Nieto v. Target Corporation et al

Filing 20

ORDER: (1) Remanding Case to State Court; (2) Denying Plaintiff's Request for Costs and Attorneys' Fees; and (3) Denying Plaintiff's Motion to Remand As Moot. Signed by Judge Thomas J. Whelan on 3/30/2017. (Certified copy sent to State Court via US Mail Service.) (jao)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

SOUTHERN DISTRICT OF CALIFORNIA

9
10

DEBRA NIETO,

Case No.: 17-CV-0388 W (JMA)
Plaintiff,

11
12

v.

13

ORDER:

TARGET CORPORATION, et al.,

(1) REMANDING ACTION FOR
LACK OF SUBJECT MATTER
JURISDICTION;

Defendants.

14
15

(2) DENYING PLAINTIFF’S
REQUEST FOR COSTS AND
ATTORNEYS’ FEES; AND

16
17

(3) DENYING PLAINTIFF’S
MOTION TO REMAND AS MOOT
[DOCS. 15–16.]

18
19
20
21

Defendants removed this action from the Superior Court of California on February

22

24, 2017. (Notice of Removal [Doc. 1].) On March 1, 2017, the Court ordered

23

Defendants to show cause why this action should not be dismissed for lack of subject

24

matter jurisdiction. (Order to Show Cause [Doc. 8].) Defendants responded on March 8,

25

2017. [Doc. 11.] Plaintiff replied on March 15, 2017. [Doc. 12.] For the reasons that

26

follow, the Court lacks jurisdiction over the subject matter of this case. Accordingly, this

27

action will be remanded to the Superior Court of California.

28

//
1
17-CV-0388 W (JMA)

1

I.

2

BACKGROUND
The Notice of Removal invokes subject matter jurisdiction solely pursuant to 28

3

U.S.C. § 1332. (Notice of Removal [Doc. 1] ¶ 9.) The Complaint names as a defendant

4

Carmen Cole, a citizen of California—the same state of which the Plaintiff is a citizen.

5

(See Notice of Removal [Doc. 1] ¶ 14; Compl. [Doc. 1-3, Exh. 1].) According to the

6

Notice of Removal, Plaintiff has dismissed all but one of her causes of action against

7

Cole—a harassment cause of action pursuant to the California Fair Employment and

8

Housing Act (“FEHA”). (See Notice of Removal [Doc. 1] ¶ 7.) The Notice of Removal

9

alleges that there is no possibility of successfully asserting such a harassment claim

10

against Carmen Cole—that she is a sham defendant who has been fraudulently joined to

11

defeat removal. (See id. [Doc. 1] ¶¶ 14–22.)

12
13
14

II.

LEGAL STANDARD
The party seeking to invoke removal jurisdiction bears the burden of supporting its

15

jurisdictional allegations with competent proof. See Gaus v. Miles. Inc., 980 F.2d 564,

16

566 (9th Cir. 1992) (per curiam); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195

17

(9th Cir. 1988). “The propriety of removal . . . depends on whether the case originally

18

could have been filed in federal court.” Chicago v. International College of Surgeons,

19

522 U.S. 156, 163 (1997); 28 U.S.C. § 1441(a). Where the amount in controversy is

20

unclear from the face of the complaint, courts apply a preponderance of the evidence

21

standard. Guglielmino v. McKee Foods Corp., 506 F.3d 696, 701 (9th Cir. 2007).

22

There is a “strong presumption” against removal jurisdiction, and the defendant

23

always bears the burden of establishing the propriety of removal. See Gaus, 980 F.2d at

24

566 (internal quotation omitted); Nishimoto v. Federman-Bachrach & Associates, 903

25

F.2d 709, 712 n.3 (9th Cir. 1990) (internal citation omitted).

26

“Fraudulent joinder is a term of art. If the plaintiff fails to state a cause of action

27

against a resident defendant, and the failure is obvious according to the settled rules of

28

the state, the joinder of the resident defendant is fraudulent.” McCabe v. Gen. Foods
2
17-CV-0388 W (JMA)

1

Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). “There is a presumption against finding

2

fraudulent joinder, and defendants who assert that plaintiff has fraudulently joined a party

3

carry a heavy burden of persuasion.” Plute v. Roadway Package Sys., Inc., 141 F. Supp.

4

2d 1005, 1008 (N.D. Cal. 2001). “[T]he defendant must demonstrate that there is no

5

possibility that the plaintiff will be able to establish a cause of action in State court

6

against the alleged sham defendant.” Good v. Prudential Ins. Co. of Am., 5 F. Supp. 2d

7

804, 807 (N.D. Cal. 1998). In such a case, the removing party must prove fraudulent

8

joinder by clear and convincing evidence. Hamilton Materials, Inc. v. Dow Chem. Corp.,

9

494 F.3d 1203, 1206 (9th Cir. 2007).

10
11

III.

12

DISCUSSION
A.

13

Defendants do not Demonstrate that Cole is a Sham Defendant, so 28
U.S.C. § 1332 Does Not Provide for Subject Matter Jurisdiction.

California’s FEHA prohibits harassment of an employee. Cal. Gov. Code §

14
15

12940(j)(1). “To establish a claim for harassment [pursuant to this section], a

16

plaintiff must demonstrate that: (1) she is a member of a protected group; (2) she

17

was subjected to harassment because she belonged to this group; and (3) the

18

alleged harassment was so severe that it created a hostile work environment.”

19

Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1244 (9th Cir. 2013)

20

(referencing Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4th 121, 129–30

21

(1999)). “[T]he harassment complained of must be ‘sufficiently pervasive so as to

22

alter the conditions of employment and create an abusive working environment . . .

23

.’ ” Aguilar, 21 Cal. 4th at 130 (quoting Fisher v. San Pedro Peninsula Hospital,

24

214 Cal. App. 3d 590, 608 (1989)).

25

//

26

//

27

//

28

//
3
17-CV-0388 W (JMA)

1

“The plaintiff must prove that the defendant’s conduct would have interfered

2

with a reasonable employee’s work performance and would have seriously

3

affected the psychological well-being of a reasonable employee[,] and that

4

she was actually offended . . . . [H]arassment cannot be occasional, isolated,

5

sporadic, or trivial[;] rather the plaintiff must show a concerted pattern of

6

harassment of a repeated, routine or a generalized nature . . . .”

7
8
9

Id. at 130–31 (quoting Fisher, 214 Cal. App. 3d at 609–610).
The FEHA treats discrimination and harassment as two separate wrongs, and
the two terms appear in separate provisions of the act. See Roby v. McKesson

10

Corp., 47 Cal. 4th 686, 705 (2009). “[D]iscrimination refers to bias in the exercise

11

of official actions on behalf of the employer, and harassment refers to bias that is

12

expressed or communicated through interpersonal relations in the workplace.” Id.

13

at 707.

14

Defendants cite to a passage from a transcript of Plaintiff’s deposition, from which

15

they contend that “Plaintiff admits that her entire harassment claim is based on a

16

‘demotion meeting’[.]” (Defs.’ OSC Response [Doc. 11] 14:11–12, 11:26–12:21.) In this

17

passage, Plaintiff testified as follows:

18

[Question:]

Other than that move to cashier, can you list for me every

19

unwelcome comment that Carmen Cole ever made to

20

you?

21
22

[Answer:]

During the demotion meeting?

[Question:]

At any time.

[Answer:]

I had never spoke to her before that. She suggested that I

23
24
25
26
27

couldn’t do my job in the demotion meeting. She didn’t

28

want to hear me on anything I had to say about my job.
4
17-CV-0388 W (JMA)

1

And it was either take the cashier job or there’s the front

2

door.

3
4

[Question:]

Any other unwelcome comments from Ms. Cole?

[Answer:]

No, not that I can recall right now.

[Question:]

And you wanted Ms. Cole to allow you to work in the

5
6
7
8
9

presentation job, correct?

10
11

[Answer:]

Yes.

[Question:]

And that’s what this conversation was in regard to,

12
13
14

correct?

15
16

[Answer:]

17

....

18

[Question:]

Can you name any unwelcome conduct by Ms. Cole?

[Answer:]

Other than the fact that she just shut me up at times and

Yes.

19
20
21

just would not hear me.

22
23

[Question:]

Are you referring to the demotion meeting, Ms. Nieto?

[Answer:]

Yes.

[Question:]

Any other comments or conduct by Ms. Cole that you

24
25
26
27
28

recall being unwelcome at the time?
5
17-CV-0388 W (JMA)

1

[Answer:]

Not that I can recall, honestly. I just—

2
3

(Defs.’ OSC Response [Doc. 11] 11:26–12:21 (quoting Nieto Depo. [Doc. 11-2]

4

68–70).)

5

Defendants contend that, “as a matter of law,” Ms. Cole’s communications at a

6

single meeting cannot support a harassment cause of action pursuant to FEHA because

7

“the employee must show a concerted pattern of harassment of a repeated, routine, or a

8

generalized nature . . . .” (Defs.’ OSC Response [Doc. 11] 11:1–13:8 (quoting Lyle v.

9

Warner Bros. Television Prods., 38 Cal. 4th 264, 283 (2006)). In this, they are correct.

10

However, Defendants do not address allegations in the Complaint that Cole

11

harassed Nieto without the face-to-face interaction that a layperson might associate with

12

the phrase “unwelcome conduct”—that Cole instead communicated with her from afar

13

using means that may have been at her disposal through her managerial role at Target.

14

(See Compl. [Doc. 1-3, Exh. 1] ¶ 27 (“[F]or nearly a twelve[-]week period, between May

15

20, 2015, and August 21, 2015, [Cole] continued in her discriminatory course of conduct

16

under intolerable working conditions, set [Nieto] up to fail, and wrote [Nieto] up under

17

the pretext of clocking out late.”).)

18

Apparently in response to these allegations in the Complaint (though they neither

19

cite to them nor provide any evidence to refute them), Defendants point to the distinction

20

in California law between harassment and discrimination. (See Defs.’ OSC Response

21

[Doc. 11] 13:9–14:20.) They cite to Janken v. GM Hughes Elecs., which provides that

22

“harassment consists of a type of conduct not necessary for performance of a supervisory

23

job,” whereas “[d]iscrimination claims, by contrast, arise out of the performance of

24

necessary personnel management duties[.]” 46 Cal. App. 4th 55, 63–64 (1996).

25

California still holds to this distinction, but the state’s highest court has since elucidated

26

an important subtlety in this area that Defendants do not address.

27

In Roby, the California Supreme Court explained:

28
6
17-CV-0388 W (JMA)

1

harassment consists of conduct outside the scope of necessary job

2

performance, conduct presumably engaged in for personal gratification,

3

because of meanness or bigotry, or for other personal motives . . . .

4

47 Cal. 4th at 707, but also that:

5

in some cases the hostile message that constitutes . . . harassment is

6

conveyed through official employment actions, and therefore evidence that

7

would otherwise be associated with a discrimination claim can form the

8

basis of a harassment claim.

9

47 Cal. 4th at 708. The analysis turns on whether the harassment claim finds its

10

foundation in a biased message motivated by personal animus and communicated through

11

official acts, or in the official acts themselves. In only the latter situation would the

12

harassment claim fail as a matter of law. See id. “[I]n analyzing the sufficiency of

13

evidence in support of a harassment claim, there is no basis for excluding evidence of

14

biased personnel management actions so long as that evidence is relevant to prove the

15

communication of a hostile message.” Id. at 708.

16

Here, Plaintiff’s Complaint alleges that Cole conveyed a hostile message to Nieto

17

via repeated written reprimands, ostensibly to punish Nieto for clocking out between two

18

and five minutes late when the store was busy and there were customers waiting in line.

19

(See Compl. [Doc. 1-3, Exh. 1] ¶¶ 27–30.) The Complaint as it is now drafted implies

20

that Cole’s motivations were related to advancing her official position—not personal

21

gratification. (See id. [Doc. 1-3, Exh. 1] ¶ 26.) However, at this stage the question is

22

whether there is any possibility a harassment claim might lie against Cole—as in whether

23

Plaintiff might amend to allege a viable theory. See Good, 5 F. Supp. 2d at 807.

24

Defendants do not explore whether Plaintiff might amend to allege that Cole might, in

25

fact, have been motivated by personal animus in communicating a biased message

26

through the use of these reprimands. Their evidence does not even touch upon the issue.

27

Instead, they rely on the now-incomplete doctrine laid out in 1996 by the Second District

28

Court of Appeal in Janken, 46 Cal. App. 4th at 62–65, for the simple proposition that
7
17-CV-0388 W (JMA)

1

“[p]ersonnel management actions . . . do not come within the meaning of harassment.”

2

(See Defs.’ OSC Response [Doc. 11] 13:9–14:20.) Because Defendants do not show

3

otherwise, the possibility remains that Plaintiff might amend to allege that Cole was

4

reprimanding Nieto for her own, personal reasons, thereby harassing her.

5

Because of the foregoing, Defendants do not demonstrate “by clear and convincing

6

evidence” that “there is no possibility” a harassment claim might lie against Cole. See

7

Hamilton Materials, 494 F.3d at 1206; Good, 5 F. Supp. 2d at 807. Accordingly, they do

8

not meet their heavy burden of showing that Cole is a sham defendant. See Plute, 141 F.

9

Supp. 2d at 1008.

10

As both Nieto and Cole are alleged to be citizens of California (see Notice of

11

Removal [Doc. 1] ¶¶ 11, 14), there is no complete diversity of citizenship between the

12

parties, and 28 U.S.C. § 1332 does not provide for subject matter jurisdiction over this

13

action.

14
Plantiff’s Request for Attorneys’ Fees Will be Denied.

15

B.

16

“An order remanding the case may require payment of just costs and any actual

17

expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. §

18

1447(c). However, “[a]bsent unusual circumstances, courts may award attorney’s fees

19

under § 1447(c) only where the removing party lacked an objectively reasonable basis for

20

seeking removal. Conversely, when an objectively reasonable basis exists, fees should be

21

denied.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).

22

Nieto requests compensation for costs and 37 hours of attorneys’ fees in

23

connection with remand pursuant to § 1447. (See Pl.’s OSC Response [Doc. 12] 8:18–

24

9:3; Ranke Decl. [Doc. 13].) She does not present any cogent reasoning to establish that

25

Defendant lacked an objective basis for removal, or any other unusual circumstances that

26

would justify an award of costs or fees. See Martin, 546 U.S. at 141. Indeed, much of

27

her reply to the Court’s OSC dedicates itself to extraneous issues not raised by the OSC

28

in the first place. (See, e.g., Pl.’s OSC Reply [Doc. 12] 3:24–4:4 (construing Defendants’
8
17-CV-0388 W (JMA)

1

OSC response as “frivolous[,]” without support), 7:20–25 (erroneously construing the

2

OSC as a “sua sponte rejection” of the notice of removal), 7:27–8:6 (baldly representing

3

to the Court that “it is abundantly clear that Defendants filed their notice of removal for

4

no purpose other than to forum-shop factual issues of substantive liability untried in the

5

state court and to swiftly foreclose Plaintiff’s discovery . . . .”).) The Court’s decision to

6

remand is based on a subtle point of law that Plaintiff did not raise in her OSC reply.

7

(See Ranke Decl. [Doc. 13].) As reasonable minds could differ in the application of

8

Roby, 47 Cal. 4th at 707–09, to the facts of this case on a sham defendant theory,

9

Defendant had a reasonable basis to remove.

10

The request for costs and fees will be denied.

11
12
13
14

IV.

CONCLUSION & ORDER
In light of the foregoing, the Court is without jurisdiction over the subject matter of

this case. Accordingly, this action is REMANDED to the Superior Court of California.

15

Plaintiff’s request for costs and attorneys’ fees is DENIED.

16

Plaintiff’s motion to remand is DENIED AS MOOT. [Docs. 15–16.]

17

The Clerk is directed to close the United States District Court case file.

18
19
20

IT IS SO ORDERED.
Dated: March 30, 2017

21
22
23
24
25
26
27
28
9
17-CV-0388 W (JMA)