Correa et al v. ADP, Inc. et al

Filing 39

ORDER Granting Plaintiff's 12 Motion for Remand. Signed by JUDGE HELEN GILLMOR on 12/19/2013. (gab, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
Teri Correa; Elizabeth Hawkins; )
Jennifer Root, formerly known
)
as Jennifer Bruschi,
)
)
Plaintiffs,
)
)
vs.
)
)
ADP, Inc.; Ernest Ahumada;
)
Daniel E. Alexander; Jill
)
Altana; Nena Dols; James L.
)
Gummow; John Does 1-10; Jane
)
Does 1-10; Doe Partnerships 1- )
10; Doe Corporations 1-10; Roe )
“Non-Profit” Corporations 1-10; )
and Roe Governmental Entities
)
1-10,
)
)
Defendants.
)

Civ. No. 13-00488 HG-KSC

ORDER GRANTING PLAINTIFFS’ MOTION FOR REMAND (ECF No. 12)
Plaintiffs Teri Correa, Elizabeth Hawkins, and Jennifer
Root, formerly known as Jennifer Bruschi, filed a Complaint in
Hawaii state court asserting claims for sex discrimination,
retaliation, and hostile work environment pursuant to Section
378-2 of Hawaii Revised Statutes; and, for negligent and
intentional infliction of emotional distress.

Defendant ADP,

Inc. removed the action to federal court based on diversity
jurisdiction.
Plaintiffs have filed a Motion to Remand the action to state
court.

Defendant ADP, Inc. opposes the Motion.
1

Plaintiffs’ Motion for Remand is GRANTED.

PROCEDURAL HISTORY
On June 21, 2013, Plaintiffs Teri Correa, Elizabeth Hawkins,
and Jennifer Root, formerly known as Jennifer Bruschi, filed a
Complaint in the Circuit Court of the First Circuit, State of
Hawaii. (Complaint, attached as Exh. A. to Defendant ADP Inc.’s
Notice of Removal, ECF. No. 1-1).
On September 25, 2013, Defendant ADP, Inc. removed the
action to the United States District Court, District of Hawaii.
(ECF No. 1).
On September 30, 2013, Defendant ADP, Inc. filed a MOTION TO
DISMISS. (ECF No. 7).
On October 1, 2013, Defendant ADP, Inc. filed an AMENDED
MOTION TO DISMISS.

(ECF No. 8).

On October 16, 2013, Plaintiffs Teri Correa, Elizabeth
Hawkins, and Jennifer Root filed PLAINTIFFS’ MOTION FOR REMAND.
(ECF No. 12).
On October 16, 2013, Plaintiffs Teri Correa, Elizabeth
Hawkins, and Jennifer Root filed PLAINTIFFS’ MEMORANDUM IN
OPPOSITION TO DEFENDANT ADP, INC.’S MOTION TO DISMISS.

(ECF No.

13).
On October 17, 2013, the Court issued a Minute Order
vacating the briefing schedule for Defendant ADP, Inc.’s AMENDED
MOTION TO DISMISS and setting a briefing schedule and a hearing
2

date for PLAINTIFFS’ MOTION FOR REMAND.

(ECF No. 14).

On October 31, 2013, Defendant ADP, Inc. filed a MEMORANDUM
IN OPPOSITION TO PLAINTIFFS’ MOTION FOR REMAND.

(ECF No. 19).

On November 18, 2013, Plaintiffs Teri Correa, Elizabeth
Hawkins, and Jennifer Root filed PLAINTIFFS’ REPLY TO DEFENDANT
ADP, INC.’S MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR
REMAND.

(ECF No. 30).

On December 4, 2013, Defendant ADP, Inc. filed DEFENDANT
ADP. INC.’S SUPPLEMENTAL CITATION OF AUTHORITIES IN SUPPORT OF
ITS MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION FOR REMAND.
(ECF No. 34).
On December 4, 2013, Plaintiffs filed PLAINTIFFS’
SUPPLEMENTAL CITATION OF AUTHORITIES IN SUPPORT OF ITS MOTION FOR
REMAND FILED ON OCTOBER 16, 2013 AND ITS REPLY TO DEFENDANT ADP,
INC.’S MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION FOR REMAND
FILED ON OCTOBER 16, 2013, FILED ON NOVEMBER 18, 2013.

(ECF No.

35).
On December 6, 2013, Plaintiffs filed PLAINTIFFS’ SECOND
SUPPLEMENTAL CITATION OF AUTHORITIES IN SUPPORT OF ITS MOTION FOR
REMAND FILED ON OCTOBER 16, 2013 AND ITS REPLY TO DEFENDANT ADP,
INC.’S MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR REMAND
FILED ON OCTOBER 16, 2013, FILED ON NOVEMBER 18, 2013.

(ECF No.

37).
On December 9, 2013, a Hearing on PLAINTIFFS’ MOTION FOR

3

REMAND (ECF No. 12) was held before the Honorable Helen Gillmor.

BACKGROUND
The Complaint contains the following description of the
events giving rise to the claims:
Plaintiffs Teri Correa (“Plaintiff Correa”), Elizabeth
Hawkins (“Plaintiff Hawkins”), and Jennifer Root, formerly known
as Jennifer Bruschi (“Plaintiff Root”), (together “Plaintiffs”),
were employed by Defendant ADP, Inc. (“Defendant ADP”), as
District Managers on the Hawaii sales team.

(Complaint, attached

as Exh. A. to Defendant ADP’s Notice of Removal, ECF. No. 1-1 at
¶¶ 25, 31, 46, 49, 67, 70, 99).
The Complaint asserts that between August 2009 and
Plaintiffs’ constructive discharges in February and April 2012,
Defendant James L. Gummow (“Defendant Gummow”), followed by
Defendant Daniel E. Alexander (“Defendant Alexander”) and
Defendant Ernest Ahumada (“Defendant Ahumada”) supervised
Defendant ADP’s Hawaii sales team.

(Id. at ¶ 11, 14-15).

The Complaint contains allegations that Defendants Gummow,
Alexander, and Ahumada treated male District Managers more
favorably than Plaintiffs.
67, 71-99).

(Id. at ¶¶ 28, 29(a)-(ff), 34-46, 50-

Plaintiffs allege that in October 2011 Defendants

ADP, Gummow, and Alexander distributed open sales accounts to
less experienced male District Managers and not to Plaintiffs.

4

(Id. at ¶¶ 29(i)-(m)).

The Complaint contends that Defendants

ADP, Alexander, Gummow, and Ahumada restricted the type of sales
Plaintiffs were allowed to pursue but did not restrict male
District Managers.

(Id. at ¶¶ 42-45, 55-58, 82-83, 89).

Plaintiffs allege that they were subjected to performance
evaluations and reprimands for failure to meet their sales goals.
(Id. ¶¶ 29(q)-(v), 39-40, 54-59, 65, 80, 84, 91, 96).

Plaintiffs

contend that the male District Managers who also failed to meet
their sales goals were not subjected to performance evaluations
or reprimands.

(Id. at ¶¶ 29(r), 41, 98).

Plaintiffs Correa and

Root allege that they were denied position transfers for which
they were eligible.

(Id. at ¶¶ 61-64, 88-89).

The Complaint contends that Plaintiffs were subjected to a
hostile work environment.

(Id. at ¶¶ 29, 46, 67, 99).

Plaintiffs claim they were subjected to verbal hostility and
reprimands.

(Id. at ¶¶ 35, 52, 80).

Plaintiff Root alleges that

Defendant ADP, Defendant Gummow, and/or Defendant Ahumada failed
to make reasonable accommodations to permit her to rest and
attend medical appointments when she was pregnant.

(Id. at ¶ 76,

78).
The Complaint alleges that Plaintiffs reported to Defendant
Jill Altana that they had been subjected to gender discrimination
and requested that Defendant ADP take prompt corrective action.
(Id. at ¶ 16, 29(w)).

Plaintiffs claim that Defendant ADP

5

responded to their report of discrimination by conducting an
unfair investigation.

(Id. at ¶¶ 29(y)-(ee)).

Plaintiffs claim

that they were constructively terminated on account of a hostile
work environment.

(Id. at ¶¶ 14, 46. 67, 99).

STANDARD OF REVIEW
A motion to remand may be brought to challenge the removal
of an action from state to federal court.

28 U.S.C. § 1447(c);

Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th
Cir. 2009).

Removal of a civil action is permissible if the

district courts of the United States have original jurisdiction
over the action.

28 U.S.C. § 1441.

There is a “strong

presumption” against removal, and “[f]ederal jurisdiction must be
rejected if there is any doubt as to the right of removal in the
first instance.”

Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th

Cir. 1992) (internal citations omitted).

The “strong

presumption” against removal jurisdiction “means that the
defendant always has the burden of establishing that removal is
proper.”

Id.

If it appears at any time before final judgment

that the district court lacks subject matter jurisdiction, the
action must be remanded.

28 U.S.C. § 1447(c).

Subject matter jurisdiction is conferred on federal courts
either through federal question jurisdiction under 28 U.S.C. §
1331, or through diversity jurisdiction under 28 U.S.C. § 1332.

6

Peralta v. Hispanic Bus., Inc., 419 F.3d 1064, 1068 (9th Cir.
2005).
Diversity jurisdiction exists when there is complete
diversity of citizenship between the parties, and the amount in
controversy exceeds $75,000.

28 U.S.C. § 1332(a); Caterpillar

Inc. v. Lewis, 519 U.S. 61, 68 (1996).

The burden of

establishing that diversity jurisdiction exists rests on the
party asserting it.

Hertz Corp. v. Friend, 559 U.S. 77, 96-97

(2010).
ANALYSIS
I.

Fraudulent Joiner

Plaintiffs move to remand on the ground that the Court lacks
subject-matter jurisdiction. (Motion for Remand, ECF No. 12-1 at
pp. 2-17).

Defendant ADP contends that diversity jurisdiction

exists because the sole non-diverse Defendant, Defendant Ahumada,
was fraudulently joined.

(Opposition, ECF No. 19 at pp. 2-11).

“Fraudulent joinder” is a term of art.

Morris v. Princess

Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001).

“Joinder of

a non-diverse defendant is deemed fraudulent, and the defendant’s
presence in the lawsuit is ignored for purposes of determining
diversity, ‘[i]f the plaintiff fails to state a cause of action
against a resident defendant, and the failure is obvious
according to the settled rules of the state.’” Id. (quoting
McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir.
7

1987)).

There is a “general presumption” against fraudulent

joinder, and the removing defendant carries a heavy burden to
prove fraudulent joinder by clear and convincing evidence.
Hamilton Materials, Inc. v. Dow Chemical Corp., 494 F.3d 1203,
1206 (9th Cir. 2007).

All disputed questions of fact and

ambiguities in the law must be resolved in favor of the
plaintiff.

See Medow v. Tower Ins. Co. Of New York, 2011 WL

2678875 *3 (C.D. Cal. 2011) (citing Dodson v. Spilada Maritime
Corp., 951 F.2d 40, 42-43 (5th Cir. 1992)).
Joinder is not fraudulent if there is any possibility that
the plaintiff will be able to establish liability against the
non-diverse defendant.

Hunter v. Philip Morris USA, 582 F.3d

1039, 1043-46 (9th Cir. 2009); Pampillonia v. RJR Nabisco, Inc.,
138 F.3d 459, 461 (2d Cir. 1998) (finding that the defendant must
show “that there is no possibility, based on the pleadings, that
plaintiff can state a cause of action against the non-diverse
defendant in state court”).

Courts “do not decide whether the

plaintiff will actually or even probably prevail on the merits,
but look only for a possibility that [plaintiff] may do so.”
Dodson, 951 F.2d at 42-43; see Stillwell v. Allstate Ins. Co.,
663 F.3d 1329, 1333 (11th Cir. 2011) (per curiam) (explaining
that the standard is not whether the claim is “plausible” but
whether there is “a possibility” the complaint stated a cause of
action).

Courts ordinarily do not consider a non-diverse

8

defendant’s defenses on the merits in determining whether that
defendant’s joinder was “fraudulent.”

II.

Hunter, 582 F.3d at 1044.

Employer and Employee Liability Pursuant to Hawaii Revised
Statutes § 378-2
Section 378-2 of Hawaii Revised Statutes (“HRS”) prohibits

discrimination as follows:
(1) Because of race, sex, including gender identity or
expression, sexual orientation, age, religion, color, ancestry,
disability, marital status, or arrest and court record, or
domestic or sexual violence victim status if the domestic or
sexual violence victim provides notice to the victim’s employer
or such status or the employer has actual knowledge of such
status:
(A) For any employer to refuse to hire or employ or
to bar or discharge from employment, or otherwise to discriminate
against any individual in compensation or in the terms,
conditions, or privileges of employment;
...
(2) For any employer, labor organization, or employment
agency to discharge, expel, or otherwise discriminate against any
individual because the individual has opposed any practice
forbidden by this part or has filed a complaint, testified, or
assisted in any proceeding respecting the discriminatory
practices prohibited under this part;
(3) For any person whether an employer, employee, or
not, to aid, abet, incite, compel or coerce the doing of any of
the discriminatory practices forbidden by this part, or attempt
to do so.
Plaintiffs allege that Defendant Ahumada is individually
liable for unlawful discrimination pursuant to HRS § 378-2.
(Motion for Remand, ECF No. 12-1 at pp. 3-10); (Complaint, ECF

9

No. 1-1 at ¶¶ 5, 18, 23).
in this case.

There is no federal question presented

This Court is bound by the decisions of the

highest Hawaii state court when interpreting Hawaii state
discrimination law, not by decisions of federal courts which
interpret Title VII.

See

Schaffer v. GTE, Inc., 40 Fed. Appx.

552, 555 n.3 (9th Cir. 2002) (citing Vestar Dev. II, LLC v. Gen.
Dynamics Corp., 249 F.3d 958, 960 (9th Cir. 2001)).
The Hawaii Supreme Court has not yet addressed the
particular issue of individual liability pursuant to HRS § 378-2.
A federal court is obligated to follow the decisions of a state’s
intermediate courts when the state’s supreme court has not yet
addressed the issue and there is no convincing evidence that the
state supreme court would decide differently from the
intermediate appellate courts.

Scaffer, 40 Fed. Appx. at 555 n.3

(citing Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486,
1494 n.4 (9th Cir. 1996)).
The Intermediate Court of Appeals of Hawaii has interpreted
HRS § 378-2 and concluded that employees are subject to
individual liability when they are agents of an employer or when
they aid, abet, incite, compel, or coerce prohibited
discriminatory practices.

Lales v. Wholesale Motors Co., 2012 WL

1624013 (Haw. Ct. App. May 9, 2012) (unpublished), cert. granted,
2012 WL 4801373 (Haw. Oct. 9, 2012).
The Lales case is on appeal before the Hawaii Supreme Court.

10

Oral argument in Lales was heard on December 20, 2012.
Lales, No. SCWC-28516, (Haw).

See

The Hawaii Supreme Court has not

yet issued a decision in the case.

At this time, Lales, as

decided by the Intermediate Court of Appeals of Hawaii, is
controlling law.

Lales, 2012 WL 1624013 (Haw. Ct. App. May 9,

2012); see Vestar Dev. II, LLC, 249 F.3d at 960.

If the Hawaii

Supreme Court should rule differently from the Intermediate Court
of Appeals, this case will be in the Hawaii state court system
and subject to any change in state decisional law.
A.

Plaintiffs State Possible Claims Against Defendant
Ahumada Based on Agency Pursuant to HRS § 378-2

HRS § 378-2 broadly defines “employer” to include “any
person ... having one or more employees” and “any agent of such
person.”

Lales, 2012 WL 1624013 (Haw. Ct. App. May 9, 2012) at

*10-11.

“The language ‘any person ... including ... any agent of

such person’ in the definition of employer contemplates that
agents are individually liable as employers under the statute.”
Id. (quoting Sherez v. State of Hawai’i Dept. of Educ., Cv. No.
04-00390 JMS, 396 F.Supp.2d 1138, 1147 (D.Haw. 2005)).
Plaintiffs contend that Defendant Ahumada acted within the
scope of his employment as Defendant ADP’s agent when he
allegedly discriminated against Plaintiffs because of their sex.
(Complaint, ECF No. 1-1 at ¶¶ 18, 29, 46, 54-65, 67, 78, 91, 96,
99).

The Complaint contains allegations that Defendant Ahumada
11

treated male District Managers more favorably than Plaintiffs.
(Id. at ¶¶ 54-58, 60, 65, 78, 91, 96, 98).

Plaintiffs claim that

Defendant Ahumada restricted the type of sales Plaintiff Correa
could provide but he did not restrict male District Managers.
(Id. at ¶¶ 54-58).

Plaintiff Correa asserts that Defendant

Ahumada required her to check her work e-mail and voice messages
when she was out sick but he did not require male District
Managers to do so.

(Id. at ¶ 60).

The Complaint alleges that Defendant Ahumada subjected
Plaintiffs Correa and Root to performance reviews and reprimands
for failing to meet their sales goals.
91).

(Id. at ¶¶ 54-59, 65,

Plaintiffs claim that Defendant Ahumada did not subject

male District Managers to performance reviews or reprimands for
failing to meet their sales goals.

(Id. at ¶ 98).

There is a possibility that a Hawaii state court may find a
cause of action against Defendant Ahumada pursuant to HRS § 378-2
and Lales v. Wholesale Motors Company, 2012 WL 1624013 (Haw. Ct.
App. May 9, 2012).

Defendant ADP has not met its heavy burden of

establishing that Plaintiffs “obviously” fail to state a claim
against Defendant Ahumada.

See Lizari v. CVS Pharmacy, Inc.,

2011 WL 223806, at *2 (C.D. Cal. 2011) (“[F]ederal courts in this
circuit have applied the fraudulent joinder rule only in cases
where it is undisputably clear (or ‘obvious,’ in the language in
McCabe, 811 F.2d at 1339) that the plaintiff states no cause of

12

action against the non-diverse defendant.”).

B.

Plaintiffs State Possible Claims Against Defendant
Ahumada Based on Aiding and Abetting Pursuant to HRS §
378-2

HRS § 378-2(3) does not define the terms “aid” and “abet.”
Courts construing similar statutes have looked to the Restatement
(Second) of Torts § 876(b) (1979) for guidance in defining these
terms.

See Lovell v. United Airlines, 09-00146 ACK-LK, 2009 WL

3172729, at *4 (D.Haw. Oct. 2, 2009).

The Restatement provides

that “[f]or harm resulting to a third person from the tortious
conduct of another, one is subject to liability if he ... knows
that the other’s conduct constitutes a breach of duty and gives
substantial assistance or encouragement to the other so to
conduct himself....”

Restatement (Second) of Torts § 876(b).

Plaintiffs assert that Defendant Ahumada aided and abetted
the discriminatory practices of Defendant ADP, Defendant Gummow,
and Defendant Alexander.

The Complaint alleges that Defendant

Ahumada served as Plaintiffs’ immediate supervisor when
Plaintiffs were constructively terminated due to an ongoing
hostile work environment.
46, 67, 99).

(Complaint, ECF No. 1-1 at ¶¶ 15, 29,

Plaintiffs allege that Defendant Ahumada gave

substantial assistance or encouragement to the alleged
discriminatory practices of Defendant ADP, Defendant Gummow, and
Defendant Alexander.

(Id. at ¶¶ 54-58, 60, 65, 78, 91, 96, 98).
13

Defendant ADP has the burden, as the party seeking federal
subject matter jurisdiction, to prove that Plaintiffs fail to
state a cause of action against Defendant Ahumada and that this
failure is obvious.

Hamilton Materials, Inc., 494 F.3d at 1206.

The Complaint contains sufficient allegations to find a
possibility that Plaintiffs have stated a claim against Defendant
Ahumada.
III. Plaintiffs’ Claims Pursuant to HRS § 378-2 Are Not Clearly
and Convincingly Barred by Statute of Limitations
Defendant ADP argues that Plaintiffs’ claims against
Defendant Ahumada are time-barred by the statute of limitations.
Defendant ADP relies on federal court interpretations of Title
VII in support of its argument.
Hawaii state courts do not exclusively rely on federal
courts’ interpretations of Title VII when interpreting HRS § 3782.

The Hawaii Supreme Court and Intermediate Court of Appeals

have explained that Hawaii state courts deviate from federal
interpretations of Title VII when considering the Hawaii state
discrimination statute under HRS § 378-2.

See Furukawa v.

Honolulu Zoological Soc’y, 936 P.2d 643, 648 (Haw. 1997); Nelson
v. Univ. of Haw., 38 P.3d 95, 109 (Haw. 2001); Arquero v. Hilton
Hawaiian Vill. LLC, 91 P.3d 505, 513 (Haw 2004).
The Hawaii state courts interpret the state’s own statute of
limitations for filing a discrimination claim differently from
14

Title VII’s statute of limitations.

The Hawaii courts have

explained that the statute of limitations for filing a
discrimination case in Hawaii should be liberally construed in
order to accomplish the purpose of the statute, which is to
remedy the effects of discrimination.

Lales v. Wholesale Motor

Co., 2012 WL 1624013, *7 (Haw. App. May 9, 2012) (stating that
“HRS Chapter 368, which establishes the filing of an
administrative action and the issuance of notice of right to sue
as prerequisites for Lales to bring a civil action on his HRS
Chapter 378 claims in court, is ‘a remedial statute designed to
enforce civil rights protections and remedy the effects of
discrimination,’ and therefore, ‘should be liberally construed in
order to accomplish that purpose.’”); see Ross v. Stouffer Hotel
Co., 879 P.2d 1037, 1044 (Haw. 1994) (explaining that the court’s
broad interpretation of the statute of limitations for
discrimination claims allowing for “adjudication on the merits is
more consistent with the remedial purposes of Part I of HRS
Chapter 378 than one likely to bar potentially meritorious
claims”).
Defendant ADP’s arguments relying on federal court
interpretations of federal law do not demonstrate that Defendant
Ahumada was fraudulently joined by “clear and convincing”
evidence according to the “obvious” and “settled rules of the
state”.

Hamilton Materials, Inc., 494 F.3d at 1206; Morris, 236

15

F.3d at 1067.
Defendant ADP’s contention that Plaintiffs’ claims are based
on discrete acts of discrimination and not a hostile work claim
attempts to go to the merits of Plaintiffs’ claims.

Dodson, 951

F.2d at 42-43 (explaining that courts “do not decide whether the
plaintiff will actually or even probably prevail on the merits”
on a motion for remand).
Defendant ADP asserts that this Court should consider
federal court decisions interpreting hostile work environment to
find that Defendant Ahumada has a defense based on the statute of
limitations.

Courts do not consider possible defenses that go to

the merits of the case in determining whether the joinder of a
defendant was fraudulent.

Hunter, 582 F.3d at 1044; ; Ritchey v.

Upjohn Drug Co., 139 F.3d 1313, 1318-19 (9th Cir. 1998) (holding
that the court may consider a statute of limitations defense only
if it does not truly go to the merits of the plaintiff’s claim in
any sense); see Riverdale Baptist Church v. Certainteed Corp.,
349 F.Supp.2d 943, 950 (D.Md. 2004) (finding that the federal
preemption defense goes to the merits and not whether the
defendant was fraudulently joined).
Defendant ADP effectively asks the Court to address the
underlying merits of Plaintiffs’ claims against Defendant
Ahumada, and determine whether Plaintiffs will ultimately be able
to succeed.

Such an inquiry is inappropriate at this stage.

16

The

sole inquiry before the Court is whether Plaintiffs have stated
any possible cause of action against Defendant Ahumada.

Hunter,

582 F.3d at 1044-45.
Plaintiffs have stated a possible cause of action against
Defendant Ahumada.

The Court need not consider Plaintiffs

contention that they have also stated a cause of action against
Defendant Ahumada for intentional infliction of emotional
distress pursuant to HRS § 368-8.

IV.

Conclusion
Plaintiffs need only state any possible cause of action

against Defendant Ahumada.

There is a possibility that a Hawaii

state court may find a cause of action against Defendant Ahumada
pursuant to HRS § 378-2 and Lales v. Wholesale Motors Company,
2012 WL 1624013 (Hawaii Ct. App. May 9, 2012).

Plaintiffs are

not required to prove the underlying merits of their claims or
that they will ultimately be able to recover damages.

Defendant

ADP has not met its burden of establishing by clear and
convincing evidence that Defendant Ahumada was fraudulently
joined.
The Court lacks jurisdiction as there is no federal question
or diversity of the parties.

Plaintiffs’ Motion for Remand is

GRANTED.

17

CONCLUSION
Plaintiffs’ MOTION FOR REMAND (ECF No. 12) is GRANTED.
The case and all files herein are REMANDED to the Circuit
Court of the First Circuit, State of Hawaii for further
proceedings.

IT IS SO ORDERED.
Dated: December 19, 2013, Honolulu, Hawaii.

/s/ Helen Gillmor
Helen Gillmor
United States District Judge

Teri Correa; Elizabeth Hawkins; Jennifer Root, formerly known as
Jennifer Bruschi, v. ADP, Inc.; Ernest Ahumada; Daniel E.
Alexander; Jill Altana; Nena Dols; James L. Gummow; John Does 110; Jane Does 1-10; Doe Partnerships 1-10; Doe Corporations 1-10;
Roe “Non-Profit” Corporations 1-10; and Roe Governmental Entities
1-10; Civ. No. 13-00488 HG-KSC; ORDER GRANTING PLAINTIFFS’ MOTION
FOR REMAND (ECF No. 12).
18