United States District Court, C.D. California
Present: The Honorable PERCY ANDERSON, UNITED STATES DISTRICT
CIVIL MINUTES - GENERAL
IN CHAMBERS - COURT ORDER
the Court is a Notice of Removal filed by defendant Securitas
Security Services USA, Inc. (“Securitas”) on May
9, 2017. (Docket No. 1 (“NOR”).) Securitas
asserts that the Court has diversity jurisdiction over this
California Fair Employment and Housing Act (FEHA) sexual
harassment action, brought by plaintiff Yohana Montanez
(“Plaintiff”) against defendants Securitas,
Plaintiff's former employer; Keeshan Williams,
Plaintiff's former supervisor; and John Hicks,
Plaintiff's former co-worker. See 28 U.S.C.
courts are courts of limited jurisdiction, having subject
matter jurisdiction only over those matters authorized by the
Constitution and Congress. See, e.g., Kokkonen
v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct.
1673, 128 L.Ed.2d 391 (1994). A suit filed in state court may
be removed to federal court if the federal court would have
had original jurisdiction over the suit. 28 U.S.C. §
1441(a). A removed action must be remanded to state court if
the federal court lacks subject matter jurisdiction. 28
U.S.C. § 1447(c). “The burden of establishing
federal jurisdiction is on the party seeking removal, and the
removal statute is strictly construed against removal
jurisdiction.” Prize Frize, Inc. v. Matrix (U.S.)
Inc., 167 F.3d 1261, 1265 (9th Cir. 1999).
“Federal 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).
invoke this Court's diversity jurisdiction, Securitas
must prove that there is complete diversity of citizenship
between the parties and that the amount in controversy
exceeds $75, 000. 28 U.S.C. § 1332. A natural person
must be a citizen of the United States and be domiciled in a
state to establish “state citizenship” for
diversity purposes. Kantor v. Wellesley Galleries,
Ltd., 704 F.2d 1088, 1090 (9th Cir. 1983). A person is
domiciled in the place he resides with the intent to remain
or to which he intends to return. See Kanter v.
Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001).
“A person residing in a given state is not necessarily
domiciled there, and thus is not necessarily a citizen of
that state.” Id. “Absent unusual
circumstances, a party seeking to invoke diversity
jurisdiction should be able to allege affirmatively the
actual citizenship of the relevant parties.”
Securitas's Notice of Removal alleges:
Plaintiff is, and was at the time of filing her Complaint, a
citizen of the State of California. In the Complaint of
Discrimination that Plaintiff submitted to the DFEH on August
12, 2016, she alleges that she resides in the ‘City of
Baldwin Park, State of California.' See Exh. 9.
In the amended Complaint of Discrimination that Plaintiff
submitted to the DFEH on April 14, 2017, she alleges again
that she resides in the City of Baldwin Park, State of
California.' See id.
(NOR ¶ 13.) Thus, Securitas appears to rely on
Plaintiff's allegations of residence to attempt to
establish her citizenship. Because an individual is not
necessarily domiciled where she resides, Securitas's
allegation of Plaintiff's citizenship, relying solely on
residence, is insufficient to establish that she is a
California citizen or the existence of complete diversity.
See Kanter, 265 F.3d at 857.
addition, the Notice of Removal fails to allege the
citizenship of Hicks. (See NOR ¶ 16.) Instead,
Securitas urges the Court to disregard his citizenship
because he is fraudulently joined. (Id. ¶ 17.)
The Ninth Circuit has recognized an exception to the complete
diversity requirement where a non-diverse defendant has been
“fraudulently joined.” Morris v. Princess
Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). If a
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, the joinder of the resident
defendant is fraudulent.” McCabe v. Gen. Foods
Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). If the Court
finds that the joinder of a non-diverse defendant is
fraudulent, that defendant's presence in the lawsuit is
ignored for the purposes of determining diversity. See,
e.g., Morris, 236 F.3d at 1067.
is a presumption against finding fraudulent joinder, and
defendants who assert that plaintiff has fraudulently joined
a party carry a heavy burden of persuasion.” Plute
v. Roadway Package Sys., Inc., 141 F.Supp.2d 1005, 1008
(N.D. Cal. 2001). A claim of fraudulent joinder should be
denied if there is any possibility that the plaintiff may
prevail on the cause of action against the allegedly
fraudulently joined defendant. See id. at 1008,
1012. “The standard is not whether plaintiffs will
actually or even probably prevail on the merits, but whether
there is a possibility that they may do so.”
Lieberman v. Meshkin, Mazandarani, No. C-96-3344 SI,
1996 WL 732506, at *3 (N.D. Cal. Dec. 11, 1996); see also
Good v. Prudential Ins. Co. of Am., 5 F.Supp.2d 804, 807
(N.D. Cal. 1998) (“[T]he defendant must demonstrate
that there is no possibility that the plaintiff will be able
to establish a cause of action in State court against the
alleged sham defendant.”). “In determining
whether a defendant was joined fraudulently, the court must
resolve ‘all disputed questions of fact and all
ambiguities in the controlling state law in favor of the
non-removing party.'” Plute, 141 F.Supp.2d
at 1008 (quoting Dodson v. Spiliada, 951 F.2d 40,
42-43 (5th Cir. 1992)). A court should remand a case
“unless the defendant shows that the plaintiff
‘would not be afforded leave to amend his complaint to
cure [the] purported deficiency.'” Padilla v.
AT&T Corp., 697 F.Supp.2d 1156, 1159 (C.D. Cal.
2009) (quoting Burris v. AT&T Wireless, Inc.,
No. C 06-02904 JSW, 2006 WL 2038040, at *2 (N.D. Cal. July
19, 2006)). If there is “a non-fanciful possibility
that plaintiff can state a claim under [state] law against
the non-diverse defendants[, ] the court must remand.”
Mireles v. Wells Fargo Bank, N.A., 845 F.Supp.2d
1034, 1062 (C.D. Cal. 2012) (brackets in Mireles)
(quoting Macey v. Allstate Property & Cas. Ins.
Co., 220 F.Supp.2d 1116, 1117 (N.D. Cal. 2002)).
argues that Plaintiff cannot state a claim against Hicks
because Plaintiff failed to timely exhaust administrative
remedies against him. (NOR ¶ 17.) California law
requires exhaustion of FEHA administrative remedies prior to
bringing FEHA claims in a civil action. Chavira v.
Payless Shoe Source, 140 F.R.D. 441, 443 (E.D. Cal.
1991) (citing Rojo v. Kliger, 52 Cal.3d 65 (1990)).
Under FEHA, an administrative complaint must be filed with
the Department of Fair Employment and Housing (DFEH) within
one year of the allegedly discriminatory conduct. Cal. Gov.
Code. § 12960(d).
filed her original DFEH administrative complaint in August
2016. (NOR, Exh. 9.) That complaint did not mention Hicks by
name. (See id.) Plaintiff amended the DFEH complaint
in April 2017, adding Hicks as a respondent. (Id.)
Hicks had stopped working at the same site as Plaintiff and
resigned from his position at Securitas more than one year
before that amendment. (NOR ¶ 18 (citing Docket No. 7,
Carson Decl. ¶¶ 5-6).) Thus, according to the
Notice of Removal, Hicks's conduct alleged in the
amendment could not have occurred within the one year
preceding the amendment, and Plaintiff's pursuit of her
administrative claim against Hicks was untimely. (NOR ¶
18 (citing Ortiz v. Sodexho, Inc., Case No.
10-CV-2224 JLS (RBB), 2011 U.S. Dist. LEXIS 81065, at *13
(S.D. Cal. July 26, 2011).)
appellate courts have concluded that “what is submitted
to the DFEH must not only be construed liberally in favor of
plaintiff, it must be construed in light of what might be
uncovered by a reasonable investigation.” See Nazir
v. United Airlines, Inc., 178 Cal.App.4th 243, 268
(2009) (citing Baker v. Children's Hosp. Med.
Ctr., 209 Cal.App.3d 1057 (1989)). In accordance with
this standard, some courts have determined that “a suit
may be brought against a party not named in the [DFEH]
charge, if the party's involvement was likely to have
been revealed in the course of the administrative process,
” and he was on notice of the charge. See,
e.g., Chavira, 140 F.R.D. at 445; Corkill
v. Preferred Emp'rs Grp. LLC, Case No. 11cv505 - IEG
(WMC), 2011 U.S. Dist. LEXIS 136511, at *26 (S.D. Cal. Nov.
28, 2011); see also Saavedra v. Orange Cnty. Consol.
Transp. etc. Agency, 11 Cal.App.4th 824, 827 (1992)
(action against defendant who was described in the
administrative complaint, but not named in that complaint,
was not barred). But see Cole v. Antelope Valley Union
High Sch. Dist., 47 Cal.App.4th 1505, 1515 (1996)
(“In order to bring a civil lawsuit under the FEHA, the
defendants must have been named in the caption or body of the
all ambiguities of state law in favor of Plaintiff, a state
court would consider whether a reasonable administrative
investigation might have uncovered Hicks's alleged
conduct, and whether he was on notice of the charge, to
determine whether Plaintiff's claim is time-barred.
Securitas has not argued or presented evidence that
Hicks's conduct alleged in the Complaint would not likely
have been uncovered during the administrative process nor
that Hicks was not on notice of the claims. Therefore,