Kenneth President v. Walgreen Co. et al
MINUTES (IN CHAMBERS) ORDER REMANDING ACTION TO LOS ANGELES SUPERIOR COURT by Judge John F. Walter. This action is REMANDED to Los Angeles County Superior Court for lack of subject matter jurisdiction. Case Terminated. Made JS-6 (iv)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES -- GENERAL
Kenneth President -v- Walgreen Co., et al.
Date: September 15, 2020
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 August 3, 2020, Plaintiff Kenneth President (“Plaintiff”) filed a Complaint against
Defendants Walgreen Co. (“Walgreen”) and Angelica Niento (“Niento”) (collectively, “Defendants”)
in Los Angeles Superior Court, alleging the following causes of action against all the Defendants:
(1) retaliation in violation of California Government Code § 12940(h); (2) failure to prevent
retaliation in violation of California Government Code § 12940(k); (3) intentional infliction of
emotional distress; (4) wrongful termination in violation of public policy; and (5) unfair business
practices in violation of California Business & Professions Code § 17200. On September 8, 2020,
Walgreen filed a Notice of Removal, alleging that this Court has jurisdiction pursuant to 28 U.S.C. §
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.
1990). As the party invoking federal jurisdiction, Walgreen 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 Walgreen has not met its burden of demonstrating that the parties are
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completely diverse, this action must be remanded.
To be a citizen of a state, a natural person must be a citizen of the United States and be
domiciled in a particular state. Id. Persons are domiciled in the places they reside with the intent
to remain or to which they intend to return. Id. “A person residing in a given state is not
necessarily domiciled there, and thus is not necessarily a citizen of that state.” Id. In his
Complaint, Plaintiff alleges that he is a resident of California. Complaint, ¶ 1. Based on that
allegation and the fact that Plaintiff maintained a residential address in Long Beach, California
while employed by Walgreen from June 9, 2014 to July 31, 2019, Walgreen concludes that
“Plaintiff is and, at all times since the commencement of this action has been, a resident and
citizen of California.” Notice of Removal, ¶ 12. However, Walgreen has simply concluded without
alleging any facts to support its conclusion that because Plaintiff is a resident of California, he is
also domiciled there and, as a result, a citizen of California.
Because neither the “four corners” of the Complaint nor the Notice of Removal contain
sufficient allegations concerning Plaintiff’s citizenship, Defendant has failed to meet its burden to
establish this Court's jurisdiction. See Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 694 (9th
In addition, even assuming arguendo that Plaintiff is a citizen of California, Walgreen has
failed to demonstrate that Niento has been fraudulently joined. Walgreen contends that even
though Plaintiff and Niento are both citizens of California, Niento has been fraudulently joined, and,
thus, her 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. 2001).
“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,
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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 Walgreen has failed to meet its heavy burden of demonstrating
fraudulent joinder. In his Complaint, Plaintiff alleges several claims against Niento, including a claim
for intentional infliction of emotional distress. Although Walgreen argues that Plaintiff cannot
possibly prevail on his intentional infliction of emotional distress claim against Niento, the Court
cannot conclude that Plaintiff has no possibility of prevailing on his claim against Niento, and
Walgreen’s argument is better raised in a demurrer or motion to dismiss rather than in a notice of
removal.1 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.”); Rocha
v. Capstone Logistics, LLC, 2018 WL 839906 (C.D. Cal. Feb. 13, 2018) (“Although Plaintiff’s IIED
claim is weak as currently pleaded, it might be improved through amendment . . . Accordingly, the
are not sham defendants, and because they and Plaintiff share California citizenship, complete
diversity does not exist”) (emphasis in original).
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.
Because the Court has concluded that Plaintiff has the possibility of prevailing on his
intentional infliction of emotional distress claim against Niento, the Court does not need to
determine if Plaintiff has the possibility of prevailing on the other claims he has alleged against
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