United States District Court, S.D. California
ORDER DENYING MOTION TO REMAND, DENYING
PLAINTIFF’S MOTION FOR ATTORNEY’S FEES, AND
GRANTING DEFENDANT HANNA’S MOTION TO DISMISS [ECF NOS.
6 & 12]
Honorable Barry Ted Moskowitz, United States District Judge.
the Court is Plaintiff’s Motion to Remand and for
Attorneys’ Fees (ECF No. 6 (“Mot. to
Remand”)) and Defendant Jayd Hanna’s Motion to
Dismiss (ECF No. 12 (“Hanna’s Mot. to
Dismiss”).) For the reasons set forth below, the Court
DENIES Plaintiff’s Motion to Remand
and for Attorneys’ Fees and GRANTS
Defendant Hanna’s Motion to Dismiss.
filed suit against his former employer, Eli Lilly &
Company (“Lilly”), and former co-employee, Jayd
Hanna (“Hanna”), in the California Superior Court
for claims related to his termination from Lilly. (ECF No. 1
(“Compl.”).) Plaintiff alleges numerous
violations of employment discrimination laws and one count of
defamation against Lilly. The only claim against Hanna is for
defamation. (Id. at ¶ 16–25.) Plaintiff
argues that Hanna defamed him by maliciously making
statements that he sexually harassed coworkers, (Id.
at ¶¶ 12–13, 23), which led to his
termination from Lilly, (ECF No. 14 (“Pl.’s
removed the case on the basis of diversity jurisdiction. (ECF
No. 1 (“Def.’s Notice of Removal”).) Hanna
later consented to and joined in the removal. (ECF No. 11
(“Hanna’s Notice of Joinder”).) The Court
finds that Plaintiff is a citizen of
California. Hanna is a citizen of California. (ECF No.
21 (“Hanna Declaration”), ¶ 3.) Lilly is a
citizen of Indiana. (Def.’s Notice of Removal,
¶¶ 7– 11.) Lilly argues that Hanna was
fraudulently joined and that her citizenship should be
disregarded. (Id. at ¶ 6.) Plaintiff moved to
remand this case to state court for lack of subject matter
Court determined that Plaintiff’s complaint contained
factual deficiencies precluding the Court from properly
reviewing the motions before it. In his defamation claim
against Hanna, Plaintiff failed to identify the defamatory
statements at issue and provided no facts supporting his
belief that Hanna made the defamatory statements (1) at all,
and (2) with malice. (ECF No. 20 (“Order”),
5:11–14.) On August 29, 2019, the Court ordered
Plaintiff to amend his complaint pursuant to Fed.R.Civ.P.
12(e) to resolve these factual deficiencies. (Id. at
5:14– 16.) The Court also ordered Plaintiff to file a
statement specifying the state of his citizenship.
(Id. at 5:17–18.) The deadline was September
13, 2019. (Id. at 5:17– 18.) Plaintiff has
filed nothing with the Court as of the date of this order.
MOTION TO REMAND
defendant may remove a case from state court only if there is
original federal court jurisdiction over the action. 28
U.S.C. § 1441(a). The basis of original jurisdiction may
be federal question or diversity jurisdiction. Id.
§ 1331, § 1332. Federal courts have diversity
jurisdiction over “all civil actions where the matter
in controversy exceeds the sum or value of $75, 000 . . . and
is between . . . citizens of different States.”
Id. § 1332(a). The citizenship of each
defendant must be different from the plaintiff’s
citizenship. Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 373 (1978). There is a
“strong presumption against removal jurisdiction”
and a heavy burden on the defendant to establish removal is
proper. Hunter v. Philip Morris USA, 582 F.3d 1039,
1042 (9th Cir. 2009) (quoting Gaus v. Miles, Inc.,
980 F.2d 564, 566 (9th Cir. 1992)).
fraudulently joined, or “sham, ” defendant is one
who is used as a “device to prevent an exercise of the
[defendant’s] right of removal.” Wilson v.
Republic Iron & Steel Co., 257 U.S. 92, 94 (1921).
The Court disregards a sham defendant in determining whether
there is complete diversity of citizenship. Morris v.
Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir.
2001). Defendants seeking removal based on fraudulent joinder
face a heavy burden. Grancare, LLC v. Thrower by and
through Mills, 889 F.3d 543, 548 (9th Cir. 2018)
(“A defendant invoking federal court diversity
jurisdiction on the basis of fraudulent joinder bears a
‘heavy burden’ since there is a ‘general
presumption against [finding] fraudulent
joinder.’” (quoting Hunter, 582 F.3d at
1046)). To establish fraudulent joinder, the removing party
must show either: “(1) actual fraud in the pleading of
jurisdictional facts, or (2) inability of the plaintiff to
establish a cause of action against the non-diverse party in
state court.” Grancare, 889 F.3d at 548. Under
the latter method, the defendant must show that she
“cannot be liable on any theory.” Id.
(quoting Ritchey v. Upjohn Drug Co., 139 F.3d 1313,
1318 (9th Cir. 1998)). This showing must be “obvious
according to the settled rules of the state.”
Morris, 236 F.3d at 1067. In determining whether a
defendant is fraudulently joined, the Court may
“pierc[e] the pleadings” and look beyond the
allegations in the complaint. Id. at 1068 (citation
sues Hanna for defamation. (Compl., 7:1–9:12.)
California law defines defamation as either libel or slander.
Cal. Civ. Code § 44. In his briefings, Plaintiff
clarifies that he sues under a slander theory. (Pl.’s
Reply, 3:3–10.) “Slander is a false and
unprivileged publication, orally uttered, . . . which . . .
[t]ends directly to injure [any person] in respect to his
office, profession, trade or business. . . .” Cal. Civ.
Code § 46.
state a claim under California defamation law, Plaintiff must
specifically identify the defamatory statement. Gilbert
v. Sykes, 147 Cal.App.4th 13, 31 (2007). Plaintiff
describes a number of sexual harassment complaints that were
discussed at his termination meeting. But he does not say
which, if any, of those statements were made by Hanna.
(See Compl., ¶ 12.) Plaintiff has only
speculated as to the existence of defamatory statements but
has not identified their content. (See Pl.’s
Reply, 3:3–10 (“Hanna made slanderous statements
about the Plaintiff both within and outside of the employment
environment, statements which caused Plaintiff to be
wrongfully terminated. . . . The statements about him were
false and called into question his moral character and harmed
his reputation. . . .”)) The Court ordered ...