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Meggs v. Nbcuniversal Media, LLC

United States District Court, C.D. California

July 12, 2017





         Plaintiff Camille Meggs moves to remand this case to California Superior Court for the County of Los Angeles, arguing that there is not complete diversity among the parties. (See generally Mot., ECF No. 16.) Defendants NBCUniversal Media, LLC (“NBCUniversal Media”) and NBC Subsidiary (KNBC-TV) LLC (“KNBC”) (collectively, the “NBC Defendants”) oppose the motion to remand on the ground that there is no legitimate basis for the joinder of non-diverse individual defendant Arutyan Adzhemyan. (See generally Opp'n, ECF No. 22.)

         For the reasons below, the Court GRANTS Meggs's Motion to Remand.


         This case involves alleged sexual harassment and battery of Meggs, an NBC employee, by Adzhemyan, a security guard at her place of employment, on January 19, 2017. (First Amended Complaint (“FAC”) ¶ 118.) On March 22, 2017, before filing the original complaint, Meggs contacted the NBC Defendants to request the identity of all security guards on duty on January 19, 2017, including the one who allegedly attacked Meggs, and any video footage of the incident. (Smith Decl. Ex. 2, ECF No. 16-3.) More than three weeks later, Meggs's counsel wrote an email to counsel for the NBC Defendants in which he recalled a recent phone conversation between both counsels. (Id. Ex. 2.) In the email, Meggs's counsel claims that counsel for the NBC Defendants told him on the phone that the NBC Defendants “were not inclined” to provide the requested information. (Id.)

         Meggs, a California citizen, commenced this action in Los Angeles Superior Court on April 18, 2017, against the NBC Defendants and Does 1-100. (Compl. Ex. 1, ECF No. 1-1) On or about April 24, 2017, Meggs's counsel learned from his own investigation that the security guard in question was possibly Adzhemyan but elected to wait until the initial round of discovery a week later to confirm. (Smith Decl. ¶ 5.) Around the same time, Meggs also independently learned his name by approaching Adzhemyan herself to see the name on his badge. (Chang Decl. ¶ 20, ECF No. 23.)

         On or about May 1, 2017, the first day allowed by California law, Meggs served discovery requests upon the NBC Defendants that included a request for the identity of the security guard involved in the incident on January 19, 2017, as well as any video footage. (Mot. 3.)

         On May 18, 2017, the NBC Defendants removed the action to this Court because there was uncontested complete diversity of citizenship between the parties and the jurisdictional minimum was met. (Mot. Ex. 6, ECF No. 16-3.) On or about May 23, 2017, the NBC Defendants advised Meggs that, pursuant to Fed.R.Civ.P. 26(d), now that the action was in federal court, the parties could not seek discovery from any source until they met and conferred as required by Fed.R.Civ.P. 26(f). (Chang Decl. ¶ 9, Ex. 4.) The NBC Defendants informed Meggs that the parties were under no obligation to respond to discovery requests made prior to removal until the completion of a Rule 26(f) conference. (Id.)

         Meggs filed her FAC on May 26, 2017, and added three defendants, including Adzhemyan, a California citizen. (See generally FAC, ECF No. 11.) At this point, Meggs had still not received confirmation of Adzhemyan's identity from the NBC Defendants. The NBC Defendants did not provide Meggs with any video footage of the alleged January 19, 2017, incident involving Meggs and Adzhemyan until June 7, 2017. (Chang Decl. ¶ 22, Ex. 9.)

         On June 7, 2017, Meggs's counsel wrote an email to NBC Defendants to inform them of the FAC filing and Meggs's position that remand was appropriate. (Chang Decl. ¶ 14, Ex. 6.) Meggs contends that this email satisfies the Local Rule 7-3 requirement that parties meet and confer before the filing of any motion. (Reply 1, ECF No. 31.) On May 31, 2017, the NBC Defendants advised Meggs that Adzhemyan is not an employee of the NBC Defendants but of a third-party security guard provider, Securitas Security Services USA, Inc. (“Securitas”). (Chang Decl. ¶ 18.)

         On June 5, 2017, Meggs filed the motion for remand, which is now before the Court for decision.[1]


         Federal 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). Federal courts have original jurisdiction where an action arises under federal law or where each plaintiff's citizenship is diverse from each defendant's citizenship and the amount in controversy exceeds $75, 000. 28 U.S.C. §§ 1331, 1332(a).

         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. Id. § 1441(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). Removal based on a court's diversity jurisdiction is proper despite the presence of a non-diverse defendant where that defendant is fraudulently joined or a sham defendant. See Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996).

         Defendants urging fraudulent joinder 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). “If 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, ” the joinder is considered fraudulent, and the party's citizenship is disregarded for purposes of diversity jurisdiction. Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007) (quoting McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987)). However, “[i]f there is a non-fanciful possibility that plaintiff can state a claim under [state] law against the non-diverse defendant[, ] the court must remand.” Hamilton Materials, 494 F.3d at 1206; see also Good v. Prudential Ins. Co. of Am., 5 F.Supp.2d 804, 807 (N.D. Cal. 1998) (“The 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).

         However, where a proposed amendment would add a non-diverse party after removal-thereby precluding existing diversity jurisdiction-there is greater discretion in determining whether to allow the amendment. 28 U.S.C. § 1447(e); see also Newcombe v. Adolf Coors Co., 157 F.3d 686, 691 (9th Cir.1998).[2] 28 U.S.C § 1447(e) provides: “[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.” Here, Meggs is not seeking leave to amend because she amended her complaint as a matter of right within the time proscribed by Federal Rule of Civil Procedure 15(a)(1). However, because Meggs added Adzhemyan as a non-diverse defendant in her FAC after removal, the Court will constructively use the “leave to amend” standard to assess whether the joinder was proper.

         Courts generally consider the following Palestini factors when deciding whether to allow an amendment that adds non-diverse defendants under 28 U.S.C. § 1447: (1) whether the new defendants should be joined under Fed.R.Civ.P. 19(a) as ‘needed for just adjudication'; (2) whether the statute of limitations would preclude an original action against the new defendants in state court; (3) whether there has been unexplained delay in requesting joinder; (4) whether joinder is intended solely to defeat federal jurisdiction; (5) whether the claims against the new defendant appear valid; and (6) whether denial of joinder will prejudice the plaintiff.” Calderon v. Lowe's Home Ctrs., LLC, No. 2:15-CV-01140-ODW-AGR, 2015 WL 3889289, at *3 (C.D. Cal. June 24, 2015) (citing Palestini v. Gen. Dynamics Corp., 193 F.R.D. 654, 658 (C.D. Cal. 2000)). “Any of these factors might prove decisive, and none is an absolutely necessary condition for joinder.Cruz v. Bank of N.Y.Mellon, No. 12- CV-00846-LHK, 2012 WL 2838957, at *4 (N.D. Cal. July 10, 2012) (internal quotation marks omitted).

         The consideration of the Palestini factors is only relevant for the purposes of determining whether joinder of a non-diverse defendant is proper. A denial of joinder under § 1447(e) does not constitute a final determination of the viability of a particular claim. Thus, it does not preclude a plaintiff from bringing a separate action against a non-diverse defendant in state court. See Newcombe, 157 F.3d at 691 (holding that the district court did not abuse its discretion by finding no prejudice to plaintiff because a parallel action against the non-diverse defendant could be brought in state court).

         IV. ...

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