Magana v. Archer Daniels Midland Co., Inc.

Opinion

1 2 3 4 5 7 EASTERN DISTRICT OF CALIFORNIA 8

9 CAROLINA ZAMORA MAGANA, Case No. 1:20-cv-00578-NONE-SKO

10 Plaintiff, FINDINGS AND RECOMMENDATIONS 11 v. THAT PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT BE 12 GRANTED AND THE CASE REMANDED ARCHER DANIELS MIDLAND COMPANY 13 dba ADM GOLDEN PEANUT, TWENTY-ONE (21) DAY DEADLINE

14 Defendant. (Doc. 21) _____________________________________/ 15 17 On March 10, 2021, Plaintiff Carolina Zamora Magana (“Plaintiff”) filed a “motion for 18 leave to amend complaint” (the “Motion”). (Doc. 21.) Defendant Archer Daniels Midland 19 Company dba ADM Golden Peanut (“Defendant”) filed an opposition to the Motion on March 31, 20 2021. (Doc. 22.) On April 12, 2021 the undersigned continued the hearing and ordered 21 supplemental briefing on the Motion, which was filed by Plaintiff and Defendant on April 27, 22 2021, and May 5, 2021, respectively. (Docs. 26 & 29.) The undersigned reviewed the parties’ 23 papers and all supporting material and found the matter suitable for decision without oral 24 argument pursuant to U.S. District Court for the Eastern District of California’s Local Rule 25 230(g). (Doc. 34.) The hearing, which had been continued to May 26, 2021, was therefore 26 vacated. (See id.) 27 For the reasons set forth below, it is RECOMMENDED (1) that the Motion be GRANTED 28 to join Elizabeth Hurtado as a defendant and to add a claim against her for invasion of privacy by 1 means of intrusion into private affairs, and (2) upon filing of the amended complaint, that the case 2 be REMANDED. 4 A. Factual Background1 5 Plaintiff was employed by Defendant as a maintenance worker and cleaner at its location in 6 Modesto, California. (Doc. 1-1, ¶ 19.) On July 29, 2019, while working the night shift, Plaintiff 7 slipped and fell, injuring her head. (Id. ¶ 21.) She complained of pain as an “8/10,” dizziness, 8 nausea, and feeling faint. (Id.) Plaintiff immediately notified her supervisor that she was not 9 feeling well and provided a “full incident report.” (Id. ¶ 22.) The supervisor “demanded that 10 Plaintiff not seek medical treatment or call for an ambulance.” (Id.) Plaintiff “agreed not to call 11 the ambulance because she was unaware and never made aware of any workers’ compensation 12 insurance held by Defendant,” but she “demanded to be taken to a doctor to have her injuries 13 examined.” (Id.) Defendant nevertheless “forced” Plaintiff to work the remainder of her eight- 14 hour shift before receiving any medical forms or being taken to a doctor. (Id. ¶ 23.) 15 The following day, July 30, 2019, Plaintiff was taken to the doctor by another employee of 16 Defendant, “Elizabeth (Last Name Unknown).” (Doc. 1-1, ¶ 24.) Elizabeth informed Plaintiff 17 that “if the doctor asked if she wanted a prescription for pain killers, [she] was to say, ‘no,” and 18 “even accompanied Plaintiff inside of the examination room to make sure she complied with this 19 directive.” (Id.) Plaintiff wished to receive a “block injection” but was told not to ask for one. 20 (Id.) Elizabeth then asked the doctor to conduct a drug test on Plaintiff, without giving a reason. 21 (Id. ¶ 25.) Upon leaving the doctor’s office, Elizabeth drove Plaintiff to a pharmacy and bought 22 over-the-counter pain medication with Defendant’s corporate credit card, having received 23 authorization to do so by Defendant’s Director of Operations. (Id. ¶ 26.) 24 That night, Plaintiff’s symptoms got worse, despite having taken the pain medication. 25 (Doc. 1-1, ¶ 27.) She presented to the emergency room, where tests and X-rays “revealed that her 26 injury was more severe than previously thought.” (Id. ¶ 27.) Plaintiff was provided analgesics for 27

28 1 The factual background summarizes Plaintiff’s allegations as set forth in the complaint, which is currently the 1 pain and was advised to restrict her movements. (Id.) 2 On July 31, 2019, she informed Elizabeth of her emergency room visit and that she had 3 been advised to “return on restricted work duty until further medical treatment was completed.” 4 (Doc. 1-1, ¶ 28.) The next day, August 1, 2019, Elizabeth asked Plaintiff to come into work, but 5 Plaintiff declined to do so due to the pain medication she had been taking for her injury. (Id. ¶ 6 29.) 7 Later that month, Elizabeth informed Plaintiff that she had failed her drug test and that she 8 had the option of entering an Employee Assistance Program (“EAP”) provided by Defendant. 9 (Doc. 1-1, ¶ 30.) Plaintiff agreed to the EAP classes but, unfortunately, Defendant was unable to 10 find an EAP counselor that conducted sessions in Spanish. (Id. ¶ 31.) Elizabeth provided Plaintiff 11 the name of a counselor who did not speak Spanish, and Plaintiff made an appointment with the 12 counselor on August 21, 2019. (Id. ¶¶ 31–32.) Following the appointment, the counselor 13 informed Plaintiff that she was “satisfied with Plaintiff’s progress after one session and told her 14 that this process would be short.” (Id. ¶32.) That next day, August 22, 2019, Elizabeth summoned 15 Plaintiff to Defendant’s office where she was fired “without further explanation.” (Id. ¶ 33.) 16 B. Procedural Background 17 After filing a charge with the California Department of Fair Employment and Housing and 18 obtaining a Right to Sue letter (Doc. 1-1, ¶¶ 35), Plaintiff filed a complaint against Defendant in 19 San Francisco County Superior Court on February 21, 2020. (Doc. 1-1.) The complaint alleges 20 causes of action under California law for disability and national origin discrimination, failure to 21 prevent said discrimination, wrongful termination, and retaliation. (Id.) On March 30, 2020, 22 Defendant removed the lawsuit to federal court on grounds of diversity jurisdiction. (Doc. 1.) 23 The action was transferred to this Court pursuant to stipulation on April 23, 2020. (Docs. 13 & 24 14.) 25 The parties participated in a scheduling conference with the undersigned on July 30, 2020. 26 (Doc. 9.) The undersigned issued a scheduling order on July 31, 2020, which provides that “[a]ny 27 motions or stipulations requesting leave to amend the pleadings must be filed by no later than 28 December 16, 2020.” (Doc. 20, 2:22–23.) Plaintiff filed the instant Motion on March 10, 2021, 1 seeking to amend the complaint to join Elizabeth Hurtado and to add a cause of action for invasion 2 of privacy by means of intrusion into private affairs against her.2 (Doc. 21.) 4 As the Motion was filed after the amendment deadline, the undersigned will first determine 5 whether Plaintiff has demonstrated good cause pursuant to Federal Rule of Civil Procedure 16. 6 See United States ex rel. Terry v. Wasatch Advantage Grp., LLC, 327 F.R.D. 395, 403 (E.D. Cal. 7 2018). (See also Doc. 20 at 2:25–28.) 8 A. Plaintiff Has Shown Good Cause to Modify the Schedule Pursuant to Rule 16 9 1. Legal Standard 10 Federal Rule of Civil Procedure 16(b) provides that the district court must issue a 11 scheduling order that limits “the time to join other parties, amend the pleadings, complete 12 discovery, and file motions.” Fed. R. Civ. P. 16(b)(1)–(3). A scheduling order “may be modified 13 only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” 14 standard “primarily considers the diligence of the party seeking the amendment.” Johnson v. 15 Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party 16 seeking the modification of a scheduling order must generally show that even with the exercise of 17 due diligence, they cannot meet the requirement of that order. Id. The prejudice to other parties, 18 if any, may be considered, but the focus is on the moving party’s reason for seeking the 19 modification. Id. If the party seeking to amend the scheduling order fails to show due diligence, 20 the inquiry should end, and the court should not grant the motion to modify. Zivkovic v. S. Cal. 21 Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citing Mammoth Recreations, 975 F.2d at 609). 22 23 2 Although Plaintiff’s proposed amended complaint included claims against Ms. Hurtado for discrimination and 24 retaliation and a claim for invasion of privacy against Defendant (see Doc. 21 at 17–21, 22), neither the Motion nor the supplemental briefing in support thereof addresses the proprietary of those claims. The undersigned therefore 25 concludes that Plaintiff has abandoned its intention add these claims against Ms. Hurtado and Defendant. See Stichting Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125, 1132 (C.D.Cal.2011) (“failure to 26 respond in an opposition brief to an argument put forward in an opening brief constitutes waiver or abandonment in regard to the uncontested issue”); In re TFT–LCD (Flat Panel) Antitrust Litig., 586 F. Supp. 2d 1109, 1131 (N.D. Cal. 27 2008) (granting a motion to dismiss a claim without leave to amend after noting that plaintiffs’ opposition did not address defendants' arguments regarding the claim, and that plaintiffs had therefore abandoned the claim). Thus, the 28 undersigned’s findings and recommendation are limited to Plaintiff’s request to join Elizabeth Hurtado and to plead an 1 “Relevant inquiries [into diligence] include: whether the movant was diligent in helping the court 2 to create a workable Rule 16 order; whether matters that were not, and could not have been, 3 foreseeable at the time of the scheduling conference caused the need for amendment; and whether 4 the movant was diligent in seeking amendment once the need to amend became apparent.” 5 Wasatch Advantage Grp., 327 F.R.D. at 404 (internal quotation marks and citation omitted) 6 (alteration in original). 7 2. Analysis 8 Plaintiff bases its request to allege a claim for invasion of privacy by means of intrusion 9 into private affairs against and to join Elizabeth Hurtado, whom she alleges is the Environmental 10 Health and Safety Manager for Defendant, on information it received in discovery from Defendant 11 on February 12, 2021.3 (Doc. 21 at 5–6; Doc. 26 at 3.) On that date, Defendant served responses 12 to Plaintiff’s requests for admission, wherein it “denie[d] that it required Ms. Hurtado to 13 accompany Plaintiff into the examination room.” (Doc. 26 at 17–18.) Plaintiff contends that, 14 prior to receiving Defendant’s denial, she believed that Ms. Hurtado was acting under the direction 15 of Defendant in entering the examination room with her. (Doc. 21 at 3; Doc. 26 at 3.) Plaintiff 16 now believes, based on Defendant’s denial, that Ms. Hurtado was acting in her personal capacity 17 and is subject to individual liability for the invasion of Plaintiff’s privacy. (See id.) Defendant 18 contends that Plaintiff has not established “good cause” under Rule 16(b)(4) because she “has 19 been aware since before the filing of the Complaint that she would allege that Ms. Hurtado 20 accompanied her into the examination room.” (Doc. 22 at 4.) 21 Allowing parties to amend based on information obtained through discovery is common 22 and well established. See Fru-Con Constr. Corp. v. Sacramento Mun. Util. Dist., No. 05-0583, 23 2006 WL 3733815, at *3–5 (E.D. Cal. Dec. 15, 2006) (collecting cases in which court granted 24 leave to amend based on “new information revealed through discovery”); see also Macias v. City 25 of Clovis, No. 1:13-cv-01819-BAM, 2016 WL 1162637, at *4 (E.D. Cal. Mar. 24, 2016) 26 (“[D]iscovery of new evidence is often sufficient to satisfy the good cause standard” under Rule 27 16(b).). In general, the focus of the diligence inquiry under Rule 16(b) is the time between the 28 1 moving party’s discovery of new facts and its asking leave of the court to file an amended 2 pleading. See Zivkovic, 302 F.3d at 1087–88. 3 It is undisputed that Plaintiff received Defendant’s responses to her requests for admission 4 on February 12, 2021. In its responses, Defendant denied that it required Ms. Hurtado to 5 accompany Plaintiff into the examination room, thereby suggesting that the alleged conduct took 6 place outside the scope of Ms. Hurtado’s employment by Defendant.4 See, e.g., Tognazzini v. San 7 Luis Coastal Unified Sch. Dist., 86 Cal. App. 4th 1053, 1058 (2001) (in determining whether 8 employee’s alleged tortious conduct was committed outside the scope of their employment, “the 9 trier of fact considers . . . whether [the conduct] was authorized or directed by the employer.”) 10 While both the identity of Ms. Hurtado and the factual basis for an invasion of privacy claim may 11 have been known to Plaintiff prior to filing her complaint, the basis for a claim that could be 12 asserted against Ms. Hurtado individually, as opposed to against Defendant, was not known until 13 February 12, 2021. Plaintiff then filed the instant Motion less than a month later, after meeting 14 and conferring with defense counsel in an attempt to reach an agreement on the amendment. (See 15 Doc. 22-1 ¶¶ 6–7.) 16 Based on the above, the undersigned finds that Plaintiff did not delay in seeking 17 amendment and has therefore shown “good cause” under Rule 16(b) to modify the scheduling 18 order for the purpose of seeking to amend the complaint. See, e.g., Nucal Foods, Inc. v. Quality 19 Egg LLC, No. CIV S–10–3105–KJM–CKD, 2012 WL 260078, at *5 (E.D. Cal. Jan. 27, 2012) 20 (“Because plaintiff moves to amend [its] complaint based on facts uncovered during discovery, the 21 court finds that plaintiff has good cause to seek leave to amend. Plaintiff could not have exercised 22 a greater degree of diligence in order to amend at an earlier state in litigation.”) (internal citations 23 omitted); AZ Holding, L.L.C. v. Frederick, No. CV–08–0276, 2009 WL 3063314, at *3 (D. Ariz. 24 Sept. 22, 2009) (finding plaintiff reasonably diligent when seeking leave one month after 25 incident); Fru-Con Const. Corp., 2006 WL 3733815, at *4 (finding that the defendant “acted with 26 reasonable diligence” in moving for leave to amend its counterclaim “roughly two months” after 27 4 Defendant disputes that Ms. Hurtado “acted on her own.” (See Doc. 29 at 5.) However, whether Ms. Hurtado was 28 acting within or outside the scope of her employment, or with or without Plaintiff’s consent, is an issue for the trier of 1 learning new facts at the deposition). 2 B. Plaintiff May Amend the Complaint to Join a Non-Diverse Defendant 3 As part of its amendment, Plaintiff seeks to join as a defendant Elizabeth Hurtado, whom 4 neither party disputes is a citizen of California. (See Doc. 26 at 3; Doc. 29 at 9.) Defendant 5 opposes the addition of Ms. Hurtado, whose joinder would destroy diversity and require remand 6 under 28 U.S.C. § 1447 (“section 1447”).5 (See Doc. 29.) 7 1. Legal Standard 8 “[T]he proper standard for deciding whether to allow post-removal joinder of a diversity- 9 destroying defendant is set forth in 28 U.S.C. 1447(e).” Boon v. Allstate Ins. Co., 229 F. Supp. 2d 10 1016, 1019 n.2 (C.D. Cal. 2002) (citations omitted); see also Hardin v. Wal-Mart Stores, Inc., 813 11 F. Supp. 2d 1167, 1173 (E.D. Cal. 2011) (“Plaintiffs may not circumvent 28 U.S.C. § 1447(e) by 12 relying on Fed .R. Civ. P. 15(a) to join non-diverse parties.”) (citing Clinco v. Roberts, 41 F. Supp. 13 2d 1080, 1086 (C.D. Cal. 1999)). Section 1447(e) states: “If after removal the plaintiff seeks to 14 join additional defendants whose joinder would destroy subject matter jurisdiction, the court may 15 deny joinder, or permit joinder and remand the action to the State court.” 28 U.S.C. 1447(e). 16 Section 1447(e) is “couched in permissive terms” and “clearly gives” district courts 17 discretion in deciding whether to permit or deny joinder of a non-diverse defendant. Newcombe v. 18 Adolf Coors Co., 157 F.3d 686, 691 (9th Cir. 1998); see also IBC Aviation Servs., Inc. v. 19 Compania Mexicana de Aviacion, S.A. de C.V., 125 F. Supp. 2d 1008, 1011 (N.D. Cal. 2000) 20 (“Under 1447, whether to permit joinder of a party that will destroy diversity remains in the sound 21 discretion of the court.”). In deciding whether to deny or permit joinder under 1447(e), courts 22 typically analyze the following six factors: 23 (1) [W]hether the party sought to be joined is needed for just adjudication and would be joined under Federal Rule of Civil 24 Procedure 19(a); (2) whether the statute of limitations would preclude an original action against the new defendants in state 25 court; (3) whether there has been unexplained delay in requesting joinder; (4) whether joinder is intended solely to defeat federal 26

27 5 Neither the Motion nor Defendant’s opposition referenced section 1447, instead relying on Federal Rule of Civil Procedure 15(a). (See Docs. 21 & 22.) The Court ordered supplemental briefing regarding whether Plaintiff should 28 be permitted to amend her complaint to add Ms. Hurtado as a defendant under section 1447(e) and whether the case 1 jauprpisedairc tviaolnid; ; (a5n) dw (h6)e twhehre tthheer dcleaniimals oafg jaoiinnsdt erth we ilnl epwr ejduedfiecned tahnet 2 plaintiff. 3 IBC Aviation, 125 F. Supp. 2d at 1011 (internal citations omitted). The undersigned will address 4 each of these factors below. 5 2. Analysis 6 a. Just Adjudication and Rule 19(a) 7 Federal Rule of Civil Procedure 19 “requires joinder of persons whose absence would 8 preclude the grant of complete relief, or whose absence would impede their ability to protect their 9 interests or would subject any of the parties to the danger of inconsistent obligations.” Clinco, 41 10 F. Supp. 2d at 1082 (citing Fed. R. Civ. P. 19(a)). This standard is generally met “when failure to 11 join will lead to separate and redundant actions,” but not when the defendants whose joinder is 12 sought “are only tangentially related to the cause of action or would not prevent complete relief.” 13 Boon, 229 F. Supp. 2d at 1022. “Although courts consider whether a party would meet [Rule] 14 19’s standard for a necessary party, amendment under § 1447(e) is a less restrictive standard than 15 for joinder under [Rule] 19.” IBC Aviation, 125 F. Supp. 2d at 1011–12 (citations omitted). 16 Plaintiff contends that Ms. Hurtado is necessary under Rule 19 because the events that led 17 to Plaintiff’s wrongful termination “included acts from [Ms.] Hurtado,” and if she is not added as 18 a defendant in the action, Plaintiff “will be required to file a separate action in state court based on 19 the same events and occurrences.” (Doc. 26 at 4–5.) Defendant acknowledges that denying the 20 Motion may lead to a separate action, but it contends it is not redundant because the invasion of 21 privacy claim “is not an employment related claim like the other five Causes of Action.” (Doc. 29 22 at 7.) 23 The fact that, unlike her other claims, Plaintiff’s proposed invasion of privacy claim 24 sounds in tort does not detract from the fact that it arises out of the same operative events as the 25 other claims. See Self v. Equinox Holdings, Inc., Case No. CV 14-04241 MMM (AJWx), 2015 26 WL 13298146, at *10 n.91 (C.D. Cal. Jan. 5, 2015) (The “relevant inquiry” for purposes of 27 section 1447(e) is whether the party to be joined was “directly involved in the events underlying 28 1 [the plaintiff’s] claims.”). If the Motion were to be denied, Plaintiff would be forced to litigate 2 parallel lawsuits in separate forms involving the same documents and witnesses and many of the 3 same factual and legal issues, which would directly frustrate the main purpose of Rule 19 and 4 unnecessarily tax judicial resources. See CP Nat’l Corp. v. Bonneville Power Admin., 928 F.2d 5 905, 912 (9th Cir. 1991) (explaining that Rule 19 was designed to prevent “wasteful litigation”); 6 Palestini v. General Dynamics Corp., 193 F.R.D. 654, 658 (S.D. Cal. 2000). See also IBC 7 Aviation, 125 F. Supp. 2d at 1013 (Redundant litigation arises out of the same facts and involves 8 the same legal issues.). 9 Under these circumstances, and in light of the “less restrictive standard” for amendment 10 under section 1447(e) than for joinder under Rule 19, the undersigned finds that the inclusion of 11 Ms. Hurtado in the lawsuit would lead to a just adjudication of the entire dispute. See, e.g., 12 Avellanet v. FCA US LLC, Case No. CV 19-7621-JFW(KSx), 2019 WL 5448199, at *2 (C.D. Cal. 13 Oct. 24, 2019) (concluding that “failure to join Fiat would lead to separate and redundant actions, 14 and that Fiat is necessary for the efficient and just adjudication of this action,” because plaintiff's 15 “claims for relief against FCA and Fiat arise out of the same vehicle and the same alleged defects 16 in that vehicle, and resolution of Plaintiff's claim against Fiat will require many of the same 17 documents and witnesses and will implicate many of the same factual and legal issues”). This 18 factor weighs in favor of granting the Motion. 19 b. Statute of Limitations 20 Both parties agree that the statute of limitations would not bar Plaintiff from bringing suit 21 against Ms. Hurtado in a separate action, as California has a two-year statute of limitations on 22 actions for invasion of privacy by means of intrusion into private affairs. See Cal. Code Civ. Proc. 23 § 335.1; Quan v. Smithkline Beecham Corp., 149 F. App'x 668, 670 (9th Cir. 2005). Thus, the 24 second factor favors denying the Motion. See Clinco, 41 F. Supp. 2d at 1083 (“[Plaintiff] does not 25 argue that a new action against [the proposed defendant] would be time-barred. Therefore, this 26 factor does not support amendment.”). 27 c. Unexplained Delay 28 Defendant contends that Plaintiff “clearly had an understanding of Ms. Hurtado’s alleged 1 involvement as it related to the intrusion claim as far back as February 2020,” yet waited over a 2 year later to seek to amend its complaint. (See Doc. 29 at 5–6.) Defendant also points out that 3 Plaintiff did not allege an invasion of privacy claim against it in her original complaint. (Id. at 3, 4 6.) This, Defendant asserts, belies Plaintiff’s reliance on Defendant’s responses to requests for 5 admission as the basis for the amendment. 6 As forth above, however, the undersigned finds that Plaintiff did not unduly delay in 7 seeking to join Ms. Hurtado as a defendant based on the information she gained during discovery. 8 (See Section III.A.2, supra.) Plaintiff filed the instant Motion less than a month after learning of 9 the basis of her individual claim against Ms. Hurtado, after having met and conferred with 10 Defendant. This timeline evidences no unexplained delay. Defendant’s contention that Plaintiff 11 did not act diligently in seeking amendment would be compelling were she seeking to add an 12 invasion of privacy claim against Defendant, but she has apparently abandoned that intention. 13 (See Section II.B n2, supra.) Thus, this factor weighs in favor granting the Motion. 14 d. Plaintiff’s Motive 15 Though Plaintiff’s motive is relevant, “[s]uspicion of diversity destroying amendments is 16 not as important now that § 1447(e) gives courts more flexibility in dealing with the addition of 17 such defendants.” IBC Aviation, 125 F. Supp. 2d at 1012; see also Trotman v. United Parcel 18 Serv., No. C–96–1168–VRW, 1996 WL 428333, at *1 (N.D. Cal. July 16, 1996) (“The legislative 19 history to 1447(e) also suggests that it was intended to undermine the doctrine employed by some 20 courts that amendments which destroyed diversity were to be viewed with suspicion.”). The 21 district court should “decline[ ] to impute an improper motive to Plaintiff simply because Plaintiff 22 seeks to add a non-diverse defendant post-removal.” Id. 23 Defendant contends that Plaintiff’s unexplained delay in seeking amendment renders it 24 “likely” that Plaintiff that seeks to join Ms. Hurtado “solely for the purpose of defeating federal 25 subject matter jurisdiction.” (Doc. 29 at 6–7.) Such inference is belied by the record. The record 26 shows that Plaintiff first learned essential facts about Ms. Hurtado’s potential liability on February 27 12, 2020, and filed the Motion less than a month later. More importantly, the Motion 28 demonstrates that Plaintiff believed the joining of Ms. Hurtado would not deprive this Court of 1 jurisdiction, as her proposed amended complaint included a “stipulation” to “have this matter 2 heard in the United States District Court for the Eastern District of California.”6 (Doc. 21 at 13 ¶ 3 18.) Only when the undersigned pointed out that the joinder of Ms. Hurtado would likely destroy 4 diversity jurisdiction and that section 1447(e)—not Rule 15(a)—applied to the Motion does it 5 appear that either party contemplated the possibility of remand. Thus, this factor also favors 6 joinder. 7 e. Apparent Validity of Plaintiff’s Claim 8 As construed, Plaintiff seeks to amend her complaint to add a claim of invasion of privacy 9 by means of intrusion into private affairs against Ms. Hurtado. (See Section II.B n2, supra.) 10 Defendant asserts that Plaintiff “will not be able to prove any conduct by Defendant or Ms. 11 Hurtado was highly offensive to a reasonable person.” (Doc. 29 at 8.) The relevant inquiry, 12 however, is not whether Plaintiff will be able to adduce evidence so as to ultimately prevail on her 13 claim. Instead, under section 1447(e), the undersigned need only determine whether the claim 14 “seems valid.” See Hardin, 813 F. Supp. 2d. at 1174; IBC Aviation Servs., Inc., 125 F. Supp. 2d 15 1012–13. See also Plasse v. Ford, No. 2:17–cv–01136–TLN–EFB, 2017 WL 6033075, at *5 16 (E.D. Cal. Dec. 6, 2017) (When evaluating this factor, courts “‘need only determine whether the 17 claim seems valid,’ which is not the same as the standard in either a motion to dismiss or a motion 18 for summary judgment.”) (citations omitted). 19 Applying the proper standard, the undersigned determines that the invasion of privacy 20 claim against Ms. Hurtado seems valid. Plaintiff has alleged the necessary elements of the claim 21 under California law, i.e., that Plaintiff had a “reasonable expectation of privacy in her medical 22 examination room following her work accident,” that Ms. Hurtado “intentionally intruded in 23 Plaintiff’s medical room to ensure that a drug test was administered prior to Plaintiff receiving 24 medical assistance,” and such intrusion “would be highly offensive to a reasonable person in 25 Plaintiff’s position,” see Doc. 21 at 22. See People v. Bollaert, 248 Cal. App. 4th 699, 712 (2016) 26 (“A privacy violation based on the common law tort of intrusion has two elements. First, the 27 6 It is well established, however, that “parties cannot . . . create federal court subject matter jurisdiction by 28 stipulation.” Holman v. Laulo–Rowe Agency, 994 F.2d 666, 668 n.1 (9th Cir. 1993) (citing Neirbo Company v. 1 defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff 2 has a reasonable expectation of privacy. Second, the intrusion must occur in a manner highly 3 offensive to a reasonable person.”) (quoting Hernandez v. Hillsides, Inc., 47 Cal. 4th 272, 286, 4 (2009)). Because Plaintiff has articulated a seemingly valid claim against the non-diverse 5 defendant, this factor weighs in favor of granting the Motion. See Taylor v. Honeywell Corp., No. 6 C 09–4947 SBA, 2010 WL 1881459, at *3 (N.D. Cal. May 10, 2010) (“The existence of a facially 7 legitimate claim against the putative defendant weighs in favor of permitting joinder under section 8 1447(e)”). 9 f. Whether Denial of Joinder Will Prejudice Plaintiff 10 Plaintiff asserts that if the Motion is denied, prejudice would result because she would be 11 forced to initiate a separate, redundant lawsuit against Ms. Hurtado in state court for the same 12 events and occurrences concerning Plaintiff’s suit against Defendant. (Doc. 26 at 8–9.) The 13 undersigned agrees. In Taylor v. Honeywell Corp., the court found that denying the plaintiffs’ 14 motion would be “unduly prejudicial to Plaintiffs because it would require them either to abandon 15 the potential claims [they have] against [the proposed defendants] or litigate the same legal issues 16 and facts as this case in state court.” 2010 WL 1881459, at *4. Because such duplicative and 17 redundant litigation would “result in a waste of judicial and the Plaintiffs’ resources, as well as 18 risk inconsistent results,” the Taylor court found that the final factor favored granting the 19 plaintiffs’ motion to amend and to remand. Id. 20 As in Taylor, precluding Plaintiff from joining Ms. Hurtado in this case would prejudice 21 Plaintiff because she would be required either to abandon potentially viable claims against Ms. 22 Hurtado or to initiate a duplicative litigation in state court. Defendant counters that any “slight” 23 prejudice that would result from denial of the Motion is of Plaintiff’s own making by “fail[ing] 24 failure to recognize and plead any potential claims in a reasonable time period.” (See Doc. 20 at 25 17.) However, this is the same argument advanced by Defendant with respect to other factors, 26 which the undersigned has rejected. Thus, this last factor favors joinder. 28 As set forth above, five of the six factors weigh in favor of allowing joinder of Ms. 1 Hurtado as a defendant. The undersigned concludes that Plaintiff should be allowed to amend her 2 complaint despite the fact that the pleading destroys diversity, having shown “good cause” under 3 Fed. R. Civ. P. 16(b)(4) for the untimely amendment. 4 Accordingly, the undersigned hereby RECOMMENDS that Plaintiff’s “motion for leave 5 to amend complaint” (Doc. 21) be GRANTED and Plaintiff be directed to file forthwith an 6 amended complaint that joins Elizabeth Hurtado as a defendant and adds a claim against her for 7 invasion of privacy by means of intrusion into private affairs. 8 Because the amended pleading joins a defendant whose presence in this litigation destroys 9 the diversity on which this Court’s jurisdiction rests, upon its filing this Court would no longer 10 have subject matter jurisdiction under 28 U.S.C. § 1332. The undersigned further 11 RECOMMENDS that, upon filing of the amended complaint, this case be REMANDED to the 12 Superior Court of California, County of Fresno. 13 These Findings and Recommendations will be submitted to the United States District 14 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l)(B). Within 15 twenty-one (21) days after being served with these Findings and Recommendations, a party may 16 file written objections with the Court. The document should be captioned “Objections to 17 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 18 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 19 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 20 Cir. 1991)). 21 IT IS SO ORDERED. 22

Sheila K. Oberto 23 Dated: June 9, 2021 /s/ . UNITED STATES MAGISTRATE JUDGE 24

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