HENRY DEJEAN V. FEDEX GROUND PACKAGE SYS INC., ET AL.
Case No. CV 13-06194 (BRO) (Ex)
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
October 25, 2013
Honorable BEVERLY REID O‘CONNELL, United States District Judge
CIVIL MINUTES – GENERAL. LINK: JS-6
Deputy Clerk Court Reporter Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
Not Present Not Present
Proceedings: (IN CHAMBERS)
ORDER GRANTING PLAINTIFF‘S MOTION FOR REMAND [14]
Pending before the Court is Plaintiff Henry DeJean‘s motion to remand this action to the Superior Court of California, Los Angeles County. (Dkt. No. 14.) After consideration of the papers filed in support of and in opposition to the instant motion, the Court deems this matter appropriate for decision without oral argument. See
I. FACTUAL BACKGROUND
Plaintiff Henry DeJean began working for Defendant FedEx Ground Package System Inc. on November 28, 2005, as a maintenance technician. (Compl. ¶¶ 8–10, Dkt. No. 1, Ex. 1.) From the beginning of his employment with FedEx, Plaintiff was subjected to “palpable race discrimination and harassment.” (Compl. ¶ 11.) Additionally, because FedEx failed to hire workers as qualified as he, Plaintiff was forced to work during his lunch breaks, which were “rarely . . . uninterrupted.” (Compl. ¶ 12.) Plaintiff also alleges he was denied a raise and bonus that had been promised to him when he was hired. (Compl. ¶¶ 9, 14–16.) Because of this unfair treatment, Plaintiff complained to FedEx‘s management. (See Compl. ¶¶ 16–17.)
Due to Plaintiff‘s complaints, Defendant Oduber Demoss, one of Plaintiff‘s supervisors, sought out reasons to give him negative reviews. (See Compl. ¶¶ 17–21.) In fact, according to Plaintiff, Demoss would even sabotage equipment that Plaintiff was in
In effort to escape the hostile work environment, Plaintiff attempted multiple times to transfer to other jobs at different FedEx locations. (Compl. ¶¶ 23–26.) Nevertheless, “Plaintiff never heard back from the HR Department,” because Dicely and Demoss “disliked Plaintiff due to his race.” (Compl. ¶ 23.)
Over the remainder of Plaintiff‘s employment at FedEx, Dicely and Demoss “buil[t] an unsubstantiated record of misconduct, so that they could ultimately terminate him.” (Compl. ¶ 30.) Finally, on February 15, 2012, “Demoss escorted Plaintiff to a FedEx security office to meet” with Rosendo Oviedo, apparently a human resources representative. (Compl. ¶ 33.) Oviedo asked Plaintiff about his practice of eating lunch in his car, and the length of his lunch breaks. (Compl. ¶ 33.) Oviedo also asked Plaintiff about his use of a personal cellular phone during his work shifts. (Compl. ¶ 33.) After questioning Plaintiff, Oviedo brought “Dicely into the room, who ultimately suspended Plaintiff without any valid cause.” (Compl. ¶ 33.) Subsequently, on March 7, 2012, Plaintiff‘s employment was terminated by Dicely.
Following his discharge, Plaintiff filed various complaints with FedEx. (Compl. ¶ 34.) Thereafter, he filed a complaint with the California Department of Fair Employment and Housing. (Compl. ¶ 38.)
On July 16, 2013, Plaintiff filed a complaint in the Superior Court of California, County of Los Angeles, against Defendants FedEx, Dicely, and Demoss. (Mot. 5; see also Compl.) In his complaint, Plaintiff alleges twelve separate causes of action, including claims generally relating to racial discrimination and harassment, wage and hour law violations, wrongful termination and retaliation, and infliction of emotional distress. (See Compl.) In essence, Plaintiff contends Dicely and Demoss discriminated against Plaintiff DeJean, who is African American. (Mot. 5.) He also contends FedEx withheld raises and bonuses. (Mot. 6.)
Plaintiff objects to Defendants’ removal, and has accordingly filed this motion to remand the action to state court. (Dkt. No. 14.) Plaintiff affirms Defendants Dicely and Demoss were not fraudulently joined, and therefore the Court should not disregard them.
II. LEGAL STANDARD
Whether a defendant may rightfully remove a case from a state court to a federal district court is entirely governed by statutory authorization from Congress. Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979.) Under
Pursuant to
Section 1441 also limits removal to cases where none of the defendants “properly joined and served . . . is a citizen of the State in which such action is brought.”
In determining whether removal in a given case is proper, a court should “strictly construe the removal statute against removal jurisdiction“; “[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). As such, the removing party bears a heavy burden of establishing proper removal to and original jurisdiction in the district court in order to rebut the strong presumption against removal jurisdiction. See id.
III. DISCUSSION
In his motion, Plaintiff contends the action was improperly removed to this Court. (Mot. 2.) It is readily apparent removal jurisdiction in this case could not possibly be based on federal question jurisdiction, as Plaintiff has alleged no federal causes of action. See Franchise Tax Bd., 463 U.S. at 13;
Nevertheless, Defendants contend this Court yet has original jurisdiction over Plaintiff‘s action because Defendants Dicely and Demoss “are fraudulently joined.” (Opp‘n 1.) It is true that one exception to the requirement for complete diversity among the parties is fraudulent joinder of a non-diverse defendant. Morris v. Princess Cruises Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). Fraudulent joinder is a term of art, and does not implicate a plaintiff‘s subjective intent. McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). It exists, and the non-diverse defendant is ignored for purposes of determining diversity of the parties, if 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. at 1339; accord Ritchey v. Upjohn Drug Co., 139 F.2d 564, 566 (9th Cir. 1998). “In borderline situations, where it is doubtful whether the complaint states a cause of action against the resident defendant, the doubt is ordinarily resolved in favor of the retention of the cause in state court.” Albi v. Street & Smith Publ‘ns, 140 F.2d 310, 312 (9th Cir. 1944). Indeed, a Court should reject removal, and remand the action to state court, unless the plaintiff is unable to state a claim against the non-diverse defendant, and “has no reasonable ground for supposing” it could. Id. Therefore, if any possibility exists that a plaintiff may prevail against the non-diverse defendant, fraudulent joinder must be rejected, and the case must be remanded. Plute v. Roadway Package Sys. Inc., 141 F. Supp. 2d 1005, 1008, 1012 (N.D. Cal. 2001).
Thus, to maintain Dicely and Demoss as defendants in this case, requiring remand for lack of diversity jurisdiction, the Court need only find that Plaintiff has a possibility of prevailing on a single claim against them. In his complaint, Plaintiff alleges three causes of action against Dicely and Demoss: the second, for racial harassment, (Compl. ¶¶ 46–52); the eleventh, for intentional infliction of emotional distress, (Compl. ¶¶ 93–98); and the twelfth, for negligent infliction of emotional distress, (Compl. ¶¶ 99–101). The Court will address the latter two causes of action.
To state a claim for intentional or negligent infliction of emotional distress, a plaintiff must show three things: (1) the defendant engaged in extreme and outrageous conduct; (2) plaintiff suffered extreme or severe emotional distress; and (3) the
As for the first element, Plaintiff has alleged facts that—at the very least—could possibly establish that Dicely and Demoss engaged in extreme and outrageous conduct. For example, Plaintiff alleges Defendants continually subjected him to oppressive behavior, allegedly motivated by racial animus. This behavior included assigning Plaintiff unfair job tasks that other workers were not given, (Compl. ¶¶ 19–20, 28); segregating employees by race, (Compl. ¶ 11); reprimanding him for inconsequential incidents, yet overlooking similar conduct by other workers, (Compl. ¶ 22); creating a false and unsubstantiated record of misconduct, (Compl. ¶ 30); laughing and mocking him, (Compl. ¶ 18); directing a racial slur toward him, (Compl. ¶ 19); denying him raises and bonuses that other workers received, (Compl. ¶¶ 14–16); tampering with his equipment, (Compl. ¶ 21); and terminating him without cause, (Compl. ¶ 34). The Court cannot say as a matter of law that this conduct, taken together, could not possibly establish extreme and outrageous conduct, especially if Defendants were motivated by racial animus.
Indeed, “an employer‘s use of racial slurs[] against an employee who is susceptible to such slurs[] may constitute ‘outrageous’ conduct.” Robinson v. Hewlett-Packard Corp., 183 Cal. App. 3d 1108, 1129–30 (1986). In Robinson, the court held that evidence showing the plaintiff‘s supervisor intentionally insulted him and his race, causing him emotional distress, “raised a triable issue of fact” as to whether his employer engaged in “outrageous” conduct. Id. at 1130. Here, Plaintiff has alleged that Demoss directed a racial slur toward him: “Any monkey can turn a wrench.” (Compl. ¶ 19.) Additionally, he has alleged that Dicely and Demoss treated him differently than his coworkers on account of his race. (Compl. ¶¶ 18, 20, 22.) Therefore, given the holding in Robinson, the Court must conclude “the settled rules of the state” do not rule out the possibility that Plaintiff is able to demonstrate Dicely and Demoss engaged in outrageous conduct. See McCabe, 811 F.2d at 1339.
Finally, as for the third element, “proximate cause . . . is a question of fact not to be determined at the demurrer stage.” Kiseskey v. Carpenters’ Trust for So. Cal., 144 Cal. App. 3d 222, 233 (1983).
Accordingly, the Court holds that Plaintiff reasonably could believe he is able to prevail on a claim for intentional or negligent infliction of emotional distress against either Dicely or Demoss. As such, Defendants have failed to meet their heavy burden in demonstrating fraudulent joinder. See Albi, 140 F.2d at 312; Plute, 141 F. Supp. 2d at 1008, 1012.
IV. CONCLUSION
Because Plaintiff could possibly prevail against Dicely and Demoss in his claims for intentional infliction of emotional distress and negligent infliction of emotional distress, the Court finds that Dicely and Demoss are not fraudulently joined, and therefore diversity is lacking. Accordingly, the Court lacks original jurisdiction over this lawsuit. The Court therefore GRANTS Plaintiff‘s motion to remand.
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