Rodriguez v. Wells Fargo Bank, N.A.

          ORDER GRANTING MOTION TO REMAND; DENYING REQUESTS FOR ATTORNEYS’ FEES AND SANCTIONS.

          THELTON E. HENDERSON United States District Judge

         Before 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.

         BACKGROUND

         Plaintiff 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. ¶ 5.

         The 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.

         Plaintiff filed this action in Alameda County Superior Court against Wells Fargo, ^[1]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).^[2]

         LEGAL STANDARD

         28 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.

         “The 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.

         Ordinarily, 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)).

         DISCUSSION

         I. Defendants Fail to Demonstrate that There Is No Possibility of Liability Against Defendant Nguyen Under FEHA

         The 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 (1999).

         Defendant 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 ...