Nijem v. U.S. Bankcorp et al
Filing
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ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION TO REMAND AND DENYING PLAINTIFF'S REQEUST FOR ATTORNEYS' FEES by Judge Claudia Wilken denying 10 Motion to Remand (cwlc3, COURT STAFF) (Filed on 10/26/2011)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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HAISAM NIJEM,
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Plaintiff,
v.
U.S. BANCORP dba U.S. BANK, a
Delaware Corporation; U.S. BANK
NATIONAL ASSOCIATION; CHRIS
DELEGANS, an individual; and DOES
1-50,
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United States District Court
For the Northern District of California
No. C 11-04042 CW
ORDER DENYING
WITHOUT PREJUDICE
PLAINTIFF‟S MOTION
TO REMAND AND
DENYING
PLAINTIFF'S
REQUEST FOR
ATTORNEYS' FEES
(Docket No. 10)
Defendants.
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________________________________/
This case is a wrongful termination lawsuit.
After Plaintiff
Haisam Nijem brought suit in Alameda County Superior Court,
Defendants U.S. Bancorp, doing business as U.S. Bank; U.S. Bank
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National Association; and Chris Delegans removed the action to
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this Court.
Plaintiff seeks an order remanding the case to state
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court.
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considered the parties' submissions, the Court DENIES without
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prejudice the motion to remand and DENIES Plaintiff's request for
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attorneys' fees.
Docket No. 10.
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Defendants oppose the motion.
Having
BACKGROUND
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Plaintiff's complaint refers to U.S. Bancorp, doing business
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as U.S. Bank, and U.S. Bank National Association, collectively, as
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his employer.
According to the allegations, Plaintiff worked for
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his employer as a mortgage loan officer from October 8, 2007
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through January 12, 2011, based at a branch office in Fremont,
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California.
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descent.
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based on his race and national origin and retaliated against him,
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in violation of the California Fair Employment and Housing Act,
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Plaintiff was born in Lebanon and is of Palestinian
He claims that his employer discriminated against him
Cal. Govt. Code § 12900, et seq., and other provisions of
California law.
Plaintiff further alleges a tort cause of action
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United States District Court
For the Northern District of California
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against his employer and individual defendant Delegans for assault
and battery.
With respect to the assault and battery claim, Plaintiff
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alleges the following.
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Plaintiff was called into a meeting with his District Manager,
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Helen Anderson, and Delegans, who had just recently obtained the
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On or about Thursday, September 2, 2010,
position of Regional Manager.
First Amended Complaint at ¶ 16.
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This meeting was Plaintiff's first occasion to meet Delegans.
Id.
Delegans "began the meeting by stating directly to Plaintiff, 'If
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you had not noticed, you don't look like us.'"
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shocked as he was in compliance with the company dress code for
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persons in his position.
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the employer "was trying to give the customer a great experience,
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Id.
Id.
Plaintiff was
Delegans continued, stating that
and if a customer came in and saw Plaintiff, their experience
would be 'ruined.'"
Id.
After making several other "offensive
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and unfounded comments" to Plaintiff, as the meeting came to a
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close, Delegans "without Plaintiff's permission . . . touched
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Plaintiff several times on his back."
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Id. at ¶ 16-17.
Plaintiff
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further claims that his "[e]mployer, through Defendant Delegans,
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intended to cause or to place Plaintiff in apprehension of an
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offensive contact with Plaintiff's person, and in fact placed
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Plaintiff in great apprehension of an offensive contact with his
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person."
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Id. at ¶ 79.
In addition, the "employer, through
Defendant Delegans, intended to make a contact with Plaintiff's
person and in fact made such a contact."
Id. at ¶ 80.
Plaintiff
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claims that his employer and Delegans' "conduct in this regard was
United States District Court
For the Northern District of California
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willful, wanton, malicious, oppressive and in violation of
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Plaintiff's rights . . ."
LEGAL STANDARD
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Id. at ¶ 84.
A defendant may remove a civil action filed in state court to
federal district court so long as the district court could have
exercised original jurisdiction over the matter.
28 U.S.C.
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§ 1441(a).
“The „strong presumption‟ against removal jurisdiction
means that the defendant always has the burden of establishing
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that removal is proper.”
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(9th Cir. 1992).
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is any doubt as to the right of removal in the first instance.”
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Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996) (citations
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Gaus v. Miles, Inc., 980 F.2d 564, 566
Federal jurisdiction “must be rejected if there
omitted).
District courts have original jurisdiction over all civil
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actions “where the matter in controversy exceeds the sum or value
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of $75,000, exclusive of interest and costs, and is between . . .
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citizens of different States.”
28 U.S.C. § 1332(a).
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When federal
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subject matter jurisdiction is predicated on diversity of
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citizenship, complete diversity must exist between the opposing
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parties.
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74 (1978).
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Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373–
A non-diverse party named in a complaint can be disregarded
for purposes of determining whether diversity jurisdiction exists
if a district court determines that the party's inclusion in the
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action is a “sham” or “fraudulent.”
McCabe v. General Foods
United States District Court
For the Northern District of California
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Corp., 811 F.2d 1336, 1339 (9th Cir. 1987).
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fails to state a cause of action against a resident defendant, and
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the failure is obvious according to the settled rules of the
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state, the joinder of the resident defendant is fraudulent.”
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The defendant need not show that the joinder of the non-diverse
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“If the plaintiff
party was for the purpose of preventing removal.
Id.
The defendant
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need only demonstrate that there is no possibility that the
plaintiff will be able to establish a cause of action in state
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court against the alleged sham defendant.
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Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998).
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a presumption against finding fraudulent joinder and defendants
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who assert it have a heavy burden of persuasion.
Emrich v. Touche
Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988).
Fraudulent
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Id.; Ritchey v. Upjohn
However, there is
joinder claims may be resolved by piercing the pleadings and
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considering evidence such as affidavits and deposition testimony.
See Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1068 (9th
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Cir. 2001) (citing Cavallini v. State Farm Mutual Auto Ins. Co.,
44 F.3d 256, 263 (5th Cir. 1995))
DISCUSSION
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Defendants assert that Delegans is a sham defendant.
Defendants contend that Plaintiff lacks any viable cause of action
against Delegans because the allegations of assault and battery
are preempted by California‟s workers‟ compensation law, which
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generally provides the exclusive remedy against fellow employees
United States District Court
For the Northern District of California
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who, while acting within the scope of employment, cause a
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plaintiff injury.
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failed to plead the statutory exception to the exclusivity of
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workers' compensation remedies under Labor Code section
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3601(a)(1).
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Defendants further argue that Plaintiff has
This provision states that an employee has, in
addition to the right to compensation against the employer, a
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right to bring an action at law for damages against an employee
when the injury “is proximately caused by the willful and
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unprovoked physical act of aggression of the other employee.”
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Cal. Labor Code § 3601(a)(1).
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Plaintiff argues first that Hunter v. Phillip Morris, 582
F.3d 1039 (9th Cir. 2009), forecloses Defendants‟ argument.
In
Hunter, the Ninth Circuit reversed a district court‟s fraudulent
joinder ruling in an action in which a plaintiff brought a
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wrongful death suit against a cigarette manufacturer, its parent
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company and an Alaska corporation that sold cigarettes in that
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state.
The district court found that federal law preempted the
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plaintiff‟s state product liability claim against the non-diverse
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defendant, the Alaska corporation, and, therefore, the Alaska
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corporation was fraudulently joined and the district court
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retained diversity jurisdiction.
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Circuit reversed the district court, stating, “When a defendant
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Id. at 1043-44.
The Ninth
asserts that the plaintiff‟s claim is impliedly preempted by
federal law, it cannot be said that the plaintiff‟s failure to
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state a claim against the resident defendant is „obvious according
United States District Court
For the Northern District of California
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to the settled rules of the state.‟”
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preemption question requires an inquiry into the merits of the
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plaintiff‟s claims against all defendants and an analysis of
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federal law. . . the defendant has failed to overcome the „strong
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presumption against removal jurisdiction.‟”
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Id. at 1045.
Id.
Because “the
Hunter is
inapposite, with respect to the present case, because Defendants'
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argument is not one of federal preemption.
Rather, Defendants
contend that Plaintiff has failed to state a claim against
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Delegans because the claim is precluded by California's workers'
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compensation law.
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The Ninth Circuit in Ritchey v. Upjohn Drug. Co., 139 F.3d
1313, 1319 (9th Cir. 1998), also grappled with a defendant's
contention that a sham defendant had been alleged to destroy
diversity jurisdiction.
The court noted that, where the complaint
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does not otherwise include a federal cause of action, the defense
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of federal preemption must generally be raised in state court,
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relying on well established law that a defense based on federal
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law does not give rise to federal jurisdiction.
Id.
Thus,
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Ritchey's reasoning supports the conclusion that the present case
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is distinguishable from Hunter.
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Ninth Circuit cases demonstrate that the court may determine
whether a defendant is fraudulently named by evaluating, under
state law, whether a claim can be proved against the non-diverse
defendant.
In McCabe, the court, weighing allegations in the
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plaintiff's complaint, as well as evidence submitted by
United States District Court
For the Northern District of California
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declaration, held that two managers were fraudulently named as
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individual defendants because their allegedly wrongful conduct was
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privileged under California law, precluding the plaintiff's
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wrongful discharge claims.
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claim for negligent infliction of emotional distress failed
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Id. at 1339.
The McCabe plaintiff's
because the plaintiff conceded that the claim flowed from his
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cause of action for interference with a contractual relationship,
but the interference with contract claim was defective.
Id.
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Similarly, the claim for intentional infliction of emotional
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distress was not viable because it lacked the requisite
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allegations and evidence of outrageousness.
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Id.
In Kruso v. Int'l Telephone & Telegraph Corp., 872 F.2d 1416
(9th Cir. 1989), the Ninth Circuit affirmed the dismissal of
claims against two sham defendants and the refusal to remand the
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action to state court, based on its determination that the
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plaintiffs could not prevail on their claims against the non-
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diverse defendants because the plaintiffs were not party to the
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agreement underlying the claims alleged against the non-diverse
defendants.
Defendants are correct with respect to two points.
First, to
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circumvent preemption by California's workers' compensation law,
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Plaintiff must plead an injury that “is proximately caused by the
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willful and unprovoked physical act of aggression of the other
employee,” Cal. Labor Code § 3601(a)(1), such that Delegans'
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conduct occurred outside the scope of his employment.
Defendants
United States District Court
For the Northern District of California
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are also correct that the present allegations describe an incident
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less egregious than that at issue in Jones v. Department of
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Corrections and Rehabilitation, 152 Cal. App. 4th 1367 (2007),
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where the court held that the workers' compensation exclusivity
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rule precluded the plaintiff's assault and battery claim.
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Jones
held that undisputed evidence that a defendant co-worker grabbed
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the plaintiff's arm and started "banging her body around and
stuff" during an altercation over a wheelbarrow was insufficiently
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severe to demonstrate that the conduct occurred outside the scope
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of the defendant's employment.
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this conclusion by comparing the incident to a case in which the
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California Supreme Court found that an employee's act of throwing
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Id. at 1383-84.
Jones arrived at
a hammer at a coworker was within the scope of employment for
purposes of determining the employee's immunity from liability
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under section 3601(a)(1).
Id. at 1384 (citing Torres v.
Parkhouse, 26 Cal. 4th 995, 1008 (2001)).
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Here, the parties have argued the motion solely on the basis
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of the complaint.
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his back several times without his permission.
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occurred in the context of a conversation in which Delegans
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allegedly made several offensive, discriminatory statements
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Plaintiff alleges that Delegans touched him on
The touching
directed at Plaintiff because of his race and national original.
In his briefing Plaintiff represents that Delegans hit him several
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times on the back.
Although Plaintiff insufficiently alleges that
United States District Court
For the Northern District of California
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Delegans engaged in a willful and unprovoked physical act of
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aggression against Plaintiff, he may be able to do so in an
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amended complaint.
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WL 1980223, *4-5 (N.D. Cal.) (granting plaintiff's motion to
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remand, holding that although plaintiff's complaint may fall short
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See Vincent v. First Republic Bank Inc., 2010
of alleging outrageous conduct, with respect to the claim for
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intentional infliction of emotional distress, the court could not
conclude that plaintiff had absolutely no possibility of stating a
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claim, if permitted the opportunity to amend.)
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standard to determine whether a defendant has been fraudulently
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joined turns on whether there is any possibility that Plaintiff
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could allege a viable claim against the non-diverse defendant.
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The applicable
Given Defendants' heavy burden of persuasion and the presumption
against finding fraudulent joinder, as well as Plaintiff's
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insufficient allegations of assault and battery, Plaintiff's
motion to remand is denied without prejudice.
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CONCLUSION
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Plaintiff's motion to remand this action is DENIED without
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prejudice.
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order, Plaintiff may file an amended complaint with further
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allegations regarding his assault and battery claim against Mr.
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Docket No. 10.
Within a week of the date of this
Delegans to remedy the deficiencies identified in this order, if
he can do so truthfully.
If Plaintiff does so, Plaintiff may, at
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that time, renew his motion to remand the case to Alameda County
United States District Court
For the Northern District of California
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Superior Court.
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additional argument.
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motion to remand, addressed to the amended complaint, seven days
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later.
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that.
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He need not notice the motion for hearing or file
Defendants may file an opposition to the
Plaintiff may file a brief reply within four days after
The motion will be decided on the papers.
Unless the
matter has been remanded by that time, a case management
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conference will be held as scheduled on November 29, 2011 at 2:00
pm.
Plaintiff's request for attorneys' fees, pursuant to Title 28
U.S.C. § 1447, is DENIED.
IT IS SO ORDERED.
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Dated:
October 26, 2011
CLAUDIA WILKEN
United States District Judge
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