United States District Court, C.D. California
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND (DKT.
S. FISCHER, UNITED STATES DISTRICT JUDGE
Vertex Aerospace LLC (Vertex),  Paul Sichenzia, and Patrick
Bantilan (collectively, Defendants) removed this case based on
diversity and federal question jurisdiction and moved to
dismiss. Dkts. 1, 11, 13. Plaintiff Mark Henry Shanks moved
to remand. Dkt. 23. The Court deems this matter appropriate
for decision without oral argument. See Fed.R.Civ.P.
78; Local Rule 7-15.
is an aircraft mechanic who worked for Defendant Vertex
between June 2013 and May 2017. During his employment,
Plaintiff was subjected to unlawful labor practices and
racial harassment, which he reported to Defendants. Dkt. 1-1
(Compl.) ¶¶ 11-13. In July 2015, after complaining
that he had been racially harassed by a coworker, Plaintiff
received a written warning from Defendants “for not
having his Air Frame & Power Plant (A&P)
license.” Id. ¶¶ 13-15. Plaintiff
complained to the Individual Defendants that that he
“was previously instructed that he did not need an
A&P license” and had worked for Vertex for
“almost a decade without the license.”
Id. ¶¶ 17-18. Defendants subsequently
“told [Plaintiff] that the A&P license was not
required and the issue was dropped.” Id.
January 2016, Plaintiff was diagnosed with bladder cancer.
Id. ¶ 19. He underwent a biopsy for the cancer
on March 6, 2016 and had surgery on November 21, 2016.
Id. ¶¶ 19-20. After these two procedures,
Plaintiff requested unspecified accommodations related to his
medical condition from his supervisor, Defendant Bantilan.
Id. ¶ 22. Bantilan denied both requests
“without engaging in any interactive process.”
early February of 2017 Plaintiff was injured at work.
Id. ¶ 22. Shortly after the incident,
“after previously waiving any requirement that
[Plaintiff] obtain an [A&P] license, ” Bantilan
ordered Plaintiff to obtain his A&P license by April 2,
2017. Id. ¶ 24. Plaintiff informed Defendants
that he was scheduled to undergo another cancer treatment
surgery on April 26, 2017 and “did not feel well enough
to be confident that he could pass the [licensing]
exam” while undergoing treatment. Id.
¶¶ 26-27. Plaintiff requested “the reasonable
accommodation of being able to obtain the license after he
had completed his cancer treatment.” Id.
¶ 27. Defendants “refused to engage  in the
interactive process” with Plaintiff and denied his
request. Id. ¶ 28.
Plaintiff's work injury in February 2017, Individual
Defendants “went out of their way to embarrass,
humiliate, and cause Shanks to suffer anxiety, often in front
of his coworkers.” Id. ¶ 29. Individual
Defendants “scowled and made faces while staring or
gesturing at Shanks, made humiliating comments that were
directly related to Shanks['s] disability, [and] spent an
unusual and excessive amount of time staring at Shanks while
Shanks worked.” Id. This continued “up
until Shanks took medical leave for cancer surgery” on
April 26, 2017. Id. ¶¶ 29, 32.
underwent cancer treatment surgery on April 26, 2017.
Id. ¶ 32. On May 1, 2017, he was notified that
he had been terminated by Defendants. Id. ¶ 33.
April 25, 2019, Plaintiff sued Vertex and the Individual
Defendants in California Superior Court. He asserted eight
causes of action against Vertex, including violations of
California's Fair Employment and Housing Act (FEHA),
Intentional Infliction of Emotional Distress (IIED), and
Retaliation. The claims for Disability Harassment under FEHA
(FEHA Harassment) and IIED are also asserted against the
removed the case based on diversity jurisdiction and
preemption under Section 301 of the Labor Management
Relations Act (LMRA). Dkt. 1 (Removal). Vertex and the
Individual Defendants separately moved to dismiss. Dkt. 11
(Individual Defendants MTD), Dkt. 13 (Vertex MTD). On August
4, 2019, Plaintiff filed a Motion to Remand. Dkt. 23 (Mot.).
Plaintiff's Motion to Remand
Complaint asserts claims of FEHA Harassment and IIED against
the Individual Defendants who, like Plaintiff, are citizens
of California. Compl. ¶¶ 61-70, 96-105. Defendants
contend that the Individual Defendants were fraudulently
joined and their citizenship should be disregarded for
purposes of establishing diversity.Defendants challenge the
claims against the Individual Defendants on the following
• Plaintiff's claims against the Individual
Defendants are barred by the respective statutes of
• Plaintiff has failed to state a claim for FEHA
Harassment or IIED and neither claim can be remedied by
amending the Complaint; and
• Plaintiff's IIED claim is preempted by the
exclusive remedy provision of California's Workers
28 U.S.C. § 1332(a), district courts have original
diversity jurisdiction over civil actions in which (1)
complete diversity of citizenship exists between the parties
and (2) the amount in controversy exceeds $75, 000. However,
there is an “exception to the requirement of complete
diversity . . . 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.
(alteration in original) (quoting McCabe, 811 F.2d
test for fraudulent joinder and for failure to state a claim
under Rule 12(b)(6) are not equivalent.” Grancare,
LLC v. Thrower, 889 F.3d 543, 549 (9th Cir. 2018). In
evaluating a claim of fraudulent joinder, “a federal
court must find that a defendant was properly joined and
remand the case to state court if there is a
‘possibility that a state court would find that the
complaint states a cause of action against any of the
[non-diverse] defendants.'” Id. (quoting
Hunter v. Philip Morris USA, 582 F.3d 1039, 1044
(9th Cir. 2009). In this inquiry, “the district court
must consider . . . whether a deficiency in the complaint can
possibly be cured by granting the plaintiff leave to
amend.” Id. at 550.