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Herrera v. Pepsi Bottling Group

October 29, 2010


The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge


Previously pending on this court's law and motion calendar for October 14, 2010, were plaintiff's motion to remand and for costs and fees, filed September 7, 2010, and defendants' motion to dismiss, filed September 16, 2010.*fn1 Kathryn Hardy appeared on behalf of plaintiff. M. Michael Cole represented defendants. Having heard oral argument and reviewed the filings, the court now issues the following order.


Plaintiff filed this suit against The Pepsi Bottling Group, Inc. ("PBG") and Dianna Conaway on April 16, 2010 in state court. Defendants removed the action to the Northern District of California on June 3, 2010. That court then transferred the action to this court on July 23, 2010. The complaint alleges that defendants, as plaintiff's employers, misclassified her job as an exempt, salaried employee and required her to work overtime without overtime pay in her positions as food service jobs representative from 2006 to 2008, and as key account manager from 2008 to the present.*fn2 (Compl. at ¶ 13.) As a result of being misclassified as "exempt" plaintiff did not receive full ten minute rest breaks or full 30 minute meal breaks. (Id. at ¶ 22.) Beginning in late September, 2009, plaintiff's supervisor, defendant Conaway, informed plaintiff that she could no longer take leave under the FMLA ("Family and Medical Leave Act") because of her daughter's medical needs. (Id. at ¶ 29.) Plaintiff alleges that defendant Conaway then began belittling plaintiff in front of other employees, and hired someone to transition plaintiff out of her job. (Id. at ¶¶ 33, 40.) Defendant Conaway also allegedly failed to return plaintiff's phone calls, and put plaintiff on a performance improvement plan. (Id. at ¶¶ 41, 42.) Other Pepsi employees also failed to return plaintiff's calls, and plaintiff learned that Pepsi was trying to get rid of her. (Id. at ¶ 48, 49.) As a result of the harassment and stress, plaintiff claims she was forced to resign. (Id. at ¶ 50.) The subject matter jurisdiction of the court is based upon diversity of citizenship, 28 U.S.C. § 1332.

Plaintiff's claims are for failure to pay overtime compensation (Cal. Lab. Code §§ 510, 1194 and IWC Wage Orders), failure to pay wages in violation of California Unfair Competition Law (Cal. Bus. & Prof. Code § 17200 et seq.), failure to pay final wages (Cal. Lab. Code §§ 201, 202), discrimination in violation of the California Family Rights Act ("CFRA") (Cal. Gov. Code § 12945.2(b)(2)), retaliation in violation of the CFRA, harassment in violation of the CFRA, and wrongful constructive discharge in violation of public policy. Plaintiff seeks money damages.


A. Plaintiff' Motion to Remand

Plaintiff filed this motion to remand, contending that the case was improperly removed to federal court on the basis of diversity jurisdiction. Plaintiff alleges that because defendant Conaway is a California resident, diversity does not exist.*fn3

Plaintiff's other argument in favor of remand is that Bottling Group ("BG") has not been properly joined as a defendant and may not raise these arguments because plaintiff served only defendant PBG.

Defendants' argument is that Conaway was fraudulently joined in order to avoid diversity jurisdiction, because she is only named in the sixth cause of action for harassment under the CFRA, a statute enacted under the general enforcement provisions of the Fair Employment and Housing Act which does not provide a cause of action for harassment. Moreover, they contend that there is no individual liability under these statutes. Defendants also assert that BG is the real party in interest and that plaintiff improperly named PBG which is no longer an active corporation.

A federal court must order remand if there is any defect which causes federal jurisdiction to fail, or if there is any defect in the removal procedure. 28 U.S.C. § 1447(c). Removal jurisdiction statutes are strictly construed against removal. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). "The burden of establishing federal jurisdiction falls on the party invoking removal." Harris v. Provident Life and Accident Ins. Co., 26 F.3d 930 (9th Cir.1994) (quoting Gould v. Mut. Life Ins. Co. of New York, 790 F.2d 769, 771 (9th Cir.1986)). Removal of a state court action is proper only if it originally could have been filed in federal court.

1. Proper Defendant

Plaintiff claims that at the time she filed her complaint defendant PBG was a registered California Corporation. (Pl.'s Mot., Ex. B.) According to plaintiff, defendants have not attempted to correct plaintiff regarding the entity sued, and BG does not have standing to remove this action.

Defendants explain that BG is a subsidiary of Pepsi-Cola Metropolitan Bottling Company which is the successor in interest to Pepsi Bottling Group, Inc. which no longer exists. Defendants have filed a Disclosure Statement and Certification as to Interested Parties, indicating that BG is the real ...

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