United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S
MOTION TO REMAND AND GRANTING DEFENDANT'S MOTION TO
DISMISS (ECF NOS. 6, 9)
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
case concerns claims brought by Patrick Hall
(“Hall”) and Carlos Cantu (“Cantu”)
against Kraft Heinz Food Company (LLC) (“Kraft”),
Matt Nino (“Nino”), and Does 1 through 50. This
case was originally filed in Tulare County Superior Court on
March 26, 2019. ECF No. 1-1, Ex. A. On May 1, 2019, Defendant
Kraft filed a notice of removal to this court. ECF No. 1. On
May 8, 2019, Defendant Nino filed a motion to dismiss. ECF
No. 6. On May 27, 2019, Plaintiffs filed a motion to remand
that also served as their opposition to the motion to
dismiss. ECF No. 9. Defendant filed their opposition to the
motion to remand on June 4, 2019, and Plaintiffs filed their
reply regarding their motion to remand on June 11, 2019. ECF
Nos. 11, 12.
Patrick Hall and Carlos Cantu, are former employees of the
Kraft Heinz Foods Company at a factory in Tulare. ECF No.
1-1, Ex. A. On February 22, 2019, Patrick Hall received a
Right to Sue notice after filing a complaint with the
California Department of Fair Employment and Housing
(“DFEH”) against Kraft, the local affiliate Kraft
Heinz, and David Bogan, alleging harassment, discrimination,
and retaliation. Id. On March 26, 2019, the
Plaintiffs filed a complaint against Kraft, Matt Nino, and
Does 1-50. Id. The Complaint brings fourteen causes
of action, thirteen of which name “every non-individual
Defendant.” Id. The exception is the sixth
cause of action, for workplace harassment in violation of the
California Fair Employment and Housing Act, which also names
as a defendant Matt Nino, Plaintiff Hall's superior at
work. Id. ¶¶ 19, 91-99. Defendant
Nino's presence in the suit is the basis for the
Plaintiffs' Motion to Remand, and the sixth cause of
action is the sole target of Defendant Nino's Motion to
Dismiss. ECF No. 6, 9.
Hall alleges that in and around January 2018, Defendant Nino
posted a harassing comment on a social media website. ECF No.
1-1, Ex. A at ¶ 19. The Complaint alleges that the
comment was posted while Plaintiff Hall was on medical leave
for anxiety and depression, and that the harassing comment
was related to these medical issues. ECF No. 1-1, Ex. A.
Plaintiff Hall alleges his employment was terminated on or
about March 27, 2018, and that this termination was
retaliatory, related to the harassment, or harassing in its
own right. Id. The Plaintiffs also allege that all
relevant conduct of all Defendants was approved or ratified
by all other Defendants. Id.
removed the case to this Court on May 1, 2019, arguing that
there was complete diversity of citizenship between
Plaintiffs and all properly joined Defendants, and that the
amount in controversy was more than $75, 000. ECF No. 1.
Defendants argued that Matt Nino's citizenship could be
ignored under the fraudulent joinder doctrine because it was
obvious under the settled laws of the state that Plaintiff
had failed to state a claim. Id. On May 8, 2019,
Defendant Nino filed a Motion to Dismiss the sixth cause of
action against him pursuant to Federal Rule of Civil
Procedure 12(b)(6), presenting an argument similar to the
argument for removal. ECF No. 6. On May 23, 2019, Plaintiff
Hall filed an amendment to his earlier DFEH complaint, adding
Matt Nino to the caption, and on May 27, 2019, Plaintiffs
filed a Motion to Remand which also served as their
opposition to the Motion to Dismiss. ECF No. 9.
Plaintiffs' Motion to Remand argues that Matt Nino was a
properly joined Defendant because the amended DFEH complaint
related back to the original DFEH complaint from February 22,
2019, and disagreed with the Defendant's determination of
when the statute of limitations began to run. Id.
Defendants filed their Opposition to the Motion to Remand on
June 4, 2019, and Plaintiffs filed their Reply in support of
their Motion to Remand on June 11, 2019. ECF Nos. 11, 12.
Pursuant to Local Rule 230(g), the Court determined that this
matter was suitable for decision on the papers and took it
under submission on May 28, 2019. ECF No. 10.
Motion to Dismiss
motion to dismiss pursuant to Rule 12(b)(6) is a challenge to
the sufficiency of the allegations set forth in the
complaint. Dismissal under Rule 12(b)(6) is proper where
there is either a “lack of a cognizable legal
theory” or “the absence of sufficient facts
alleged under a cognizable legal theory.” Balisteri
v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.
1990). In considering a motion to dismiss for failure to
state a claim, the court generally accepts as true the
allegations in the complaint, construes the pleading in the
light most favorable to the party opposing the motion, and
resolves all doubts in the pleader's favor. Lazy Y
Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must
allege “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the Plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“The plausibility standard is not akin to a
‘probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 556). “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires more than labels and conclusions.”
Twombly, 550 U.S. at 555 (internal citations
omitted). Thus, “bare assertions . . . amount[ing] to
nothing more than a ‘formulaic recitation of the
elements' . . . are not entitled to be assumed
true.” Iqbal, 556 U.S. at 681. “[T]o be
entitled to the presumption of truth, allegations in a
complaint . . . must contain sufficient allegations of
underlying facts to give fair notice and to enable the
opposing party to defend itself effectively.” Starr
v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). In
practice, “a complaint . . . must contain either direct
or inferential allegations respecting all the material
elements necessary to sustain recovery under some viable
legal theory.” Twombly, 550 U.S. at 562. To
the extent that the pleadings can be cured by the allegation
of additional facts, a plaintiff should be afforded leave to
amend. Cook, Perkiss and Liehe, Inc. v. N. Cal.
Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir.
1990) (citations omitted).
Motion to Remand
to federal court is governed by 28 U.S.C. § 1441, which
in relevant part states that “any civil action brought
in a State court of which the district courts of the United
States have original jurisdiction, may be removed by the
defendant or defendants.” Original jurisdiction may be
based on diversity or the existence of a federal question, as
set forth in 28 U.S.C. §§ 1331 and 1332. District
courts have diversity jurisdiction over all civil actions
between citizens of different states where the amount in
controversy exceeds $75, 000, exclusive of interest and
costs. 28 U.S.C. § 1332. “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) (per curiam).
The defendant always bears the burden of establishing that
removal is proper, and the Court “resolves all
ambiguity in favor of remand.” Hunter v. Philip
Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009). The
existence of federal jurisdiction is determined by the
complaint at the time of removal. Libhart v. Santa Monica
Dairy Co., 592 F.2d 1062, 1065 (9th Cir. 1979). See
also Williams v. Costco Wholesale Corp., 471 F.3d 975,
976 (9th Cir. 2006) (“We have long held that
post-removal amendments to the pleadings cannot affect
whether a case is removable, because the propriety of removal
is determined solely on the basis of the pleadings filed in
federal law requires complete diversity of citizenship, one
exception to this requirement is where a non-diverse
defendant has been “fraudulently joined.”
Morris v. Princess Cruises, Inc., 236 F.3d 1061,
1067 (9th Cir. 2001). “Joinder of a non-diverse
defendant is deemed fraudulent, and the defendant's
presence in the lawsuit is ignored for purposes of
determining diversity, ‘[i]f the 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.” Id. at 1067 (quoting McCabe v.
General Foods Corp., 811 F.2d 1336, 1339 (9th Cir.
1987)). “The defendant seeking removal to the federal
court is entitled to present the facts showing the joinder to
be fraudulent.” McCabe, 811 F.2d at 1339. A
defendant cannot successfully prove fraudulent joinder,
however, by merely arguing either that a plaintiff will not
prevail against the non-diverse defendant or that a plaintiff
has not sufficiently alleged a claim against that defendant.
See Munoz v. Lab. Corp. of America, No. CV
15-902-GW, 2015 WL 4507104 (C.D. Cal. July 23, 2015).
Instead, a defendant must provide “clear and convincing
evidence” that a plaintiff cannot succeed against the