Victor Mendoza v. Staples, Inc. et al

Filing 17

MINUTES IN CHAMBERS: ORDER by Judge Beverly Reid O'Connell: Plaintiff's Motion to Remand is DENIED. The Court also DENIES Plaintiff's request for costs and attorneys' fees. The hearing on Plaintiff's remand motion is VACATED. This Order does not affect the hearing set for December 22, 2014, at 1:30 p.m. on Defendants Gutierrez, Millan, Martinez, and Terrazas' joint motion to dismiss.IT IS SO ORDERED. 14 (rfi)

LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 14–07837 BRO (FFMx)

Title

VICTOR MENDOZA V. STAPLES, INC. ET AL.

Date

November 24, 2014

Present: The
Honorable

BEVERLY REID O’CONNELL, United States District
Judge

Renee A. Fisher

Not Present

N/A

Deputy Clerk

Court Reporter

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

(IN CHAMBERS)

ORDER DENYING PLAINTIFF’S MOTION TO REMAND [14]
I.

INTRODUCTION

Pending before the Court is Plaintiff Victor Mendoza’s Motion to Remand. (Dkt.
No. 14.) After considering the papers filed in support of and in opposition to the instant
motion, the Court deems this matter appropriate for decision without oral argument of
counsel. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. For the following reasons, the
Court DENIES Plaintiff’s motion.
II.

FACTUAL AND PROCEDURAL BACKGROUND

This lawsuit involves an employment dispute arising from Defendant Staples, Inc.
and Defendant Staples Contract & Commercial’s (collectively, “Staples”) termination of
Plaintiff Victor Mendoza (“Plaintiff”). Plaintiff worked as a driver for a company called
Corporate Express N.V. (Compl. ¶ 7(a).) Sometime in 2008, Staples acquired Corporate
Express N.V. and Plaintiff became a Staples employee. (Id.) After the acquisition,
Staples’ fleet of drivers included two groups: (1) the former Corporate Express N.V.
drivers, who were typically older, full-time employees; and (2) Staples’ own preacquisition drivers, who were typically younger, part-time employees. (Id. ¶ 7(b).)
During the 2008 transition period, Plaintiff suffered a massive heart attack that
required him to take four months of medical leave. (Id. ¶ 7(d).) Plaintiff alleges that one
of his co-workers informed him that Defendant Mario Gutierrez (“Gutierrez”), who
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 14–07837 BRO (FFMx)

Title

VICTOR MENDOZA V. STAPLES, INC. ET AL.

Date

November 24, 2014

worked as Staples’ Transportation Manager, wanted to fire him. (Id.; see also id. ¶ 7(g).)
Plaintiff apparently returned to work for one day of light duty per week to prevent this
from happening. (Id. ¶ 7(d).) According to the Complaint, Gutierrez hoped to terminate
the older, full-time employees and replace them with younger, part-time drivers to
salvage Staples’ bottom line. (Id. ¶ 7(e)–(h).)
A few years later, in February 2014, Plaintiff sustained a permanent back and
shoulder injury while lifting a white board at work. (Id. ¶ 7(q).) Staples again put
Plaintiff on light duty. (Id. ¶ 7(r).) Plaintiff alleges Defendant Ricky Millan, one of his
supervisors, tried to put him on the night shift to coerce him into quitting. (Id.)
Plaintiff’s medical conditions required him to exercise and stretch before driving.
(Id. ¶ 7(l).) While completing his stretches one morning, one of Plaintiff’s co-workers
touched Plaintiff, and Plaintiff prodded back, telling the co-worker to “cut out the silly
behavior.” (Id.) Defendants Adrian Martinez (“Martinez”) and Larry Terrazas
(“Terrazas”), who also worked as Plaintiff’s supervisors, watched the interaction. (Id. ¶
7(m).) Martinez apparently told the two drivers to stop horse playing and sent the coworker back to work but took Plaintiff into his office to ask him to cool down. (Id.)
Sometime after this incident, on March 5, 2014, Gutierrez called Plaintiff into his
office to discuss the horse playing incident. (Id. ¶ 7(s).) Staples’ Human Resources
Manager was present at the meeting, and a Safety Manager participated by conference
call. (Id. ¶ 7(t).) Plaintiff explained the incident involved only horse play and also
complained about management’s treatment of the older Corporate Express N.V. drivers.
(Id. ¶ 7(u).) At the end of the meeting, Gutierrez suspended Plaintiff for three days
without pay. (Id.) One week later, Staples completed its investigation into the incident
and terminated Plaintiff. (Id. ¶ 7(w).)
Plaintiff initiated this lawsuit on July 10, 2014 in the Superior Court of California,
County of Los Angeles. (Notice of Removal (“Removal”) Ex. A.) Plaintiff alleges that
Staples unlawfully terminated him under pretext and that the real reason for his
termination was to save money by replacing him with a younger, part-time driver.
(Compl. ¶ 8.) The Complaint brings the following California state law claims against
Staples: (1) wrongful termination in violation of public policy; (2) breach of express
contract not to terminate without good cause; (3) breach of implied-in-fact contract not to
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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Case No.

CV 14–07837 BRO (FFMx)

Title

VICTOR MENDOZA V. STAPLES, INC. ET AL.

Date

November 24, 2014

terminate without good cause; (4) age discrimination; (5) age-based harassment; (6)
retaliation for complaining about age-based discrimination and harassment; (7) disability
discrimination; (8) disability-based harassment; (9) retaliation for complaining about
disability-based discrimination and harassment; (10) violation of the California Labor
Code section 1102.5; and (11) violation of the California Private Attorneys General Act
(“PAGA”). (Id. ¶¶ 15–84.) The Complaint also names Gutierrez, Millan, Martinez, and
Terrazas as defendants on the age- and disability-based harassment claims. (Id. ¶¶ 43–
48, 62–67.)1
Staples removed the matter to this Court on October 8, 2014, invoking the Court’s
diversity jurisdiction under 28 U.S.C. § 1332. (Dkt. No. 1.) Specifically, Staples asserts
that Gutierrez, Millan, Martinez, and Terrazas are “sham” defendants whose citizenship
should be disregarded for diversity jurisdiction purposes and that the amount in
controversy exceeds $75,000, exclusive of costs and interest. The four individual
defendants have filed a joint Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6). (Dkt. No. 12.) This motion is still pending before the Court and is
set for hearing on December 22, 2014. (Id.)
Plaintiff moved to remand this case on October 31, 2014. (Dkt. No. 14.) Staples
timely opposed the motion (Dkt. No. 15), and Plaintiff timely replied (Dkt. No. 16).
III.

LEGAL STANDARD

Federal courts are courts of limited jurisdiction. They possess original jurisdiction
only as authorized by the Constitution and federal statute. See, e.g., Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Original jurisdiction may be
established pursuant to 28 U.S.C. § 1332. Under § 1332, a federal district court has
“original jurisdiction of all civil actions where the matter in controversy exceeds the sum
or value of $75,000, exclusive of interest and costs,” and the dispute is between “citizens
of different states.” Id. § 1332(a)(1). The United States Supreme Court has interpreted
the diversity statute to require “complete diversity of citizenship,” meaning each plaintiff

1

Plaintiff’s Reply in support of his Motion to Remand argues that Staples has failed to establish that
Gutierrez, Millan, Martinez, and Terrazas are “sham” defendants with respect to Plaintiff’s intentional
infliction of emotional distress claim. (See Reply at 10–12.) But the Complaint does not bring such a
claim against any defendant in this matter. (See generally Compl.)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 14–07837 BRO (FFMx)

Title

VICTOR MENDOZA V. STAPLES, INC. ET AL.

Date

November 24, 2014

must be diverse from each defendant. Caterpillar Inc. v. Lewis, 519 U.S. 61, 67–68
(1996).
Under 28 U.S.C. § 1441, a civil action may be removed to the district court only if
the plaintiff could have originally filed the action in federal court. 28 U.S.C. § 1441(a).
This means removal is proper only if the district court has original jurisdiction over the
issues alleged in the state court complaint. If a matter is removable solely on the basis of
diversity jurisdiction under § 1332, it may not be removed if any properly joined and
served defendant is a citizen of the forum state. Id. § 1441(b)(2).
There is an exception to the complete diversity rule for fraudulently joined or
“sham” defendants. A non-diverse defendant who has been fraudulently joined may be
disregarded for diversity jurisdiction purposes. Hunter v. Philip Morris USA, 582 F.3d
1039, 1043 (9th Cir. 2009). Fraudulent joinder is a term of art and does not implicate a
plaintiff’s subjective intent. McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir.
1987). It exists (and the non-diverse defendant is ignored for purposes of determining
diversity of the parties) if 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.;
accord Ritchey v. Upjohn Drug Co., 139 F.2d 564, 566 (9th Cir. 1998).
In determining whether removal in a given case is proper, a court should “strictly
construe the removal statute against removal jurisdiction.” Gaus v. Miles, Inc., 980 F.2d
564, 566 (9th Cir. 1992). “Federal jurisdiction must be rejected if there is any doubt as to
the right of removal in the first instance.” Id. The removing party therefore bears a
heavy burden to rebut the presumption against removal. See id. Nevertheless, removal is
proper in cases involving a resident defendant where the resident defendant was
fraudulently joined. See Gardner v. UICI, 508 F.3d 559, 561 (9th Cir. 2007) (quoting
Mercado v. Allstate Ins. Co., 340 F.3d 824, 826 (9th Cir. 2003)).
IV.

DISCUSSION
A. Plaintiff’s Motion to Remand

Plaintiff contends the Court lacks subject matter jurisdiction because Plaintiff and
Defendants are not completely diverse and the amount in controversy does not exceed
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 14–07837 BRO (FFMx)

Title

VICTOR MENDOZA V. STAPLES, INC. ET AL.

Date

November 24, 2014

$75,000, exclusive of costs and interest. Plaintiff is a citizen of California.2 Gutierrez,
Millan, Martinez, and Terrazas are also citizens of California. (Removal ¶ 23.)

2

For diversity jurisdiction purposes, an individual is a citizen of his or her state of domicile. Kanter v.
Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). An individual is domiciled where he or she
resides with the intention to remain. Id. The Complaint alleges that Plaintiff is a resident of California.
(Compl. ¶ 1.) Staples’ Notice of Removal asserts Plaintiff is a California citizen because he currently
lives in California, holds a California driver’s license, and worked in California from August 1998 until
filing the Complaint. (Removal ¶ 12.) Plaintiff argues Staples has failed to establish that Plaintiff is a
California citizen for diversity jurisdiction purposes because it has not offered evidence supporting the
allegations about Plaintiff’s domicile. (See Mot. for Remand at 7.)
This argument is meritless. 28 U.S.C. § 1446 governs the process for removing civil actions
from state court to the federal district court. Under the statute, a defendant seeking to remove a matter
must file a notice of removal “signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and
containing a short and plain statement of the grounds for removal.” 28 U.S.C. § 1446(a). As Staples
points out, “[n]othing in the statute requires a removing defendant to submit evidence in support of its
jurisdictional allegations.” Silva v. Wells Fargo Bank NA, No. CV 11-3200 GAF JCGX, 2011 WL
2437514, at *3 (C.D. Cal. June 16, 2011) (citing Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d
192, 200 (4th Cir. 2008) (concluding that a removing defendant may establish jurisdictional grounds for
removal by making jurisdictional allegations)). Thus, Staples was not required to support the allegations
about Plaintiff’s California citizenship with evidence.
Moreover, despite Plaintiff’s improper challenge to the lack of evidence establishing his
domicile and citizenship, Plaintiff’s motion apparently concedes that Plaintiff is, in fact, a California
citizen. The crux of Plaintiff’s Motion for Remand is that there is no complete diversity because
Gutierrez, Millan, Martinez, and Terrazas are all California citizens. (See Mot. for Remand at 7–12.)
Complete diversity is only lacking if Plaintiff is also a California citizen.
Finally, the cases Plaintiff has cited are inapposite. In Kantor, the Ninth Circuit found that the
defendant’s notice of removal did not establish diversity jurisdiction because it did not make any
allegation about the plaintiffs’ citizenship. 265 F.3d at 857–58. Here, however, Staples’ Notice of
Removal affirmatively alleges that Plaintiff is a California citizen. (See Removal ¶¶ 12, 13.) Plaintiff’s
reliance on Bradford v. Mitchell Brothers Truck Lines, 217 F. Supp. 525 (N.D. Cal. 1963) is also
misplaced. In that case, the court found the removing defendant failed to establish complete diversity
because the notice of removal did not allege the plaintiffs’ citizenship and alleged the defendants’
citizenship only “upon information and belief.” Id. at 526–27. But the Notice of Removal here
affirmatively alleges Staples is a citizen of Delaware and Massachusetts, and that Gutierrez, Millan,
Martinez, and Terrazas are citizens of California. (See Removal ¶¶ 16–23.)
In sum, Staples has adequately established that Plaintiff is a California citizen for diversity
jurisdiction purposes. The Court will therefore limit its analysis to (1) whether Gutierrez, Millan,
Martinez, or Terrazas are “sham” defendants; and (2) whether Staples has met its burden to establish the
requisite amount in controversy.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 14–07837 BRO (FFMx)

Title

VICTOR MENDOZA V. STAPLES, INC. ET AL.

Date

November 24, 2014

Accordingly, complete diversity is lacking unless these four defendants are all “sham”
defendants who have been fraudulently joined.
To defeat Plaintiff’s Motion to Remand, Staples bears the burden of demonstrating
that Gutierrez, Millan, Martinez, and Terrazas have been improperly named as defendants
in this matter. See Gaus, 980 F.2d at 566. “There is a general presumption against a
finding of fraudulent joinder, and the removing party must prove by clear and convincing
evidence that joinder was fraudulent.” Huber v. Tower Grp., Inc., 881 F. Supp. 2d 1195,
1199 (E.D. Cal. 2012); accord Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d
1203, 1206 (9th Cir. 2007) (“Fraudulent joinder must be proven by clear and convincing
evidence.”); Diaz v. Allstate Ins. Grp., 185 F.R.D. 581, 586 (C.D. Cal. 1998)
(“[D]efendants who assert fraudulent joinder carry a heavy burden of persuasion.”). To
defeat remand, Staples must therefore establish that Plaintiff has failed to state a claim
against all four of the non-diverse defendants based on well-settled California law.
McCabe, 811 F.2d at 1339. Plaintiff, on the other hand, can establish that removal was
improper merely by demonstrating that “there is any possibility that [he] will be able to
establish liability against the party in question.” Briano v. Conseco Life Ins. Co., 126 F.
Supp. 2d 1293, 1296 (C.D. Cal. 2000).
1. Complete Diversity
The Complaint alleges claims against Gutierrez, Millan, Martinez, and Terrazas for
age- and disability-based harassment under California’s Fair Employment and Housing
Act (“FEHA”). (Compl. ¶¶ 43–48, 62–67.) FEHA prohibits workplace harassment on
various bases, including age and disability. Cal. Gov. Code § 12940(j)(1). In addition to
employers, employees who perpetrate harassment may be personally liable under the
statute. Id. § 12940(j)(3).
To state a prima facie claim for age- or disability-based harassment under FEHA,
Plaintiff must allege all of the following: (1) he is a member of a protected class; (2) he
was subjected to unwelcome harassment; (3) the harassment was based on his
membership in the protected class; and (4) the harassment unreasonably interfered with
his work performance by creating an intimidating, hostile, or offensive work
environment. See Thompson v. City of Monrovia, 186 Cal. App. 4th 860, 876 (2010)
(discussing elements of a claim for race-based harassment). The fourth element requires
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UNITED STATES DISTRICT COURT
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Case No.

CV 14–07837 BRO (FFMx)

Title

VICTOR MENDOZA V. STAPLES, INC. ET AL.

Date

November 24, 2014

Plaintiff to show that the non-diverse defendants’ conduct “would have interfered with a
reasonable employee’s work performance and would have seriously affected the
psychological well-being of a reasonable employee.” Id. at 877. To be actionable as
harassment, the conduct must be sufficiently severe or pervasive to alter the workplace.
“[O]ccasional, isolated, sporadic, or trivial” conduct is insufficient; harassment must be
of a “repeated, routine, or generalized nature.” Id. (quoting Aguilar v. Avis Rent A Car
Sys., Inc., 21 Cal. 4th 121, 131 (Cal. 1999)) (internal quotation marks omitted).
Moreover, “harassment consists of a type of conduct not necessary for
performance of a supervisory job.” Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55, 63
(Cal. Ct. App. 1996). “[C]ommonly necessary personnel management actions” such as
hiring and firing, work assignments, and performance evaluations do not amount to
harassment. Id. at 64–65. Harassment requires “conduct presumably engaged in for
personal gratification, because of meanness or bigotry, or for other personal motives.”
Id. at 63.
With these principles in mind, the Court will discuss the allegations against
Gutierrez, Millan, Martinez, and Terrazas individually. The allegations of age- and
disability-based harassment against each individual defendant are similar, so the Court
will address them together.3 For the reasons discussed below, the Court finds Plaintiff’s
failure to state a claim for harassment against any non-diverse defendant is obvious
according to well-settled California law.

3

Staples argues that Plaintiff’s age-based harassment claims must fail because the Complaint indicates
Plaintiff was not at least forty years old when Staples terminated him. (See Compl. ¶ 6(a)) (“Plaintiff
was only days from his 40th birthday when he was terminated.”) FEHA liability for age-based
harassment requires Plaintiff to show he was a member of a protected class, and age is a protected class
only where an employee is over forty years old. See Nidds v. Schindler Elevator Corp., 113 F.3d 912,
917 (9th Cir. 1996) (discussing elements of an age discrimination claim under FEHA). But Plaintiff also
alleges he was more than forty years old at the time of his termination. (Compl. ¶ 35.) The Court
construes this factual uncertainty in Plaintiff’s favor and assumes Plaintiff can satisfy the age
requirement for an age-based harassment claim. See Nasrawi v. Buck Consultants, LLC, 713 F. Supp.
2d 1080, 1084 (E.D. Cal. 2010).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 14–07837 BRO (FFMx)

Title

VICTOR MENDOZA V. STAPLES, INC. ET AL.

Date

November 24, 2014

a. Defendant Gutierrez
The Complaint generally alleges that Gutierrez favored the younger Staples drivers
over the former Corporate Express N.V. drivers. (Compl. ¶ 7(c).) To that end, Gutierrez
apparently instituted a driving academy that accepted almost exclusively young drivers.
(Id. ¶ 7(g).) Plaintiff also alleges that after his heart attack, another employee informed
him that Gutierrez wanted to fire him. (Id. ¶ 7(d).) Finally, Plaintiff alleges that
Gutierrez called him into his office after the horse playing incident and helped initiate an
investigation into the matter. (Id. ¶ 7(s)–(u).)
These allegations are insufficient to state a claim against Gutierrez according to
California’s well-settled rules regarding FEHA liability for age- or disability-based
harassment. Gutierrez’s investigation into the horse playing incident and his resulting
participation in Plaintiff’s termination are acts of personnel management that do not
amount to harassment as a matter of law. See Janken, 46 Cal. App. 4th at 63. That
Gutierrez allegedly wanted to fire Plaintiff after his back injury, which occurred in 2008,
six years before Plaintiff’s ultimate termination, is also insufficient to amount to
harassing conduct. This is because the Complaint does not allege Gutierrez said or did
anything to communicate his desire to Plaintiff. Instead, Plaintiff apparently heard about
Gutierrez’s plan from a co-worker. And the Complaint does not allege Gutierrez acted
on his desire to terminate Plaintiff or took any steps to put his plan into practice until he
called Plaintiff into his office to discuss the horse playing incident six years later.
Gutierrez’s uncommunicated desire alone is insufficient to demonstrate a pattern of
repeated, routine, or generalized harassing conduct. Thompson, 186 Cal. App. 4th at 876.
The only remaining allegations are that Gutierrez favored younger employees and
accepted primarily young drivers to the driving academy. But these allegations are too
general to establish that Gutierrez engaged in sufficiently severe or pervasive conduct so
as to alter the workplace. Accordingly, Gutierrez is a “sham” defendant whose
citizenship must be disregarded. McCabe, 811 F.2d at 1339.
b. Defendant Millan
Most of Plaintiff’s harassment allegations concern Defendant Millan. Plaintiff
alleges that on one occasion, Millan took over Plaintiff’s route and “scoffed that the route
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 14–07837 BRO (FFMx)

Title

VICTOR MENDOZA V. STAPLES, INC. ET AL.

Date

November 24, 2014

was too easy, that Plaintiff was too slow, and too old.” (Compl. ¶ 7(i).) On another
occasion in March 2014, Millan allegedly derided Plaintiff’s age and physical condition,
saying, “Man, you are getting old with your bad back and a heart condition.” (Id. ¶ 7(q).)
Finally, Plaintiff alleges that Millan “feverishly pushed” to place Plaintiff on the night
shift in an attempt to coerce him off light duty. (Id. ¶ 7(r).)
Millan’s efforts to schedule Plaintiff on the night shift are pure personnel
management activities and cannot constitute harassment. See Janken, 46 Cal. App. 4th at
63. The Court recognizes that Millan’s comments about Plaintiff’s age and physical
condition conceivably go beyond his supervisory role and could have been engaged in for
personal gratification. Nevertheless, these two isolated occasions fail to state a claim for
harassment under well-settled California law, as it is clear that occasional, isolated or
sporadic conduct is insufficient to establish harassment as a matter of law. Fisher, 214
Cal. App. 3d at 610. Accordingly, Millan is also a “sham” defendant in this matter.
c. Defendant Martinez
The Complaint alleges only three acts by Defendant Martinez. First, about two
weeks before his termination, Plaintiff confronted Martinez and asked why his driving
schedule incorporated other drivers’ assigned routes. (Compl. ¶ 7(k).) Martinez
apparently responded that he had no control over scheduling. (Id.) Frustrated with what
he perceived to be a lack of accountability, Plaintiff complained about Staples’
management; Martinez apparently took no action and only “shrugged his shoulders.”
(Id.) Plaintiff’s second allegation asserts that Martinez watched the horse playing
incident and scolded Plaintiff for it. (Id. ¶ 7(m).) Martinez apparently told Plaintiff’s coworker to go back to work but took Plaintiff into his office and asked him to “cool off”
before returning to his route. (Id. ¶ 7(m)–(o).) Finally, Plaintiff alleges Martinez told
him to go to Gutierrez’s office to discuss the incident. (Id. ¶ 7(s).)
All of these allegations involve personnel management decisions. Martinez
reprimanded Plaintiff for horse playing, directed Plaintiff to another manager’s office,
and admitted he had no control over scheduling in his capacity as one of Plaintiff’s
supervisors. The Complaint does not allege any facts suggesting Martinez engaged in
any of this conduct for personal gratification or out of meanness or bigotry because of
Plaintiff’s age or disability. The Court concludes Martinez was also fraudulently joined.
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UNITED STATES DISTRICT COURT
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CIVIL MINUTES – GENERAL
Case No.

CV 14–07837 BRO (FFMx)

Title

VICTOR MENDOZA V. STAPLES, INC. ET AL.

Date

November 24, 2014

d. Defendant Terrazas
The only allegation of harassment by Defendant Terrazas is that he watched the
horse playing incident and failed to intervene. (Compl. ¶ 7(m).) This allegation is
insufficient to state a harassment claim against Terrazas for at least two reasons. First, a
single instance of action (or failure to act, as in this case) does not demonstrate repeated,
routine, or generalized harassing conduct. Fisher, 214 Cal. App. 3d at 610. Second,
Plaintiff does not allege Terrazas’ failure to intervene was linked in any way to his age or
disability. Accordingly, Terrazas cannot be liable for age- or disability-based harassment
under FEHA. His citizenship must also be disregarded.
2. Amount in Controversy
Having determined that all four non-diverse defendants were fraudulently joined,
the Court must also consider whether Staples has established that the amount in
controversy is sufficient to invoke the Court’s jurisdiction under § 1332. When a
defendant removes a complaint to federal court, the defendant’s burden with respect to
the amount in controversy varies depending on the circumstances. Guglielmino v. McKee
Foods Corp., 506 F.3d 696, 699 (9th Cir. 2007). “[W]here it is unclear or ambiguous
from the face of a state-court complaint whether the requisite amount in controversy is
plead,” the applicable standard is by a preponderance of the evidence. Id. This requires
the defendant to offer evidence establishing that it is more likely than not that the amount
in controversy exceeds $75,000, exclusive of costs and interest. Id. (citing Sanchez v.
Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996)). In considering whether
the removing defendant has satisfied its burden, the court “may consider facts in the
removal petition.” Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir.
1997).4

4

Plaintiff asserts that Staples must proffer summary judgment-style evidence to properly establish the
requisite jurisdictional amount in controversy. (See Pl.’s Mot. to Remand at 12–13.) Plaintiff cites to
Kenneth Rothschild Trust v. Morgan Stanley Dean Witter, 199 F. Supp. 2d 993, 1001 (C. D. Cal. 2002),
which relies on Easley v. Pace Concerts, Inc., No. CIV. A. 98-2220, 1999 WL 649632, at *3 (E.D. La.
Aug. 25, 1999) and Singer, 116 F.3d at 377 for this proposition. Easley is not binding authority on this
Court. And in Singer, the Ninth Circuit stated that a district court “may require the parties to submit
summary-judgment-type evidence” in determining whether the preponderance of the evidence standard
has been satisfied. 116 F.3d at 377 (emphasis added). The Court is mindful that the Ninth Circuit has
expressly “endorsed” the practice of considering summary judgment-type evidence relevant to the
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UNITED STATES DISTRICT COURT
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CIVIL MINUTES – GENERAL
Case No.

CV 14–07837 BRO (FFMx)

Title

VICTOR MENDOZA V. STAPLES, INC. ET AL.

Date

November 24, 2014

Plaintiff’s Complaint does not seek a specific amount of damages. (See generally
Compl.) Plaintiff does, however, seek general and specific damages, exemplary
damages, pre-judgment and post-judgment interest, reasonable attorneys’ fees, and costs
of suit. (See Compl. at 25.) The Complaint alleges Plaintiff has “suffered and continues
to suffer damages, including losses of earnings and benefits.” (Id. ¶¶ 24, 29, 39, 45, 52,
58, 64, 71.) It also alleges Plaintiff “has suffered and continues to suffer humiliation,
emotional distress, and mental and physical pain and anguish.” (Id. ¶¶ 17, 40, 46, 53, 59,
65, 72, 78.) Moreover, Plaintiff seeks punitive damages and attorneys’ fees for many of
his claims. (Id. ¶¶ 19, 20, 30, 41, 42, 47, 48, 54, 60, 61, 66, 67, 73, 74, 80, 84.)
In its Notice of Removal, Staples avers that at the time of his termination, Plaintiff
earned an annual salary of $42,120, not including benefits, which are generally valued as
30% of an employee’s pay. (Removal ¶ 44.) Plaintiff does not dispute this fact. (See
generally Mot. to Remand; Reply.) Staples also attached various documents
demonstrating that in employment cases involving claims similar to Plaintiff’s, Plaintiff’s
counsel has requested attorneys’ fees ranging from $700,000 to over $1 million. (Dkt.
No. 2 Exs. B, E, G, J, K.) The Court recognizes that the mere fact Plaintiff’s counsel
requested substantial fees in prior cases does not necessarily establish Plaintiff will
recover similar fees in this matter. Nevertheless, this evidence suggests a likelihood that
attorneys’ fees could significantly increase the amount in controversy.
Staples has also provided the Court with a recent declaration from Plaintiff’s
counsel. (Id. Ex. O.) The declaration lists the verdicts Plaintiff’s counsel has won in
employment cases since 2013; these verdicts range from $2.5 million to $26 million.
Staples has further supported this declaration with actual jury verdicts for employment
cases involving Plaintiff’s counsel and claims similar to Plaintiff’s. (Id. Exs. A, C, F, H,
L, N.) These verdicts range from $100,000 to over $13 million. (Id.) Additionally, the
declaration states that the “vast majority” of the FEHA cases Plaintiff’s counsel has
settled have settled for more than $500,000. (Id. Ex. O.)

amount in controversy at the time of removal. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir.
2004). But the Court need not decide whether a removing defendant must offer such evidence because
here, Staples has done so. (See Dkt. No. 2, Exs. A–O.)
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 14–07837 BRO (FFMx)

Title

VICTOR MENDOZA V. STAPLES, INC. ET AL.

Date

November 24, 2014

Given the claims Plaintiff alleges and the kinds of damages he seeks—namely, lost
wages, emotional distress, punitive damages, and attorneys’ fees—the Court finds that
Staples has satisfied its burden to demonstrate that the amount in controversy exceeds
$75,000. Because the Court also finds that all four non-diverse defendants were
fraudulently joined, the Court’s exercise of diversity jurisdiction is proper.
B. Plaintiff’s Request for Costs and Attorneys’ Fees is Unwarranted
Plaintiff requests an award of costs and attorneys’ fees incurred in bringing the
instant remand motion pursuant to 28 U.S.C. § 1447(c). (Mot. to Remand at 13–14.)
Section 1447(c) authorizes a district court to order costs and actual expenses, including
attorneys’ fees incurred as a result of removal, where the court remands the matter. See
28 U.S.C. § 1447(c). As discussed above, this matter was properly removed.
Accordingly, Plaintiff’s request for costs and attorneys’ fees lacks merit.
V.

CONCLUSION

For the foregoing reasons, Plaintiff’s Motion to Remand is DENIED. The Court
also DENIES Plaintiff’s request for costs and attorneys’ fees. The hearing on Plaintiff’s
remand motion is VACATED. This Order does not affect the hearing set for December
22, 2014, at 1:30 p.m. on Defendants Gutierrez, Millan, Martinez, and Terrazas’ joint
motion to dismiss.
:

IT IS SO ORDERED.
Initials of
Preparer

rf

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