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Gutierrez v. Eli Lilly and Co.

United States District Court, S.D. California

September 25, 2019



          Honorable Barry Ted Moskowitz, United States District Judge.

         Before 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.

         I. BACKGROUND

         Plaintiff 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 Reply”), 3:3–10).

         Lilly 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.[1] 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 jurisdiction.

         The 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.


         A. Legal Standard

         A 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)).

         A 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 omitted).

         B. Discussion

         Plaintiff 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.

         1. Defamatory Statement

         To 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 ...

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