1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 7 NORMA LAHTI, Case No.: 23-cv-1313-CAB-JLB
8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. MOTION FOR LEAVE TO AMEND AND REMANDING THIS CASE TO 10 TRANSDEV SERVICES, INC. and JOHN STATE COURT LEWIS, 11 Defendants. [Doc. No. 5] 12
13 Before the Court is Plaintiff Norma Lahti’s motion for leave to amend and for 14 remand to state court. [Doc. No. 5]. The motion has been fully briefed, and the Court 15 finds it suitable for determination on the papers. For the reasons set forth, the motion is 16 GRANTED. 17 I. FACTUAL AND PROCEDURAL BACKGROUND 18 Plaintiff worked at Transdev Services, Inc. (“Transdev”) for more than 20 years. 19 Defendant John Lewis (“Lewis”) became the general manager of Plaintiff’s office in 20 2020, and allegedly started treating Plaintiff “unfairly and wanted to get rid of her” due to 21 her age and disability. [Doc. No. 5 at 4]. In July 2021, Plaintiff went on approved medical 22 leave due to allegedly being denied accommodations for her physical disability. [Doc. 23 No. 5 at 4-5]. In September 2021, while still on medical leave, Plaintiff visited the office 24 to meet with another supervisor and accidently took home a lost and found phone, which 25 she allegedly returned a few days later. Lewis allegedly asked Plaintiff to come to the 26 office to discuss the matter of the lost phone with an alleged “demanding” and “rude” 27 tone. [Doc. No. 5-1 at ¶ 26]. Plaintiff allegedly refused to meet with Lewis because she 28 1 was sick and needed to attend doctor appointments. Shortly after, Lewis placed Plaintiff 2 on administrative leave and Transdev subsequently fired Plaintiff “without meeting with 3 Plaintiff or conducting an adequate investigation.” [Doc. No. 5 at 5]. 4 Plaintiff filed the complaint against Defendants Transdev and Lewis in San Diego 5 Superior Court on May 3, 2023. The complaint alleges 11 causes of action, all state law 6 claims arising from the alleged wrongful termination due to Plaintiff’s age and disability. 7 Most of the causes of action are asserted against Transdev, but Plaintiff has alleged both 8 negligence and intentional infliction of emotional distress against both Defendants. 9 Plaintiff served Transdev but has yet to serve Lewis. 10 On July 17, 2023, Transdev timely removed this case to this Court based on federal 11 question and diversity jurisdiction. [Doc. No. 1]. On July 21, 2023, Plaintiff filed the 12 present motion for leave to amend and remand, attaching her proposed first amended 13 complaint. [Doc. No. 5]. 14 II. LEGAL STANDARD 15 “A defendant may remove an action to federal court based on federal question 16 jurisdiction or diversity jurisdiction.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 17 (9th Cir. 2009) (citing 28 U.S.C. § 1441). However, there is a strong presumption against 18 removal jurisdiction and “[t]he defendant bears the burden of establishing that removal 19 was proper.” Provincial Gov’t of Marinduque v. Pacer Dome, Inc., 582 F.3d 1083, 1087 20 (9th Cir. 2009); see also Guas v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). 21 Additionally, “doubtful question(s) of state law . . . should be tried in the state 22 court and not determined in removal proceedings.” Smith v. S. Pac. Co., 187 F.2d 397, 23 402 (9th Cir. 1951). 24 III. DISCUSSION 25 Plaintiff argues that remand is appropriate because her first amended complaint 26 would withdraw any reference to federal law, and Lewis was a California citizen at the 27 time of removal. [Doc. No. 5 at 3]. In turn, Transdev argues the case should stay in 28 federal court because federal jurisdiction existed at the time of removal via the Family 1 and Medical Leave Act (“FMLA”), and Lewis’ citizenship should be ignored for 2 purposes of diversity jurisdiction. 3 A. Plaintiff’s Amended Complaint and Federal Question Jurisdiction 4 Plaintiff asserts that her original complaint did not directly cite the FMLA as a 5 cause of action, and any reference to the FMLA would be removed from her amended 6 complaint. Leave to amend “shall freely [be] given when justice so requires.” Fed. R. 7 Civ. Proc. 15(a)(2). A plaintiff is “the master of [her] complaint” and may “avoid federal 8 jurisdiction by relying exclusively on state law.” Balcorta v. Twentieth Century-Fox Film 9 Corp., 208 F.3d 1102, 1106 (9th Cir. 2000). Even if Plaintiff’s original complaint 10 referenced the FMLA, she is free to amend that complaint to removal all references to a 11 federal statute. The Court hereby GRANTS Plaintiff’s motion for leave to amend. 12 Plaintiff’s amended complaint removes federal question jurisdiction, and the only proper 13 basis for this case to be in federal court would be diversity jurisdiction. 14 B. Diversity Jurisdiction 15 Plaintiff and Lewis are both citizens of California, a fact that would normally 16 destroy diversity jurisdiction. Transdev, a citizen of both Illinois and Maryland, argues 17 that the Court should ignore Lewis’ citizenship for two reasons: (1) Lewis was not served 18 at the time of removal, and (2) he was fraudulently joined to Plaintiff’s complaint to 19 defeat diversity jurisdiction. 20 1. Forum Defendant Rule 21 “[A] civil action otherwise removable solely on the basis of jurisdiction under 22 section 1332(a) . . . may not be removed if any of the parties in interest properly joined 23 and served as defendants is a citizen of the state in which such action is brought.” 28 24 U.S.C. § 1441(b)(2) (emphasis added). This provision is commonly referred to as the 25 forum defendant rule. “However, the forum-defendant rule does not apply to defendants 26 who destroy diversity.” Parra v. Citizens Telecom Servs. Co. LLC, No. 23-CV-02962- 27 SPG-PD, 2023 WL 5044925, at *2 (C.D. Cal. Aug. 7, 2023). A case is not removable 28 based on diversity if any plaintiff and any defendant are citizens of the same state, and it 1 makes no difference whether the in-state defendant has been served. See Clarence E. 2 Morris, Inc. v. Vitek, 412 F.2d 1174 (9th Cir. 1969). Because Plaintiff and Lewis are 3 citizens of the same state, there is no diversity jurisdiction despite Plaintiff’s failure to 4 serve Lewis with the complaint. 5 2. Fraudulent Joinder 6 “Joinder of a non-diverse defendant is deemed fraudulent, and the defendant’s 7 presence in the lawsuit is ignored for purposes of determining diversity, ‘[i]f the plaintiff 8 fails to state a cause of action against a resident defendant, and the failure is obvious 9 according to the settled rules of the state.’” Morris v. Princess Cruises, Inc., 236 F.3d 10 1061, 1067 (9th Cir. 2001) (quoting McCabe v. General Foods Corp., 811 F.2d 1336, 11 1339 (9th Cir. 1987)). “A defendant invoking federal court diversity jurisdiction on the 12 basis of fraudulent joinder bears a heavy burden since there is a general presumption 13 against finding fraudulent joinder.” Grancare, LLC v. Thrower by & through Mills, 889 14 F.3d 543, 548 (9th Cir. 2018) (internal citations omitted).
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1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 7 NORMA LAHTI, Case No.: 23-cv-1313-CAB-JLB
8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. MOTION FOR LEAVE TO AMEND AND REMANDING THIS CASE TO 10 TRANSDEV SERVICES, INC. and JOHN STATE COURT LEWIS, 11 Defendants. [Doc. No. 5] 12
13 Before the Court is Plaintiff Norma Lahti’s motion for leave to amend and for 14 remand to state court. [Doc. No. 5]. The motion has been fully briefed, and the Court 15 finds it suitable for determination on the papers. For the reasons set forth, the motion is 16 GRANTED. 17 I. FACTUAL AND PROCEDURAL BACKGROUND 18 Plaintiff worked at Transdev Services, Inc. (“Transdev”) for more than 20 years. 19 Defendant John Lewis (“Lewis”) became the general manager of Plaintiff’s office in 20 2020, and allegedly started treating Plaintiff “unfairly and wanted to get rid of her” due to 21 her age and disability. [Doc. No. 5 at 4]. In July 2021, Plaintiff went on approved medical 22 leave due to allegedly being denied accommodations for her physical disability. [Doc. 23 No. 5 at 4-5]. In September 2021, while still on medical leave, Plaintiff visited the office 24 to meet with another supervisor and accidently took home a lost and found phone, which 25 she allegedly returned a few days later. Lewis allegedly asked Plaintiff to come to the 26 office to discuss the matter of the lost phone with an alleged “demanding” and “rude” 27 tone. [Doc. No. 5-1 at ¶ 26]. Plaintiff allegedly refused to meet with Lewis because she 28 1 was sick and needed to attend doctor appointments. Shortly after, Lewis placed Plaintiff 2 on administrative leave and Transdev subsequently fired Plaintiff “without meeting with 3 Plaintiff or conducting an adequate investigation.” [Doc. No. 5 at 5]. 4 Plaintiff filed the complaint against Defendants Transdev and Lewis in San Diego 5 Superior Court on May 3, 2023. The complaint alleges 11 causes of action, all state law 6 claims arising from the alleged wrongful termination due to Plaintiff’s age and disability. 7 Most of the causes of action are asserted against Transdev, but Plaintiff has alleged both 8 negligence and intentional infliction of emotional distress against both Defendants. 9 Plaintiff served Transdev but has yet to serve Lewis. 10 On July 17, 2023, Transdev timely removed this case to this Court based on federal 11 question and diversity jurisdiction. [Doc. No. 1]. On July 21, 2023, Plaintiff filed the 12 present motion for leave to amend and remand, attaching her proposed first amended 13 complaint. [Doc. No. 5]. 14 II. LEGAL STANDARD 15 “A defendant may remove an action to federal court based on federal question 16 jurisdiction or diversity jurisdiction.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 17 (9th Cir. 2009) (citing 28 U.S.C. § 1441). However, there is a strong presumption against 18 removal jurisdiction and “[t]he defendant bears the burden of establishing that removal 19 was proper.” Provincial Gov’t of Marinduque v. Pacer Dome, Inc., 582 F.3d 1083, 1087 20 (9th Cir. 2009); see also Guas v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). 21 Additionally, “doubtful question(s) of state law . . . should be tried in the state 22 court and not determined in removal proceedings.” Smith v. S. Pac. Co., 187 F.2d 397, 23 402 (9th Cir. 1951). 24 III. DISCUSSION 25 Plaintiff argues that remand is appropriate because her first amended complaint 26 would withdraw any reference to federal law, and Lewis was a California citizen at the 27 time of removal. [Doc. No. 5 at 3]. In turn, Transdev argues the case should stay in 28 federal court because federal jurisdiction existed at the time of removal via the Family 1 and Medical Leave Act (“FMLA”), and Lewis’ citizenship should be ignored for 2 purposes of diversity jurisdiction. 3 A. Plaintiff’s Amended Complaint and Federal Question Jurisdiction 4 Plaintiff asserts that her original complaint did not directly cite the FMLA as a 5 cause of action, and any reference to the FMLA would be removed from her amended 6 complaint. Leave to amend “shall freely [be] given when justice so requires.” Fed. R. 7 Civ. Proc. 15(a)(2). A plaintiff is “the master of [her] complaint” and may “avoid federal 8 jurisdiction by relying exclusively on state law.” Balcorta v. Twentieth Century-Fox Film 9 Corp., 208 F.3d 1102, 1106 (9th Cir. 2000). Even if Plaintiff’s original complaint 10 referenced the FMLA, she is free to amend that complaint to removal all references to a 11 federal statute. The Court hereby GRANTS Plaintiff’s motion for leave to amend. 12 Plaintiff’s amended complaint removes federal question jurisdiction, and the only proper 13 basis for this case to be in federal court would be diversity jurisdiction. 14 B. Diversity Jurisdiction 15 Plaintiff and Lewis are both citizens of California, a fact that would normally 16 destroy diversity jurisdiction. Transdev, a citizen of both Illinois and Maryland, argues 17 that the Court should ignore Lewis’ citizenship for two reasons: (1) Lewis was not served 18 at the time of removal, and (2) he was fraudulently joined to Plaintiff’s complaint to 19 defeat diversity jurisdiction. 20 1. Forum Defendant Rule 21 “[A] civil action otherwise removable solely on the basis of jurisdiction under 22 section 1332(a) . . . may not be removed if any of the parties in interest properly joined 23 and served as defendants is a citizen of the state in which such action is brought.” 28 24 U.S.C. § 1441(b)(2) (emphasis added). This provision is commonly referred to as the 25 forum defendant rule. “However, the forum-defendant rule does not apply to defendants 26 who destroy diversity.” Parra v. Citizens Telecom Servs. Co. LLC, No. 23-CV-02962- 27 SPG-PD, 2023 WL 5044925, at *2 (C.D. Cal. Aug. 7, 2023). A case is not removable 28 based on diversity if any plaintiff and any defendant are citizens of the same state, and it 1 makes no difference whether the in-state defendant has been served. See Clarence E. 2 Morris, Inc. v. Vitek, 412 F.2d 1174 (9th Cir. 1969). Because Plaintiff and Lewis are 3 citizens of the same state, there is no diversity jurisdiction despite Plaintiff’s failure to 4 serve Lewis with the complaint. 5 2. Fraudulent Joinder 6 “Joinder of a non-diverse defendant is deemed fraudulent, and the defendant’s 7 presence in the lawsuit is ignored for purposes of determining diversity, ‘[i]f the plaintiff 8 fails to state a cause of action against a resident defendant, and the failure is obvious 9 according to the settled rules of the state.’” Morris v. Princess Cruises, Inc., 236 F.3d 10 1061, 1067 (9th Cir. 2001) (quoting McCabe v. General Foods Corp., 811 F.2d 1336, 11 1339 (9th Cir. 1987)). “A defendant invoking federal court diversity jurisdiction on the 12 basis of fraudulent joinder bears a heavy burden since there is a general presumption 13 against finding fraudulent joinder.” Grancare, LLC v. Thrower by & through Mills, 889 14 F.3d 543, 548 (9th Cir. 2018) (internal citations omitted). “Fraudulent joinder must be 15 proven by clear and convincing evidence.” Hamilton Materials, Inc. v. Dow Chem. 16 Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). 17 The Ninth Circuit has found that the standard for fraudulent joinder and failure to 18 state a claim under Federal Rule of Civil Procedure 12(b)(6) “are not equivalent.” 19 Grancare, 889 F.3d at 549. Remand to state court is proper if “there is a possibility that a 20 state court would find that the complaint states a cause of action against any of the [non- 21 diverse] defendants.” Id. (emphasis in original). The fraudulent joinder standard is more 22 closely analyzed to the “wholly insubstantial and frivolous” standard for dismissing 23 claims under Rule 12(b)(1) for lack of federal question jurisdiction. Id. Some district 24 courts have even found a diverse defendant cannot meet its burden of showing fraudulent 25 joinder where it cannot prove that the non-diverse defendant was added to a complaint 26 “solely for the purpose of defeating diversity.” Negrete v. Meadowbrook Meat Co., No. 27 ED CV 11-1861 DOC, 2012 WL 254039, at *5 (C.D. Cal. Jan. 25, 2012) (emphasis 28 added). 1 Here, Plaintiff has alleged both negligence and intentional infliction of emotional 2 distress (“ITED”) against both Transdev and Lewis. Plaintiff’s characterization of Lewis 3 both the amended complaint and her present motion to amend is that he is 4 ||““demanding,” “rude,” and a “bully.” [Doc. Nos. 5, 5-1]. These characterizations alone 5 |}convince the Court that Plaintiff's IIED claim against Lewis is not wholly insubstantial 6 frivolous. Ultimately, Transdev has not met its high burden to show that Lewis was 7 joined to the complaint solely for the purpose of defeating diversity nor has it shown that 8 || there is no possibility she could prevail on her ITED claim against Lewis.'! The Court need 9 ||not go into a 12(b)(6) analysis of whether Plaintiff has stated a claim, and the adequacy 10 || of Plaintiff’s negligence and IED claims at the pleading stage are “doubtful question(s) 11 state law” more appropriately tried in state court. Smith, 187 F.2d at 402. The Court 12 || finds that Lewis was not fraudulently joined. 13 IV. CONCLUSION 14 Transdev has not met its burden to show that Lewis was fraudulently joined, and 15 |/diversity jurisdiction is lacking even though Lewis has not been served. Plaintiff’s 16 |}amended complaint destroys federal question jurisdiction. Therefore, the Court lacks 17 ||subject matter jurisdiction over Plaintiff’s claims. Accordingly, the Court GRANTS 18 || Plaintiff’s motion to remand. 19 20 It is SO ORDERED. 21 ||Dated: September 19, 2023 € ZL 22 Hon. Cathy Ann Bencivengo 23 United States District Judge 24 25 26 27 || ———___—_—_—- 28 The Court declines to state an opinion on whether the negligence claim against Lewis would prevail.