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Shanks v. L-3 Communications Vertex Aerospace LLC

United States District Court, C.D. California

October 21, 2019

MARK HENRY SHANKS, Plaintiff,
v.
L-3 COMMUNICATIONS VERTEX AEROSPACE LLC, et al., Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION TO REMAND (DKT. 23)

          DALE S. FISCHER, UNITED STATES DISTRICT JUDGE

         Defendants Vertex Aerospace LLC (Vertex), [1] Paul Sichenzia, and Patrick Bantilan (collectively, Defendants)[2] 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.

         I. Factual Background

         Plaintiff 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. ¶ 18.

         In 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.” Id.

         In 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.

         After 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.

         Plaintiff 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.

         On 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 Individual Defendants.

         Defendants 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.).

         II. Discussion

         A. Plaintiff's Motion to Remand

         1. Diversity Jurisdiction

         The 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.[3]Defendants challenge the claims against the Individual Defendants on the following grounds:

• Plaintiff's claims against the Individual Defendants are barred by the respective statutes of limitations;
• 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 Compensation Act.

         Under 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 at 1339).

         “[T]he 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.

         a. Statute ...


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