Garcia v. Hertz Local Edition Corp.

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA — 10 — 11 LEONARDO GARCIA, an individual, Case No.: 3:23-cv-01270-BEN-DDL 12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. MOTION TO REMAND 14 HERTZ LOCAL EDITION CORP., a Delaware Corporation; MELISSA — 15 — LINDEN, an individual; and DOES 1 16 through 20, inclusive, [ECF No. 4] 17 Defendants. — 18 — On June 28, 2023, Plaintiff Leonardo Garcia (“Plaintiff”) filed a civil complaint in — 19 — the California Superior Court against Defendants Hertz Local Edition Corp., Melissa — 20 — Linden and twenty “Doe” Defendants alleging sixteen state law claims. ECF No. 1. On — 21 — July 10, 2023, Defendant Hertz removed the action to this Court based on diversity — 22 — jurisdiction. Id. — 23 — Before the Court is Plaintiff’s Motion to Remand. ECF No. 4. Defendant Hertz — 24 — opposes the motion. ECF No. 7. No reply was filed. The briefing was submitted on the — 25 — papers without oral argument pursuant to Civil Local Rule 7.1(d)(1) and Rule 78(b) of — 26 — the Federal Rules of Civil Procedure. ECF No. 8. After considering the applicable law — 27 — — 28 — 1 and the parties’ arguments, and for the reasons set forth below, the Court GRANTS 2 Plaintiff’s Motion. 3 I. BACKGROUND 4 Plaintiff began working for Defendant Hertz Local Edition Corporation 5 (“Defendant” or “Hertz”) in January 2016. ECF No. 1-2, Complaint for Damages 6 (“Compl.”). By 2018, Plaintiff was promoted to District Manager and was responsible 7 for two locations. Compl. ¶ 10. Plaintiff alleges he received bonuses and performed his 8 job duties satisfactorily throughout his employment. Id. ¶ 13. 9 Plaintiff took leave for vacation between August 21st and September 3rd of 2020. 10 Id. ¶ 14. Two days after Plaintiff returned from vacation, a co-worker tested positive for 11 Covid-19 and the location was closed for a week. Id. Plaintiff went into self-quarantine 12 for two weeks, which was scheduled to end September 18, 2020. Id. ¶ 15. On September 13 14th, Plaintiff requested an additional two weeks of leave due to his wife’s pregnancy. 14 Id. In this same email, Plaintiff informed Defendant Hertz his intention to take paternity 15 leave. Id. 16 Defendant Hertz initially responded by indicating Plaintiff did not have sufficient 17 vacation hours to cover the additional leave. Id. ¶ 16. Plaintiff then sent documents to 18 Human Resources (“HR”) showing he did have vacation hours remaining. Id. Plaintiff 19 alleges HR admitted they were mistaken in their initial calculation of his vacation hours. 20 Id. The next day, HR requested an in-person meeting with Plaintiff. Id. 21 Plaintiff subsequently met with an HR representative and his general manager, 22 Defendant Melissa Linden. Id. ¶ 17. During this meeting, Plaintiff was informed he was 23 being terminated for failure to follow the company’s Covid-19 protocols. Id. ¶ 17. 24 When Plaintiff asked which policies he had violated, none were identified. Id. ¶ 19. 25 Plaintiff was further informed the alleged violation occurred before his August vacation. 26 Id. Plaintiff alleges he followed the company’s Covid-19 protocols to the best of his 27 ability, and the reason for his termination was pretextual. Id. ¶ 20. Plaintiff maintains he — 28 — 1 was terminated because he asked for additional time to self-quarantine and because he 2 announced his intention to take family leave. Id. 3 II. LEGAL STANDARDS 4 A defendant in state court may remove a civil action to federal court so long as that 5 case could originally have been filed in federal court. 28 U.S.C. § 1441 (1); City of Chi v. 6 Int’l Coll. of Surgeons, 522 U.S. 156, 163 (1997). Removal of a state action may be 7 based on either diversity or federal question jurisdiction. City of Chi, 522 U.S. at 163 ; 8 Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). The removal statutes are strictly 9 construed, and removal jurisdiction is to be rejected in favor of remand if there are doubts 10 as to the right of removal. Nev. v. Bank of Am. Corp., 672 F.3d 661, 667 (9th Cir. 2012). 11 A defendant seeking removal of an action bears the burden of establishing grounds for 12 federal jurisdiction by a preponderance of the evidence. Geographic Expeditions, Inc. v. 13 Estate of Lhotka, 599 F.3d 1102, 1106-07 (9th Cir. 2010). 14 At issue here, when determining whether there is complete diversity among the 15 parties, district courts may disregard the citizenship of a non-diverse defendant who has 16 been fraudulently joined.1 Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146 , 152 17 (1914). There are two ways to establish fraudulent joinder: “(1) actual fraud in the 18 pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of 19 action against the non-diverse party in state court.” Hunter v. Phillip Morris USA, 582 20 F.3d 1039 , 1044 (9th Cir. 2009) (quoting Smallwood v. Illinois Cent. RR. Co., 385 F.3d 21 568, 573 (5th Cir. 2004)). Fraudulent joinder is established under the second prong if a 22 defendant shows the fraudulently joined defendant “cannot be liable on any theory.” 23 Richey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998). However, if there is 24 even a “possibility that a state court would find that the complaint states a cause of action — 25 — — 26 — — 27 — 1 “Fraudulent joinder is a term of art[,]” that does not necessarily imply actual fraud on — 28 — 1 against any of the resident defendants[,]” the district court must remand. Hunter, 582 2 F.3d at 1046 (citation omitted). 3 III. DISCUSSION 4 Plaintiff asserts a single claim against Defendant Melissa Linden for Work 5 Environment Harassment under California’s Fair Employment and Housing Act 6 (“FEHA”). See Cal. Gov. Code § 12940 (j); Compl. ¶¶ 102-116. In the Notice of 7 Removal, Defendant Hertz asserts that complete diversity does not exist between the 8 parties because Defendant Melissa Linden was improperly joined to defeat diversity 9 jurisdiction.2 ECF No. 1 at 5. Responding to these assertions, Plaintiff argues in the 10 Motion to Remand that Defendant Linden was properly joined and his claim against her 11 is well pled. ECF No. 4 at 7-10. 12 The test for fraudulent joinder is distinct from the test for failure to state a claim 13 under Federal Rule of Civil Procedure (“Rule”) 12(b)(6). Grancare, LLC, v. Thrower by 14 and through Mills, 889 F.3d 543, 549-50 (9th Cir. 2018). Specifically, the Ninth Circuit 15 noted, “[a] standard that equates fraudulent joinder with Rule 12(b)(6) conflates a 16 jurisdictional inquiry with an adjudication on the merits. Because the purpose of the 17 fraudulent joinder doctrine is to allow a determination whether the district court has 18 subject matter jurisdiction, the standard is similar to the ‘wholly insubstantial and 19 frivolous’ standard for dismissing claims under Rule 12(b)(1) . . . .” Id. To this end, the 20 Ninth Circuit opined, “[t]he district court must consider . . . whether a deficiency in the 21 complaint can possibly be cured by granting the plaintiff leave to amend.” Id. at 550 . — 22 — — 23 — — 24 — 2 In the Notice of Removal, Defendant Hertz argued that Defendant Linden may also be 25 disregarded for jurisdictional purposes because she had not yet been served with the Summons and Complaint. ECF No. 1. Plaintiff responded to this argument in his Motion — 26 — to Remand. ECF No. 4. Defendant Hertz did not address this issue in its Opposition, 27 effectively waiving the argument. See Pacific Dawn LLC v. Pritzker, 831 F.3d 1166 , 1178 n.7 (9th Cir. 2016). Additionally, the Court finds the issue of fraudulent joinder — 28 — 1 The Ninth Circuit has upheld rulings finding fraudulent joinder where “a defendant 2 presents extraordinarily strong evidence or arguments that a plaintiff could not possibly 3 prevail on her claims against the allegedly fraudulently joined defendant.” Grancare, — 4 — 889 F.3d at 548 (citing McCabe, 811 F.2d at 1339). “Stated differently, it must appear to 5 a ‘near certainty’ that the joinder was fraudulent.” North v. Samsung SDI Am., Inc., No. 6 19-cv-05621-EJD, 2020 WL 1984020 at *3 (N.D. Cal. Apr. 27, 2020) (citing Alexander 7 v. Select Comfort Retail Corp., No. 18-6446 YGR, 2018 WL 6726639 , at *2 n.4 (N.D. 8 Cal. Dec. 21, 2018)). 9 To prevail on a FEHA claim for hostile work environment, a plaintiff must show 10 that he or she: (1) belongs to a protected group; (2) was subjected to unwelcome 11 harassment because of membership of that protected group; and (3) the harassment was 12 sufficiently severe or pervasive to alter the conditions of employment and create an 13 abusive working environment. Aguilar v. Avis Rent A Car System, Inc., 21 Cal.4th 121 , 14 130 (1999). In California, harassment has been defined as “a type of conduct not 15 necessary for performance of a supervisory job” and is “presumably engaged in for 16 personal gratification, because of meanness or bigotry, or for other personal motives.” 17 Reno v. Baird, 18 Cal.4th 640, 645-56 (1998) (citing Janken v. GM Hughes Electronics, — 18 — 46 Cal.App.4th 55, 62-63 (1996)). The California Supreme Court noted, “[t]he 19 Legislature intended that commonly necessary personnel management actions such as 20 hiring and firing . . . do not come within the meaning of harassment.” Reno, 18 Cal.4th at 21 646-47 (quoting Janken, 46 Cal.App.4th at 63-65 ). 22 Defendant Hertz argues Plaintiff’s FEHA harassment claim against Defendant 23 Linden fails to state a claim because it is based solely on the allegedly pretextual reason 24 for Plaintiff’s termination. ECF No. 7. Comparing the allegations in the complaint with 25 the precedent above, the Court agrees. Plaintiff does not allege any hostile conduct by 26 Defendant Linden prior to his termination. Plaintiff also does not plead any specific facts 27 regarding Defendant Linden’s behavior or treatment of him during his termination 28 meeting which might fall into the definition of harassment under California law. 1 However, as noted above, this does not end the inquiry; failure to state a claim is 2 not by itself sufficient for the Court to deny remand. Grancare, at 550; see also Kehr 3 Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-09 (3d Cir. 1991) (“A district court 4 can grant a Rule 12(b)(1) motion to dismiss . . . based on the legal insufficiency of a 5 claim. But dismissal is proper only when the claim ‘clearly appears to be immaterial and 6 made solely for the purpose of obtaining jurisdiction or . . . is wholly insubstantial and 7 frivolous.”); Oneida Indian Nation v. Cnty. of Oneida, 414 U.S. 661, 666 (1974) (a claim 8 must be “so insubstantial, implausible, foreclosed by prior decisions of this Court, or 9 otherwise completely devoid of merit as to not involve a federal controversy within the 10 jurisdiction of the District Court[.]”). 11 Defendant Hertz cites two district court cases to support the argument that 12 Plaintiff’s failure to state a claim is grounds for denial of remand. See Wexler v. Jensen 13 Pharmaceuticals, No. CV-15-03518-AB-AJW, 2015 WL 6159101 at *4-6 (C.D. Cal. 14 Oct. 20, 2015) (denying remand after determining FEHA harassment claim was 15 insufficiently plead); Cofer v. Parker-Hannifin Corp., 194 F.Supp.3d 1014 , 1018-23 16 (C.D. Cal. 2016) (granting motion to dismiss and denying motion for remand). However, 17 both cases were decided before the Ninth Circuit’s clarification of the test in Grancare. 18 These cases appear to analyze the claims under a standard closer to failure to state a claim 19 under Rule 12(b)(6) rather than the frivolous or wholly insubstantial standard under Rule 20 12(b)(1). See, e.g., Cofer, 194 F. Supp. 3d at 1022 (“The Court determined that Mr. 21 Cofer failed to state a claim against any of the individual defendants . . . . The Court also 22 concludes that the failure . . . was sufficiently clear as a matter of California law as to 23 render the joinder of those defendants fraudulent.”). 24 Here, the Court cannot say that Plaintiff’s FEHA harassment claim is “so 25 completely devoid of merit” to render it frivolous or wholly insubstantial, especially in 26 light of California’s notice pleading standard and Plaintiff’s request to amend. While it is 27 unclear whether Plaintiff can amend his complaint to cure the noted deficiency in his 28 FEHA harassment claim, in this limited jurisdictional inquiry, doubt is resolved in favor 1 remand. See Nev. v. Bank of Am. Corp., 672 F.3d at 667 . Accordingly, the Court 2 || GRANTS Plaintiff’s motion to remand. 3 IV. CONCLUSION 4 For the foregoing reasons, the Court GRANTS the Plaintiff's Motion to Remand. — 5 — 6 IT IS SO ORDERED. : 7 Dated: November 8, 2023 g AKOGER T. BENITE 9 United States District Judge — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —