United States District Court, N.D. California
ORDER GRANTING MOTION TO REMAND; DENYING REQUESTS FOR
ATTORNEYS’ FEES AND SANCTIONS.
THELTON E. HENDERSON United States District Judge
the Court is Plaintiff’s Motion for Remand Plus Request
for Costs. Docket No. 8. Having carefully considered the
parties’ written arguments, the Court finds this matter
suitable for resolution without oral argument. See
Civil L.R. 7-1(b). For the reasons set forth below, the Court
hereby GRANTS Plaintiff’s motion to remand the case to
state court, but DENIES Plaintiff’s requests for
attorneys’ fees and sanctions.
Judyann Rodriguez (“Plaintiff”) worked for
Defendant Wells Fargo Bank, N.A. (“Wells Fargo”)
at its Emeryville branch from 2012 to her termination in
2014. Complaint, Ex. A to Removal Notice
(“Compl.”) ¶¶ 11, 17, 45 (Docket No.
1-1). Plaintiff alleges, inter alia, that Wells
Fargo was harassing, abusive, and retaliatory toward
Plaintiff because she reported illegal and unethical business
practices to the Wells Fargo ethics hotline, and because she
was pregnant. Compl. ¶¶ 2, 3. Plaintiff also
alleges that she was wrongfully terminated. Id.
instant motion focuses solely on the Eleventh Cause of Action
- the only claim asserted against Defendant Betty Nguyen -
which alleges harassment in violation of the Fair Employment
and Housing Act (“FEHA”). See id.
¶¶ 124-127. Plaintiff alleges that Defendant
Nguyen, who was the Emeryville Branch Manager and one of
Plaintiff’s supervisors, “repeatedly ignored or
denied Plaintiff’s request for time off related to her
pregnancy, ” including doctors’ appointments.
Id. ¶ 34. Plaintiff also alleges that she was
repeatedly denied “legally mandated meal and rest
breaks, ” beginning at same time she discovered she was
pregnant. Id. ¶ 35. Finally, Plaintiff alleges
that Defendant Nguyen “became rude and hostile towards
Plaintiff because of Plaintiff’s continuing plea for
pregnancy accommodations.” Id. ¶ 36.
filed this action in Alameda County Superior Court against
Wells Fargo, Betty Nguyen, and Doe Defendants 1-20 on
February 25, 2016. See id. at 1. Defendants removed
the case to this Court on May 13, 2016. Docket No. 1.
Plaintiff filed the instant motion to remand on June 10,
2016. Defendants opposed (Docket No. 20), and Plaintiff
replied (Docket No. 21).
U.S.C. § 1332(a) provides for federal court jurisdiction
based on diversity of citizenship. “Although an action
may be removed to federal court only where there is complete
diversity of citizenship, . . . one exception to the
requirement for complete diversity is where a non-diverse
defendant has been ‘fraudulently joined.’ ”
Hunter v. Philip Morris USA, 582 F.3d 1039, 1043
(9th Cir. 2009) (quoting Morris v. Princess Cruises,
Inc., 236 F.3d 1061, 1067 (9th Cir. 2001) (internal
citations and quotation marks omitted). Fraudulent joinder is
a “term of art.” McCabe v. Gen. Foods
Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). The joinder
of a non-diverse defendant is deemed fraudulent “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.” Morris, 236 F.3d
at 1067 (internal marks and citation omitted). In such cases,
a court may ignore the presence of the non-diverse defendant
for purposes of determining diversity. Id.
party seeking removal bears a heavy burden of proving that
the joinder of the in-state party was improper.”
Hunter, 582 F.3d at 1044 (internal marks and
citations omitted). This “strong presumption against
removal jurisdiction means that . . . the court resolves all
ambiguity in favor of remand to state court.”
Id. at 1042 (internal quotation marks and citation
omitted). “[I]f there is any possibility that the state
law might impose liability on a resident defendant under the
circumstances alleged in the complaint, the federal court
cannot find that joinder of the resident defendant was
fraudulent, and remand is necessary.” Florence v.
Crescent Res., LLC, 484 F.3d 1293, 1299 (11th Cir.
2007), quoted in Hunter, 582 F.3d at 1044.
courts do not consider defenses on the merits of a claim in
determining whether joinder was fraudulent. Hunter,
582 F.3d at 1045; Ritchey v. Upjohn Drug Co., 139
F.3d 1313, 1319 (9th Cir. 1998). “ ‘[A] summary
inquiry is appropriate only to identify the presence of
discrete and undisputed facts that would preclude
plaintiff’s recovery against the in-state defendant . .
. the inability to make the requisite decision in a summary
manner itself points to an inability of the removing party to
carry its burden.’ ” Hunter, 582 F.3d at
1044 (quoting Smallwood v. Ill. Cent. R.R. Co., 385
F.3d 568, 573-74 (5th Cir. 2004) (en banc)).
Defendants Fail to Demonstrate that There Is No Possibility
of Liability Against Defendant Nguyen Under
Eleventh Cause of Action is a FEHA harassment claim;
therefore it is properly pleaded against an individual
defendant. See Cal. Gov’t Code §
12940(j)(3) (“An employee of an entity subject to this
subdivision is personally liable for any harassment
prohibited by this section that is perpetrated by the
employee . . . .”). To establish harassment under the
FEHA, a plaintiff must show that he is a member of a
protected group, was subjected to harassment because he
belonged to this group, and that the alleged harassment was
so severe it created a hostile work environment. Aguilar
v. Avis Rent A Car Sys., Inc., 21 Cal.4th 121, 130
Nguyen is the single non-diverse defendant in this case.
Defendants removed the case to federal court, arguing that
Defendant Nguyen’s joinder was fraudulent. See
Notice of Removal ¶¶ 9-11. Whether the inclusion of
Defendant Nguyen in Plaintiff’s state court complaint
constituted fraudulent joinder turns upon whether Plaintiff
has failed to state a claim against Defendant Nguyen, and
whether that failure is obvious under settled state law.
See McCabe, 811 F.2d at 1339. Defendants argue that
Plaintiff’s Eleventh Cause of Action for harassment in
violation of FEHA ...