1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOANNA SPALL, Case No. 21-cv-04292-EMC
8 Plaintiff, ORDER DENYING PLAINTIFF’S 9 v. MOTION TO REMAND
10 STRYKER CORPORATION, et al., Docket No. 12 11 Defendants.
12 13 14 Pending before the Court is Plaintiff Joanna Spall’s motion to remand this case to state 15 court. See Docket No. 12 (“Mot.”). For the following reasons, the motion is DENIED. 16 I. BACKGROUND 17 Plaintiff, a California resident, alleges that she was sexually harassed and retaliated against 18 by Defendant Scott Courts, also a California resident, from August 2017 to November 2018 while 19 working for Defendant Stryker Corporation (“Stryker”), a Michigan corporation. Mot. at 1; 20 Docket No. 1-2 (“Compl.”) ¶¶ 1–3, 10–15. 21 On September 30, 2019, Plaintiff submitted an intake form to the Department of Fair 22 Employment and Housing (DFEH) setting forth the details of Mr. Courts’s harassment. Docket 23 No. 12-1 (“Aqui Decl.”) ¶ 2. She was subsequently scheduled for an intake interview on January 24 8, 2020, and filed her verified complaint with the DFEH on February 6, 2020. Id. ¶¶ 4, 5. 25 On January 19, 2021, Plaintiff filed this action in Alameda County Superior Court raising 26 several causes of action under California’s Fair Employment and Housing Act (FEHA), Cal. Gov. 27 Code §§ 12940–12953. See Compl. On June 4, 2021, Stryker removed the case to this Court 1 Plaintiff filed the instant motion to remand the case back to state court on July 6, 2021. 2 Mot. 3 II. LEGAL STANDARD 4 A defendant may remove “any civil action brought in a State court of which the district 5 courts . . . have original jurisdiction.” 28 U.S.C. § 1441(a). District courts have original 6 jurisdiction over civil actions between citizens of different states in which the amount in 7 controversy exceeds $75,000. Id. § 1332(a)(1). To properly invoke diversity jurisdiction, the 8 defendant bears the burden of proving that the parties in the action are completely diverse, i.e., that 9 “each plaintiff [is] of a different citizenship from each defendant.” Grancare, LLC v. Thrower by 10 & through Mills, 889 F.3d 543, 548 (9th Cir. 2018). 11 The removal statutes are strictly construed against removal. Gaus v. Miles, Inc., 980 F.2d 12 564, 566 (9th Cir. 1992). “The ‘strong presumption against removal jurisdiction means that the 13 defendant always has the burden of establishing that removal is proper,’ and that the court resolves 14 all ambiguity in favor of remand to state court.” Hunter v. Philip Morris USA, 582 F.3d 1039, 15 1042 (9th Cir. 2009) (quoting Gaus, 980 F.2d at 566). If a defendant improperly removes a case 16 over which the federal court lacks diversity jurisdiction, the federal court must remand the case to 17 state court. 28 U.S.C. § 1447(c). 18 Although the removing party must establish complete diversity, “fraudulently joined 19 defendants will not defeat removal on diversity grounds.” Ritchey v. Upjohn Drug Co., 139 F.3d 20 1313, 1318 (9th Cir. 1998). “The term ‘fraudulent joinder’ is a term of art, used for removal 21 purposes, and does not connote any intent to deceive on the part of plaintiff or his counsel.” Plute 22 v. Roadway Package Sys., Inc., 141 F. Supp. 2d 1005, 1008 n.2 (N.D. Cal. 2001). The Ninth 23 Circuit has recently clarified that there are two ways to establish fraudulent joinder:
24 “(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the 25 non-diverse party in state court.” Fraudulent joinder is established the second way if a defendant shows that an “individual joined in 26 the action cannot be liable on any theory.” But “if there is a possibility that a state court would find that the complaint states a 27 cause of action against any of the resident defendants, the federal 1 GranCare, 889 F.3d at 548 (quoting Hunter, 582 F.3d at 1044, 1046 and Ritchey, 139 F.3d at 2 1318). “This standard imposes a very high bar on removing defendants,” because joinder is 3 fraudulent “only when it is ‘obvious according to the settled rules of the state that [a plaintiff] has 4 failed to state a claim against [a defendant].’” McAdams, et al. v. Ford Motor Co., et al., No. 18- 5 CV-07485-LHK, 2019 WL 2378397, at *4 (N.D. Cal. June 5, 2019) (quoting Hunter, 582 F.3d at 6 1046). 7 Thus, courts have found fraudulent joinder “where a defendant presents extraordinarily 8 strong evidence or arguments that a plaintiff could not possibly prevail on her claims against the 9 allegedly fraudulently joined defendant,” including where “a plaintiff is barred by the statute of 10 limitations from bringing claims against that defendant.” GranCare, 889 F.3d at 548. In contrast, 11 it is not enough to sustain a finding of fraudulent joinder where “a defendant raises a defense that 12 requires a searching inquiry into the merits of the plaintiff’s case, even if that defense, if 13 successful, would prove fatal.” Id. at 548–49 (citing Hunter, 582 F.3d at 1046). 14 III. DISCUSSION 15 Because Plaintiff does not contest that the requirements for diversity jurisdiction are met if 16 the Court dismisses her claims against Mr. Courts, the only question is whether Mr. Courts was 17 fraudulently joined. For the following reasons, this Court concludes that he was. 18 “In order to bring a civil action under FEHA, the aggrieved person must exhaust the 19 administrative remedies provided by law,” Yurick v. Sup. Ct., 257 Cal. Rptr. 665, 667 (Ct. App. 20 1989), as modified (May 18, 1989), which includes filing a verified complaint with the DFEH 21 within one year of the alleged unlawful employment discrimination and obtaining a notice from 22 DFEH of the right to sue, Cal. Gov. Code § 12960(c), (e). The statute has since been amended to 23 extend the time for filing a verified complaint with the DFEH to three years. Id. 24 Stryker argues that Plaintiff’s claims against Mr. Courts—the only non-diverse defendant 25 named in the complaint—were not properly exhausted because Plaintiff filed her verified 26 complaint with the DFEH against Mr. Courts on February 6, 2020, more than a year after the 27 alleged harassment ended in November 2018. See Docket No. 13 (“Opp’n”) at 3. 1 because she submitted an intake form with the DFEH on September 30, 2019, less than a year 2 after the alleged harassment ended in November 2018. See Mot. at 4–5. The problem with this 3 argument is that California law is clear that “[section 12960] does not authorize any alternative to 4 the requirement of the filing of a ‘verified complaint in writing.’” Cole v. Antelope Valley Union 5 High Sch. Dist., 55 Cal. Rptr. 2d 443, 449 (1996) (emphasis added) (quoting Cal. Gov. Code Sec. 6 12960(c). In Cole, the plaintiff submitted a detailed letter to the DFEH laying out his claims of 7 discrimination against his employer. Id. at 448. The California Court of Appeal held that was 8 insufficient to exhaust his claims because “it would not be practical to allow an employee to 9 substitute unverified information relayed to the DFEH in correspondence, or orally, for a formal 10 administrative charge. The requirement of a ‘verified complaint in writing’ ensures that all 11 interested parties are on notice as to the substance of the allegations.” Id. (emphases added). The 12 “verified” nature of the complaint is of utmost importance.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOANNA SPALL, Case No. 21-cv-04292-EMC
8 Plaintiff, ORDER DENYING PLAINTIFF’S 9 v. MOTION TO REMAND
10 STRYKER CORPORATION, et al., Docket No. 12 11 Defendants.
12 13 14 Pending before the Court is Plaintiff Joanna Spall’s motion to remand this case to state 15 court. See Docket No. 12 (“Mot.”). For the following reasons, the motion is DENIED. 16 I. BACKGROUND 17 Plaintiff, a California resident, alleges that she was sexually harassed and retaliated against 18 by Defendant Scott Courts, also a California resident, from August 2017 to November 2018 while 19 working for Defendant Stryker Corporation (“Stryker”), a Michigan corporation. Mot. at 1; 20 Docket No. 1-2 (“Compl.”) ¶¶ 1–3, 10–15. 21 On September 30, 2019, Plaintiff submitted an intake form to the Department of Fair 22 Employment and Housing (DFEH) setting forth the details of Mr. Courts’s harassment. Docket 23 No. 12-1 (“Aqui Decl.”) ¶ 2. She was subsequently scheduled for an intake interview on January 24 8, 2020, and filed her verified complaint with the DFEH on February 6, 2020. Id. ¶¶ 4, 5. 25 On January 19, 2021, Plaintiff filed this action in Alameda County Superior Court raising 26 several causes of action under California’s Fair Employment and Housing Act (FEHA), Cal. Gov. 27 Code §§ 12940–12953. See Compl. On June 4, 2021, Stryker removed the case to this Court 1 Plaintiff filed the instant motion to remand the case back to state court on July 6, 2021. 2 Mot. 3 II. LEGAL STANDARD 4 A defendant may remove “any civil action brought in a State court of which the district 5 courts . . . have original jurisdiction.” 28 U.S.C. § 1441(a). District courts have original 6 jurisdiction over civil actions between citizens of different states in which the amount in 7 controversy exceeds $75,000. Id. § 1332(a)(1). To properly invoke diversity jurisdiction, the 8 defendant bears the burden of proving that the parties in the action are completely diverse, i.e., that 9 “each plaintiff [is] of a different citizenship from each defendant.” Grancare, LLC v. Thrower by 10 & through Mills, 889 F.3d 543, 548 (9th Cir. 2018). 11 The removal statutes are strictly construed against removal. Gaus v. Miles, Inc., 980 F.2d 12 564, 566 (9th Cir. 1992). “The ‘strong presumption against removal jurisdiction means that the 13 defendant always has the burden of establishing that removal is proper,’ and that the court resolves 14 all ambiguity in favor of remand to state court.” Hunter v. Philip Morris USA, 582 F.3d 1039, 15 1042 (9th Cir. 2009) (quoting Gaus, 980 F.2d at 566). If a defendant improperly removes a case 16 over which the federal court lacks diversity jurisdiction, the federal court must remand the case to 17 state court. 28 U.S.C. § 1447(c). 18 Although the removing party must establish complete diversity, “fraudulently joined 19 defendants will not defeat removal on diversity grounds.” Ritchey v. Upjohn Drug Co., 139 F.3d 20 1313, 1318 (9th Cir. 1998). “The term ‘fraudulent joinder’ is a term of art, used for removal 21 purposes, and does not connote any intent to deceive on the part of plaintiff or his counsel.” Plute 22 v. Roadway Package Sys., Inc., 141 F. Supp. 2d 1005, 1008 n.2 (N.D. Cal. 2001). The Ninth 23 Circuit has recently clarified that there are two ways to establish fraudulent joinder:
24 “(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the 25 non-diverse party in state court.” Fraudulent joinder is established the second way if a defendant shows that an “individual joined in 26 the action cannot be liable on any theory.” But “if there is a possibility that a state court would find that the complaint states a 27 cause of action against any of the resident defendants, the federal 1 GranCare, 889 F.3d at 548 (quoting Hunter, 582 F.3d at 1044, 1046 and Ritchey, 139 F.3d at 2 1318). “This standard imposes a very high bar on removing defendants,” because joinder is 3 fraudulent “only when it is ‘obvious according to the settled rules of the state that [a plaintiff] has 4 failed to state a claim against [a defendant].’” McAdams, et al. v. Ford Motor Co., et al., No. 18- 5 CV-07485-LHK, 2019 WL 2378397, at *4 (N.D. Cal. June 5, 2019) (quoting Hunter, 582 F.3d at 6 1046). 7 Thus, courts have found fraudulent joinder “where a defendant presents extraordinarily 8 strong evidence or arguments that a plaintiff could not possibly prevail on her claims against the 9 allegedly fraudulently joined defendant,” including where “a plaintiff is barred by the statute of 10 limitations from bringing claims against that defendant.” GranCare, 889 F.3d at 548. In contrast, 11 it is not enough to sustain a finding of fraudulent joinder where “a defendant raises a defense that 12 requires a searching inquiry into the merits of the plaintiff’s case, even if that defense, if 13 successful, would prove fatal.” Id. at 548–49 (citing Hunter, 582 F.3d at 1046). 14 III. DISCUSSION 15 Because Plaintiff does not contest that the requirements for diversity jurisdiction are met if 16 the Court dismisses her claims against Mr. Courts, the only question is whether Mr. Courts was 17 fraudulently joined. For the following reasons, this Court concludes that he was. 18 “In order to bring a civil action under FEHA, the aggrieved person must exhaust the 19 administrative remedies provided by law,” Yurick v. Sup. Ct., 257 Cal. Rptr. 665, 667 (Ct. App. 20 1989), as modified (May 18, 1989), which includes filing a verified complaint with the DFEH 21 within one year of the alleged unlawful employment discrimination and obtaining a notice from 22 DFEH of the right to sue, Cal. Gov. Code § 12960(c), (e). The statute has since been amended to 23 extend the time for filing a verified complaint with the DFEH to three years. Id. 24 Stryker argues that Plaintiff’s claims against Mr. Courts—the only non-diverse defendant 25 named in the complaint—were not properly exhausted because Plaintiff filed her verified 26 complaint with the DFEH against Mr. Courts on February 6, 2020, more than a year after the 27 alleged harassment ended in November 2018. See Docket No. 13 (“Opp’n”) at 3. 1 because she submitted an intake form with the DFEH on September 30, 2019, less than a year 2 after the alleged harassment ended in November 2018. See Mot. at 4–5. The problem with this 3 argument is that California law is clear that “[section 12960] does not authorize any alternative to 4 the requirement of the filing of a ‘verified complaint in writing.’” Cole v. Antelope Valley Union 5 High Sch. Dist., 55 Cal. Rptr. 2d 443, 449 (1996) (emphasis added) (quoting Cal. Gov. Code Sec. 6 12960(c). In Cole, the plaintiff submitted a detailed letter to the DFEH laying out his claims of 7 discrimination against his employer. Id. at 448. The California Court of Appeal held that was 8 insufficient to exhaust his claims because “it would not be practical to allow an employee to 9 substitute unverified information relayed to the DFEH in correspondence, or orally, for a formal 10 administrative charge. The requirement of a ‘verified complaint in writing’ ensures that all 11 interested parties are on notice as to the substance of the allegations.” Id. (emphases added). The 12 “verified” nature of the complaint is of utmost importance. 13 Relying on Cole, other courts—including the Ninth Circuit—have similarly held that a 14 plaintiff’s FEHA claims can be only be exhausted through the filing of a verified complaint, not 15 intake forms or other written communications with the DFEH. See Watson v. Chubb & Sons, Inc., 16 32 F. App’x 827, 828 (9th Cir. 2002) (unpublished) (“Watson did not file her disability 17 discrimination claim until fourteen months after she was terminated, although she timely filed her 18 race discrimination complaint. Filling out a pre-complaint questionnaire, alone, was insufficient 19 to exhaust her administrative remedies with respect to her disability claims.”); Rodriguez v. 20 Airborne Express, 265 F.3d 890, 897 (9th Cir. 2001) (“Rodriguez’s oral statements to the DFEH 21 intake officer . . . do not cure the legal defects in his charge . . . [because] a California court has 22 held that neither unverified written nor oral information relayed to DFEH may substitute for a 23 formal administrative charge.” (citations omitted)); Davenport v. Bd. of Trustees of State Ctr. 24 Cmty. Coll. Dist., 654 F. Supp. 2d 1073, 1089 (E.D. Cal. 2009) (“Neither unverified written 25 information nor oral information relayed to DFEH may substitute for a formal administrative 26 charge.”). Plaintiff does not cite a single authority to the contrary.1 27 1 Interestingly, and perhaps in response to Cole and its progeny, the California legislature 2 recently amended section 12960 to add subsection (b), which states that “[f]or purposes of this 3 section, filing a complaint means filing an intake form with the department and the operative date 4 of the verified complaint relates back to the filing of the intake form.” Cal. Gov. Code Sec. 5 12960(b) (emphases added). This amendment took effect on January 1, 2020, after the one-year 6 deadline for Plaintiff to file her verified complaint with the DFEH. Had the current version of 7 section 12960(b) been the law at the time she filed her intake form, Plaintiff’s claims against Mr. 8 Courts would have likely been properly exhausted. 9 Accordingly, Stryker has met its high burden of showing that Plaintiff’s claims against Mr. 10 Courts were never exhausted and therefore barred. Mr. Courts was thus fraudulently joined. 11 Without him, the remaining parties in this case are completely diverse since Plaintiff is a citizen of 12 California and Stryker is a citizen of Michigan, such that the exercise of diversity jurisdiction is 13 proper. 14 IV. CONCLUSION 15 Plaintiff’s motion to remand is DENIED, and Mr. Courts, as a fraudulently joined party, is 16 DISMISSED from this action. 17 This order disposes of Docket No. 12. 18 19 IT IS SO ORDERED. 20 21 Dated: August 26, 2021 22 23 ______________________________________ EDWARD M. CHEN 24 United States District Judge 25 26 27