Porter v. Nationwide Mutual Insurance Company et al.

Filing 25

ORDER denying 14 Motion to Remand and granting 16 Motion to Dismiss signed by District Judge John A. Mendez on 2/27/17: If Plaintiff chooses to amend, she must file her amended complaint within twenty days of the date of this Order. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KRISTI PORTER,

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2:16-cv-1933-JAM-AC

Plaintiff,

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No.

v.
NATIONWIDE MUTUAL INSURANCE
COMPANY, an Ohio corporation,
GREGORY S. EVERETT, an
individual, and Does 1
through 20, inclusive,

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ORDER DENYING PLAINTIFF’S MOTION
TO REMAND AND GRANTING
DEFENDANTS’ MOTION TO DISMISS

Defendants.

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Plaintiff Kristi Porter (“Porter”) claims Defendants

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Nationwide Mutual Insurance Company (“Nationwide”) and Gregory

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Everett (“Everett”) were not on her side when she was fired in

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2016.

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court and Defendants removed the case to federal court.

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1-2.

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to dismiss Porter’s defamation claim.

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reasons set forth below, the Court DENIES Plaintiff’s motion to

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remand and GRANTS Defendants’ motion to dismiss with leave to

Porter filed suit against Nationwide and Everett in state

Porter now moves to remand.

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1

ECF No. 14.

ECF No.

Defendants move

ECF No. 16.

For the

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amend. 1

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I.

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FACTUAL AND PROCEDURAL BACKGROUND

Kristi Porter worked as an adjuster for Nationwide from

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December 2006 to February 2016.

Compl. ¶¶ 1, 11.

Defendant

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Everett began supervising Porter in March 2013.

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According to Porter, Everett “favored the male employees” and

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“assigned Plaintiff and the other female adjuster greater work

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loads . . . [and] more difficult territories.”

Compl. ¶ 12.

Compl. ¶ 12.

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Porter complained to Everett and Nationwide’s human resources

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department about the unequal treatment.

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July 2014, Everett gave Porter an “unjustified poor performance

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review.”

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warning about supposed performance issues” and “accused Plaintiff

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of conduct that was untrue such as working overtime when she was

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not and mishandling a claim.”

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Compl. ¶ 12.

Compl. ¶¶ 12, 14.

In

Everett also “gave Plaintiff a written

Compl. ¶ 13.

Porter took medical leave from April to June 2015.

Compl.

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¶ 17.

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notice” that it would fire Porter “if her performance did not

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improve.”

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mid-year performance evaluation, which “contained the same

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inaccuracies and misrepresentations as the previous reviews.”

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Compl. ¶ 20.

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medical condition.

On July 31, 2015, Nationwide gave Porter a “30-day final

Compl. ¶ 19.

In August 2015, Everett gave Porter her

These events distressed Porter and exacerbated her
Compl. ¶ 21.

Porter’s doctor put her on

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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 February 7, 2016. In deciding the motion to
dismiss, the Court takes as true all well pleaded facts in the
Complaint.
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medical leave beginning October 8, 2015.

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Id.

Nationwide told Porter her leave would expire on November 6,

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2015, but then Nationwide extended her leave.

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February 2016, Porter told Nationwide she could return to work on

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March 7, 2016.

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told Porter they had filled her position and “her employment was

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terminated because her medical leave was exhausted.”

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¶ 24.

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been given a final 30-day notice prior to her medical leave, she

Compl. ¶ 23.

Compl. ¶ 22.

In

On February 25, 2016 Defendants

Compl.

Defendants also “informed Plaintiff that, because she had

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was not eligible for re-hire.”

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investigate [Porter’s] complaints about the inaccurate and

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unwarranted performance reviews and the final 30-day notice.”

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Id.

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Id.

Nationwide “refused to

Porter alleges ten California state law causes of action:

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(1) gender discrimination, (2) disability/medical condition

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discrimination, (3) failure to engage in the interactive process,

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(4) failure to accommodate, (5) retaliation for requesting

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accommodation, (6) retaliation for filing the complaint,

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(7) failure to prevent discrimination, (8) retaliation for

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exercising her right under the California Family Rights Act,

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(9) wrongful termination, and (10) defamation.

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Porter brings the first nine claims against Nationwide and the

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tenth claim against Nationwide and Everett.

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Compl. at 8-17.

Id.

Defendants removed the case based on diversity jurisdiction.

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Notice of Removal at 2.

Porter and Everett are citizens of

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California.

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its principal place of business in Ohio.

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Decl. ¶¶ 4, 5, ECF No. 1-3.

Compl. ¶¶ 1, 3.

Nationwide is incorporated and has
Compl. ¶ 2; Schuler

Defendants argue that the Court
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should disregard Everett’s citizenship because Porter does not

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state a cause of action against Everett.

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Defendants also move to dismiss Plaintiff’s defamation claim

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against Nationwide.

Notice of Removal at 6.

Mot. to Dismiss at 1.

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II.

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REQUEST FOR JUDICIAL NOTICE

Defendants request the Court take judicial notice of the
following exhibits attached to Everett’s declaration:

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•

Exhibit A-Porter’s performance evaluation for 2014

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Exhibit B-the written notice Nationwide issued to Porter

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on 12/11/14
•

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Exhibit C-Porter’s mid-year performance evaluation for
2015

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Exhibit D-the final written notice Nationwide issued to
Porter in July 2015.

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10/20/2016 Request for Judicial Notice (“RJN”) at 1-2, ECF No.

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16-2.

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Defendants argue the Court should take judicial notice of

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these documents because Porter incorporated the documents in her

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complaint.

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Id. at 3-4.

“On a motion to dismiss, [a court] may consider materials

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incorporated into the complaint or matters of public record.”

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Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir.

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2010).

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when she “relies upon a document or [alleges] the contents of the

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document[,] . . . the document’s authenticity is not in

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question[,] and there are no disputed issues as to the document’s

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relevance.”

A plaintiff incorporates materials into her complaint

Id.
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Porter refers to each of the exhibits attached to Everett’s

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declaration in her complaint.

See Compl. ¶ 12 (performance

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review Everett gave to Porter in July 2014, corresponding to

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Exhibit A); Compl. ¶ 13 (“written warning about supposed

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performance issues,” corresponding to Exhibit B); Compl. ¶ 20

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(“mid-year performance evaluation,” corresponding to Exhibit C);

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Compl. ¶ 19 (“30-day final notice,” corresponding to Exhibit D”).

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Porter alleges the contents of the documents in her complaint,

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and she does not contest their authenticity or relevance.

The

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Court therefore takes judicial notice of Exhibits A through D to

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Everett’s declaration.

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Defendants also ask the Court to consider Everett’s

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declaration and Exhibits A through D in deciding Porter’s motion

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to remand.

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the pleadings and consider[] summary judgment-type evidence such

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as affidavits and deposition testimony” in deciding fraudulent

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joinder.

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(9th Cir. 2001).

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declaration and its attachments in deciding the motion to remand.

Opp’n to Mot. to Remand at 3.

A court may “pierc[e]

Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1068
The Court therefore will consider Everett’s

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III. OPINION

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A.

Legal Standard

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Generally, a defendant may remove a state civil action to

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federal court only if the plaintiff could have filed the case in

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federal court originally. See 28 U.S.C. § 1441.

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Circuit “strictly construe[s] the removal statute against

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removal jurisdiction.”

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(9th Cir. 1992).

The Ninth

Gaus v. Miles, Inc., 980 F.2d 564, 566

Thus, a federal district court must reject
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removal jurisdiction if it has “any doubt as to the right of

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removal in the first instance.”

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against removal jurisdiction means that the defendant always has

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the burden of establishing that removal is proper.”

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Id.

“The ‘strong presumption’

Id.

An out-of-state defendant may remove a case based on

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diversity jurisdiction.

28 U.S.C. § 1441(b).

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diversity jurisdiction, the removing defendant must show

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complete diversity exists among the parties and the amount in

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controversy exceeds $75,000. 2

Id. § 1332.

To establish

“Section 1332

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requires complete diversity of citizenship; each of the

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plaintiffs must be a citizen of a different state than each of

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the defendants.”

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Morris, 236 F. 3d at 1067.

An exception to the complete diversity requirement applies

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if the removing defendant can show that the plaintiff has

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“fraudulently joined” a non-diverse defendant to thwart removal.

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Id.

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and the Court must ignore “the defendant’s presence in the

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lawsuit . . . ‘if the plaintiff fails to state a cause of action

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against a resident defendant, and the failure is obvious

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according to the settled rules of the state.’”

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McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir.

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1987)).

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fraudulent joinder must show the plaintiff cannot possibly state

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a claim in state court against the alleged “sham defendant.”

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Gomez v. Rehab., 2016 WL 370692, at *2 (C.D. Cal. Jan. 29,

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2016).

“Joinder of a non-diverse defendant is deemed fraudulent,”

Id. (quoting

A defendant asserting removal jurisdiction based on

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Porter does not contest Defendants’ claim that the amount in
controversy exceeds $75,000.
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B.

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Defamation includes both libel and slander.

Analysis
Noel v. River

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Hills Wilsons, Inc., 113 Cal. App. 4th 1363, 1368 (2003).

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Defamation has five elements: “(a) a publication that is

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(b) false, (c) defamatory, and (d) unprivileged, and that (e) has

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a natural tendency to injure or that causes special damage.”

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Taus v. Loftus, 40 Cal. 4th 683, 720 (2007).

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element requires a plaintiff to show the defendant conveyed the

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allegedly defamatory information to a third party.

The “publication”

Schmidt v.

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Levi Strauss & Co., 2008 WL 4450331, at *1 (N.D. Cal. Sept. 30,

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2008) (citing Live Oak Publ’g Co. v. Cohagan, 234 Cal. App. 3d

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1277, 1284 (1991)).

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statements must be false and therefore also statements of fact,

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not merely expressions of opinion.”

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2014 WL 4808851, at *5 (N.D. Cal. Sept. 26, 2014).

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plaintiff need not plead the allegedly defamatory statement

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verbatim” she must “specifically identif[y] and . . . plead the

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substance of the statement.”

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Supp. 2d 1198, 1216 (C.D. Cal. 2004).

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Additionally, “the alleged defamatory

Charlson v. DHR Int’l Inc.,
“[A]lthough a

Jacobson v. Schwarzenegger, 357 F.

Defendants argue Porter fails to state a defamation claim

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against either Everett or Nationwide for the following reasons:

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(1) Porter “fails to state the content of what was actually said,

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which Defendant said what, to whom any statement was specifically

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made, whether the alleged communication was transmitted orally or

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in writing . . . [or] when the statement was published”;

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(2) Porter has not shown that Everett made any publication to a

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third party; (3) Porter has not shown that the allegedly

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defamatory information was unprivileged; and (4) Porter cannot
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show that Everett made any false statement of fact, rather than a

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statement of opinion.

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these reasons will be discussed more fully below.

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1.

Mot. to Dismiss at 4, 9-11, 15. Each of

Failure to Plead Defamatory Statements With
Specificity

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Defendants argue that Porter cannot possibly state a claim

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“against either Defendant (but especially Everett), as Plaintiff

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has not alleged any actual facts, such as the content of any

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statement, that either Defendant published any written or oral

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unprivileged, defamatory statement of fact.”

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Remand at 4.

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contain “the actual who, what, where, and when necessary to

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establish a claim for defamation, much less circumstances which

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particularly show that Nationwide or Everett acted with actual

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malice so as to overcome the managerial privilege under

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California Civil Code § 47(c).”

Opp’n to Mot. to

Defendants also argue Porter’s complaint does not

Id.

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Porter does not adequately respond to this argument in her

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motion to remand or in her opposition to the motion to dismiss.

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She fails to specifically identify the allegedly defamatory

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statements.

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defamation claim because “[f]alse statements affecting a person’s

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occupational reputation amount to defamation per se.”

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Remand at 2.

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46(3), which states

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Instead, Porter argues she clearly states a

Mot. to

Plaintiff cites to California Civil Code section

Slander is a false and unprivileged publication,
orally uttered . . . which . . . [t]ends directly to
injure him in respect to his office, profession,
trade or business, either by imputing to him general
disqualification in those respects which the office
or other occupation peculiarly requires, or by
imputing something with reference to his office,
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profession, trade, or business that has a natural
tendency to lessen its profits.

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Cal. Civ. Code § 46(3).
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Porter’s defamation per se argument is unpersuasive.
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Section 46(3) still requires Porter to show an “unprivileged
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publication,” which Porter has failed to do.

Cal. Civ. Code

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§ 46(3).

Porter also cites to Washer v. Bank of America, 21 Cal.

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2d 822, 827 (1943) to support her defamation per se argument.
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Mot. to Remand at 2.

But in Washer, the defendant made the

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slanderous statement to newspaper reporters.

Washer, 21 Cal. 2d

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at 825.

Here, Porter does not provide facts or argument to

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support a claim that Everett made any allegedly defamatory
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statements to anyone other than Porter.
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In her opposition to the motion to dismiss, Porter relies on
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several cases to argue she sufficiently states the substance of
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Everett’s allegedly defamatory statements.

Opp’n to Mot. to

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Dismiss at 3-4.

These cases, however, as Defendants’ note, came

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before the higher pleading standard Twombly and Iqbal imposed on
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federal court plaintiffs.

Reply ISO Mot. to Dismiss at 1-2.

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Porter fails to identify the specific contents of any
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allegedly defamatory communication and none of the cases she
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relies on convinces the Court otherwise.
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2.

“Publication” Element

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Porter alleges Defendants told at least four Nationwide
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employees “and subsequent potential employers, expressly or by
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implication, that Plaintiff was incompetent, that she violated
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company policies, [and] that she lacked job knowledge and that
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she performed her job poorly.”

Compl. ¶ 85.

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Defendants argue

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these allegations “do not show that Everett or Nationwide

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published any false statement to a third party.”

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Removal at 7.

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that Everett gave Porter a 30-day-notice and an unfavorable mid-

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year review and that Porter complained to the HR department about

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these documents.

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allegation confirms that Everett communicated performance reviews

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directly to Plaintiff, and following the review, Plaintiff

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communicated to Nationwide.”

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Notice of

Defendants argue Porter’s allegations show only

Id.

Defendants specifically contend that “each

Id. at 8.

Porter does not identify any portions of her Complaint that

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contain well-pleaded facts regarding publication to a third

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party.

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employer’s agents are actionable” as defamation.

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at 4.

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internal” and “published and received solely by other employees.”

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Mot. to Remand at 4.

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argument.

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by employers can give rise to actionable defamation.

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they argue Porter fails to allege facts to show Everett ever made

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an “internal publication” to anyone besides Porter.

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Porter only argues that “internal publications by
Mot. to Remand

Porter cites to cases where publication was “completely

But Porter misses the crux of Defendants’

Defendants do not challenge that internal publications
Instead,

Porter also argues she had to “republish” the allegedly

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defamatory statements to Nationwide’s HR department.

Opp’n to

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Mot. to Dismiss at 3.

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however, is distinguishable in that the plaintiff “republished”

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the defamatory information not internally, but to other potential

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employers.

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(E.D. Cal. 2015).

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argument that republishing information to an employer’s internal

The case upon which Porter relies,

Bowen v. M. Caratan, Inc., 142 F. Supp. 3d 1007, 1035
Porter does not cite any case to support her

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department establishes publication to a third party. The Court

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finds that Porter has failed to sufficiently plead the

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“publication to a third party” element of her defamation claim.

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3.

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“Unprivileged” Element

Defendants argue that Porter cannot show Everett made any

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“unprivileged” statements because “communications by an employer

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relating to the conduct or termination of a current or former

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employee that are made in a commercial setting are subject to a

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qualified privilege under California Civil Code section 47(c).”

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Notice of Removal at 9.

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“Cal. Civ. Code § 47(c) extends a conditional privilege

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against defamation claims to communication made without malice on

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a subject of mutual interest.”

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619 F. Supp. 2d 854, 864 (N.D. Cal. 2009).

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consistently interpreted section 47, subdivision(c) to apply in

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the employment context.”

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state a claim for defamation where a qualified privilege applies,

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a complaint ‘must contain affirmative allegations of malice in

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fact.’”

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(E.D. Cal. Jul. 18, 2012) (quoting Lundquist v. Reusser, 7 Cal.

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4th 1193 (1994)).

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malice” to defeat a qualified privilege.

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at 1370.

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“that the publication was motivated by hatred or ill will towards

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the plaintiff or by a showing that the defendant lacked

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reasonable grounds for belief in the truth of the publication.”

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Id.

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London v. Sears, Roebuck & Co.,
“Courts have

Noel, 113 Cal. App. 4th at 1369.

“To

Jones v. Lehigh Sw. Cement Co., 2012 WL 2934530, at *5

Furthermore, a plaintiff must show “actual
Noel, 113 Cal. App. 4th

A plaintiff can show “actual malice” with allegations

Defendants argue “[a]lthough Plaintiff contends in Paragraph
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91 of her Complaint that the factual allegations contained in

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Paragraph 12 through 24 were done with malice, these paragraphs

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fail to specifically identify any statement of circumstances,

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occurrences, and events sufficient under Twombly or Iqbal, that

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would show actual malice.”

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Notice of Removal at 9-10.

Porter argues Defendants bear the burden to prove absence of

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malice.

Mot. to Remand at 5.

But Porter, again, does not

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support her argument with case law.

Defendants correctly argue

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that Porter “misstates the burden.”

Opp’n to Mot. to Remand at

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10.

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elements of a defamation claim, including actual malice to

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overcome [the] presumed qualified privilege.”

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2934530, at *6.

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Everett acted with actual malice.

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that Everett was “motivated by hatred or ill will” or “lacked

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reasonable grounds for belief in the truth of the publication.”

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See Noel, 113 Cal. App. 4th at 1370.

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A plaintiff “must allege facts to support each of the . . .

Jones, 2012 WL

Porter does not allege facts to establish
No facts in the complaint show

Porter next argues that a plaintiff can prove malice in many

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ways.

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plaintiffs in other cases have shown malice.

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5-7.

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complaint showing Everett made a defamatory statement with

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malice.

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Mot. to Remand at 5.

Porter lists several ways that
Mot. to Remand at

Porter still, however, fails to point to facts in her

Defendants argue “[w]hile [Porter] pleads generally that

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Defendant Everett did not like her compared to male colleagues,

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she does not link that dislike to any actual defamatory

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statement.”

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argue that “the defamation cases cited by Plaintiff demonstrating

Opp’n to Mot. to Remand at 11.

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Defendants also

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how one can prove malice are not applicable because they are not

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cases where the sufficiency of the Complaint was at issue in a

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case where a former employee sued a former employer pertaining to

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performance evaluations.”

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cases cited by Plaintiff pertain primarily to allegedly

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defamatory publications in newspapers or regarding public figures

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at the summary judgment or post-trial stage of litigation.”

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at 11-12.

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Id.

Rather, Defendants argue, “the

Id.

The Court concludes that Porter has not sufficiently pleads

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the “unprivileged” element of a defamation claim.

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she has not pled facts showing that Everett acted with malice,

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and so she cannot overcome the privilege afforded by section

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47(c).

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15

4.

Specifically,

“False” Element

“A publication must contain a false statement of fact to

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give rise to liability for defamation.”

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Packard Co., 14 Cal. App. 4th 958, 970 (1993) (emphasis in

18

original).

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employee of ‘poor performance’ is ‘clearly a statement of

20

opinion,’ and is not defamatory.”

21

Freight Line, Inc., 2013 WL 6184432, at *9 (C.D. Cal. Nov. 27,

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2013) (citing Gould v. Md. Sound Indus., Inc., 31 Cal. App. 4th

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1137, 1153–54 (1995)).

24

Jensen v. Hewlett-

Furthermore, “an employer’s statement accusing an

Rodriguez v. Old Dominion

Defendants argue that “the alleged defamatory statements

25

concerning Plaintiff’s performance [are] mere opinions of

26

Everett, not facts.”

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conversely, argues that the documents Defendants submitted

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contain “statements of fact—not opinion.”

Notice of Removal at 11.

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Porter,

Reply ISO Mot. to

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Remand.

2

factual statements in the documents are defamatory and in the

3

absence of such specificity, this claim cannot survive.

4

However, Porter still fails to identify which specific

In sum, on the basis of the above four arguments submitted

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by Defendants with respect to Porter’s defamation claim, the

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Court finds that Porter has not pled sufficient facts to

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establish that Everett or Nationwide defamed her.

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therefore dismisses this claim against Nationwide and Everett

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without prejudice.

The Court

Porter’s Motion to Remand must be denied

10

since Porter and Nationwide (the remaining two parties) are

11

citizens of different states and Nationwide has shown, without

12

challenge from Porter, the amount in controversy exceeds $75,000.

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The Court therefore has diversity jurisdiction.

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C.

Plaintiff’s Motion for Attorney’s Fees

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Porter argues “the Court should award attorney’s fees and

16

costs because Defendants and their attorneys had no reasonable

17

basis for removing this matter.”

18

Defendants have shown a reasonable—and in fact, successful—basis

19

for removal jurisdiction.

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attorney’s fees.

Mot. to Remand at 7.

The Court denies Porter’s motion for

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D.

Leave to Amend

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Defendants argue the Court should not allow Porter to amend

23

her complaint because Porter’s “Motion for Remand and her

24

counsel’s declaration do not allude to any additional facts or

25

provide any hint” that Porter can sufficiently allege a

26

defamation claim.

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28

Opp’n to Mot. to Remand at 14.

A court should freely grant leave to amend “unless amendment
would be futile.”

Cook, Perkiss & Liehe, Inc. v. N. Cal.
14

1

Collection Serv. Inc., 911 F.2d 242, 246–47 (9th Cir. 1990).

2

Amendment is not futile if a plaintiff can “cure the defect

3

requiring dismissal ‘without contradicting any of the allegations

4

of [the] original complaint.’”

5

583 F. Supp. 2d 1090, 1095 (N.D. Cal. 2008) (quoting Reddy v.

6

Litton Indus., Inc., 912 F. 2d 291, 296 (9th Cir. 1990)).

7

Plaintiff has failed to plead the alleged defamatory

Plascencia v. Lending 1st Mortg.,

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statements with specificity and has failed to plead facts showing

9

that any statements were unprivileged and published to a third

10

party.

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existence of such facts.

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her defamation claim.

But nothing in the complaint expressly contradicts the
The Court grants Porter leave to amend

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14

IV.

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For the reasons set forth above, the Court DENIES

ORDER

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Plaintiff’s motion to remand and GRANTS Defendants’ motion to

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dismiss without prejudice.

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must file her amended complaint within twenty days of the date of

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this Order.

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within twenty days thereafter. If Plaintiff chooses not to amend

21

her complaint, the case will proceed against Nationwide only on

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the remaining claims and Nationwide must file its Answer within

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thirty days from the date of this Order.

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25

If Plaintiff chooses to amend, she

Defendants must file their responsive pleadings

IT IS SO ORDERED.
Dated: February 27, 2017

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