The opinion of the court was delivered by: Honorable Valerie Baker Fairbank, U.S. District Judge
Rita Sanchez None Present Courtroom Deputy Court Reporter ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:
None Present None Present PROCEEDINGS (IN CHAMBERS): COURT ORDER REGARDING ORDER TO SHOW CAUSE RE REMAND FOR LACK OF JURISDICTION (docket #10)
On March 6, 2009, the Court set an Order to Show Cause re Remand for Lack of Jurisdiction (docket #10). The Court has received, read and considered the following papers: Defendants' Notice of Removal (docket #1); Defendants' Briefing on Removal Jurisdiction (docket #12); and Plaintiff's Memorandum in Support of Remand and Request for Monetary Sanctions (docket #13). Pursuant to Rule 78 of the Federal Rule of Civil Procedure and Local Rule 7-15, the Court finds that this matter is appropriate for decision without oral argument. Accordingly, the hearing set for April 6, 2009 at 1:30 p.m. is vacated and the matter taken off
Plaintiff Martha Dagley ("Plaintiff") filed her complaint in state court on November 7, 2008 alleging numerous causes of action against an entity defendant, Target Corporation ("Target"), and an individual defendant, Joahana Hernandez ("Ms. Hernandez") (together "Defendants"). Ms. Hernandez is allegedly Plaintiff's personnel manager. Complaint ¶ 6. Plaintiff's asserts eight causes of action arising out of an alleged wrongful termination against Target. Of the eight causes of action against Target, Plaintiff also alleges two against Ms. Hernandez: (1) retaliation pursuant to Government Code § 12940(h), and (2) intentional infliction of emotional distress.
Defendants removed this case on February 25, 2009 on the grounds of diversity jurisdiction. Notice of Removal at 2:2-5 (docket #1). In their Notice of Removal, Defendants acknowledge that Ms. Hernandez is a non-diverse party, but they assert that she has been fraudulently joined in an effort to defeat diversity. Notice of Removal ¶ 10. On March 6, 2009, the Court set an Order to Show Cause Re Jurisdiction and ordered that on or before March 23, 2009, Defendants file and serve briefing on whether this Court has jurisdiction (docket #10). Plaintiff was ordered to serve a response to Defendants' briefing on or before March 30, 2009. TheParties have timely filed papers.
After considering the Parties' papers, the Court finds that it does not have diversity jurisdiction in this case because Defendants have not met their heavy burden of showing that Ms. Hernandez has been fraudulently joined. As the Court also does not have federal question jurisdiction, the Court does not have subject matter jurisdiction in this case. Therefore, the Court REMANDS this action to state court. The Court also DENIES Plaintiff's request for sanctions against Defendants.
A federal 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.
Plaintiff is a citizen of California. Target is a citizen of Minnesota. A corporation is a citizen of the state where it is incorporated and its principal place of business. Target is incorporated in Minnesota. Complaint ¶ 3. For the reasons set forth in Target's papers, Target's principal place of business is also in Minnesota. See Defendants' Briefing at 3-6 (docket #12).
Defendant Hernandez is a citizen of California, the same as Plaintiff. Although Defendants recognize that Ms. Hernandez is a citizen of California and would therefore destroy diversity, Defendants allege that Ms. Hernandez has been fraudulently joined, and that her citizenship should be ignored.
To prevail under the theory of fraudulent joinder, essentially "[t]he defendant must demonstrate that there is no possibility that the plaintiff will be able to establish a cause of in state court against the alleged sham defendant." Diaz v. Allstate Ins. Group, 185 F.R.D. 581, 586 (C.D. Cal. 1998) (internal quotation omitted). This is a "heavy burden." et al., CAL. PRAC. GUIDE: FED. CIV. PRO. BEFORE TRIAL, § 2:680 (The Rutter Group 2008). It is insufficient to demonstrate that Plaintiff is unlikely to prevail against the "sham" defendant. See Mielke v. ConocoPhillips, 2005 WL 1039075, at *1 (N.D. Cal. 2005) ("it is not for the Court to decide whether 'the plaintiff will actually or even probably prevail on the merits, but [rather to] look only for a possibility that he may do so'" (internal citations see also Schwarzer, et al., CAL. PRAC. GUIDE: FED. CIV. PRO. BEFORE TRIAL, § 2:686 (The Rutter Group 2008) ("Fraudulent joinder is not shown simply because the action is likely to be dismissed against that defendant.").
The primary issue presented is whether there is a possibility that Plaintiff will be able to establish at least one of her two causes of action in state court against Ms. Hernandez: (1) retaliation pursuant to Government Code § 12940(h), and/or (2) intentional infliction of emotional distress. As explained below, there is a possibility that Plaintiff will be able to establish a claim of intentional infliction of emotional distress against Ms. ...