Ambrosini v. Universal Cable Holdings, Inc. dba Suddenlink Communications et al

Filing 29

ORDER by Judge Richard Seeborg denying [#21] Motion to Remand. Signed by Judge Richard Seeborg on 7/7/14. (cl, COURT STAFF) (Filed on 7/7/2014)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE NORTHERN DISTRICT OF CALIFORNIA

8

SAN FRANCISCO DIVISION

9

12
13
14
15
16

No. CV 14-00896 RS

KEITH AMBROSINI,
Plaintiff,

11
For the Northern District of California

United States District Court

10

ORDER DENYING MOTION TO
REMAND

v.
UNIVERSAL CABLE HOLDINGS, INC.,
DBA SUDDENLINK COMMUNICATIONS,
WENDY PURNELL, CHARLES HARRIS,
and DOES 1 through 100, inclusive,
Defendants,
____________________________________/

17
18

I. INTRODUCTION

19

Plaintiff Keith Ambrosini filed this action in state court against Universal Cable Holdings

20

(hereinafter “Suddenlink”), Suddenlink supervisors Wendy Purnell and Charles Harris, and various

21

doe defendants. Ambrosini asserts claims for employment discrimination under the Fair

22

Employment & Housing Act (“FEHA”), breach of contract, negligence, intentional infliction of

23

emotional distress, negligent infliction of emotional distress, and wrongful termination. After

24

Suddenlink removed on the basis of diversity jurisdiction, Ambrosini filed this motion to remand,

25

arguing the case lacks complete diversity. Because defendants Purnell and Harris were fraudulently

26

joined, and the remaining defendants are completely diverse from plaintiff, Ambrosini’s motion is

27

denied.

28
NO. CV 14-00896 RS
ORDER

II. FACTUAL BACKGROUND1

1

This case arose when Ambrosini was terminated from Suddenlink, where he had worked as

2
3

a technician since 1983. In late January 2012, Ambrosini fell ill, causing him to miss several days

4

of work. According to the complaint, he called Suddenlink on January 23 and 24, 2012, and spoke

5

with a supervisor, Aaron Byers, to explain that he was too sick to come to work. When Ambrosini’s

6

condition only worsened, he called and spoke again with Byers on January 25, explaining that he

7

required medical care and would need to miss several more days of work. Byers allegedly stated he

8

would relay the message to all necessary parties, leading Ambrosini to believe his supervisors had

9

granted his request for time off. Ambrosini subsequently missed work on January 26 and 27.
Defendant Harris, another supervisor, called Ambrosini on January 27 and left a message on

11
For the Northern District of California

United States District Court

10

his home phone to inquire about Ambrosini’s condition. According to Ambrosini, this course of

12

conduct was unexpected, as Suddenlink supervisors traditionally called his work phone, which

13

Ambrosini always kept on his person. Because Ambrosini was away from home receiving medical

14

care, he did not receive Harris’s message until after the workday had ended.
When Ambrosini returned to work on January 30, he was terminated. According to his

15
16

supervisors, Ambrosini’s firing was due to his failure to call in sick on January 26 and 27, in

17

violation of Suddenlink’s employment policy. Ambrosini, however, claims he was actually

18

terminated due to his age. The complaint alleges “supervisors made various comments towards

19

plaintiff and other employees over 50 years of age, who have since been terminated, indicating

20

Suddenlink would be firing the older workers in order to hire a younger work force. Shortly after

21

these comments were made, Suddenlink began firing the age 50+ employees to hire a younger work

22

force.” (Compl. ¶ 19). Ambrosini also asserts a negligence claim against Harris and Purnell, alleging

23
24
1

25
26
27

The factual background is based on the averments in the complaint, which are assumed to be true
for the purposes of assessing whether joinder was proper. See Thomas v. Aetna Health of California,
Inc., 2011 WL 2173715, at *5 (E.D. Cal. June 2, 2011) (“In ruling on a motion for remand where
fraudulent joinder is alleged, a court must evaluate the factual allegations in the light most favorable
to the plaintiff, resolving all contested issues of fact in favor of the plaintiff”) (citations omitted).

28
NO. CV 14-00896 RS
ORDER

2

1

“Suddenlink, and Suddenlink’s supervisors did not act reasonably in preventing plaintiff from being

2

discriminated against . . . .” (Compl. ¶ 34).

3
4

III. LEGAL STANDARD
A defendant may remove to federal court “any civil action brought in a State court of which

5

the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). Accordingly,

6

removal jurisdiction exists where a case filed in state court presents a federal question or involves

7

diversity of citizenship and meets the statutory amount in controversy. See 28 U.S.C. §§ 1331, 1332.

8

Courts strictly construe the removal statute against finding federal subject matter jurisdiction, and

9

the defendant bears the burden of establishing the basis for removal. Provincial Gov’t of
Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009) (citations omitted). Where

11
For the Northern District of California

United States District Court

10

doubt exists regarding the right to remove an action, it should be resolved in favor of remand to state

12

court. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003).

13

Although complete diversity is required under § 1332, district courts may ignore the

14

fraudulent joinder of non-diverse defendants in determining whether diversity jurisdiction exists.

15

See Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009) (citation omitted). Fraudulent

16

joinder “is a term of art” that “does not reflect on the integrity of plaintiff or counsel . . . .” Lewis v.

17

Time Inc., 83 F.R.D. 455, 460 (E.D. Cal. 1979) aff’d, 710 F.2d 549 (9th Cir. 1983) (citation and

18

internal quotations omitted). Joinder is fraudulent if the plaintiff fails to state a claim against the

19

defendant, and “the failure is obvious according to the settled rules of the state.” Ritchey v. Upjohn

20

Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998) (citing McCabe v. Gen. Foods Corp., 811 F.2d 1336,

21

1339 (9th Cir. 1987)) (internal quotations omitted).

22

The standard for determining whether a defendant is fraudulently joined is similar to that of

23

a 12(b)(6) motion to dismiss. See Sessions v. Chrysler Corp., 517 F.2d 759, 761 (9th Cir. 1975)

24

(“Inasmuch as appellant’s case against the individual defendants was sufficient to withstand a

25

dismissal motion under [Rule] 12(b)(6), the joinder of claims against them was not fraudulent . . .

26

.”). In determining whether a removed claim is viable, courts typically “look only to a plaintiff’s

27

pleadings[.]” Ritchey, 139 F.3d at 1318 (citation and quotation marks omitted). “The review of the

28

complaint, however, is constrained to the facts actually alleged therein; it does not extend to facts or
NO. CV 14-00896 RS
ORDER

3

1

causes of action that could be alleged via an amended complaint.” Pasco v. Red Robin Gourmet

2

Burgers, Inc., 2011 WL 5828153, at *3 (E.D. Cal. Nov. 18, 2011) (citing Kruso v. Int'l Tel. & Tel.

3

Corp., 872 F.2d 1416, 1426 n.12 (9th Cir. 1989)) (emphasis in original). When assessing whether

4

joinder was proper, the court may go “somewhat further” by allowing a defendant to present

5

additional facts demonstrating joinder was fraudulent. See Ritchey, 139 F.3d at 1318.
IV. DISCUSSION

6

Ambrosini does not dispute the amount-in-controversy requirement has been met, or that

7

Harris and Purnell, both citizens of California, would destroy complete diversity if properly joined.

10

The parties contest, however, whether Harris and Purnell are proper parties to this action. According

11
For the Northern District of California

diversity of citizenship exists between himself and Suddenlink. Nor do defendants dispute that

9

United States District Court

8

to Suddenlink, the complaint fails to state any cognizable claim against either supervisor.
Of the six claims advanced in Ambrosini’s complaint, three apply to the individual

12
13

defendants: the first (age discrimination under FEHA), third (negligence), and fifth (negligent

14

infliction of emotion distress, or “NIED”) claims.2 As an initial matter, the complaint makes little

15

attempt to connect these claims to the actions of either Harris or Purnell. Although Ambrosini’s

16

pleading makes numerous references to “defendants” generally, it includes few factual averments

17

concerning the conduct of his supervisors. His motion to remand, on the other hand, introduces

18

additional allegations not found in the complaint.3 The propriety of joinder cannot be assessed on

19

the basis of new allegations raised in plaintiff’s motion papers. See Pasco, 2011 WL 5828153 at *3

20

(in “review of the complaint . . . [the court] is constrained to the facts actually alleged therein”).

21

Although a court can “go somewhat further” than the pleadings when fraudulent joinder is an issue,

22

see Ritchey, 139 F.3d at 1318, this case does not present a scenario where defendants seek to

23
2

24
25
26
27
28

The complaint does not clearly indicate which claims are asserted against which defendants. In his
motion, however, Ambrosini only advances arguments pertaining to these three claims.

3

For example, Ambrosini contends in his motion that “Harris knew, or should have known, that
plaintiff was more accessible through his work phone that he carried with him at all times.” (Pl.
Mot., ECF No. 21, 3:10-11). He also claims “Purnell and Harris were plaintiff’s supervisors . . . and
were responsible for their actions, and inactions, including their negligence in allowing the
comments to be made about replacing the older employees with younger ones, as well as their
central role in terminating plaintiff’s employment.” (Id. at 5:17-21).
NO. CV 14-00896 RS
ORDER

4

1

introduce additional facts showing that joinder was fraudulent. See id. Because the validity of

2

joinder must be based on the allegations in the complaint, Ambrosini’s untimely new averments are

3

irrelevant to the following analysis.4
The first claim alleges all defendants, including Harris and Purnell, are liable for

4
5

employment discrimination under FEHA. California law, however, precludes plaintiffs from

6

asserting employment discrimination claims against individual supervisors. In Reno v. Baird, 18

7

Cal. 4th 640, 643 (1998), the California Supreme Court held that “FEHA . . . allows persons to sue

8

and hold liable their employers, but not individuals.” The court explained that making supervisors

9

liable for discrimination “would place a supervisory employee in a direct conflict of interest with his
or her employer,” thereby putting employees “in the position of choosing between loyalty to the

11
For the Northern District of California

United States District Court

10

employer’s lawful interests . . . and protecting his or her own personal interests.” Id. at 653 (quoting

12

Janken, 46 Cal. App. 4th at 74) (internal quotations omitted). See also Lelaind v. City & Cnty. of

13

San Francisco, 576 F. Supp. 2d 1079, 1089 (N.D. Cal. 2008) (“under FEHA, no individual liability

14

attaches for claims of discrimination . . . .”). Accordingly, Ambrosini’s FEHA claim against Purnell

15

and Harris is not cognizable under California law.
Ambrosini’s negligence-based claims fare no better. In his third claim, Ambrosini alleges

16
17

“Suddenlink, and Suddenlink’s supervisors did not act reasonably in preventing plaintiff from being

18

discriminated against . . . .” (Compl. ¶ 34). Although Ambrosini casts this claim as one for common

19

law negligence, such a claim would be more properly brought under FEHA, which prohibits the

20

failure to prevent discrimination, making it an unlawful employment practice “to fail to take all

21

reasonable steps necessary to prevent discrimination and harassment from occurring.”5 Cal. Gov.

22

Code § 12940(k). California does not, however, recognize a common law tort claim for a

23

supervisor’s negligent failure to prevent discrimination. See Hine v. Dittrich, 228 Cal. App. 3d 59,

24
4

25
26
27
28

Even if plaintiff’s additional allegations were properly incorporated into the complaint, Ambrosini
would still fail to state a cognizable claim against his supervisors.
5
Indeed, courts have interpreted this provision as creating a tort sounding in negligence with the
usual elements of breach of duty, causation and damages. Trujillo v. North County Transit Dist., 63
Cal. App. 4th 280, 286-87 (1998). Courts have also found, however, that claims under § 12940(k)
cannot be brought against individual co-workers. See Howard v. Nat’l R.R. Passenger Corp., 2007
WL 1288197, at *7 n. 5 (N.D. Cal. Apr. 30, 2007).
NO. CV 14-00896 RS
ORDER

5

1

65 (Ct. App. 1991) (allegations that employer acted unreasonably or “should have” done something

2

different “do not establish a tort of negligence independent of the discharge itself”); Butler v. Sears

3

Roebuck & Co., 1992 WL 364779, at *2-3 (N.D. Cal. Oct. 20, 1992) (finding no need to recognize a

4

negligence claim for failure to prevent age discrimination “when the California legislature has

5

already provided a comprehensive statutory remedy” for employees subject to such discrimination).

6

Ambrosini’s negligence claim arises from the same set of facts as his employment

7

discrimination claim, rendering the two claims inseparable. Yet plaintiff has not presented any

8

authority recognizing negligent failure to prevent discrimination as a claim for relief separate from

9

FEHA. Indeed, “California courts and the Ninth Circuit have concluded that the exclusive remedy
for age discrimination is under . . . FEHA.” See Butler, 1992 WL 364779 at *3. This result is

11
For the Northern District of California

United States District Court

10

consistent with the concerns expressed in Reno. Holding supervisors liable for their negligent failure

12

to prevent discrimination would create the same employer-supervisor “conflict of interest” discussed

13

in that case. See 18 Cal. 4th at 653. It would make little sense to allow plaintiffs like Ambrosini to

14

circumvent FEHA’s limitations merely by framing an employment discrimination claim as a

15

common law negligence claim. It is thus clear under California law that Ambrosini fails to state a

16

negligence claim against Purnell or Harris.

17

He also fails to state a claim against his supervisors for negligent infliction of emotional

18

distress. Although Ambrosini pleads NIED as a separate claim for relief, there “is no independent

19

tort of negligent infliction of emotional distress.” See Stewart v. SEIU United Healthcare Workers-

20

W., 2012 WL 1357633, at *4 (N.D. Cal. Apr. 17, 2012) (citing Potter v. Firestone Tire & Rubber

21

Co., 6 Cal. 4th 965, 984 (1993)). Rather, NIED “is a form of the tort of negligence, to which the

22

elements of duty, breach of duty, causation and damages apply.” Id. (citations and internal

23

quotations omitted). As explained above, Ambrosini has failed to “establish a tort of negligence

24

independent of the discharge itself.” See Hine, 228 Cal. App. at 65. Because Ambrosini’s NIED

25

claim against his supervisors is premised on the same alleged conduct underlying his negligence

26

claim, see Compl. ¶¶ 39-40, it necessarily fails, too.

27

If the court finds that joinder is fraudulent, “the defendant may be dismissed from the action

28

under Rule 21.” Maffei v. Allstate California Ins. Co., 412 F. Supp. 2d 1049, 1053 (E.D. Cal. 2006).
NO. CV 14-00896 RS
ORDER

6

1

Rule 21 of the Federal Rules of Civil Procedure provides that “[o]n motion or on its own, the court

2

may at any time, on just terms, add or drop a party.” Here, Ambrosini has failed to state a

3

cognizable claim against either Purnell or Harris. Because those defendants were fraudulently joined

4

in this matter, they are hereby dismissed from this action. See Gasnik v. State Farm Ins. Co., 825 F.

5

Supp. 245, 249 (E.D. Cal. 1992) (dismissing two defendants after determining they had been

6

fraudulently joined).
V. CONCLUSION

7
8

Ambrosini has failed to state a cause of action against either Purnell or Harris, and the failure

Purnell and Harris were thus fraudulently joined to the present action. The motion to remand is

11
For the Northern District of California

is clear according to California law. See Ritchey, 139 F.3d at 1318. The individual defendants

10

United States District Court

9

denied, and defendants Purnell and Harris are dismissed.

12
13

IT IS SO ORDERED.

14
15

Dated: 7/7/14

16
17

RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

18
19
20
21
22
23
24
25
26
27
28
NO. CV 14-00896 RS
ORDER

7