1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN GUTIERREZ, Case No.: 3:18-cv-02809-BTM- AHG 12 Plaintiff,
13 v. ORDER 14 ELI LILLY AND COMPANY and JAYD HANNA, 15 Defendants. 16
17 I. BACKGROUND 18 Plaintiff filed suit against his former employer, Eli Lilly & Company (“Lilly”), 19 and former co-employee, Jayd Hanna (“Hanna”), in California Superior Court for 20 claims related to his termination from Lilly. (ECF No. 1 (“Pl.’s Compl.”.) Plaintiff 21 alleges numerous violations of employment discrimination laws and one count of 22 defamation against Lilly. The only claim against Hanna is for defamation. (Id. at 23 ¶ 16-25.) Plaintiff argues that Hanna defamed him by maliciously making 24 statements that he sexually harassed coworkers, (Id. at ¶¶ 12-13, 23), which led 25 to his termination from Lilly, (ECF No. 14 (“Pl.’s Reply to Defs.’ Opp. to Pl.’s Mot. 26 to Remand”), 3:3-10.) 27 Lilly removed the case on the basis of diversity jurisdiction. (ECF No. 1 28 1 (“Def.’s Notice of Removal”).) Hanna later consented to and joined in the 2 removal. (ECF No. 11). Plaintiff and Hanna appear to be citizens of California 3 and Lilly is a citizen of Indiana. (Def.’s Notice of Removal, at ¶¶ 7-11.) Though 4 Hanna is not diverse from Plaintiff, Lilly argues that Hanna was fraudulently 5 joined and that her citizenship should be disregarded. (Id. at ¶ 6.) Plaintiff 6 moved to remand this case to state court for lack of subject matter jurisdiction. 7 (ECF No. 6 (“Pl.’s Motion to Remand”).) 8 II. LEGAL STANDARD 9 A. Pleading 10 Under the Federal Rules of Civil Procedure, a complaint must include “a 11 short and plain statement of the claim showing that the pleader is entitled to 12 relief.” Fed. R. Civ. P. 8(a)(2). Rule 8 does not require “‘detailed factual 13 allegations,’ but it demands more than an unadorned, the-defendant-unlawfully- 14 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 15 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555). A pleading must go beyond 16 “labels and conclusions” or “a formulaic recitation of the elements of a cause of 17 action.” Id. (quoting Twombly, 550 U.S. at 555). A complaint that “tenders 18 ‘naked assertion[s]’ devoid of ‘further factual enhancement’” fails to satisfy Rule 19 8’s pleading standard. Id. (quoting Twombly, 550 U.S. at 557); see also 20 Sollberger v. Wachovia Securities, LLC, 2010 WL 2674456, at *3 (S.D. Cal. June 21 30, 2010) (explaining that a complaint fails as “neither plain nor specific” under 22 Rule 8(a) where “the facts do not support the inferences Plaintiff makes”). 23 Where the “complaint fails to link adequately a cause of action to its factual 24 predicates,” the Court has a “supervisory obligation to sua sponte order 25 repleading pursuant to Federal Rule of Civil Procedure 12(e).” Wagner v. First 26 Horizon Pharm. Corp., 464 F.3d 1273, 1275 (11th Cir. 2006); see also Cedillo- 27 Vargas v. McAleenan, 2019 WL 3429187, at *3 (S.D. Cal. July 29, 2019) 28 (ordering Plaintiffs to replead under Rule 12(e) sua sponte because “the Court 1 does not believe that cognizable claims are immediately apparent from the face 2 of the complaint”). 3 B. Fraudulent Joinder 4 A fraudulently joined, or “sham,” defendant is one who is used as a “device 5 to prevent an exercise of the [defendant’s] right of removal.” Wilson v. Republic 6 Iron & Steel Co., 257 U.S. 92, 94 (1921) “[A] joinder is fraudulent when a 7 plaintiff’s failure to state a cause of action against the resident defendant is 8 obvious according to the applicable state law.” Allen v. Boeing, 784 F.3d 625, 9 634 (9th Cir. 2015) (citing Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th 10 Cir. 2009)). The removing party bears the heavy burden of proving fraudulent 11 joinder. Hunter, 582 F.3d at 1044. In determining whether a defendant is indeed 12 fraudulently joined, the Court may “pierc[e] the pleadings” and look beyond the 13 allegations in the complaint. Morris v. Princess Cruises, Inc., 236 F.3d 1061, 14 1068 (9th Cir. 2001) (quoting Cavallini v. State Farm Mutual Auto Ins. Co., 44 15 F.3d 256, 263 (5th Cir. 1995). The Court may dismiss fraudulently joined 16 defendants from the action. See Grancare, LLC v. Thrower by and through Mills, 17 889 F.3d 543, 549 (9th Cir. 2018). 18 III. DISCUSSION 19 Plaintiff sued Hanna for defamation. To state a claim under California 20 defamation law, the plaintiff must specifically identify the defamatory statement. 21 Gilbert v. Sykes, 53 Cal.Rptr.3d 752, 767 (Cal. Ct. App. 2007) (“The general rule 22 is that the words constituting an alleged libel must be specifically identified, if not 23 pleaded verbatim, in the complaint.”). Plaintiff describes a number of sexual 24 harassment complaints that were discussed at his termination meeting. But he 25 does not say which, if any, of those statements were made by Hanna. (See Pl.’s 26 Compl, at ¶ 12.) Plaintiff has only speculated as to the existence of defamatory 27 statements but has not identified their content. (See Pl.’s Reply to Defs.’ Opp. to 28 Pl.’s Mot. to Remand, at 3:3-10 (“Hanna made slanderous statements about the 1 Plaintiff both within and outside of the employment environment, statements 2 which caused Plaintiff to be wrongfully terminated. . . . The statements about him 3 were false and called into question his moral character and harmed his 4 reputation. . . .”)) 5 Plaintiff has also failed to meet the Rule 8 standard in connecting Hanna to 6 the complaints. Plaintiff asserts his good faith belief that Hanna defamed him, 7 but the only fact Plaintiff pleads supporting this belief is that Hanna once made a 8 comment about her own physical appearance at a work gathering. (Pl.’s Compl., 9 at ¶ 14:16-21.) The Court fails to see the nexus between this incident and 10 anonymous complaints made to human resources. 11 Defendants assert a common interest privilege to any such statements 12 made by Hanna. (Def.’s Notice of Removal, ¶¶ 18-22.) When an absolute 13 privilege exists, it completely disposes of the underlying claim and permits the 14 Court to “rightly conclude that no cause of action had been stated against” the 15 defendant, thus establishing fraudulent joinder. McCabe v. General Foods Corp., 16 811 F.2d 1336, 1339 (9th Cir. 1987). Under California law, “complaint[s] of 17 sexual harassment by an employee, without malice, to an employer based upon 18 credible evidence” are privileged. Cal. Civ. Code § 47(c). Though such 19 statements are “absolutely privileged,” a “triable issue” may exist as to whether 20 the statements were made with malice. Cruey v. Gannett Company, Inc., 76 21 Cal.Rptr.2d 670, 678 (Cal. Ct. App. 1998).
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN GUTIERREZ, Case No.: 3:18-cv-02809-BTM- AHG 12 Plaintiff,
13 v. ORDER 14 ELI LILLY AND COMPANY and JAYD HANNA, 15 Defendants. 16
17 I. BACKGROUND 18 Plaintiff filed suit against his former employer, Eli Lilly & Company (“Lilly”), 19 and former co-employee, Jayd Hanna (“Hanna”), in California Superior Court for 20 claims related to his termination from Lilly. (ECF No. 1 (“Pl.’s Compl.”.) Plaintiff 21 alleges numerous violations of employment discrimination laws and one count of 22 defamation against Lilly. The only claim against Hanna is for defamation. (Id. at 23 ¶ 16-25.) Plaintiff argues that Hanna defamed him by maliciously making 24 statements that he sexually harassed coworkers, (Id. at ¶¶ 12-13, 23), which led 25 to his termination from Lilly, (ECF No. 14 (“Pl.’s Reply to Defs.’ Opp. to Pl.’s Mot. 26 to Remand”), 3:3-10.) 27 Lilly removed the case on the basis of diversity jurisdiction. (ECF No. 1 28 1 (“Def.’s Notice of Removal”).) Hanna later consented to and joined in the 2 removal. (ECF No. 11). Plaintiff and Hanna appear to be citizens of California 3 and Lilly is a citizen of Indiana. (Def.’s Notice of Removal, at ¶¶ 7-11.) Though 4 Hanna is not diverse from Plaintiff, Lilly argues that Hanna was fraudulently 5 joined and that her citizenship should be disregarded. (Id. at ¶ 6.) Plaintiff 6 moved to remand this case to state court for lack of subject matter jurisdiction. 7 (ECF No. 6 (“Pl.’s Motion to Remand”).) 8 II. LEGAL STANDARD 9 A. Pleading 10 Under the Federal Rules of Civil Procedure, a complaint must include “a 11 short and plain statement of the claim showing that the pleader is entitled to 12 relief.” Fed. R. Civ. P. 8(a)(2). Rule 8 does not require “‘detailed factual 13 allegations,’ but it demands more than an unadorned, the-defendant-unlawfully- 14 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 15 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555). A pleading must go beyond 16 “labels and conclusions” or “a formulaic recitation of the elements of a cause of 17 action.” Id. (quoting Twombly, 550 U.S. at 555). A complaint that “tenders 18 ‘naked assertion[s]’ devoid of ‘further factual enhancement’” fails to satisfy Rule 19 8’s pleading standard. Id. (quoting Twombly, 550 U.S. at 557); see also 20 Sollberger v. Wachovia Securities, LLC, 2010 WL 2674456, at *3 (S.D. Cal. June 21 30, 2010) (explaining that a complaint fails as “neither plain nor specific” under 22 Rule 8(a) where “the facts do not support the inferences Plaintiff makes”). 23 Where the “complaint fails to link adequately a cause of action to its factual 24 predicates,” the Court has a “supervisory obligation to sua sponte order 25 repleading pursuant to Federal Rule of Civil Procedure 12(e).” Wagner v. First 26 Horizon Pharm. Corp., 464 F.3d 1273, 1275 (11th Cir. 2006); see also Cedillo- 27 Vargas v. McAleenan, 2019 WL 3429187, at *3 (S.D. Cal. July 29, 2019) 28 (ordering Plaintiffs to replead under Rule 12(e) sua sponte because “the Court 1 does not believe that cognizable claims are immediately apparent from the face 2 of the complaint”). 3 B. Fraudulent Joinder 4 A fraudulently joined, or “sham,” defendant is one who is used as a “device 5 to prevent an exercise of the [defendant’s] right of removal.” Wilson v. Republic 6 Iron & Steel Co., 257 U.S. 92, 94 (1921) “[A] joinder is fraudulent when a 7 plaintiff’s failure to state a cause of action against the resident defendant is 8 obvious according to the applicable state law.” Allen v. Boeing, 784 F.3d 625, 9 634 (9th Cir. 2015) (citing Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th 10 Cir. 2009)). The removing party bears the heavy burden of proving fraudulent 11 joinder. Hunter, 582 F.3d at 1044. In determining whether a defendant is indeed 12 fraudulently joined, the Court may “pierc[e] the pleadings” and look beyond the 13 allegations in the complaint. Morris v. Princess Cruises, Inc., 236 F.3d 1061, 14 1068 (9th Cir. 2001) (quoting Cavallini v. State Farm Mutual Auto Ins. Co., 44 15 F.3d 256, 263 (5th Cir. 1995). The Court may dismiss fraudulently joined 16 defendants from the action. See Grancare, LLC v. Thrower by and through Mills, 17 889 F.3d 543, 549 (9th Cir. 2018). 18 III. DISCUSSION 19 Plaintiff sued Hanna for defamation. To state a claim under California 20 defamation law, the plaintiff must specifically identify the defamatory statement. 21 Gilbert v. Sykes, 53 Cal.Rptr.3d 752, 767 (Cal. Ct. App. 2007) (“The general rule 22 is that the words constituting an alleged libel must be specifically identified, if not 23 pleaded verbatim, in the complaint.”). Plaintiff describes a number of sexual 24 harassment complaints that were discussed at his termination meeting. But he 25 does not say which, if any, of those statements were made by Hanna. (See Pl.’s 26 Compl, at ¶ 12.) Plaintiff has only speculated as to the existence of defamatory 27 statements but has not identified their content. (See Pl.’s Reply to Defs.’ Opp. to 28 Pl.’s Mot. to Remand, at 3:3-10 (“Hanna made slanderous statements about the 1 Plaintiff both within and outside of the employment environment, statements 2 which caused Plaintiff to be wrongfully terminated. . . . The statements about him 3 were false and called into question his moral character and harmed his 4 reputation. . . .”)) 5 Plaintiff has also failed to meet the Rule 8 standard in connecting Hanna to 6 the complaints. Plaintiff asserts his good faith belief that Hanna defamed him, 7 but the only fact Plaintiff pleads supporting this belief is that Hanna once made a 8 comment about her own physical appearance at a work gathering. (Pl.’s Compl., 9 at ¶ 14:16-21.) The Court fails to see the nexus between this incident and 10 anonymous complaints made to human resources. 11 Defendants assert a common interest privilege to any such statements 12 made by Hanna. (Def.’s Notice of Removal, ¶¶ 18-22.) When an absolute 13 privilege exists, it completely disposes of the underlying claim and permits the 14 Court to “rightly conclude that no cause of action had been stated against” the 15 defendant, thus establishing fraudulent joinder. McCabe v. General Foods Corp., 16 811 F.2d 1336, 1339 (9th Cir. 1987). Under California law, “complaint[s] of 17 sexual harassment by an employee, without malice, to an employer based upon 18 credible evidence” are privileged. Cal. Civ. Code § 47(c). Though such 19 statements are “absolutely privileged,” a “triable issue” may exist as to whether 20 the statements were made with malice. Cruey v. Gannett Company, Inc., 76 21 Cal.Rptr.2d 670, 678 (Cal. Ct. App. 1998). 22 Under California law, the plaintiff “bears the burden of proving malice.” 23 SDV/ACCI, Inc. v. A T & T Corp., 552 F.3d 955 (9th Cir. 2008) (quoting Lundquist 24 v. Reusser, 7 Cal.4th 1193, 1211 (1994)). “ [M]alice is not inferred from the 25 communication.” Cal. Civ. Code § 48. The plaintiff must provide “specific facts” 26 in support of an allegation of malice. See Solarcity Corporation v. Doria, 2018 27 WL 2229397, at *6 (S.D. Cal. May 16, 2018) (“General allegations of malice will 28 not suffice, rather ‘actual facts of malice must be alleged or be apparent from the 1 ||communications themselves.” (quoting Martin v. Kearney, 124 Cal.Rptr 281, 283 2 (Cal. Ct. App. 1975)). Plaintiff merely states that Defendants acted “with malice 3 motivated by hatred or ill will’ against him. (PI.’s Compl., § 23.) He again 4 ||provides no factual support for an otherwise bare legal conclusion. Without facts 5 || Supporting malice, the common interest privilege would completely extinguish 6 || Plaintiff's claim against Hanna. 7 IV. CONCLUSION 8 While the Court must resolve all questions of fact in Plaintiff's favor in 9 || deciding whether to remand, the Court cannot do this when Plaintiff presents no 10 ||facts at all. Plaintiff's defamation claim against Hanna presently fails to satisfy 11 ||Rule 8(a). The Court cannot properly review the motion to remand and 12 || fraudulent joinder claim without identification of the defamatory statements and 13 ||facts supporting Plaintiff's belief that Hanna made these statements (1) at all, and 14 with malice. Accordingly, the Court ORDERS Plaintiff to amend his complaint 15 || pursuant to Fed. R. Civ. P. 12(e) to resolve the factual deficiencies described 16 ||above by September 13, 2019. The Court will resolve the pending motion based 17 ||on the Amended Complaint. Further, Plaintiff and Defendant Hanna shall file 18 ||Sseparate statements specifying the states of their citizenship. 19 20 || IS SO ORDERED. 21 ||Dated: August 29, 2019 59 fs Fil Ligede 53 Hono ble Barry Ted Moskgwitz United States District Judge 24 25 26 27 28