Demar Membreno v. Goodyear Tire and Rubber Company et al
MINUTES (IN CHAMBERS) ORDER REMANDING ACTION TO LOS ANGELES SUPERIOR COURT by Judge John F. Walter. The Court concludes that Goodyear has failed to meet its heavy burden of demonstrating fraudulent joinder. For all the foregoing reasons, this action is REMANDED to Los Angeles County Superior Court for lack of subject matter jurisdiction. See 28 U.S.C. 1447(c). Case Terminated. Made JS-6 (iv)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES -- GENERAL
Demar Membreno -v- Goodyear Tire and Rubber Company, et al.
Date: April 10, 2018
HONORABLE JOHN F. WALTER, UNITED STATES DISTRICT JUDGE
ATTORNEYS PRESENT FOR PLAINTIFFS:
PROCEEDINGS (IN CHAMBERS):
ATTORNEYS PRESENT FOR DEFENDANTS:
ORDER REMANDING ACTION TO LOS ANGELES
On January 10, 2018, Plaintiff Demar Membreno (“Plaintiff”) filed a Complaint against
Defendants The Goodyear Tire & Rubber Company (“Goodyear”), Just Tires PC (“Just Tires”), and
Hector Contreras (“Contreras”) (collectively, “Defendants”) in Los Angeles Superior Court, alleging
the following causes of action against all the Defendants: (1) disability discrimination in violation of
Government Code § 12940(a); (2) failure to provide reasonable accommodation in violation of
Government Code § 12940(m); (3) failure to engage in the interactive process in violation of
Government Code § 12940(n); (4) retaliation in violation of Government Code § 12940(f); (5)
violation of Government Code § 12940(i); (6) violation of Government Code § 12945.1 of the
California Family Rights Act; (7) retaliation for requesting/taking California Family Rights Act
Leave; (8) wrongful termination in violation of public policy; and (9) intentional infliction of emotional
On March 28, 2018, Goodyear filed a Notice of Removal, alleging that this Court has
jurisdiction pursuant to 28 U.S.C. § 1332(a). On April 2, 2018, the Court issued an Order Show
Cause Why Action Should Not be Remanded for Lack of Subject Matter Jurisdiction. On April 5,
2018, Goodyear and Contreras filed their Response to the OSC.
Federal courts are courts of limited jurisdiction, having subject matter jurisdiction only over
matters authorized by the Constitution and Congress. See Bender v. Williamsport Area School
District, 475 U.S. 534, 541 (1986). “Because of the Congressional purpose to restrict the
jurisdiction of the federal courts on removal, the statute is strictly construed, and federal jurisdiction
must be rejected if there is any doubt as to the right of removal in the first instance.” Duncan v.
Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996) (citations and quotations omitted). There is a strong
presumption that the Court is without jurisdiction unless the contrary affirmatively appears. See
Fifty Associates v. Prudential Insurance Company of America, 446 F.2d 1187, 1190 (9th Cir.
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1990). As the party invoking federal jurisdiction, Goodyear bears the burden of demonstrating that
removal is proper. See, e.g., Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992); Emrich v. Touche
Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988).
Diversity jurisdiction founded under 28 U.S.C. § 1332(a) requires that (1) all plaintiffs be of
different citizenship than all defendants, and (2) the amount in controversy exceed $75,000. See 28
U.S.C. § 1332. Because Goodyear has not met its burden of demonstrating that the parties are
completely diverse, this action must be remanded.
Although Plaintiff and Contreras are both citizens of California, Goodyear contends that
Contreras has been fraudulently joined, and, thus, his presence in this action should be ignored.
“Although an action may be removed to federal court only where there is complete diversity of
citizenship, . . . one exception to the requirement for complete diversity is where a non-diverse
defendant has been ‘fraudulently joined.’” Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th
Cir. 2009) (quotations and citations omitted). “Fraudulent joinder is a term of art and does not
implicate a plaintiff's subjective intent.” Health Pro Dental Corp. v. Travelers Prop. Cas. Co. of Am.,
2017 WL 1033970, at *3 (C.D. Cal. Mar. 17, 2017). 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,
the joinder of the resident defendant is fraudulent.” McCabe v. Gen. Foods Corp., 811 F.2d 1336,
1339 (9th Cir. 1987) (emphasis added). If the Court finds that the joinder of a non-diverse
defendant is fraudulent, that defendant’s presence in the lawsuit is ignored for the purposes of
determining diversity. See, e.g., Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir.
“There is a presumption against finding fraudulent joinder, and defendants who assert that
plaintiff has fraudulently joined a party carry a heavy burden of persuasion.” Plute v. Roadway
Package Sys., Inc., 141 F. Supp. 2d 1005, 1008 (N.D. Cal. 2001). Indeed, “[f]raudulent joinder must
be proven by clear and convincing evidence.” Hamilton Materials, Inc. v. Dow Chemical Corp., 494
F.3d 1203, 1206 (9th Cir. 2007). A claim of fraudulent joinder should be denied if there is any
possibility that the plaintiffs may prevail on the cause of action against the non-diverse defendant.
See Plute, 141 F. Supp. 2d at 1008. “The standard is not whether plaintiffs will actually or even
probably prevail on the merits, but whether there is a possibility that they may do so.” Lieberman v.
Meshkin, Mazandarani, 1996 WL 732506, at *3 (N.D. Cal. Dec. 11, 1996) (emphasis added). “In
determining whether a defendant was joined fraudulently, the court must resolve ‘all disputed
questions of fact and all ambiguities in the controlling state law in favor of the non-removing party.’”
Plute, 141 F. Supp. 2d at 1008 (quoting Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42-43 (5th
Cir. 1992)). Moreover, any doubts concerning the sufficiency of a cause of action due to inartful,
ambiguous, or technically defective pleading must be resolved in favor of remand. See id. “[A]
removing defendant alleging fraudulent joinder must do more than show that the complaint at the
time of removal fails to state a claim against the non-diverse defendant. Rather, the defendant must
establish that plaintiff could not amend his complaint to add additional allegations correcting any
deficiencies.” Martinez v. Michaels, 2015 WL 4337059, at *5 (C.D. Cal. July 15, 2015) (quotations
and citations omitted).
The Court concludes that Goodyear has failed to meet its heavy burden of demonstrating
fraudulent joinder. In his Complaint, Plaintiff alleges a claim for intentional infliction of emotional
distress against Contreras. Although Goodyear argues that Plaintiff cannot possibly prevail on his
claim against Contreras, the Court cannot conclude that Plaintiff has no possibility of prevailing on
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his claim against Contreras, and Goodyear’s argument is better raised in a demurrer or motion to
dismiss rather than in a notice of removal. See Vincent v. First Republic Bank Inc., 2010 WL
1980223, at *4 (N.D. Cal. May 17, 2010) (“While plaintiff’s allegations may fall short of proving
outrageous conduct, this order cannot conclude that plaintiff has absolutely no possibility of stating
a claim, if afforded an opportunity to amend.”); see also Barsell v. Urban Outfitters, Inc., 2009 WL
1916495, at *5 (C.D. Cal. Jul. 1, 2009) (quotations and citations omitted) (“There is no authority for
the proposition that [a manager] may not be liable in tort for the intentional infliction of emotional
distress providing all of the elements of that tort are satisfied. Indeed, California case law is replete
with cases where conduct of the employer or one of its agents or employees is so outside the
bounds of conduct tolerated by a decent society that it may give rise to a claim for intentional
infliction of emotional distress.”).
For all the foregoing reasons, this action is REMANDED to Los Angeles County Superior
Court for lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c).
IT IS SO ORDERED.
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