Freeman v. Cardinal Health Pharmacy Services, et al

Filing 11

ORDER signed by Judge John A. Mendez on 4/30/15 GRANTING 6 Motion to Amend and Remand. CASE REMANDED to Sacramento County Superior Court. Copy of remand order sent. CASE CLOSED. (Manzer, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GLORIA FREEMAN,

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2:14-cv-01994-JAM-KJN

Plaintiff,

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No.

v.

ORDER GRANTING PLAINTIFF’S MOTION
TO AMEND AND REMAND

CARDINAL HEALTH PHARMACY
SERVICES, LLC dba CARDINAL
HEALTH; BHC SIERRA VISTA
HOSPITAL, INC. dba SIERRA
VISTA HOSPITAL; BRAD MATHIS;
and DOES 1 through 50,
inclusive,

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Defendants.

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Plaintiff Gloria Freeman (“Plaintiff”) alleges that the

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pharmacy where she worked terminated her employment in

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retaliation for her complaints about patient and staff safety.

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Plaintiff now moves to amend the complaint to add the hospital

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where the pharmacy was located as a defendant.

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stated below, the Court grants the motion and remands the case to

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state court. 1

For the reasons

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for March 25, 2015.
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I.

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

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Plaintiff worked for Defendant Cardinal Health Pharmacy

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Services (“Defendant”) in Sierra Vista Hospital (“Sierra Vista”)

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as Director of Pharmacy.

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Sierra Vista’s CEO, Michael Zauner (“Zauner”), Plaintiff

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participated in “management rounds” with the hospital’s

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psychiatric patients.

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“violent incidents,” one of which caused her to hurt her knee.

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FAC ¶¶ 10, 21.

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FAC ¶ 8.

FAC ¶ 10.

At the alleged direction of

During rounds, she experienced

After the injury, Plaintiff requested that Defendant and

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Sierra Vista accommodate her by allowing her to use crutches and

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to relocate “important items” in the pharmacy.

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36.

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medical leave.

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work with accommodations, but this request was also denied.

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¶¶ 36-37.

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Defendant was terminating her employment at the conclusion of her

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leave.

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FAC ¶¶ 22, 31,

These requests were denied and Plaintiff instead went on
See FAC ¶¶ 24, 28.

Plaintiff asked to return to
FAC

The next day, Plaintiff’s supervisor informed her that

FAC ¶ 37.

Plaintiff claims that she was terminated because of her

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complaints about dangerous hospital conditions, including

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“placing untrained staff . . . in contact with sometimes violent

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psychiatric patients” and other complaints she had made about

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salary discrepancies between men and women, improper storage of

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medications, and electrical failures.

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65.

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FAC ¶¶ 11, 17-20, 49, 64-

Plaintiff sued Defendant, her supervisor, and Sierra Vista

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in state court alleging eight causes of action (Doc. #1).

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Vista demurred, and Plaintiff responded by voluntarily dismissing
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Sierra

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Sierra Vista from the action.

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Plaintiff’s attorney advised opposing counsel at the time that,

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“We may wish to amend the complaint again as discovery

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progresses, but at this point, your demurrer was well taken.”

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Id.

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See Havey Decl. Exh. E.

Two months later, Defendant removed the case to this Court

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(Doc. #1).

Discovery commenced, including the deposition of

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Zauner.

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this deposition produced sufficient facts to support her original

See Boucher Decl. ¶¶ 12-15.

Plaintiff represents that

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claim against Sierra Vista, and now moves for leave to amend to

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add Sierra Vista as a defendant (Doc. #6).

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Vista would destroy diversity, Plaintiff also moves for remand

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(Doc. #6).

Because adding Sierra

Defendant opposes amendment and remand (Doc. #7).

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II.

OPINION

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A.

Legal Standard

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Generally, a court assesses subject matter jurisdiction as

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it existed at the time of removal.

See Miller v. Grgurich, 763

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F.2d 372, 373 (9th Cir. 1985).

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plaintiff seeks to join additional defendants whose joinder would

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destroy subject matter jurisdiction, the court may deny joinder,

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or permit joinder and remand the action to the State court.”

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U.S.C. § 1447(e); Newcombe v. Adolf Coors Co., 157 F.3d 686, 691

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(9th Cir. 1998) (“[T]he decision regarding joinder of a diversity

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destroying-defendant is left to the discretion of the district

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court.”).

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relying on Fed. Rule Civ. Proc. 15(a) to join non-diverse

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parties.”

But “[i]f after removal the

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“Plaintiffs may not circumvent [section] 1447(e) by

Hardin v. Wal-Mart Stores, Inc., 813 F. Supp. 2d 1167,
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1173 (E.D. Cal. 2011) (citing Clinco v. Roberts, 41 F. Supp. 2d

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1080, 1086 (C.D. Cal. 1999)).

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Plaintiff’s proposed amendment under section 1447(e) rather than

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15(a).

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607 (S.D. Cal. 2014).

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The Court therefore considers

Accord McGrath v. Home Depot USA, Inc., 298 F.R.D. 601,

Courts consider numerous factors in deciding whether to

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allow joinder under section 1447(e), including (1) whether the

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party to be joined is a necessary party under Federal Rule of

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Civil Procedure 19(a); (2) whether the statute of limitations

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would prevent the plaintiff from filing a new action against the

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defendant she hopes to join; (3) whether there has been an

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“unexplained delay in seeking the joinder”; (4) whether the

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plaintiff’s purpose is solely to defeat federal jurisdiction;

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(5) whether the claim against the new defendant “seems valid”;

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(6) “possible prejudice” to the existing parties; and (7) the new

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defendant’s “notice of the pending action.”

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Supp. 2d at 1173-74 (quoting Oum v. Rite Aid Corp., 2009 WL

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151510, at *3 (C.D. Cal. Jan. 20, 2009)) (quotation marks

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omitted).

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B.

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Discussion
1.

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See Hardin, 813 F.

Necessary Party

Plaintiff argues that Sierra Vista is a necessary party

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under Rule 19, because the matter “cannot be fully adjudicated”

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without the hospital.

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that Sierra Vista does not fall under this rule because “[t]here

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is no overlap between parties or causes of action[.]”

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8:6.

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///

Reply at 1:22.

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Defendant counters that

Opp. at

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Sierra Vista is not a necessary party.

Plaintiff appears to

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argue that Sierra Vista falls under Rule 19(a)(1)(A), which

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defines a party as necessary if, “in that person’s absence, the

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court cannot accord complete relief among existing parties[.]”

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“In considering the Rule 19(a)(1) analysis, the court asks

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whether the absence of the party would preclude the district

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court from fashioning meaningful relief as between the parties.”

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Disabled Rights Action Comm. v. Las Vegas Events, Inc., 357 F.3d

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861, 879 (9th Cir. 2004).

This standard is “concerned only with

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relief as between the persons already parties, not as between a

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party and the absent person whose joinder is sought.”

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Cty. Of Merced, 2013 WL 2404844, at *5 (E.D. Cal. May 21, 2013)

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(quoting Eldredge v. Carpenters 46 N. Cal. Ctys. Joint

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Apprenticeships & Training Comm., 662 F.2d 534, 537 (9th Cir.

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1981)) (quotation marks omitted).

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Plaintiff here seeks only money damages.

Brum v.

See FAC at 19.

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And she has given no indication that an order binding Sierra

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Vista is required to achieve this relief from the existing

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Defendants.

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(“These forms of relief, which are neither hollow nor

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meaningless, would be available with or without [the new party’s]

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participation.”) (citations omitted).

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therefore, necessary to provide complete relief among the

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existing parties.

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joinder.

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2.

See Disabled Rights Action Comm., 357 F.3d at 880

Sierra Vista is not,

This factor weighs in favor of denying

Statute of Limitations

The parties agree that the statute of limitations has not
yet run, such that Plaintiff could file her claims against Sierra
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Vista in a separate case.

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joinder.

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3.

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This factor too weighs against

Delay in Seeking Joinder

The parties dispute whether Plaintiff improperly delayed

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bringing this motion.

Defendant contends that Plaintiff should

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have attempted to keep Sierra Vista in the action in state court

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rather than waiting until removal to file this motion.

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at 8.

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reasonable amount of time after discovery revealed the nature of

See Opp.

Plaintiff asserts that she sought this amendment within a

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Sierra Vista’s role in her employment and termination.

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at 11; Reply at 2.

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The Court agrees with Plaintiff.

The following timeline

illustrates that Plaintiff has diligently pursued joinder:
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See Mot.

In March 2014, Sierra Vista demurred in state court,
Boucher Decl. ¶ 9;

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In June 2014, Plaintiff voluntarily dismissed Sierra

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Vista, advising opposing counsel by email that “your

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demurrer was well taken[,]” but Plaintiff “may wish to

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amend the complaint again as discovery progresses,” Havey

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Decl. Exh. E;

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In August 2014, Defendant removed the case, see Not. of
Removal (Doc. #1);

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In October 2014, Plaintiff subpoenaed Zauner and the

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parties agreed to conduct his deposition in December

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2014, Boucher Decl. ¶¶ 14-15.

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information learned in this deposition forms the basis of

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the proposed amended claims against Sierra Vista.

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at 11.

Plaintiff contends that

Mot.

This contention is supported by the record, in
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that Zauner testified about the employment relationship

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between Sierra Vista and the Director of Pharmacy

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position, which is now reflected in the proposed amended

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complaint.

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53;

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See Boucher Decl. Exh. E; Proposed SAC ¶¶ 42-

In February 2015, Plaintiff sought a stipulation to add

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Sierra Vista and file the amended complaint, Boucher

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Decl. ¶ 16;

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Three days after Defendant declined to stipulate,

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Plaintiff filed this motion to amend, see id.

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This timeline evidences no unexplained delay, so this factor

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weighs in favor of allowing joinder.

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4.

Purpose to Defeat Jurisdiction

Defendant asserts that Plaintiff’s “underlying motive is to

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destroy diversity and delay the case.”

Opp. at 9:24.

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motive is apparent, according to Defendant, because Plaintiff had

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the necessary information to “raise the theory at the time she

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filed her initial pleading[.]”

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discussed above, the record supports Plaintiff’s contention that

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she first learned essential facts about Sierra Vista during

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Zauner’s deposition.

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demonstrates that Plaintiff’s counsel candidly acknowledged that

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there were not enough facts to support a claim against Sierra

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Vista in June 2014, and disclosed their intention to seek facts

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supporting amendment.

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from Plaintiff’s attorney dated Sept. 10, 2014) (“Be advised that

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Plaintiff may still amend, adding additional facts which may

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include Sierra [Vista] or other causes of action.”).

Opp. at 9:20-21.

This

But as

The parties’ correspondence also

See Havey Decl. Exh. E; id. Exh. I (email

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Plaintiff

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is now simply following through with her stated intention.

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factor therefore supports joinder.

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5.

This

Validity of Claims

The parties urge the Court to scrutinize the proposed

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amended complaint and Zauner’s deposition testimony to determine

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whether Plaintiff can ultimately succeed in a dual-employer

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liability theory.

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a motion to dismiss or a motion for summary judgment; under

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section 1447(e), the Court need only determine whether the claim

Mot. at 16-19; Opp. at 10-14.

But this is not

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“seems” valid.

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Aviation Servs., Inc. v. Compania Mexicana de Aviacion, S.A. de

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C.V., 125 F. Supp. 2d 1008, 1012-13 (N.D. Cal. 2000).

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asserts that the Court should consider whether the amended

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complaint “could be defeated by a motion to dismiss” and whether

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“Plaintiff cannot prevail on the merits.”

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is not the standard under section 1447(e) and the cases Defendant

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cites do not interpret 1447(e).

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Martin Corp. v. Network Solns, Inc., 194 F.3d 980 (9th Cir.

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1999); Smith v. Commanding Officer, Air Force Accounting &

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Finance Center, 555 F.2d 234 (9th Cir. 1977); Weber v. Time

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Warner, Inc., 2006 WL 681032 (W.D. Wash. Mar. 15, 2006).

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See Hardin, 813 F. Supp. 2d. at 1174; IBC

Defendant

Opp. at 10.

But that

See Mot. Opp. at 10; Lockheed

Applying the proper standard, the Court determines that the

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new claim against Sierra Vista “seems valid.”

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a violation of California Health and Safety Code section 1278.5,

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which prohibits a “health facility” from “retaliat[ing], in any

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manner, against any patient, employee, member of the medical

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staff, or any other health care worker of the health facility

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because the person has . . . [p]resented a grievance, complaint
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This claim alleges

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or report to the facility . . . or the medical staff of the

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facility . . . .”

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Retaliation can include “discharge, demotion, suspension, or any

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unfavorable changes in, or breach of, the terms or conditions

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of a contract, employment, or privileges of the employee, member

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of the medical staff, or any other health care worker of the

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health care facility, or the threat of any of these actions.”

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Cal. Health & Safety Code § 1278(d)(2).

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Cal. Health & Safety Code § 1278(b)(1).

Plaintiff’s amended complaint alleges that she reported

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unsafe conditions to Sierra Vista and because of those reports,

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Sierra Vista denied her valid requests for accommodation, and

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ultimately directed her termination.

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weighs in favor of granting the amendment.

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6.

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Proposed SAC ¶¶ 11, 16, 19,

This claim appears valid, and so this factor

Prejudice

Both parties assert that they will suffer prejudice if the

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Court does not resolve the motion in their favor.

Defendant

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argues that amendment would require “new and additional discovery

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after [it] has completed its written discovery.”

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needed, or why doing additional discovery would be prejudicial

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since discovery is still open.

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3.

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statement . . . on September 10, 2014, that she would not seek a

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stipulation to add Sierra Vista back into the litigation.”

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at 15:15-16.

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exchange, in which Plaintiff’s counsel advised that she “may

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still amend, adding additional facts which may include Sierra

Opp. at 15:11-

But Defendant has not explained what additional discovery is

See Pre-trial Scheduling Order at

Defendant also contends that “it relied on Plaintiff’s

Opp.

But Defendant misconstrues the September 10th

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[Vista] or other causes of action.”

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Plaintiff had made her intention to join Sierra Vista clear all

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along, the Court finds that Defendant will not suffer prejudice.

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Plaintiff contends that she will be prejudiced if the court

Havey Decl. Exh. I.

Because

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denies amendment because of the possibility of inconsistent

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outcomes.

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however, that Plaintiff will suffer any such prejudice.

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the single cause of action she seeks against Sierra Vista is

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independent of her claims against Cardinal Health.

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The Court is not persuaded,
Indeed,

Because neither party is likely to suffer prejudice based on
the outcome of this motion, this factor is neutral.

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Mot. at 15; Reply at 5.

7.

New Defendant’s Notice

The parties did not address this factor, but it weighs in

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favor of amendment.

Sierra Vista has had notice of this action

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because it used to be a party to the state court action and

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because its CEO has already been deposed.

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*

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As described above, four of the seven factors weigh in favor

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of allowing joinder.

Two factors weigh in favor of denying

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joinder and one factor is neutral.

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its discretion to permit joinder and remand this action to state

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court.
III.

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The Court therefore exercises

ORDER

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The Court GRANTS Plaintiff’s motion to amend and remand.

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IT IS SO ORDERED.

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Dated: April 30, 2015

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