United States District Court, C.D. California
ORDER REMANDING ACTION
D. WRIGHT, II UNITED STATES DISTRICT JUDGE.
Court has reviewed Defendants' Notice of Removal, and
hereby issues this sua sponte order remanding the
action for lack of subject matter jurisdiction. See
Mission Prop. Partners LLC v. Taylor, No. CV 13-08475
MMM PJWX, 2013 WL 6860711, at *1 (C.D. Cal. Dec. 30, 2013).
a disability discrimination lawsuit arising out of
Plaintiff's employment as a pharmacist at a CVS store.
Plaintiff alleges that CVS required him to take certain
training and safety modules but refused to pay him for that
time. (Compl. ¶ 10-11, ECF No. 1-3.) Plaintiff
complained to his supervisor, Douglas Jordan, about this
practice. (Id. ¶¶ 11-13.) Plaintiff
alleges that CVS and Jordan retaliated against him by writing
him up, and that Jordan “repeatedly harassed
[Plaintiff] by continually belittling [Plaintiff's]
abilities in a very demeaning way.” (Id.
¶¶ 15-16.) Plaintiff alleges that this harassment
caused him to seek medical attention, which eventually
resulted in a doctor diagnosing Plaintiff with a mental
disability. (Id. ¶¶ 18-19.) Plaintiff
informed CVS of this diagnosis and that he would need to take
time off, but CVS nonetheless scheduled him to appear at work
to respond to the allegations in the prior write-ups.
(Id.) When Plaintiff did not show up, CVS terminated
filed this action in state court, asserting fourteen causes
of action under state law. (ECF No. 1-3.) Defendants removed
the case to federal court based on diversity jurisdiction.
(Not. of Removal ¶ 1, ECF No. 1.) Defendants allege that
Plaintiff is a citizen of California, and that Defendants CVS
Pharmacy, Inc., CVS RX Services, Inc., and Garfield Beach
CVS, LLC are all citizens of states other than California.
(Id. ¶¶ 11-19.) Defendants argue that the
Court should ignore Jordan's citizenship for the purpose
of determining diversity, however, because he is a sham
defendant. (Id. ¶¶ 21-30.)
courts have subject matter jurisdiction only as authorized by
the Constitution and Congress. U.S. Const. art. III, §
2, cl. 1; see also Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). A suit filed in state
court may be removed to federal court only if the federal
court would have had original jurisdiction over the suit. 28
U.S.C. § 1441(a). Federal courts have original
jurisdiction where an action arises under federal law,
id. § 1331, or where each plaintiff's
citizenship is diverse from each defendant's citizenship
and the amount in controversy exceeds $75, 000, id.
§ 1332(a). The removal statute is strictly construed
against removal, and “[f]ederal jurisdiction must be
rejected if there is any doubt as to the right of removal in
the first instance.” Gaus v. Miles, Inc., 980
F.2d 564, 566 (9th Cir. 1992). The party seeking removal
bears the burden of establishing federal jurisdiction.
Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252
(9th Cir. 2006).
Supreme Court “ha[s] consistently interpreted §
1332 as requiring complete diversity: In a case with multiple
plaintiffs and multiple defendants, the presence in the
action of a single plaintiff from the same State as a single
defendant deprives the district court of original diversity
jurisdiction over the entire action.” Exxon Mobil
Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553
(2005). “An exception to the requirement of complete
diversity exists where it appears that a plaintiff has
fraudulently joined a ‘sham' non-diverse defendant.
. . . [A] non-diverse defendant is said to be fraudulently
joined where ‘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.'” Sanchez v. Lane Bryant, Inc., No.
215CV04247CASASX, 2015 WL 4943579, at *2 (C.D. Cal. Aug. 17,
2015) (quoting McCabe v. Gen. Foods Corp., 811 F.2d
1336, 1340 (9th Cir. 1987)); see also Padilla v. AT&T
Corp., 697 F.Supp.2d 1156, 1158 (C.D. Cal. 2009)
(“[A] non-diverse defendant is deemed a sham defendant
if . . . the plaintiff could not possibly recover against the
party whose joinder is questioned.”).
is a strong presumption against fraudulent joinder, and thus
“[f]raudulent joinder must be proven by clear and
convincing evidence.” Hamilton Materials, Inc. v.
Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007).
“Merely showing that an action is likely to be
dismissed against the alleged sham defendant does not
demonstrate fraudulent joinder. If there is any possibility
that the state law might impose liability on a resident
defendant under the circumstances alleged in the complaint,
or in a future amended complaint, the federal court cannot
find that joinder of the resident defendant was fraudulent,
and remand is necessary.” Revay v. Home Depot
U.S.A., Inc., No. 2:14-CV-03391-RSWL, 2015 WL 1285287,
at *3 (C.D. Cal. Mar. 19, 2015). Therefore, “the
standard for proving fraudulent joinder is more exacting than
that for dismissing a claim for failure to state a
claim.” IDS Prop. Cas. Ins. Co. v. Gambrell,
913 F.Supp.2d 748, 752 (D. Ariz. 2012).
argue that Plaintiff cannot state a claim against Jordan. The
only claim Plaintiff asserts against Jordan is for disability
harassment under the Fair Employment and Housing Act (FEHA).
Under FEHA, “[i]t is an unlawful employment practice .
. . [f]or an employer . . . because of . . . [a] mental
disability [or] medical condition . . . to harass an employee
. . . .” Cal. Gov't Code § 12940(j)(1).
“[A]n employee claiming harassment based upon a hostile
work environment must demonstrate that the conduct complained
of was severe enough or sufficiently pervasive to alter the
conditions of employment and create a work environment that
qualifies as hostile or abusive to employees.”
Miller v. Dep't of Corr., 36 Cal.4th 446, 462
(2005). “[A]cts of harassment cannot be occasional,
isolated, sporadic, or trivial, rather the plaintiff must
show a concerted pattern of harassment of a repeated, routine
or a generalized nature.” Fisher v. San Pedro
Peninsula Hosp., 214 Cal.App.3d 590, 610 (1989).
“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.” Cal.
Gov't Code § 12940(j)(2).
argue that none of the conduct that Plaintiff alleges against
Jordan constitutes severe or pervasive harassment, and thus
Jordan is a sham defendant. However, the fact that
Plaintiff's current iteration of the complaint may not
contain sufficient information to demonstrate severe or
pervasive harassment is not sufficient to invoke the sham
defendant doctrine, for Plaintiff could amend his complaint
to include such additional information. Defendants also argue
that Jordan is protected by the managerial privilege because
the conduct that Jordan allegedly engaged in does not rise to
the level of harassment. See Janken v. GM Hughes
Elecs., 46 Cal.App.4th 55, 63 (1996). Again, however,
even if that is so, this does not preclude Plaintiff from
amending the complaint to assert additional facts that would
rise to the level of harassment.
these reasons, the sham defendant doctrine is inapplicable to
Jordan. And because Defendants have not established that
Jordan's citizenship is diverse from Plaintiffs
citizenship, the Court lacks subject matter jurisdiction over
the action. Accordingly, the Court REMANDS this action to the