The opinion of the court was delivered by: S. James Otero United States District Judge
ORDER GRANTING PLAINTIFF'S MOTION FOR ORDER REMANDING CASE TO STATE COURT [Docket No. 13]
This matter is before the Court on Plaintiff Maria C. Martinez's Motion for Order Remanding Case to State Court, filed December 29, 2008. Defendants Rite Aid Corporation ("Rite Aid") and Brad Lohman, (collectively, "Defendants") filed an Opposition, to which Martinez replied. The Court found this matter suitable for disposition without oral argument and vacated the hearing set for January 26, 2009. See Fed. R. Civ. P. 78(b). For the following reasons, Plaintiff's Motion is GRANTED.
Martinez worked for Rite Aid as a pharmacy technician from 1983 to 2007, when Rite Aid terminated her employment. (Compl. ¶¶ 6, 20.) Beginning in 2003, Martinez allegedly experienced workplace harassment at Rite Aid. (Compl. ¶ 7.) Some of Martinez's allegations include Rite Aid denying her request of leave following a death in her family, harassment by managers such as inappropriate touching and remarks by manager Lohman, and write-ups for errors she allegedly did not make. (Compl. ¶¶ 7-19.)
In November 2008, Martinez, a California citizen, filed suit in state court alleging claims under California state law for wrongful termination against Rite Aid and intentional infliction of emotional distress against Defendants. Defendants removed the action to this Courton the basis of diversity jurisdiction pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. Rite Aid is incorporated in Delaware and has its principal place of business in Pennsylvania, while Lohman, like Martinez, is a California citizen. Defendants allege that diversity exists because Lohman was fraudulently joined. Martinez now moves to remand the case to state court based on a lack of complete diversity.
In considering whether removal is proper, the Court is informed by two basic principles.
First, the party seeking removal has the burden of establishing federal jurisdiction. Westinghouse Elec. Corp. v. Newman & Holtzinger, P.C., 992 F.2d 932, 934 (9th Cir.1993). Second, statutes authorizing removal are to be strictly construed, with all doubts resolved against removal and in favor of remand. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992). This presumption against removal is consistent with the notion that federal courts are courts of limited jurisdiction, possessing "only that power authorized by the Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994).
A district court has diversity jurisdiction over any civil action between citizens of different states where the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. A federal court may disregard a non-diverse party named in the state court action if the court determines that the non-diverse party's joinder is a "sham" or "fraudulent" so that no possible cause of action has been stated against that party. Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). Defendants claiming fraudulent joinder face a "heavy burden of demonstrating that there is no possibility that plaintiffs will be able to prevail on the merits of their claims in state court." Aaron v. Merck & Co., No. 05-4073, 2005 U.S. Dist. LEXIS 40745, at *8 (C.D. Cal. July 26, 2005). To meet this burden, a defendant must show that the plaintiff has failed to state a cause of action against the non-diverse defendant, and that the failure is obvious under settled state law. Morris, 236 F.3d at 1067.
"In assessing whether joinder is fraudulent, the court must resolve all disputed questions of fact, and all ambiguities in controlling state law, in favor of the non-removing party. All doubts concerning the sufficiency of a cause of action because of inartful, ambiguous, or technically defective pleading must also be resolved in favor of remand, and a lack of clear precedent supporting a claim will not render the joinder fraudulent." Berger v. Devereaux, No. 08-02318, 2008 U.S. Dist. LEXIS 51816, at *10 (C.D. Cal. June 6, 2008). Likewise, "a claim of fraudulent joinder should be denied if there is any possibility that the plaintiff may prevail on the cause of action against the in-state defendant. The standard is not whether plaintiffs will actually or even probably prevail on the merits, but whether there is a possibility that they may do so." Tanoh v. AMVAC Chem. Corp., No. 06-0738, 2008 U.S. Dist. LEXIS 102958, at *8-9 (C.D. Cal. Oct. 21, 2008).
In the instant action, Martinez alleges a claim of intentional infliction of emotional distress ("IIED") against Lohman. To prevail on this claim, Martinez must show "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." Christensen v. Superior Court, 54 Cal. 3d 868, 903 (1991). Martinez alleges a number of Lohman's actions as the basis of her IIED claim, including: (1) Lohman touched her inappropriately while shopping in a Rite Aid store; (2) when Lohman became Martinez's manger, he threatened her by saying he knew she was a problem and he was "going to take care of it; and (3) Lohman engaged in discriminatory, retaliatory, and harassing actions against Martinez because of her age and disability. (Compl. ¶¶ 13, 15, 31.)
While Defendants make strong arguments that Lohman's conduct does not rise to the level of extreme or outrageous within the meaning of an IIED claim, it still does not foreclose the possibility that she may prevail on the merits. "The standard is not whether plaintiffs will actually or even probably prevail on the merits, but whether there is a possibility that they may do so."
Tanoh,2008 U.S. Dist. LEXIS 102958, at *8-9. Accordingly, after resolving all disputed questions of fact and all ambiguities in the controlling state law in favor of the non-removing party, the Court finds that Defendants have not fulfilled their heavy burden of proving that Martinez has no possibility of prevailing on the merits ...