Marcano et al v. AstraZeneca LP et al

Filing 5

ORDER REMANDING CASE.. Signed by Judge Charles R. Breyer on 4/28/2006. (crblc1, COURT STAFF) (Filed on 4/28/2006) Additional attachment(s) added on 4/28/2006 (be, COURT STAFF).

Marcano et al v. AstraZeneca LP et al

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Case 3:06-cv-02651-CRB

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Filed 04/28/2006

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1 2 3 4 5 6 7 8 9 10 I N THE UNITED STATES DISTRICT COURT F O R THE NORTHERN DISTRICT OF CALIFORNIA

U n it e d United States District Court

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For the Northern District of California

M E L IN A MARCANO, P l a i n ti f f , v. AS TR AZ EN EC A LP, et al., De fend ants /

N o . C 06-02651 CRB O R D E R OF REMAND

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P l a i n ti f f filed this lawsuit in state court making state law claims for wrongful t e r m i n at i o n /c o n s t ru c t i v e discharge, defamation, fraud and intentional infliction of emotional d i s t r e s s . Plaintiff, a California citizen, sued Astrazeneca, and two individuals who are also Calif ornia citizens. Astrazeneca answered the complaint. Sev eral months later defendants removed the action to federal court. Although it is not entirely clear from the Notice of Removal, defendants appear to make two arguments in supp ort of removal. First, they contend that because plaintiff has not responded to i n t e r r o g a t o r ie s regarding the individual defendants, plaintiff has admitted that these d e f e n d a n t s are not liable. Second, they argue that the individual defendants are "shams" and t h e r e fo r e do not destroy diversity jurisdiction. There is a strong presumption against removal jurisdiction. See Gaus v. Miles, 980 F . 2 d 564, 566 (9th Cir. 1992). Defendants, as the removing party, have the burden of

Dockets.Justia.com

Case 3:06-cv-02651-CRB

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p r o v i n g that the non-diverse defendants are shams. See id. Defendants' Notice of Removal d o e s not meet this burden. D e f e n d a n t s claim that plaintiff's "refusal to engage in either deposition or written d i s c o v e ry [on the individual defendants' liability] should be deemed an admission that no fac ts giving rise to individual liability against defendants exists." Notice of Removal at ¶ 7. Yet, the state court has not so ruled, and defendants do not cite any California authority that unam bigu ously provides that plaintiff's cancellation of her deposition and failure to timely r e s p o n d to interrogatories mean that she cannot recover against the individual defendants; indee d, the state court has not even ruled on any motion to compel. Defendants' argument is u n p r e c e d e n te d , unsupported, and unpersuasive. D e f e n d a n t s ' "sham defendant" argument also fails. The joinder of a nondiverse d e f e n d a n t is fraudulent or a "sham" and does not defeat diversity jurisdiction if the plaintiff f a i ls to state a claim against the defendant, and the failure is obvious according to the settled rule s of the state. See McCabe v. General Foods Corporation, 811 F.2d 1336, 1339 (9th Cir. 1 9 8 7 ) ("fraudulent joinder is a term of art"). A party is deemed to have been joined " f r a u d u le n t l y" if, "after all disputed questions of fact and all ambiguities in the controlling s t a t e law are resolved in the plaintiff's favor, the plaintiff could not possibly recover against t h e party whose joinder is questioned." Kalawe v. KFC Management Co., 1991 WL 338566, * 2 (D. Hawaii July 16, 1991) (citing Kruso v. International Telephone & Telegraph Corp., I T T, 872 F.2d 1416, 1426 ( 9th Cir. 1989)). First, to the extent defendants' sham argument is based on plaintiff's failure to r e s p o n d to interrogatories, it fails for the reasons explained above. The state court has not r u l e d what, if any, consequences will flow from plaintiff's delay in responding to the interrog atory requests; thus, defendants have not shown that plaintiff could not possibly r e c o v e r against the individual defendants as a result of her untimely discovery response. Seco nd, to the extent defendants' argument is untethered to plaintiff's failure to resp ond to the interrogatory responses, the removal is untimely. See 28 U.S.C. § 1446(b).

United States District Court

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For the Northern District of California

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Case 3:06-cv-02651-CRB

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A s defendants have not shown that plaintiff could not possibly recover against the i n d i v id u a l defendants, this action is REMANDED to the Superior Court of the State of C a l i f o rn i a in and for the County of Alameda. I T IS SO ORDERED. D a t e d : April 28, 2006

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CHARLES R. BREYER U N I TE D STATES DISTRICT JUDGE

United States District Court

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For the Northern District of California

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