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Marquez v. United Parcel Service Co.

United States District Court, C.D. California

June 13, 2017

Manuel Marquez
United Parcel Service Co.,

          Present The Honorable MICHAEL W. FITZGERALD, U.S. District Judge



         Before the Court are two motions. First, Plaintiff filed a Motion to Remand on April 24, 2017. (“Motion to Remand” or “Plaintiff's Motion, ” Docket No. 11). Defendant United Parcel Service Inc. (“UPS”) filed an Opposition and Plaintiff filed a Reply. (Docket Nos. 14, 20). Second, Defendant UPS filed a Motion for Judgment on the Pleadings on May 15, 2017. (“Motion for Judgment on the Pleadings” or “UPS's Motion, ” Docket No. 15). Plaintiff filed an Opposition and UPS filed a Reply. (Docket Nos. 18, 21).

         For the reasons stated below, the Motion to Remand is GRANTED. Defendant Garcia was not “fraudulently joined” (used in the technical jurisdictional sense) because there is at least a possibility that Plaintiff can recover on the claims asserted against him. Even if Garcia's allegedly wrongful conduct constitutes “personnel management decisions” that are generally exempt from liability, Defendant UPS has failed to establish that such deficiencies cannot be cured by amending the Complaint. As a consequence, this Court lacks jurisdiction over the case and the Motion for Judgment on the Pleadings is DENIED as moot.

         I. BACKGROUND

         Plaintiff Manuel Marquez filed suit against Defendants UPS and Diego Garcia, an individual, on February 23, 2017. (Complaint, Docket No. 1-1). His Complaint alleges claims of discrimination, harassment, retaliation, and other violations of California civil rights and employment law.

         Plaintiff worked for UPS beginning in 2010 and was fired on August 26, 2016. (Id. ¶ 11). Plaintiff hurt his ankle in December 2015, triggering a series of events that ultimately led to his termination. (Id.). After Plaintiff took one week off work due to the effects of his injury, which had not occurred on the job, he returned to work. (Id. ¶ 12). He was then given a “write-up” for attendance issues related to the week he took off. (Id.). Plaintiff then took a medical leave of nearly four months between January 2016 and May 2016 due to “the stress and psychological injury that [he] experienced arising from his treatment at UPS.” (Id. ¶ 13). When he returned to work in May 2016, UPS “tried to fire [him] for attendance issues.” (Id. ¶ 14). Plaintiff filed a grievance and was allowed to keep his job.

         After his return to work in May 2016, Plaintiff alleges he was subjected to “significant harassment and retaliation by a UPS supervisor named Diego Garcia.” (Id. ¶ 15). The harassment included “derisive comments by Garcia about [Plaintiff's] work product, statement by Garcia that [Plaintiff] needed to hurry up when in fact [Plaintiff] was performing his job duties efficiently and productively, comments by Garcia to the effect of lets go when in fact [Plaintiff] was doing his job efficiently and productively . . . .” (Id. ¶ 15). In addition, Plaintiff alleges that Garcia would bring in food for other employees but not invite Plaintiff, that Garcia treated Plaintiff differently than other employees, and that Garcia once sent Plaintiff home early and then tried to write him up for leaving early without permission. (Id.). Later in the Complaint Plaintiff alleges that Garcia mocked Plaintiff's disability and suggested that Plaintiff was faking his disability. (Id. ¶ 38).

         Plaintiff also alleges that after he informed UPS about the hostile work environment, UPS did not sit down with Plaintiff to go over his claims. (Id. ¶ 16). Plaintiff was ultimately fired in August 2016 for attendance issues. (Id. ¶ 19).

         The Complaint followed in February 2017.


         As all parties recognize, the threshold requirement for removal under 28 U.S.C. § 1441 is a “finding that the complaint . . . is within the original jurisdiction of the district court.” Ansley v. Ameriquest Mortgage Co., 340 F.3d 858, 861 (9th Cir. 2003). In most circumstances, “federal district courts have jurisdiction over suits for more than $75, 000 where the citizenship of each plaintiff is different from that of each defendant.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009) (citing 28 U.S.C. § 1332(a)). A well-established exception to the complete-diversity rule is “‘where a non-diverse defendant has been ‘fraudulently joined.'” Id. (quoting Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001)). The joinder is considered fraudulent “[i]f the plaintiff fails to state a cause of action against the [non-diverse] defendant, and the failure is obvious according to the settled rules of the state . . . .” Hamilton Materials, Inc. v. Dow Chemical Co., 494 F.3d 1203, 1206 (9th Cir. 2007). Defendant must “prove that individuals joined in the action cannot be liable on any theory.” Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998)

         Because all doubts weigh against removal, a court determining whether joinder is fraudulent “must resolve all material ambiguities in state law in plaintiff's favor.” Macey v. Allstate Property and Cas. Ins. Co., 220 F.Supp.2d 1116, 1117 (N.D. Cal. 2002) (citing Good v. Prudential Ins. Co. of America, 5 F.Supp.2d 804, 807 (N.D. Cal. 1998)). “If there is a non-fanciful possibility that plaintiff can state a claim under [state] law against the non-diverse defendant[, ] the court must remand.” Id.; see also Good, 5 F.Supp.2d at 807 (“[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.”). Given this standard, “[t]here 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).

         Even when a pleading contains insufficient allegations to state a claim for relief against a non-diverse defendant, a remand is proper “where defendant fail[s] to show that plaintiff would not be granted leave to amend his complaint to cure the asserted deficiency by amendment.” Johnson v. Wells Fargo & Co., No. CV 14-06708 MMM JCX, 2014 WL 6475128, at *8 (C.D. Cal. Nov. 19, 2014) (quoting Padilla v. AT & T Corp., 697 F.Supp.2d 1156, 1159 (C.D. Cal. 2009)). “Consequently, if a defendant simply argues that plaintiff has not pled sufficient facts to state a claim, the heavy burden of showing fraudulent joinder has not been met.” Martinez v. Michaels, No. CV 15-02104 MMM (EX), 2015 WL 4337059, at *5 (C.D. Cal. July 15, 2015); see Birkhead v. Parker, No. C 12-2264 CW, 2012 WL 4902695 at *3 (N.D. Cal. Oct. 15, 2012) (“Even if these allegations do not rise to the level of outrageous ...

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