The opinion of the court was delivered by: William Alsup, United States District Judge.
ORDER GRANTING PLAINTIFFS' MOTION FOR REMAND
Both plaintiffs' motion for remand and defendants' motion for summary judgment regard whether plaintiffs have a tenable claim against individual defendants Michael Bordonaro, Larry Doherty and Lisa Watson. Defendants removed this sexual harassment and retaliation case claiming the individual defendants were "sham" defendants who should be ignored for diversity-jurisdiction purposes. Plaintiffs bring this motion to remand arguing that Sprint has failed to carry its burden to show fraudulent removal and that plaintiffs have at least a colorable claim against the individual defendants for sexual harassment or retaliation. Simultaneously, the individual defendants move for summary judgment arguing that plaintiffs have no cognizable claim against them. This order holds that there is a possibility that plaintiffs could recover on their sexual-harassment claim against defendant Bordonaro. Accordingly, removal on the basis of fraudulent joinder was improper and the case will be REMANDED. This Court does not have jurisdiction to entertain defendants' motion for summary judgment.
Plaintiffs worked in the Sprint facility in Pleasanton, California. Nancy Bellecci was a Sprint employee and Natalie Fuller first was a Kelly temporary placement and subsequently was a permanent Sprint employee. This action arises from plaintiffs' allegations that a former Sprint employee, Patrick Marvel, separately showed each of them a pornographic photograph. Defendant Larry Doherty was Sprint's director of site development; Michael Bordonaro was a manager for site development; and Lisa Watson worked for the human resources department. Mr. Marvel was supervised by Mr. Bordonaro and the two were close friends.
Ms. Bellecci alleges that on August 17, 1999, Mr. Marvel showed her a pornographic photograph of his genitals (Comp. ¶ 20). Ms. Bellecci reported the incident to Mr. Bordonaro (Bellecci Dep. at 36-38). Mr. Bordonaro told Ms. Bellecci that he would report her complaint to the human resource department (Bellecci Decl. ¶ 15). In response, Mr. Bordonaro verbally reprimanded Mr. Marvel, issued a written notice that Mr. Marvel's conduct was unacceptable, and instructed Mr. Marvel to apologize in writing to Ms. Bellecci (id. ¶ 2; Bellecci Dep. at 47-48; 101, Exs. 4, 5, 7). Mr. Bordonaro later told Ms. Bellecci that he had reported the matter to the human resources department and that Mr. Marvel would be fired if there were another incident (Bellecci Decl. ¶ 16). Ms. Bellecci later learned that Mr. Bordonaro never reported Mr. Marvel's conduct to human resources (id. ¶ 27). Defendants do not contest this fact.
In December 1999, Mr. Marvel showed Ms. Fuller (at the time a temporary employee) a photograph of Mr. Bordonaro on a fishing trip, which depicted his pubic hair and showed a tatoo on his hip (Fuller Dep. at 46-50). Ms. Fuller informed Ms. Bellecci and Mr. Doherty, who was Ms. Fuller's supervisor at the time, about the incident. In turn, Ms. Bellecci reported the incident to Mr. Doherty and Mr. Bordonaro. Mr. Bordonaro called Ms. Fuller into his office to explain how he got the tattoo (id. at 32). Mr. Doherty interviewed Ms. Fuller about the incident on two or three occasions and reported the incident to Sprint's human resources department (id. at 64-65, 195-96; Doherty Decl. ¶ 2). Mr. Doherty and Lisa Watson then interviewed Ms. Bellecci about her incident with Mr. Marvel and scheduled the interviews of Mr. Marvel and other Sprint employees (Bellecci Dep. at 68-70, Ex. 3). On the day of his interview, Mr. Marvel resigned his employment with Sprint.
In February 2000, Sprint hired Ms. Fuller as a permanent employee (Fuller Dep. at 146-47). At about the same time, Ms. Bellecci resigned from Sprint to pursue a higher-paying job (Bellecci Dep. at 11-15). In August 2000, Ms. Bellecci filed a DFEH complaint and in December 2000, Ms. Fuller did the same (Doherty Decl. ¶ 4). In April 2001, Ms. Fuller was deemed voluntarily terminated after her physician failed to provide documentation for a disability leave of absence (Fuller Dep. at 72, 93, 98).
Plaintiffs filed this action in Alameda County Superior Court on December 12, 2001, against collective defendants Sprint, Kelly and Sprint employees Bordonaro, Doherty and Watson seeking damages for alleged sexual harassment and retaliation. Plaintiffs did not name Mr. Marvel as an individual defendant.
Sprint filed its answer on March 13, 2002, and immediately noticed plaintiffs'' depositions to take place the following month. Plaintiffs delayed the depositions and they were taken in July 2002. According to Sprint, during the depositions, plaintiffs revealed that they had not been sexually harassed by any of the individual defendants and could not articulate any basis for their retaliation claims against the individual defendants.
Following the depositions, Sprint filed its notice of removal on August 16, 2002, and Kelly Services joined in the removal motion. Spring charged that the individual defendants were "fraudulently joined for diversity and removal purposes" and requested that their presence be disregarded for the Court's jurisdictional analysis.
Plaintiffs filed a motion to remand on September 16, 2002, solely on the basis that defendants' removal notice was untimely. On October 28, 2002 plaintiffs' motion to remand was denied without prejudice. On November 25, plaintiffs filed this motion to remand on the ground that the individual nondiverse defendants were not fraudulently joined and therefore defeat diversity jurisdiction. Plaintiffs request remand to the Alameda County Superior Court. On December 5, defendants Brodonaro, Doherty and Watson moved for summary judgement, alleging plaintiffs cannot sustain their claims against the individual defendants. Both motions were noticed for hearing on January 9, 2003.