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Warren v. Mastec, Inc.

United States District Court, C.D. California

July 17, 2017

Anthony Warren
v.
MasTec, Inc.,

          Present: The Honorable PERCY ANDERSON, UNITED STATES DISTRICT JUDGE

          CIVIL MINUTES - GENERAL

         Proceedings: IN CHAMBERS - COURT ORDER

         Before the Court is a second Notice of Removal filed by defendants MasTec, Inc. and MasTec Network Solutions, Inc. (“Defendants”). (Docket No. 1 (“NOR II”).) Defendants assert that this Court has jurisdiction over the action brought against it by plaintiff Anthony Warren (“Plaintiff”) based on the Court's diversity jurisdiction, and assert that individual defendant Matt Bistline[1] (“Bistline”) was fraudulently joined. See 28 U.S.C. § 1332. Defendants previously filed a notice of removal on March 21, 2017. (NOR II, Ex. D, Ex. 1 (“NOR I”).) On March 28, 2017, the Court remanded for lack of subject matter jurisdiction.[2] (Warren v. MasTec, Inc., CV 17-2271 PA (SKx) (C.D. Cal. Mar. 28, 2017) (“Remand Order”).)

         I. Legal Standard

         Federal courts are courts of limited jurisdiction, having subject matter jurisdiction over only 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).

         II. Defendant Bistline Is Not Fraudulently Joined

         As in their March 21 notice of removal, Defendants assert that the citizenship of defendant Bistline, Plaintiff's former supervisor, should be ignored because Bistline was fraudulently joined as a defendant in this action. In attempting to invoke this Court's diversity jurisdiction, Defendants 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. The Ninth Circuit has recognized fraudulent joinder of a non-diverse defendant as an exception to the complete diversity requirement. 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, then that defendant's presence in the lawsuit is ignored for the purposes of determining diversity. See, e.g., Morris, 236 F.3d at 1067.

         “There 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 in-state 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, 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). “Fraudulent joinder claims may be resolved by ‘piercing the pleadings' and considering summary judgment-type evidence such as affidavits and deposition testimony.” Morris, 236 F.3d at 1068 (internal quotation marks omitted). “Nonetheless, piercing the pleadings is a strictly circumscribed inquiry limited to uncontroverted summary evidence which establishes unmistakably that a diversity-defeating defendant cannot possibly be liable to a plaintiff under applicable state law.” Celeste v. Merck, Sharp & Dohme Corp., No. 14cv360AJB (MDD), 2014 WL 2739025, at *3 (S.D. Cal. June 17, 2014) (internal quotation marks omitted). “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) (internal quotation marks and brackets omitted). Thus, 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) (internal quotation marks and brackets omitted).

         Plaintiff alleges a claim against Bistline for harassment on the basis of race or color in violation of the California Fair Employment Housing Act (“FEHA”). (Compl. ¶¶ 233-246.) Before a plaintiff may file a FEHA civil complaint, he must file an administrative complaint with the Department of Fair Employment and Housing (“DFEH”). Williams v. City of Belvedere, 72 Cal.App. 84, 90 (1999). The administrative complaint must be filed within one year of the unlawful conduct. See Cal. Gov't Code § 12960(b), (d). Timely filing of the administrative complaint is required to bring a civil action for damages under the FEHA. Williams, 72 Cal.App. at 90. Plaintiff filed his Administrative Complaint on August 18, 2016. (NOR II ¶ 30.) In his deposition on March 9, 2017, Plaintiff admitted that he most recently heard Bistline make a “racially inappropriate remark” on May 15, 2015, at the latest, i.e., more than one year before the Administrative Complaint was filed. (See NOR II, Groode Decl., Ex. A, 185.) Defendants previously argued that Plaintiff's claim against Bistline is barred because Plaintiff failed to timely exhaust administrative remedies, as he filed the Administrative Complaint more than one year after Bistline's last alleged unlawful act. (NOR I ¶¶ 27, 30.) The Court rejected this argument, explaining that it is possible that a California court would apply the continuing violation doctrine to toll the statute of limitations for the claim against Bistline as a result of harassment by other MasTec personnel during the statutory period.

         The continuing violation doctrine provides an exception to the one-year statutory deadline by allowing a plaintiff to bring claims under FEHA that occurred, in part, outside the limitations period. Id. at 802. Under California law,

[t]he continuing violation doctrine tolls the limitations period for filing a DFEH complaint if an employer engages in repetitive violations of an employee's FEHA rights and the employer's actions: (1) were “sufficiently similar in kind, ” (2) “occurred with sufficient frequency, ” and (3) did not “acquir[e] a degree of ‘permanence' so that employees [were] on notice that further efforts at informal conciliation with the employer to obtain accommodation or end harassment would be futile.”

Llamas v. Hanger Prosthetics & Orthotics, Inc., 2014 U.S. Dist. LEXIS 47068, at *5-6 (C.D. Cal. Apr. 1, 2014) (quoting Richards, 26 Cal.4th at 802; Acuna v. San Diego Gas & Elec. Co., 217 Cal.App.4th 1402, 1412-13 (2013)).

         As noted in the prior remand order, Plaintiff has alleged that Defendants also committed violations of FEHA, including harassment and discrimination based on race or color, as recently as September 3, 2015. (See Compl. ¶¶ 15, 163-232.) The claims against Defendants were undisputedly timely filed with the DFEH. Defendants now assert that no other MasTec personnel could have harassed Plaintiff within the statutory period, as

Plaintiff's own testimony demonstrates that his contacts with MasTec personnel from the commencement of his leave on May 15, 2015 until his last of day of employment on September 3, 2015 were few and were limited to discussions relating to his leave of absence and possible return to work. Further, Plaintiff has provided no testimony to indicate that MasTec personnel ...

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