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Bird v. Wells Fargo Bank, N.A.

United States District Court, E.D. California

June 27, 2017

KIMBERLY SUE BIRD, an individual, Plaintiffs,
v.
WELLS FARGO BANK, N.A.; and DOES 1-20, inclusive, Defendants.

          ORDER DENYING JOINDER OF WELLS FARGO & COMPANY BUT GRANTING MOTION TO AMEND IN PART (DOC NO. 9)

         On March 4, 2016, plaintiff Kimberly Sue Bird filed this action in the Fresno County Superior Court against defendant “Wells Fargo Bank, a California corporation” alleging state law claims for: (1) age discrimination under Government Code § 12941; (2) sex/gender discrimination under Government Code § 12940; and (3) breach of employment contract under Labor Code §§ 202, 203 and IWW § 20 for failure to pay wages due and owing upon termination of employment. (Doc. No. 1-1.) On August 1, 2016, defendant removed the case to this court on the basis of diversity jurisdiction under 28 U.S.C. § 1332(a). (Doc. No. 1.)

         On December 1, 2016, plaintiff moved for leave to amend her complaint in order,

to correct the name of the original Defendant to ‘Wells Fargo & Company, a California corporation' and to add Wells Fargo Bank, N.A. as plaintiff's joint employer. Plaintiff also intends to clarify her claims for unpaid commissions by alleging these claims in a separate cause of action.

(Doc. No. 9 at 2.) Wells Fargo Bank, N.A. opposed plaintiff's motion seeking leave to amend on the grounds that: (1) Wells Fargo Bank, N.A., and not Wells Fargo & Company, has been the named defendant in this action from the outset; (2) plaintiff seeks to add Wells Fargo & Company as a defendant in this action now only to destroy diversity jurisdiction; (3) Wells Fargo Bank, N.A. and Wells Fargo & Company are not joint employers and plaintiff is unable to state a claim against Wells Fargo & Company; and (4) adding a new cause of action under Labor Code § 203 is untimely and would unduly prejudice defendant. (Doc. No. 3.) Plaintiff has replied that Wells Fargo Bank, N.A.'s argument is based upon the false premise that Wells Fargo Bank, N.A. is diverse from plaintiff - a California citizen.[1] (Doc. No. 11 at 2.) Plaintiff further argued that Wells Fargo Bank, N.A. cannot demonstrate that Wells Fargo & Company is not a plaintiff's joint employer and leave to amend should not be denied on that basis. (Id.)

         On January 17, 2017, the court heard oral arguments on the pending motion. (Doc. No. 15.) Attorney Daniel Cravens appeared on behalf of plaintiff and attorney Hilary Habib appeared telephonically on behalf of Wells Fargo Bank, N.A. (Id.) For the reasons set forth below, the court finds that Wells Fargo Bank, N.A. is the proper named defendant in this action, denies plaintiff's motion for leave to amend to the extent she seeks to add Wells Fargo & Company as a defendant, and grants the motion for leave to amend insofar as it seeks to add a new cause of action under Labor Code §§ 200-203.

         Analysis

         A. Named Defendant

         The parties dispute the identity of the operative defendant in this action. Plaintiff concedes that defendant, “Wells Fargo Bank, a California Corporation, ” which she originally named as the defendant does not exist, but asserts that she intended to sue Wells Fargo & Company, a California corporation. (Doc. No. 11 at 1.) The complaint plaintiff filed in this action lists “WELLS FARGO BANK, a California corporation” as the named defendant. (Doc. No. 1-1 at 2.) The original complaint further alleges “Defendant, WELLS FARGO BANK, is a corporation Incorporated in and doing business in the state of California and in the County of Fresno.” (Id.) Plaintiff served the original complaint on “Wells Fargo Bank, California Corporation” on July 5, 2016 at Savanna Cordero/CSC-Lawyers Incorporating Service - Agent for Service at 2710 Gateway Oaks Dr. STE 150N, Sacramento, CA 95833, which is the registered agent for purposes of service of process for both Wells Fargo & Company and Wells Fargo Bank, N.A. (Doc. No. 9-1 at 2, 36.)

         Wells Fargo Bank, N.A., “erroneously sued as Wells Fargo Bank” answered plaintiff's complaint “for itself and no other parties.” (Doc. No. 9-1 at 28.) Plaintiff then filed in the Fresno County Superior Court a proof of service of her attorney's notice of substitution, listing Wells Fargo Bank, N.A. as the defendant in this action. (Doc. No. 10-2 at 2 and 10-3 at 2.) Attorney Hilary Habib, counsel for Wells Fargo Bank, N.A., has filed a declaration with this court stating that in a meet and confer discussions, plaintiff's counsel Daniel J. Cravens “made clear that he intended to sue WFB and agreed that if Plaintiff amended the complaint she would add the National Association (‘N.A.') suffix to clarify that ‘Wells Fargo Bank, N.A.' is correctly identified as the proper defendant.” (Doc. No. 10-2 at 2.) Subsequently, in the joint Rule 26(f) report, filed with this court on October 6, 2016, the parties stated that, in seeking leave to amend, “Plaintiff will also substitute WELLS FARGO BANK, N.A. for WELLS FARGO BANK as the proper defendant in this action.” (Doc. No. 6 at 3.) However, plaintiff did not do as indicated in the joint Rule 26(f) report, but instead moved this court for an order granting leave to amend “to correct the name of the original Defendant to ‘Wells Fargo & Company, a California corporation' and to add Wells Fargo Bank, N.A. as Plaintiff's joint employer.” (Doc. No. 9 at 2.)

         It thus appears that plaintiff mistakenly sued a non-existent entity, which she thought was both a citizen of California and her former employer. Thereafter, Wells Fargo Bank, N.A. responded to the complaint, making an appearance in this action that plaintiff did not initially dispute, perhaps unaware of the distinction between Wells Fargo Bank, N.A. and Wells Fargo & Company. “[E]ven if an improper defendant is indicated in the caption, [the court] may consider a complaint to have named the proper defendant ‘if the allegations made in the body of the complaint make it plain that the party is intended as a defendant.'” Barsten v. Dep't of the Interior, 896 F.2d 422, 423 (9th Cir. 1989) (quoting Rice v. Hamilton Air Force Base Commissary, 720 F.2d 1082, 1085 (9th Cir. 1983)) (reversing district court's conclusion that it lacked subject matter jurisdiction over a claim on the ground that plaintiff had listed an improper defendant in the caption but the body of the complaint made clear that plaintiff attempted and intended to sue a proper defendant).

         Here, plaintiff's original complaint makes it clear that plaintiff intended to sue the entity that employed her from approximately 2010 through May 6, 2015. (Doc. No. 1-1 at 2.) It also appears clear that Wells Fargo Bank, N.A. was plaintiff's employer during this time period and is therefore the proper defendant in the action. With its opposition to plaintiff's motion to amend, Wells Fargo Bank, N.A. has included the declaration of Margaret Mullen, an employee relations senior manager for Wells Fargo Bank, N.A. (Doc. No. 10-6.) In that declaration, Ms. Mullen states that “[u]pon review of Ms. Bird's personnel records, I can confirm that Ms. Bird was employed by Wells Fargo Bank, N.A. during her entire employment, from September 27, 2010 to May 5, 2014.” (Id. at 2.)[2] Attached as an exhibit to this declaration are plaintiff's IRS W-2 forms from 2010 to 2014, all of which reflect that Wells Fargo Bank, N.A. was plaintiff's employer. (Doc. No. 10-7.) In light of Ms. Mullen's declaration and plaintiff's W-2 forms, the court finds that Wells Fargo Bank, N.A. was at least plaintiff's primary employer and is the real party in interest defendant in the action. See Rodriguez v. Wells Fargo Bank, N.A., No. 16-cv-02592-TEH, 2016 WL 3912539, at *1 n.1 (N.D. Cal. July 20, 2016) (“Defendants contend - and the Court agrees - that the proper Wells Fargo defendant is Wells Fargo Bank, N.A., as opposed to its parent company Wells Fargo & Co., which Plaintiff named in her state court complaint.”).

         B. Joinder

         The issue remains whether the court should allow plaintiff to now amend her complaint to join Wells Fargo & Company as a defendant in this action. Wells Fargo Bank, N.A. argues that the only reason plaintiff seeks to name Wells Fargo & Company, a citizen of California, as a defendant is to destroy diversity jurisdiction and that joinder should accordingly be denied under 28 U.S.C. § 1447(e). (Doc. No. 10 at 6, 10.)

         Pursuant to the removal statute, “[i]f after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.” 28 U.S.C. § 1447(e). When making a determination of whether joinder should be permitted or denied, district courts have considered the following factors:

1. Whether the party sought to be joined is needed for just adjudication and would be joined under Fed.R.Civ.P. 19(a);
2. Whether the statute of limitations would prevent the filing of a new action against the new defendant should the court deny joinder;
3. Whether there has been unexplained delay in seeking the joinder;
4. Whether the joinder is solely for the purpose of defeating federal jurisdiction;
5. Whether the claim against the new party seems valid;
6. The possible prejudice that may result to any of the parties in ...

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