4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6
7 Case No. 1:21-CV-00553-AWI-HBK 8 THOMAS SEANEZ, an individual,
ORDER GRANTING PLAINTIFF’S 9 MOTION TO REMAND AND Plaintiff, DENYING DEFENDANT’S MOTION 10 TO DISMISS v.
11 UNION PACIFIC RAILROAD COMPANY, (Doc. Nos. 4 and 5) 12 a Delaware Corporation, John Doe 1, an individual, and DOES 2 THROUGH 20, 13 inclusive
14 Defendants.
16 17 18 19 20 Plaintiff Thomas Seanez filed this action in Fresno County Superior Court on January 5, 21 2021, alleging claims for discrimination, wrongful termination and defamation against his former 22 employer, Union Pacific Railroad Company (“Union Pacific”), as well as a claim for defamation 23 against an unnamed former co-worker sued as “John Doe 1.” Doc. No. 1 at 9. Union Pacific 24 removed the action to this Court on March 31, 2021 and filed a motion to dismiss on April 7, 25 2021. Doc. Nos. 1, 4. On April 15, 2021, Seanez filed a motion to remand. Doc. No. 5. Both 26 motions have been fully briefed and the Court has deemed both motions suitable for decision 27 without oral argument pursuant to Local Rule 230(g) of the United States District Court for the 1 to remand will be granted and Union Pacific’s motion to dismiss will be denied as moot. 2 BACKGROUND 3 The relevant allegations in the Complaint are as follows: 4 Seanez is a resident of California who was more than 40 years of age at all times relevant 5 to this action. Doc. No. 1 at 10:2-6. Union Pacific is a corporation that was formed under 6 Delaware law and that has its principal place of business in Nebraska. Id. at 10:2-8.1 7 Seanez was employed by Union Pacific for 40 years, most recently as a locomotive 8 engineer in Union Pacific’s Fresno, California location. Doc. No. 1 at 11:19-21. Approximately 20 9 years ago, while employed by Union Pacific, Seanez severely injured his left arm in a motorcycle 10 accident. Id. at 11:22-23. Seanez missed four months of work due to the accident, then returned to 11 work at Union Pacific as a locomotive engineer, until Union Pacific terminated his employment in 12 July 2019. Id. at 11:23-25. 13 In May 2019, John Doe 1 sent an anonymous letter (the “May 2019 Letter”) to Union 14 Pacific’s headquarters in Omaha, Nebraska that stated as follows: 15 I am a conductor/brakeman working out of JQ292 Fresno, California. Locomotive Engineer Tom Seanez is a working engineer working out of Fresno, California as 16 well and I am concerned about my safety and others working with Mr. Seanez. He only has use of one arm due to a motorcycle crash, and now he deems [sic] to be 17 losing any strength or use of his good hand. I have watched him struggle to climb aboard locomotives but now he struggles to control the locomotive while operating 18 it. I have to call for him to stop far in advance while working local switching operations and constantly am tieing [sic] extra brakes on cars hoping not to shove 19 over bumpers or into other cars. I worry about young and new employees working with him that are not aware of his extra stopping space and help he needs on a daily 20 basis. A new employee asked him to hand him paperwork recently and he dropped the paperwork due to his lack of grip. Please help me/us working around him to not 21 be injured or get killed. 22 Doc. No. 1 at 12:2-12. The envelope was postmarked May 22, 2019 from Fresno, California and 23 the return address was Union Pacific’s facility in Roseville, California. Id. at 12:11-14. 24 On May 30, 2019, an occupational nurse at Union Pacific informed Seanez that he was 25 being “taken out of service.” Doc. No. 1 at 12:15-20. A “ride check” was then scheduled, which 26 27 1 Page citations for documents filed with the Court electronically are to page numbers in the CM/ECF stamp at the top 1 Seanez “passed with a score of 100%.” Id. at 12:16-17. In June 2019,2 Seanez was summoned to 2 Union Pacific’s Roseville, California facility, without pay and at his own expense, to undergo a 3 “fitness for duty test.” Id. at 12:17-18. On or about June 30, 2019, Seanez was terminated and 4 “required to take medical retirement.” Id. at 12:18-19. 5 Based on these allegations, Seanez alleges a defamation claim against John Doe 1, as well 6 as a defamation claim, wrongful termination claim and several claims under California’s Fair 7 Employment and Housing Act (“FEHA”) against Union Pacific.3 Doc. No. 1 at 9. 8 LEGAL FRAMEWORK 9 Federal courts are courts of limited jurisdiction that can hear only the types of cases that 10 they are authorized by the Constitution and Congress to adjudicate. Kokkonen v. Guardian Life 11 Ins. Co. of America, 511 U.S. 375, 377 (1994). 12 Under 28 U.S.C. § 1441,4 “[a] defendant generally may remove an action filed in state 13 court if a federal district court would have had original jurisdiction over the action.” Chavez v. 14 JPMorgan Chase & Co, 888 F.3d 413, 415-16 (9th Cir. 2018) (citing 28 U.S.C. § 1441(a) and 15 Gonzales v. CarMax Auto Superstores, LLC, 840 F.3d 644, 648 (9th Cir. 2016)). Thus, “[a] 16 defendant may remove an action to federal court based on federal question jurisdiction or diversity 17 jurisdiction.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (citing 28 U.S.C. 18 § 1441). 19 Union Pacific removed this action based on diversity jurisdiction, pursuant to 28 U.S.C. § 20 1332(a)(1) (addressing diversity jurisdiction) and 28 U.S.C. § 1441 (addressing the removal of 21
22 2 The Complaint states that Seanez was “summoned to Roseville” in “July 2019,” but given the other dates alleged in 23 the Complaint, including, for example, the alleged termination date of June 30, 2019, the Court assumes that that allegation was supposed to read “June 2019.” In any event, it is irrelevant to the disposition of this motion. 24 3 Specifically, the claims against Union Pacific are as follows: (1) disability discrimination in violation of California Government Code (“Government Code”) § 12940, subd. (a); (2) age discrimination in violation of Government Code 25 § 12940, subd. (a); (3) failure to engage in interactive process in violation of Government Code §12940, subd. (n); (4) failure to make reasonable accommodation in violation of Government Code § 12940, subd. (m); (5) failure to take 26 reasonable steps to prevent discrimination in violation of Government Code § 12940, subd. (k); (6) wrongful termination in violation of public policy; and (7) defamation. See Doc. No. 1 at 9, 13-21. 27 4 28 U.S.C. § 1441(a) provides: “Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place 1 civil actions). Doc. No. 1 at 1. 28 U.S.C. § 1332(a)(1) gives federal courts original jurisdiction 2 over civil actions between “citizens of different states,” “where the matter in controversy exceeds 3 the sum or value of $75,000, exclusive of interest and costs.” “Section 1332 requires complete 4 diversity of citizenship; each of the plaintiffs must be a citizen of a different state than each of the 5 defendants.” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001) (citing 6 Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996)). Moreover, 28 U.S.C. § 1441(b)(2) provides 7 that, for removal based on diversity jurisdiction, no “properly joined” defendant may be a citizen 8 of the state in which the action is brought. See Homesales, Inc. v. Amora, 2012 WL 2061923, at 9 *1 (N.D. Cal. June 5, 2012). 10 28 U.S.C. § 1441 is strictly construed against removal jurisdiction; it is presumed that a 11 case lies outside the limited jurisdiction of the federal courts, and the burden of establishing the 12 contrary rests upon the party asserting jurisdiction. Geographic Expeditions, Inc. v. Estate of 13 Lhotka, 599 F.3d 1102, 1106-07 (9th Cir. 2010); see also, Hunter, 582 F.3d at 1042 (“the 14 defendant always has the burden of establishing that removal is proper” (citations and internal 15 quotation marks omitted)). “The strong presumption against removal jurisdiction” also means that 16 “the court resolves all ambiguity in favor of remand to state court.” Hunter, 582 F.3d at 1042 17 (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)) (internal quotation marks 18 omitted). That is, federal jurisdiction over a removed case “must be rejected if there is any doubt 19 as to the right of removal in the first instance.” Geographic Expeditions, 599 F.3d at 1107 (quoting 20 Gaus, 980 F.2d at 567) (internal quotation marks omitted). “If at any time prior to judgment it 21 appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 22 U.S.C. § 1447(c). Remand under 28 U.S.C. § 1447(c) “is mandatory, not discretionary.” Bruns v. 23 NCUA, 122 F.3d 1251, 1257 (9th Cir. 1997). That is, the court “must dismiss a case when it 24 determines that it lacks subject matter jurisdiction, whether or not a party has filed a motion.” Page 25 v. City of Southfield, 45 F.3d 128, 133 (6th Cir. 1995). 26 DISCUSSION 27 As stated above, Union Pacific removed this case based on diversity jurisdiction under 28 1 defendant or that this action satisfies the amount in controversy requirement for diversity 2 jurisdiction. See Doc. No. 5. Thus, the question before the Court on the motion to remand is 3 whether Union Pacific, as the removing party, has met its burden to show that 28 U.S.C. § 4 1332(a)(1)’s complete diversity requirement has been satisfied. Seanez argues that allegations 5 indicating John Doe 1 is a California citizen are sufficiently specific to destroy diversity, even 6 though John Doe 1 is not named. Id. at 4:19-5:7. Union Pacific argues, in opposition, that John 7 Doe 1’s citizenship should be disregarded because John Doe 1 was fraudulently joined in this 8 action, Doc. No. 8, Part III.B., and that, regardless, Seanez has not “produced any evidence” of 9 John Doe 1’s citizenship. Id., Part III.C. Finally, Union Pacific contends that the Court should 10 sever the defamation claim against John Doe 1 for remand and exercise jurisdiction over claims 11 against Union Pacific if the Court finds that allegations regarding John Doe 1 destroy diversity 12 jurisdiction.5 Id., Part III.D. The Court will address each of Union Pacific’s arguments in turn. 13 I. Fraudulent Joinder 14 A. Applicable Law 15 The “fraudulent” inclusion of a non-diverse defendant creates an “exception to the 16 requirement of complete diversity” for diversity jurisdiction. Morris, 236 F.3d at 1067; see 17 McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). Under the fraudulent-joinder 18 doctrine, “[j]oinder of a non-diverse defendant is deemed fraudulent, and the defendant’s presence 19 in the lawsuit is ignored for purposes of determining diversity, ‘[i]f the plaintiff fails to state a 20 cause of action against a resident defendant, and the failure is obvious according to the settled 21 rules of the state.’ ” Weeping Hollow Ave. Trust v. Spencer, 831 F.3d 1110, 1113 (9th Cir. 2016) 22 (quoting Morris, 236 F.3d at 1067 and McCabe, 811 F.2d at 1339) (some internal quotation marks 23 omitted). 24 There is a “general presumption against fraudulent joinder,” Hunter, 582 F.3d at 1046 25 26 5 Union Pacific also argues that “[t]he court may find fraudulent joinder where Plaintiff has plead false statements regarding the non-diverse party’s citizenship.” Doc. No. 8 at 8:3-7. The fraudulent joinder burden, however, is 27 squarely on the removing defendant. Union Pacific argues that the allegations regarding John Doe 1 are insufficient to destroy complete diversity but makes no attempt to show that the allegations in question are false. Thus, this argument—which takes up all of two sentences in Union Pacific’s opposition to the remand motion—does not merit 1 (citing Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007)), and 2 prevailing on a theory of fraudulent joinder requires more than a showing that a complaint fails to 3 state a cause of action. See Davis v. Prentiss Props. Ltd., 66 F. Supp. 2d 1112, 1115 (C.D. Cal. 4 1999) (“The mere fact that a claim is ultimately unsuccessful does not necessarily mean that its 5 joinder was fraudulent. Thus, some room must exist between the standard for dismissal under Rule 6 12(b)(6), for example, and a finding of fraudulent joinder”); Johnson v. Owners Ins. Co., 2016 WL 7 4181230, at *2 (D. Ariz. Aug. 8, 2016) (“Because the failure to state a cause of action must be 8 ‘obvious,’ fraudulent joinder scrutiny is more lenient toward the plaintiff than scrutiny under Rule 9 12(b)(6).” (citation omitted)). The Ninth Circuit has cited Eleventh Circuit precedent for the 10 proposition that “if there is any possibility that the state law might impose liability on a resident 11 defendant under the circumstances alleged in the complaint, the federal court cannot find that 12 joinder of the resident defendant was fraudulent, and remand is necessary.” Hunter, 582 F.3d at 13 1044 (quoting Florence v. Crescent Res., LLC, 484 F.3d 1293, 1299 (11th Cir. 2007) (internal 14 quotation marks omitted)); see also, McGrann v. AT&T Mobility Servs., LLC, 2016 WL 6205596, 15 at *3 (E.D. Cal. Oct. 24, 2016) (“The removing party must prove that there is absolutely no 16 possibility that the plaintiff will be able to establish a cause of action against the in-state defendant 17 in state court, or that there has been outright fraud in the plaintiff’s pleadings of jurisdictional 18 facts.” (citation and internal quotation marks omitted)). Stated differently, if there is a “non- 19 fanciful possibility” that a plaintiff can state a claim against a non-diverse defendant under state 20 law, the district court must remand. Altman v. HO Sports Co., 2009 WL 2590425, at *2 (E.D. Cal. 21 Aug. 20, 2009) (Ishii, J.) (citations and internal quotation marks omitted). 22 B. Discussion 23 Seanez’s sole claim against Joe Doe 1 in this action is a claim for written defamation—or 24 libel—based on the May 2019 Letter. Doc. No. 1 at 11:28-12:10, 17:26-21:14. California defines 25 libel, in pertinent part, as “a false and unprivileged publication by writing ... which exposes any 26 person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or 27 which has a tendency to injure him in his occupation.” Cal. Civ. Code, § 45. Union Pacific 1 John Doe 1 is therefore fraudulently joined in this action—because the statements in the May 2019 2 Letter are inactionable opinions and because the statements in the May 2019 Letter are protected 3 by common interest privilege under California law. In the Court’s view, neither of these 4 arguments has merit. 5 1. Statements of Opinion or Fact 6 “Although statements of fact may be actionable as libel, statements of opinion are 7 constitutionally protected.” McGarry v. University of San Diego, 154 Cal. App. 4th 97, 112 8 (2007) (also stating that a “statement must contain a provable falsehood” to constitute 9 defamation). Thus, it is necessary to “distinguish between statements of fact and statements of 10 opinion for purposes of defamation liability.” Id. at 112. California courts have developed a 11 “totality of the circumstances” test to distinguish between fact and opinion that involves 12 examining “the language of the statement” at issue, as well as the “context” in which a statement 13 was made. Baker v. Los Angeles Herald Exam’r, 42 Cal. 3d 254, 259–61 (1986) (citations 14 omitted). For language to give rise to defamation liability, it must be “reasonably susceptible of a 15 defamatory meaning,” and language “cautiously phrased in terms of apparency … is less likely to 16 be reasonably understood as a statement of fact rather than opinion.” Id. at 260-61. The contextual 17 analysis, for its part, involves “look[ing] at the nature and full content of the communication and 18 to the knowledge and understanding of the audience to whom the publication was directed.” Id. at 19 261. 20 The May 2019 Letter on which the defamation claim in this action is based states that 21 Seanez “only ha[d] use of one arm”; that he was “losing any strength or use of his good hand”; 22 that he “struggle[d]” to “climb aboard” and “control” locomotives; and that “he dropped [] 23 paperwork due to his lack of grip.” Doc. No. 1 at 12:2-8. Further, it states that Seanez needed 24 “help” on a daily basis, and that the author of the letter himself had to tie “extra brakes on cars” 25 and “call for [Seanez] to stop far in advance” to avoid collisions. Id. Such statements are made in 26 absolute terms—not “cautiously.” They are also subject to proof and defamatory in the sense that 27 they could “injure [Seanez] in his occupation,” which apparently requires some degree of physical 1 by a “conductor/brakeman” with knowledge of locomotive operations who worked directly with 2 Seanez, and thus had opportunity to observe Seanez and the operation of locomotives in his 3 charge. Doc. No. 1 at 12:2-8. It is hard to imagine that the intended audience (railroad 4 management) would not construe the letter as containing assertions of fact regarding Seanez’s 5 physical limitations and the impact of those limitations on the safe operation of locomotives. The 6 Court therefore cannot find fraudulent joinder on the grounds that the May 2019 Letter constitutes 7 mere opinion.6 8 2. Common Interest Privilege 9 Section 47 of the California Civil Code “extends a conditional privilege against defamation 10 to statements made without malice on subjects of mutual interests.” Hui v. Sturbaum, 222 Cal. 11 App. 4th 1109, 1118–19 (2014) (citations omitted). Specifically, Section 47, subdivision (c), of the 12 California Civil Code protects a “publication or broadcast” made “[i]n a communication, without 13 malice, to a person interested, therein, (1) by one who is also interested, or (2) by one who stands 14 in such a relation to the person interested as to afford a reasonable ground for supposing the 15 motive for the communication to be innocent, or (3) who is requested by the person interested to 16 give the information.” Cal. Civ. Code § 47, subd. (c). This privilege—which is often referred to as 17 a “common interest privilege”—“has been found to apply where the interest is something other 18 than mere general or idle curiosity, such as where the parties to the communication share a 19 contractual, business or similar relationship or the defendant is protecting his own pecuniary 20 interest.” Klem v. Access Ins. Co., 17 Cal. App. 5th 595, 617 (2018) (citation and internal 21 quotation marks omitted). 22 A plaintiff can defeat the common interest privilege by showing that a statement was made 23 with malice. Hawran v. Hixson, 209 Cal. App. 4th 256, 288 (2012). For purposes of the common 24
25 6 Defendants cite Jensen v. Hewlett-Packard Co., 14 Cal. App. 4th 958, 965 (Cal. App. 4th Dist. 1993) for the 26 proposition that “unless an employer’s performance evaluation falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics or behavior…it cannot support a cause 27 of action for [defamation].” Doc. No. 8 at 5:23-6:2. Jensen, however, has been interpreted to be limited to statements made as part of a performance evaluation. See McNamee v. Roman Catholic Diocese of Sacramento, 2015 WL 1469210, at *9 (E.D. Cal. Mar. 27, 2015). Since statements made outside that context are not subject to Jensen’s 1 interest privilege, malice means that the defendant “(1) was motivated by hatred or ill will towards 2 the plaintiff or (2) lacked reasonable grounds for [] belief in the truth of the publication and 3 therefore acted in reckless disregard of the plaintiff's rights.” Schep v. Capital One, N.A., 12 Cal. 4 App. 5th 1331, 1337 (2017) (citations and internal quotation marks omitted). “Inherent in the 5 concept of reckless disregard for truth is the notion that it is the [defendant’s] belief regarding the 6 accuracy of his or her statements, rather than the truth of the underlying statements themselves, 7 that is relevant to the malice determination.” Noel v. River Hills Wilsons, Inc., 113 Cal. App. 4th 8 1363, 1371 (2003) (citation and internal punctuation omitted). 9 Union Pacific contends that Seanez cannot prevail on a defamation claim based on the May 10 2019 Letter because the May 2019 Letter is protected by the common interest privilege as 11 communication between an employee and management regarding safety and Seanez “has 12 absolutely no evidence of malice.”7 Doc. No. 7:3-8. Seanez, for his part, argues that John Doe 1 13 lacked reasonable grounds for belief in the truth of his statements that Seanez was unfit for his job 14 because: (i) Seanez worked for Union Pacific as a locomotive engineer for 20 years “without 15 issue” after his motorcycle accident; (ii) Seanez passed the “ride-check” triggered by John Doe 1’s 16 letter with a “100% score”; and (iii) John Doe 1 sent the letter anonymously to remote 17 management in Nebraska, instead of immediately raising his supposedly-pressing safety concerns 18 “in Fresno, where [Seanez] worked for 40 years and where everyone knew of [Seanez’s] safety 19 20 7 It is not clear how common interest privilege applies to fraudulent joinder analysis in connection with defamation claims. On the one hand, California courts characterize privilege as an affirmative defense to a defamation claim, see 21 Tschirky v. Superior Court, 124 Cal. App. 3d 534, 538 (1981) (“The general rule is that a privilege must be pleaded as an affirmative defense.”); see also, Taus v. Loftus, 40 Cal. 4th 683, 721 (2007) (“Under Civil Code section 47, 22 subdivision (c), defendant generally bears the initial burden of establishing that the statement in question was made on a privileged occasion, and thereafter the burden shifts to plaintiff to establish that the statement was made with 23 malice.”), and the Ninth Circuit has recognized that “affirmative defenses … cannot be considered as a part of the fraudulent joinder analysis.” Kwasniewski v. Sanofi-Aventis U.S., LLC, 637 Fed. Appx. 405, 406 (9th Cir. 2016) 24 (citations omitted). On the other hand, defamation is defined as a “false and unprivileged publication” under California law, Cal. Civ. Code §§ 45, 46, suggesting that lack of privilege is an element of a defamation claim. And in 25 practice, district courts consider privilege in fraudulent joinder analysis. See, e.g., Stewart v. Walgreen Co., 2016 WL 5922640, at *1 (C.D. Cal. Jan. 8, 2016); Sanchez v. Lane Bryant, Inc., 123 F. Supp. 3d 1238, 1244 (C.D. Cal. 2015). 26 Given the past practice of other courts, this Court will address common interest privilege in the fraudulent joinder analysis. See Madayag v. McLane/Suneast, Inc., 2017 WL 30014, at *5, n.2 (E.D. Cal. Jan. 3, 2017) (Ishii, J.). 27 1 record.” Doc. No. 9 at 4:1-22. 2 The Court agrees with Seanez. The content of the May 2019 Letter was putatively based on 3 John Doe 1’s direct observation of Seanez with respect to matters—including physical strength, 4 use of limbs and collisions (or near collisions)—that a mere observer (and especially an observer 5 in John Doe 1’s alleged position) could presumably assess accurately. To the extent it turns out 6 John Doe 1 is not compromised to the extent or in the manner described in the May 2019 Letter, 7 the Court sees no reason why a finder of fact could not conclude that John Doe 1 was lying about 8 Seanez’s physical condition and job performance or, at minimum, recklessly making unfounded 9 statements that could foreseeably have an adverse effect on Seanez’s employment prospects. See 10 St. Amant v. Thompson, 390 U.S. 727, 730–32 (1968) (“Professions of good faith will be unlikely 11 to prove persuasive … where a story is fabricated by the defendant [or] is the product of his 12 imagination ….”); see also, Woods v. Asset Res., 2006 WL 3782704, at *5–6 (E.D. Cal. Dec. 21, 13 2006) (“Malice may be inferred from facts showing a lack of reasonable or probable cause to 14 believe in the truth of a defamatory statement; the privilege does not apply where there is a 15 knowing lie or the making of a damaging assertion without any reasonable backing.”). 16 C. Conclusion Regarding Fraudulent Joinder 17 For the foregoing reasons, the Court finds that Union Pacific has failed to meet its “heavy 18 burden” of establishing diversity jurisdiction through fraudulent joinder. See Bowles v. 19 Constellation Brands, Inc., 444 F. Supp. 3d 1161, 1180 (E.D. Cal. 2020). 20 II. Allegations Regarding John Doe 1 21 28 U.S.C. § 1441(b) states: “In determining whether a civil action is removable on the 22 basis of the jurisdiction under section [28 U.S.C. §] 1332(a) …, the citizenship of defendants sued 23 under fictitious names shall be disregarded.” District courts in the Ninth Circuit and elsewhere, 24 however, have split on how to handle “fictitiously named defendants described with sufficient 25 particularity to provide a clue as to their actual identity.” See Sandoval v. Republic Servs., Inc., 26 2018 WL 1989528, at *3 (C.D. Cal. Apr. 24, 2018) (citing Wong v. Rosenblatt, 2014 WL 27 1419080, at *4 (D. Or. Apr. 11, 2014)). Some district courts have concluded that the plain 1 allegations relating to Doe defendants when assessing diversity for removal purposes, see, e.g., 2 Goldsmith v. CVS Pharmacy, Inc., 2020 WL 1650750, at *4 (C.D. Cal. Apr. 3, 2020), while 3 others have concluded that it can be appropriate to do so under some circumstances. See, e.g., 4 Gardiner Family, LLC v. Crimson Res. Mgmt. Corp., 147 F. Supp. 3d 1029, 1036 (E.D. Cal. 5 2015) (O’Neill, J.) (weighing “whether the Plaintiffs’ description of Doe defendants or their 6 activities [wa]s specific enough as to suggest their identity, citizenship, or relationship to the 7 action”). 8 After a searching analysis involving 28 U.S.C. § 1441(b), applicable Ninth Circuit 9 decisions and other relevant authority, a court in this district formulated the following rule: if 10 “charges against [Doe defendants] are so general that no clues exist as to their identity, citizenship, 11 or relationship to [an] action,” Doe defendants are properly disregarded for purposes of diversity 12 jurisdiction, but if, conversely, “allegations that concern [Doe defendants] provide a reasonable 13 indication of their identity, the relationship to the action and their diversity-destroying citizenship, 14 then the Court lacks diversity jurisdiction.” Gardiner, 147 F. Supp. 3d at 1036; Robinson v. 15 Lowe’s Home Centers, LLC, 2015 WL 13236883, at *3 (E.D. Cal. Nov. 13, 2015) (O’Neill, J.). 16 The analysis turns, in short, on whether the Doe defendant is “wholly fictitious” or whether the 17 Doe defendant is described in such a way that “his or her identity cannot reasonably be 18 questioned”— recognizing, in essence, that Doe defendants are not always mere placeholders and 19 that allegations regarding Doe defendants can, in some cases, be more substantive than allegations 20 found to destroy diversity in connection with named defendants. Compare Gardiner, 147 F. Supp. 21 3d at 1036 (disregarding “Does 1 through 50” for jurisdictional purposes on a finding that they 22 were “wholly fictitious”) with Sandoval, 2018 WL 1989528 at *4 (granting remand on finding that 23 allegations regarding a Doe defendant “far exceed[ed] that which has been deemed sufficient to 24 destroy diversity in other cases”). 25 Other district courts in the Ninth Circuit have applied the same or similar reasoning,8 and 26 27 8 See, e.g., Barnes v. Costco Wholesale Corp., 2019 WL 6608735, at *2 (C.D. Cal. Dec. 4, 2019) (finding that allegations regarding Doe defendant’s place of residence, place of employment, job duties and role in plaintiff’s injuries destroyed diversity and necessitated remand); Sandoval, 2018 WL 1989528 at *4 (proper to consider fictitious 1 the Court finds it persuasive in that it allows for removing cases involving Doe defendants added 2 under state law, see Gardiner, 147 F. Supp. 3d at 1035 (finding that “use of fictional defendants is 3 consistent with California state substantive law”), while taking account of well-settled limitations 4 on the jurisdiction of federal courts sitting in diversity and the heavy burden the law places on 5 defendants with respect to establishing jurisdiction for removal. See Gaus, 980 F.2d at 566 (“[t]he 6 strong presumption against removal jurisdiction means that the defendant always has the burden of 7 establishing that removal is proper”) (citations and internal quotation marks omitted)). 8 Seanez contends that complete diversity is destroyed in this case by allegations, based on 9 the May 2019 Letter, that John Doe 1 was employed as a “conductor/brakeman” who worked with 10 Seanez at Union Pacific’s Fresno, California location in 2019, in addition to allegations that John 11 Doe 1 was the author of the May 2019 Letter and that the May 2019 Letter had a Fresno, 12 California postmark and a Roseville, California return address. Doc. No. 5 at 4:19-5:5. Union 13 Pacific, for its part, does not dispute that courts can properly consider allegations going to the 14 citizenship of Doe defendants in some cases, see Doc. No. 8 at 2:19-21 (stating that “[u]nder well- 15 established principles, courts ignore the naming of fictitious defendants for the purposes of 16 diversity jurisdiction unless there is a ‘definite clue’ as to their identity”), but argues that 17 allegations regarding John Doe 1 do not destroy complete diversity in this case because they are 18 “speculative” and insufficient. Id. at 2:19, 8:16-23. Further, Union Pacific argues that it has “no 19 information regarding [John Doe 1’s] identity” because the May 2019 Letter was sent 20 anonymously and that it has no obligation to identify John Doe 1 because Seanez has not made out 21 a prima facie defamation claim. Id. at 8, n.2. 22 The Court agrees with Seanez. Even assuming Union Pacific does not know and/or has no 23 obligation to disclose John Doe 1’s identity, Seanez’s allegations regarding John Doe 1 provide 24 clear indications John Doe 1 is a citizen of California for purposes of diversity jurisdiction, 25 particularly since it is not clear how John Doe 1 could have observed Seanez as described in the 26 27 LLC, 2017 WL 2734708, at *2 (C.D. Cal. June 26, 2017) (similar); Fisher v. Direct TV, Inc., 2013 WL 2152668, at *4 (D. Mont. May 16, 2013) (“[W]here the allegations regarding the Doe defendants provide a reasonable indication as to the identity of the defendants, the relationship of the defendants to the cause of action, and the citizenship of the 1 May 2019 Letter (including, for example, the progressive deterioration of Seanez’s right arm) 2 without being in Fresno on a continuing basis, and Fresno sits roughly in the center of California, 3 against a great mountain range and well beyond typical commuting distance to adjoining states. 4 Moreover, allegations regarding John Doe 1 collectively point to a single, discernable individual 5 with a distinct (and pivotal) role in this case. See Sandoval, 2018 WL 1989528 at *3. Finally, 6 Seanez’s allegations are not “speculative” because they are based on the May 2019 Letter, and 7 they closely approximate allegations found to destroy complete diversity in other cases involving 8 Doe defendants.9 See, e.g., Sandoval, 2018 WL 1989528 at *4 (remanding based on allegations as 9 to Doe defendant’s employer, date of employment and first name, as well as allegations as to 10 certain communications involving the defendant). 11 In short, the Court finds that John Doe 1 is properly considered for purposes of diversity 12 jurisdiction because he is not a “wholly fictitious” defendant and the allegations in the Complaint 13 are “specific enough as to suggest [his] identity, citizenship, [and] relationship to the action.” See 14 Gardiner, 147 F. Supp. 3d at 1036. Further, the Court finds that allegations regarding John Doe 1’s 15 place of employment and involvement in this case are indicative of California domicile and that 16 Union Pacific has not met its burden on removal to show the complete diversity required for 17 diversity jurisdiction. See Hunter, 582 F.3d at 1042. Given the Court’s finding that Union Pacific 18 has also failed to show fraudulent joinder, remand to state court is required. 19 III. Severance 20 Union Pacific argues that, if the Court finds remand is warranted based on allegations 21 regarding John Doe 1, the defamation claim against John Doe 1 should be severed from the claims 22 against Union Pacific and remanded separately, while the claims against Union Pacific remain in 23 24 9 One arguable difference between this case and authority cited by Seanez is that Union Pacific claims not to know the identity of John Doe 1, see, e.g., Collins, 2017 WL 2734708 at *3, but preventing employers from improperly gaining 25 access to federal court by strategically withholding the identity of Doe defendants is but one of the rationales courts have set forth for considering allegations regarding Doe defendants in jurisdictional analysis. More important 26 considerations, in the Court’s view, involve respecting the limited jurisdiction of federal courts and the proper allocation of the burden of proof on removal. See Carson v. Dunham, 121 U.S. 421, 425 (1887) (finding that the 27 burden of proof was on the removing defendant “to make out the jurisdiction of the circuit court” by showing that the plaintiff was a citizen of a different state); NewGen LLC v. Safe Cig, LLC, 840 F.3d 606, 613–14 (9th Cir. 2016) (“The party seeking to invoke the district court’s diversity jurisdiction always bears the burden of both pleading and 1 federal court. Doc. No. 8 at 9:3-10. According to Union Pacific, the “crux of [this] lawsuit is 2 wrongful termination” and the defamation claim is “independent of [Seanez’s] wrongful 3 termination claims” because the May 2019 Letter “was not the reason for [Seanez’s] discharge.” 4 Id. at 8:11-17. 5 Regardless of whether the May 2019 Letter was the basis for Seanez’s termination, 6 however, at least some of the claims against Union Pacific overlap the defamation claim against 7 John Doe 1 in that they require determining the extent to which Seanez was disabled and the 8 extent to which such disability affected Seanez’s job performance. The First Cause of Action, for 9 example, alleges that Seanez was “able to perform all the essential functions of his job” but that 10 Union Pacific improperly used injuries resulting from his motorcycle accident to terminate him. 11 The Fourth Cause of Action, similarly, alleges that Union Pacific failed to make reasonable 12 accommodations for whatever disability Seanez suffered due to his motorcycle accident. And in 13 any event, the defamation claim is alleged against Union Pacific, as well as John Doe 1. The Court 14 sees no justification for litigating Seanez’s physical condition and job performance—to say 15 nothing of legal issues attendant to a defamation claim—in two different forums, with the added 16 expense, waste of judicial resources and risk of inconsistent verdicts doing so would obviously 17 entail. 18 CONCLUSION 19 For the foregoing reasons, the Court finds that Union Pacific has failed to meet its burden 20 to show that the Court has diversity jurisdiction over this action, as required for removal. Further, 21 the Court sees no justification for litigating claims against Union Pacific and John Doe 1 22 separately, given their factual similarity and legal overlap. The Court will therefore grant Seanez’s 23 motion to remand and remand the action to state court in its entirety, without prejudice to Union 24 Pacific’s removal rights under 28 U.S.C. § 1446(b)(3). In light of the disposition of the remand 25 motion, Union Pacific’s motion to dismiss will be denied as moot. 26 // 27 // 1 ORDER 2 Accordingly, IT IS HERBY ORDERED: 3 1. Plaintiff’s motion to remand (Doc. No. 5) is GRANTED; 4 2. Defendant Union Pacific’s motion to dismiss (Doc. No. 4) is DENIED as moot; and 5 3. The Clerk of Court is DIRECTED to REMAND this case to Fresno County Superior 6 Court for lack of subject matter jurisdiction, pursuant to 28 U.S.C. § 1447(c). 7 8 9 IT IS SO ORDERED. Dp 19 Dated: _June 10. 2021 _ 7 LZ : 7 Cb Led SENIOR DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28