section of the statute is plainly inapplicable. 3 The Motion to Strike is DENIED as moot. 4 IV. CONCLUSION 5 For the foregoing reasons, the Court hereby ORDERS as follows: 6 1. The Court GRANTS the Request for Judicial Notice. 7 2. The Court GRANTS the Motion to Remand and remands this 8 || action to the Riverside County Superior Court. 9 3. The Court DENIES the Motion to Dismiss as moot. 10 4. The Court DENIES the Motion to Strike as moot. 11 IT IS SO ORDERED. MH 13 || Dated: February 14, 2022 °

14 SNITED SEATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28|| 2 See generally Complaint. -13-