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United States District Court, Northern District of California

January 13, 2003


The opinion of the court was delivered by: William Alsup, United States District Judge.



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.



As stated earlier, plaintiffs' motion to remand was denied without prejudice in an order dated October 28, 2002. The order gave plaintiffs a limited amount of time in which to refile any motion to remand: "If they choose, plaintiffs may file another motion for remand within two weeks from the filing of this order and must raise all ripe grounds for remand in that single motion (Order Denying Motion to Remand at 5). Plaintiffs filed this motion for remand on November 25, 2002 — two weeks after the two-week deadline had passed. Plaintiffs did not request an extension of such deadline. Nevertheless, because subject matter jurisdiction objections may be heard at any time, Miguel v. Country Funding Corp., 309 F.3d 1161, 1163-64 (9th Cir. 2002), and because of the strong presumption against the assumption of removal jurisdiction, the Court will entertain plaintiffs' motion. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).


The Ninth Circuit has set forth a general standard for fraudulent joinder. A defendant may remove a civil action that alleges claims against a non-diverse defendant when the plaintiff has no basis for suing that defendant. McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). "If the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state, the joinder of the resident defendant is fraudulent." Ibid. In such a case, the "fraudulently-joined" defendant is disregarded for diversity jurisdiction purposes and such a defendant is dismissed. Ibid. Defendant has the burden of establishing that removal is proper. Gaus, 980 F.2d at 566. Federal jurisdiction must be rejected if there is any doubt as to the right of removal. Ibid.

The Ninth Circuit has not provided more specific direction on the exact fraudulent-joinder standard. It is clear, however, that "the standard for establishing that a defendant has been fraudulently joined is rather high." Cont'l Ins. Co. v. Foss Maritime Co., 2002 WL 31414315, *5 (Oct. 23, 2002 N.D.Cal.) (Jenkins, J.). Strong presumptions lie against a finding of fraudulent joinder, and the removing defendant carries a heavy burden of persuasion to justify such a finding. Emrich v. Touch Ross & Co., 846 F.2d 1190, 1193, 1195 (9th Cir. 1988).

Some district courts in the Ninth Circuit have compared the test for fraudulent joinder to a Rule 12(b)(6) analysis, under which a claim is not dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief." McNamara-Blad v. Ass'n of Prof'l Flight Attendants, 275 F.3d 1165, 1169 (9th Cir. 2002); Sessions v. Chrysler Corp., 517 F.2d 759, 761 (9th Cir. 1975) (if the claims could withstand a dismissal motion under FRCP 12(b)(6), the joinder of claims is not fraudulent so as to warrant dismissal). Other courts have compared the test for fraudulent joinder to the analysis under FRCP 11. Davis v. Prentiss Props. Ltd., Inc., 66 F. Supp.2d 1112, 1114 (C.D.Cal. 1999) (by analogy to Rule 11, joinder is not fraudulent unless the claim is shown to be frivolous).

Courts in the northern district have articulated a standard referencing the "possibility" of a claim. A district court determining whether joinder was fraudulent examines whether there is any possibility that the plaintiff will be able to establish a cause of action against the party in question. Plute v. Roadway Package Sys., 141 F. Supp.2d 1005, 1008 (N.D.Cal. 2001). A defendant will be deemed to be fraudulently joined only if "after all disputed questions of fact and all ambiguities in the controlling state law are resolved in the plaintiffs favor, the plaintiff could not possibly recover against the party whose joinder is questioned." Soo v. United Parcel Servs., Inc., 73 F. Supp.2d 1126, 1128 (N.D.Cal. 1999) (citation omitted). "The standard is not whether plaintiffs will actually or even probably prevail on the merits, but whether there is any possibility that they may do so." Cont'l Ins. Co., 2002 WL 31414315, *6 (Oct. 23, 2002 N.D.Cal.).

In determining whether a non-diverse defendant has been improperly joined, federal courts in the Ninth Circuit may look beyond the pleadings and examine the factual record. McCabe, 811 F.2d at 1339. While the fraudulent joinder claims may be resolved by piercing the pleadings, Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1068 (9th Cir. 2001), "[w]hether or not a plaintiff may recover on the stated claims against the resident defendants does not include consideration of whether, with further discovery, the plaintiff may uncover a factual basis for its claims . . ." TPS Utilicom Servs., Inc. v. AT& TCorp., 223 F. Supp.2d 1089, 1102 (C.D.Cal. 2002).

Complete diversity requires that no defendant share citizenship with plaintiffs. 28 U.S.C. § 1332 (a). Consequently, if defendant fails to establish that any one non-diverse defendant was fraudulently joined, that proper non-diverse defendant destroys complete diversity and the case must be remanded. Sprint alleges that plaintiffs' deposition testimony establishes that all of the individual defendants were fraudulently joined. It maintains that none of the individual defendants may be held liable for sexual harassment or retaliation under California's Fair Employment and Housing Act.*fn1

Under FEHA, a supervising employee may be individually liable if he or she sexually harasses a subordinate. Cal. Gov't Code 12490(h)(1); Page v. Superior Court, 31 Cal.App.4th 1206 (3d Dist. 1995). Furthermore, non-harassing supervising employees may be personally liable for sexual harassment committed against a subordinate if they gave substantial assistance or encouragement to the harasser. Matthews v. Superior Court, 34 Cal.App.4th 598 (2d Dist. 1995). No individual supervisor liability may be imposed, however, for mere failures to investigate, prevent or take remedial action against harassment. Fiol v. Doellstedt, 50 Cal.App.4th 1318, 1326 (2d Dist. 1996). "A nonharassing supervisor who fails to take action on a sexual-harassment complaint by a subordinate has not engaged in personal conduct constituting harassment, but rather has made a personnel management decision which in retrospect may be considered to be inadequate or improper." Id. at 1330.


As defendants correctly note, Mr. Bordonaro cannot be held liable for merely preventing the alleged harassment by Mr. Marvel or for failing to discipline Mr. Marvel. Plaintiffs allege, however, that Mr. Bordonaro "aided and abetted" Mr. Marvel in engaging in harassment.

When Ms. Bellecci first informed Mr. Bordonaro of Mr. Marvel's behavior, Mr. Bordonaro acknowledged that this behavior was not an isolated incident and admitted he was aware that other women at Sprint had complained of Mr. Marvel's harassment. Plaintiffs allege Mr. Bordonaro abetted Mr. Marvel when he informed Ms. Bellecci that he had disciplined Mr. Marvel and reported the incident to Human Resources. Mr. Bordonaro lied. He allegedly did personally reprimanded Mr. Marvel but did not tell human resources. This fact is not contested. A reasonable jury could find that this was a cover-up.

Furthermore, a jury could find that both the cover-up itself and Mr. Bordonaro's behavior aided Mr. Marvel to further harass female employees. After Ms. Bellecci's complaint, Mr. Marvel went on to harass Ms. Fuller by showing her a photograph of Mr. Bordonaro's public hair and groin. A jury could infer that Mr. Bordonaro gave the photograph to Mr. Marvel or at least that he allowed it to be taken and shown in the workplace. Ms. Fuller informed Ms. Bellecci of the incident, who told Mr. Bordonaro what had happened. In response, Mr. Bordonaro brought Ms. Fuller into his office and "explained" the tattoo on his groin. Ms. Fuller found this conversation embarrassing and offensive. A jury might infer that Mr. Bordonaro had given Mr. Marvel the photograph and that he was further harassing Ms. Fuller by explaining his tattoo in response to her complaint about being shown the photograph.

Mr. Bordonaro's conduct does not appear to be an egregious example of a supervisor aiding another's harassment of employees. This order cannot say, however, that after resolving all disputed questions in plaintiffs' favor, the claims against Mr. Bordonaro have no possibility of merit or are patently frivolous.

Because this order finds that plaintiffs' joinder of individual non-diverse defendant Bordonaro was not fraudulent, the parties in this suit are not completely diverse. Accordingly, this case must be remanded to state court. Furthermore, this Court does not have jurisdiction to reach the merits of defendants' motion for summary judgment.


Because this order finds that defendants' removal based on fraudulent joinder was improper, plaintiffs' motion for remand is GRANTED. The Clerk shall CLOSE the file.


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