Gutierrez v. Eli Lilly & Company

Opinion

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 DENYING MOTION TO REMAND, DENYING 14 ELI LILLY AND COMPANY and PLAINTIFF’S MOTION FOR JAYD HANNA, 15 ATTORNEY’S FEES, AND Defendants. GRANTING DEFENDANT 16 HANNA’S MOTION TO DISMISS 17 [ECF NOS. 6 & 12] 18

19 Before the Court is Plaintiff’s Motion to Remand and for Attorneys’ Fees 20 (ECF No. 6 (“Mot. to Remand”)) and Defendant Jayd Hanna’s Motion to Dismiss 21 (ECF No. 12 (“Hanna’s Mot. to Dismiss”).) For the reasons set forth below, the 22 Court DENIES Plaintiff’s Motion to Remand and for Attorneys’ Fees and GRANTS 23 Defendant Hanna’s Motion to Dismiss. 24 I. BACKGROUND 25 Plaintiff filed suit against his former employer, Eli Lilly & Company (“Lilly”), 26 and former co-employee, Jayd Hanna (“Hanna”), in the California Superior Court 27 for claims related to his termination from Lilly. (ECF No. 1 (“Compl.”).) Plaintiff 28 1 alleges numerous violations of employment discrimination laws and one count of 2 defamation against Lilly. The only claim against Hanna is for defamation. (Id. at 3 ¶ 16–25.) Plaintiff argues that Hanna defamed him by maliciously making 4 statements that he sexually harassed coworkers, (Id. at ¶¶ 12–13, 23), which led 5 to his termination from Lilly, (ECF No. 14 (“Pl.’s Reply”), 3:3–10). 6 Lilly removed the case on the basis of diversity jurisdiction. (ECF No. 1 7 (“Def.’s Notice of Removal”).) Hanna later consented to and joined in the removal. 8 (ECF No. 11 (“Hanna’s Notice of Joinder”).) The Court finds that Plaintiff is a 9 citizen of California.1 Hanna is a citizen of California. (ECF No. 21 (“Hanna 10 Declaration”), ¶ 3.) Lilly is a citizen of Indiana. (Def.’s Notice of Removal, ¶¶ 7– 11 11.) Lilly argues that Hanna was fraudulently joined and that her citizenship should 12 be disregarded. (Id. at ¶ 6.) Plaintiff moved to remand this case to state court for 13 lack of subject matter jurisdiction. 14 The Court determined that Plaintiff’s complaint contained factual deficiencies 15 precluding the Court from properly reviewing the motions before it. In his 16 defamation claim against Hanna, Plaintiff failed to identify the defamatory 17 statements at issue and provided no facts supporting his belief that Hanna made 18 the defamatory statements (1) at all, and (2) with malice. (ECF No. 20 (“Order”), 19 5:11–14.) On August 29, 2019, the Court ordered Plaintiff to amend his complaint 20 pursuant to Fed. R. Civ. P. 12(e) to resolve these factual deficiencies. (Id. at 5:14– 21 16.) The Court also ordered Plaintiff to file a statement specifying the state of his 22 citizenship. (Id. at 5:17–18.) The deadline was September 13, 2019. (Id. at 5:17– 23 18.) Plaintiff has filed nothing with the Court as of the date of this order. 24 / / 25

26 27 1 The Court ordered Plaintiff to submit a statement indicating the state of his citizenship. (ECF No. 20 (“Order”), 5:17–18.) Plaintiff did not abide by the order. Nevertheless, the Court finds that Plaintiff is a citizen of California 28 based on his self-identification as a “resident of the State of California,” (Compl., ¶ 1), and because he did not 1 II. MOTION TO REMAND 2 A. Legal Standard 3 A defendant may remove a case from state court only if there is original 4 federal court jurisdiction over the action. 28 U.S.C. § 1441(a). The basis of original 5 jurisdiction may be federal question or diversity jurisdiction. Id. § 1331, § 1332. 6 Federal courts have diversity jurisdiction over “all civil actions where the matter in 7 controversy exceeds the sum or value of $75,000 . . . and is between . . . citizens 8 of different States.” Id. § 1332(a). The citizenship of each defendant must be 9 different from the plaintiff’s citizenship. Owen Equip. & Erection Co. v. Kroger, 437 10 U.S. 365, 373 (1978). There is a “strong presumption against removal jurisdiction” 11 and a heavy burden on the defendant to establish removal is proper. Hunter v. 12 Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (quoting Gaus v. Miles, 13 Inc., 980 F.2d 564, 566 (9th Cir. 1992)). 14 A fraudulently joined, or “sham,” defendant is one who is used as a “device 15 to prevent an exercise of the [defendant’s] right of removal.” Wilson v. Republic 16 Iron & Steel Co., 257 U.S. 92, 94 (1921). The Court disregards a sham defendant 17 in determining whether there is complete diversity of citizenship. Morris v. Princess 18 Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). Defendants seeking removal 19 based on fraudulent joinder face a heavy burden. Grancare, LLC v. Thrower by 20 and through Mills, 889 F.3d 543, 548 (9th Cir. 2018) (“A defendant invoking federal 21 court diversity jurisdiction on the basis of fraudulent joinder bears a ‘heavy burden’ 22 since there is a ‘general presumption against [finding] fraudulent joinder.’” (quoting 23 Hunter, 582 F.3d at 1046)). To establish fraudulent joinder, the removing party 24 must show either: “(1) actual fraud in the pleading of jurisdictional facts, or (2) 25 inability of the plaintiff to establish a cause of action against the non-diverse party 26 in state court.” Grancare, 889 F.3d at 548. Under the latter method, the defendant 27 must show that she “cannot be liable on any theory.” Id. (quoting Ritchey v. Upjohn 28 Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998)). This showing must be “obvious 1 according to the settled rules of the state.” Morris, 236 F.3d at 1067. In 2 determining whether a defendant is fraudulently joined, the Court may “pierc[e] the 3 pleadings” and look beyond the allegations in the complaint. Id. at 1068 (citation 4 omitted). 5 B. Discussion 6 Plaintiff sues Hanna for defamation. (Compl., 7:1–9:12.) California law 7 defines defamation as either libel or slander. Cal. Civ. Code § 44. In his briefings, 8 Plaintiff clarifies that he sues under a slander theory. (Pl.’s Reply, 3:3–10.) 9 “Slander is a false and unprivileged publication, orally uttered, . . . which . . . [t]ends 10 directly to injure [any person] in respect to his office, profession, trade or 11 business. . . .” Cal. Civ. Code § 46. 12 1. Defamatory Statement 13 To state a claim under California defamation law, Plaintiff must specifically 14 identify the defamatory statement. Gilbert v. Sykes, 147 Cal.App.4th 13, 31 15 (2007). Plaintiff describes a number of sexual harassment complaints that were 16 discussed at his termination meeting. But he does not say which, if any, of those 17 statements were made by Hanna. (See Compl., ¶ 12.) Plaintiff has only 18 speculated as to the existence of defamatory statements but has not identified their 19 content. (See Pl.’s Reply, 3:3–10 (“Hanna made slanderous statements about the 20 Plaintiff both within and outside of the employment environment, statements which 21 caused Plaintiff to be wrongfully terminated. . . . The statements about him were 22 false and called into question his moral character and harmed his reputation. . . .”)) 23 The Court ordered Plaintiff to identify the statements underlying his claim. (Order, 24 5:11–16.) Plaintiff did not respond to the order. Without pleading the specific 25 statements, Plaintiff fails to state a defamation claim against Hanna. 26 2. Plaintiff’s Belief That Hanna Defamed Him 27 Plaintiff also fails to connect Hanna to the sexual harassment complaints 28 made about him to Lilly. Plaintiff asserts his good faith belief that Hanna defamed 1 him, but the only fact Plaintiff offers to support this is that Hanna once made a 2 comment about her own physical appearance at a work gathering. (Compl., ¶ 3 14:16–21.) The Court fails to see the nexus between this incident and the 4 complaints made to human resources. The Court ordered Plaintiff to provide facts 5 supporting his belief that Hanna made defamatory statements against him. (Order, 6 5:11–16.) Plaintiff did not respond to the order. Plaintiff has thus failed to 7 sufficiently allege that Hanna made any statements about Plaintiff, let alone 8 defamatory ones. 9 3. Plaintiff’s Allegation of Hanna’s Malice 10 Assuming arguendo that Plaintiff did state a defamation claim against 11 Hanna, Defendant asserts a common interest privilege shielding her from liability. 12 (Def.’s Notice of Removal, ¶¶ 18–22.) When an absolute privilege exists, it 13 disposes of the underlying claim, permits the Court to “rightly conclude that no 14 cause of action had been stated against” the allegedly sham defendant, and 15 establishes fraudulent joinder. McCabe v. General Foods Corp., 811 F.2d 1336, 16 1339 (9th Cir. 1987). Under California law, “complaint[s] of sexual harassment by 17 an employee, without malice, to an employer based upon credible evidence” are 18 privileged. Cal. Civ. Code § 47(c). Though such statements are “absolutely 19 privileged,” a “triable issue” may exist as to whether the statements were made 20 with malice. Cruey v. Gannett Company, Inc., 64 Cal.App.4th 356, 369–70 (1998). 21 While Federal Rule of Civil Procedure 9(b) allows a plaintiff to allege malice 22 generally, the Court’s fraudulent joinder analysis hinges on whether the Plaintiff 23 could establish a cause of against Hanna in state court. Good v. Prudential Ins. 24 Co., 5 F.Supp.2d 804, 807 (N.D. Cal. 1998). Under California law, the plaintiff 25 “bears the burden of proving malice.” SDV/ACCI, Inc. v. A T & T Corp., 522 F.3d 26 955, 962 (9th Cir. 2008) (quoting Lundquist v. Reusser, 7 Cal.4th 1193, 1211 27 (1994)). “[M]alice is not inferred from the communication.” Cal. Civ. Code § 48. 28 The plaintiff must provide “specific facts” in support of an allegation of malice. 1 Martin v. Kearney, 51 Cal.App.3d 309, 312 (1975)) (“Actual facts of malice must 2 be alleged or be apparent from the communications themselves.’”). 3 Even if the Court applied the Rule 9(b) standard, Plaintiff would still fail to 4 meet it. To satisfy any general pleading requirement, a plaintiff must comply with 5 Rule 8 and the concomitant standards set forth by the Supreme Court in Twombly 6 and Iqbal. See Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 7 556 U.S. 662 (2009). Plaintiff does not meet even the general pleading standard 8 because he provides no evidence supporting Hanna’s malice. See, e.g., Kelley v. 9 Corr. Corp. of Am., 750 F.Supp.2d 1132, 1146–48 (E.D. Cal. 2010) (citing 10 Twombly, 550 U.S. 544; Iqbal, 556 U.S. 662). Plaintiff merely states that 11 Defendants acted “with malice motivated by hatred or ill will” against him. (Compl., 12 ¶ 23.) He provides no factual support for an otherwise bare legal conclusion. 13 Plaintiff did not allege any facts supporting Hanna’s purported malice after the 14 Court ordered him to do so. As a result, the common interest privilege completely 15 extinguishes any defamation claim against Hanna. 16 4. Lilly’s Notice of Removal 17 As a final matter, the Court addresses whether removal complied with the 18 procedural requirements of 28 U.S.C. § 1446. In his motion to remand, Plaintiff 19 argues that “the Notice of Removal is defective under 28 U.S.C. § 1446 because 20 one of the individually named Defendants, Jayd Hanna . . . was not joined in the 21 removal.” (Id. at 1:22–28.) Under § 1446, “all defendants who have been properly 22 joined and served must join in or consent to the removal of the action. 28 U.S.C. 23 § 1446(b)(2)(A). Lilly filed its notice of removal on December 13, 2018. (Def.’s 24 Notice of Removal.) Plaintiff did not serve Hanna with the complaint until January 25 2, 2019. (Mot. to Remand, Exh. 2.) Thus, Hanna was not properly served when 26 Lilly removed the case to federal court. In accordance with § 1446, Hanna’s 27 “absence from the removal notice did not render the removal notice defective. 28 Destfino v. Reiswig, 630 F.3d 952, 957 (9th Cir. 2011); see also Emrich v. Touche 1 Ross & Co., 846 F.2d 1190, 1193 n.1 (9th Cir. 1988). Additionally, the Court’s 2 finding that Hanna was fraudulently joined provides a separate basis for why she 3 was not required to consent to removal. § 1446(b)(2)(A). Nevertheless, Hanna 4 ultimately joined in the removal. (Hanna’s Notice of Joinder.) Lilly’s notice of 5 removal did not suffer from procedural defects. 6 5. Conclusion 7 Plaintiff fails to state a defamation claim against Hanna under the settled 8 laws of California. Even if he did state a claim, the common interest privilege would 9 dispose of it. Plaintiff failed to plead more facts after the Court afforded him the 10 opportunity to resolve the deficiencies of his complaint. As a result, the Court can 11 only conclude that Plaintiff does not have any additional facts to plead regarding 12 Hanna and thus cannot state any claim against her. The Court finds that Plaintiff 13 fraudulently joined Hanna to this case. Hanna’s citizenship is disregarded. Plaintiff 14 is a citizen of California and Lilly is a citizen of Indiana. There is complete diversity 15 of the parties. The amount in controversy exceeds $75,000. (Def.’s Notice of 16 Removal, 8:8–12:8 (citing 28 U.S.C. § 1446(c)(2)(A)–(B)).) The Court has diversity 17 jurisdiction over this action. The motion to remand is DENIED. Accordingly, the 18 motion for attorneys’ fees is also DENIED. 19 III. MOTION TO DISMISS 20 A. Legal Standard 21 Under the Federal Rules of Civil Procedure, a complaint must include “a 22 short and plain statement of the claim showing that the pleader is entitled to relief.” 23 Fed. R. Civ. P. 8(a)(2). Rule 8 does not require “‘detailed factual allegations,’ but 24 it demands more than an unadorned, the-defendant-unlawfully-harmed-me 25 accusation.” Ashcroft, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A 26 pleading must go beyond “labels and conclusions” or “a formulaic recitation of the 27 elements of a cause of action.” Id. (quoting Twombly, 550 U.S. at 555). A 28 complaint that “tenders ‘naked assertion[s]’ devoid of ‘further factual 1 enhancement’” fails to satisfy Rule 8’s pleading standard. Id. (quoting Twombly, 2 550 U.S. at 557); see also Sollberger v. Wachovia Securities, LLC, 2010 WL 3 2674456, at *3 (S.D. Cal. June 30, 2010) (explaining that a complaint fails as 4 “neither plain nor specific” under Rule 8(a) where “the facts do not support the 5 inferences Plaintiff makes”). 6 Under Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss 7 a plaintiff's complaint if it lacks a “cognizable legal theory” or sufficient facts to 8 support a legal claim. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th 9 Cir. 1988). When reviewing a motion to dismiss, the allegations of material fact in 10 the plaintiff's complaint are taken as true and construed in the light most favorable 11 to the plaintiff. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 12 1995). Dismissal is appropriate only where “the complaint fails to state a claim to 13 relief that is plausible on its face.” Curry v. Yelp Inc., 875 F.3d 1219, 1224–25 (9th 14 Cir. 2017) (quoting Twombly, 550 U.S. at 570). A court may grant a motion to 15 dismiss without affording the plaintiff leave to amend if such amendment would be 16 futile. Jones v. Cmty Redevelopment Agency of City of L.A., 733 F.2d 646, 650 17 (9th Cir. 1984). 18 B. Discussion 19 Plaintiff’s defamation claim against Hanna fails under Rules 8 and 12. First, 20 under Rule 8, and as discussed with respect to remand, Plaintiff provides no facts 21 supporting otherwise bare legal conclusions. He offers no cognizable theory for 22 why he believes Hanna made sexual harassment complaints about him to Lilly. 23 The only support he provides for his good faith belief that Hanna defamed him is 24 a story about Hanna’s own perception of her appearance. (Compl., ¶ 14:16–21.) 25 This single fact falls far short of supporting the inferences Plaintiff makes. See 26 Sollberger, 2010 WL at *3. The Court identified this factual deficiency in the 27 complaint and gave Plaintiff the opportunity to resolve it to meet the Rule 8 28 standard. (Order, 5:8–16.) Plaintiff did not comply with the Court’s order. The 1 complaint fails under the Twombly and /qba/l Rule 8 standard. See Twombly, 550 2 ||U.S. 544; Iqbal, 556 U.S. 662. 3 Second, to state a defamation claim under California law, Plaintiff must 4 ||specifically identify the defamatory statements. Gilbert, 147 Cal.App.4th at 31. 5 || Plaintiff did not specifically identify any statements made by Hanna, even after this 6 ||Court ordered him to do so. (Order, 5:11-16.) Plaintiff thus fails to state a 7 ||defamation claim against Hanna under Rule 12. 8 The claim fails under Rules 8 and 12. Plaintiff did not amend his complaint 9 after this Court ordered him to do so. (See Order.) The Court therefore agrees 10 |] with Hanna that granting Plaintiff leave to amend would be futile. (Hanna’s Mot. to 11 ||Dismiss, 7:1-7.) | Accordingly, Hanna’s Motion to Dismiss is GRANTED without 12 ||leave to amend. 13 IV. CONCLUSION 14 For the reasons set forth above, the Court DENIES Plaintiff's Motion to 15 |}Remand and for Attorneys’ Fees (ECF No. 6) and GRANTS without leave to 16 ||amend Defendant Hanna’s Motion to Dismiss (ECF No. 12). 17 18 || □□ SO ORDERED. 19 ||Dated: September 25, 2019 20 Ls Fil Hono ble Barry Ted Moskgwitz United States District Judge 22 23 24 25 26 27 28