United States District Court, C.D. California
Present: Honorable JOSEPHINE L. STATON, UNITED STATES
(IN CHAMBERS) ORDER DENYING PLAINTIFF’S MOTION
TO REMAND (DOC. 20)
JOSEPHINE L. STATON, UNITED STATES DISTRICT JUDGE
the Court is Plaintiff Peter Nguyen’s motion to remand
this matter to state court. (Mot., Doc. 20.) Defendant Durham
School Services, L.P. opposes the Motion. (Opp., Doc. 23.)
Nguyen replied. (Reply, Doc. 25.) The Court finds this matter
appropriate for decision without oral argument. See
Fed. R. Civ. P. 78(b); C.D. Cal. R. 7-15. Accordingly, the
hearing scheduled for June 17, 2016 at 2:30 p.m. is VACATED.
For the reasons stated below, the Court DENIES Nguyen’s
February 2010 through July 25, 2014, Nguyen was employed by
Durham as a mechanic performing maintenance and safety
inspections on buses. (Complaint ¶¶ 8, 23, Doc.
1-1.) Nguyen brought the instant action against Durham and
Defendant Jim Eslinger, who served as Nguyen’s direct
supervisor from January 17, 2014 until his termination.
(Id. ¶¶ 7, 10.) Nguyen alleges Durham
retaliated against him because of his “whistleblowing
action” and because he “engag[ed] in a protected
activity, ” namely, filing two complaint letters with
his supervisors. (Id. ¶¶ 7, 24, 92.)
Additionally, Nguyen asserts two causes of action - for
Intentional Infliction of Emotional Distress and Negligent
Infliction of Emotional Distress, respectively - against both
Durham and Eslinger. (Id. ¶¶ 96-103.) The
emotional distress is alleged to have resulted from the
aforementioned retaliation. (Id.)
Complaint asserts that he is a resident of Orange County,
California. (Id. ¶ 1.) Additionally, Durham is
alleged to be “a California corporation doing business
in the County of Orange[.]” (Id. ¶ 2.)
Finally, Nguyen states that Eslinger is a resident of Orange
County. (Id. ¶ 3.) Durham removed this action
on August 5, 2015 on grounds that the Court possesses
diversity jurisdiction. (Notice of Removal ¶ 9, Doc. 1.)
Contrary to the allegations in the Complaint, Durham denies
that it is a citizen of California and, instead, asserts that
it is a limited partnership consisting of two limited
liability companies organized under Delaware law.
(Id. ¶ 13.) Moreover, Durham contends, each of
these companies has only a single member, which is itself a
limited liability company organized in Delaware with its
principal place of business in Illinois.
(Id.) Although the parties do not dispute that
Eslinger is a resident of California, Durham contends
“his citizenship is irrelevant because he was
fraudulently joined to defeat jurisdiction[.]”
(Id. ¶ 15.) The instant Motion followed.
reviewing a notice of removal, “[i]t is to be presumed
that a cause lies outside the limited jurisdiction of the
federal courts and the burden of establishing the contrary
rests upon the party asserting jurisdiction.”
Hunter v. Philip Morris USA, 582 F.3d 1039, 1042
(9th Cir. 2009) (quoting Abrego v. Dow Chem. Co.,
443 F.3d 676, 684 (9th Cir. 2006) (quotation marks omitted)).
Courts “strictly construe the removal statute against
removal jurisdiction, ” and “the defendant always
has the burden of establishing that removal is proper.”
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.
federal court has diversity jurisdiction under 28 U.S.C.
§ 1332 if the amount in controversy exceeds $75, 000 and
the parties to the action are citizens of different states.
See 28 U.S.C. § 1332(a). Section 1332
“requires complete diversity of citizenship; each of
the plaintiffs must be a citizen of a different state than
each of the defendants.” Morris v.
Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir.
2001). Nevertheless, “one exception to the requirement
of complete diversity is where a non-diverse defendant has
been ‘fraudulently joined.’” Id.
“Joinder of a non-diverse defendant is deemed
fraudulent, and the defendant’s presence in the lawsuit
is ignored for purposes of determining diversity, ‘[i]f
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.’” Id.
(quoting McCabe v. General Foods Corp., 811 F.2d
1336, 1339 (9th Cir. 1987)).
crux of Nguyen’s argument is straightforward: the case
must be remanded “because [Defendant Eslinger] was a
California citizen at the time the action was filed, and the
action was removed from California state court in violation
of 28 U.S.C. § 1441(b).” (Mot. at 1.) Durham does
not challenge that Eslinger is a California resident. (Notice
of Removal ¶ 15.) Instead, Durham contends that
“Eslinger is, in fact, a sham defendant and his
citizenship should be ignored.” (Opp. at 1.) In part,
Durham supports this contention by arguing that
“Eslinger cannot be liable for [Nguyen’s] IIED or
NIED claims because these claims are preempted by the
California Workers’ Compensation Act
(“WCA”)[.]” (Opp. at 7.) Therefore, Durham
contends, Eslinger was fraudulently joined and his
citizenship does not defeat complete diversity.
relevant part, California Labor Code §§ 3600 and
3601 provide that “the right to recover [workers]
compensation . . . is . . . the exclusive remedy for injury
or death of an employee against any other employee of the
employer acting within the scope of his or her
employment[.]” Cal. Lab. Code §§ 3600-01.
That is, where “the alleged wrongful conduct . . .
occurred at the worksite, in the normal course of the
employer-employee relationship, ” then
“workers’ compensation is plaintiffs’
exclusive remedy for any injury that may have
resulted.” Miklosy v. Regents of Univ. of
Cal., 44 Cal.4th 876, 902 (2008) (citations omitted).
general rule, however, is subject to two exceptions: first,
where the employer’s conduct “contravenes public
policy, ” and, second, where an employer’s
conduct “exceeds the risks inherent in the employment
relationship.” Id. Here, the only claims
Nguyen asserts against Eslinger are for IIED and NIED.
(Complaint ¶¶ 96-103.) These claims purportedly
arise from Defendants’ “relentless retaliation
against Plaintiff.” (Id.) Defendants’
retaliation, in turn, was in response to both Nguyen’s
“whistle-blowing action” and to his workplace
complaints. (Id.) In short, Nguyen contends that
Durham and Eslinger retaliated against him for whistleblowing
and for submitting two complaint letters, and that this
retaliation caused him emotional distress. (See
generally Complaint, Doc. 1-1.)
California’s WCA is the “exclusive remedy for
injury or death of an employee against any other employee of
the employer acting within the scope of his or her
employment, ” Cal. Lab Code § 3601(a), Nguyen must
argue that his IIED and NIED causes of action against
Eslinger fall into one of the two aforementioned exceptions.
A careful review of California Supreme Court precedent,
however, makes clear that Nguyen’s claims are precluded
by California’s WCA. First, as to the “public
policy” exception, the California Supreme Court has
expressly limited its application to “common law claims
of wrongful termination in violation of public policy,
” also referred to as “Tameny
claims.” Miklosy, 44 Cal.4th at 898. Thus,
Nguyen cannot rely on the “public policy”
exception to save his claims for emotional ...