United States District Court, C.D. California
Present The Honorable MICHAEL W. FITZGERALD, U.S. District
(In Chambers): ORDER RE PLAINTIFF'S MOTION TO
REMAND ; DEFENDANT UNITED PARCEL SERVICE INC.'S
MOTION FOR JUDGMENT ON THE PLEADINGS 
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).
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.
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.
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.
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).
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).
Complaint followed in February 2017.
LEGAL STANDARD FOR REMAND
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)
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).
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