Calero v. Unisys Corp.

• Decision Date: 19 May 2003
• Docket Number: No. C03-0889 MHP.,C03-0889 MHP.
• Citation: 271 F.Supp.2d 1172
• Court: U.S. District Court — Northern District of California
• Parties: Efren CALERO, Plaintiff, v. UNISYS CORPORATION, a Delaware Corporation, James Turner, and Does 1 through 25, inclusive Defendants.

271 F.Supp.2d 1172

Efren CALERO, Plaintiff, v. UNISYS CORPORATION, a Delaware Corporation, James Turner, and Does 1 through 25, inclusive Defendants.

No. C03-0889 MHP.

United States District Court, N.D. California.

May 19, 2003.

COPYRIGHT MATERIAL OMITTED

Daniel Feder, The Law Offices of Daniel Feder, San Francisco, CA, for Efren Calero, Plaintiff.

Jamerson C. Allen, Jackson Lewis LLP, Nancy L. O'Neill, Jackson Lewis LLP, Nancy L. O'Neill, Jackson Lewis Schnitzler & Krupman, San Francisco, CA, for Unisys Corporation, a Delaware Corporation, James Turner, Defendants.

MEMORANDUM AND ORDER

MOTION TO REMAND

PATEL, Chief Judge.

Plaintiff Efren Calero filed his complaint in California state court against defendants Unisys Corporation and James Turner alleging several causes of action founded on employment discrimination based on physical disability. On February 28, 2003, defendants filed their notice of removal with this court contending that defendant Turner, a resident of the State of California, is not amenable to suit under the causes of action alleged. Accordingly, defendants argue that Turner was fraudulently joined and his citizenship should be disregarded in determining jurisdiction under 28 U.S.C. section 1332 and 28 U.S.C. section 1441(b). Now before the court is plaintiff's Motion to Remand. Having considered the parties' arguments and submissions, and for the reasons set forth below, the court rules as follows.

BACKGROUND¹

Unisys first hired plaintiff as a temporary employee in December 1999. According to plaintiff, both Client Services Coordinator and Manager praised him for his excellent performance in handling client service requests. Unisys made plaintiff a full-time employee in April 2000. In September 2000, plaintiff was allegedly named employee of the month in recognition of his exemplary performance. During that month, plaintiff had a recurrence of a seizure condition caused by a childhood injury and was required to take disability leave from his employment until March 2001. When plaintiff returned to work, he was assigned to work for a Unisys client, on-site, in San Francisco.

On December 31, 2001, plaintiff was involved in a car accident and suffered severe neck and back pain, which temporarily disabled him. Plaintiff states that he immediately notified the Unisys client he was assigned to and the Unisys Client Services Coordinator of his injuries and temporary disability. On January 2, 2002, the next business day, plaintiff left Turner, the Client Services Manager for Unisys, a voice mail message stating that he was injured with limited mobility. Plaintiff allegedly kept Turner notified of his status and stated that he would bring a doctor's note when he returned to work. On January 4, 2002, plaintiff took and passed a Compaq Computer Certification test he was scheduled to take. Plaintiff then called Turner to tell him that he passed the test and that he had a medical appointment for his injuries that afternoon. Plaintiff called Turner on January 8, 2002 to tell him that his injuries were causing him pain and that he would therefore not be coming to work. Finally, on January 10, 2002, Turner sent plaintiff a letter terminating his employment effective that day, for alleged failure to notify Unisys management of his absence between January 7 and 10, 2002.

Plaintiff, a resident of the State of California, filed his original complaint in state court on December 23, 2002. The complaint names as defendants Unisys Corporation, a Delaware Corporation and James Turner, a resident of the State of California. It alleges four causes of action against Unisys alone for (1) employment discrimination based on physical disability; (2) failure to accommodate disability; (3) denial of medical leave; and (4) wrongful termination in violation of public policy. Plaintiff's fifth cause of action for intentional infliction of emotional distress is against all defendants. Plaintiff has also requested that this court allow him to amend his complaint to include a sixth cause of action against Turner for unlawful retaliation. Prop. FAC ¶¶ 43 to 46.

Defendants filed their notice of removal on February 28, 2003. The notice alleges that defendant Turner, who is a resident of the State of California, is not amenable to suit under the causes of action alleged. Accordingly, defendants argue that Turner is fraudulently joined and his citizenship should be disregarded for the purposes of determining jurisdiction under 28 U.S.C. § 1332 and 28 U.S.C. § 1441(b).

LEGAL STANDARD

As a general rule, an action is removable to a federal court only if it might have been brought there originally. 28 U.S.C. § 1441(a). A district court has diversity jurisdiction over any civil action between citizens of different states so long as the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. If at any time before final judgment, the court determines that it is without subject matter jurisdiction, the action shall be remanded to state court. 28 U.S.C. § 1447(c).

The removal statute is strictly construed, and the court must reject federal jurisdiction if there is any doubt as to whether removal was proper. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir.1996). The defendants bear the burden of proving the propriety of removal. Id. If at any time before final judgment the court determines that it is without subject matter jurisdiction, the action shall be remanded to state court. 28 U.S.C. § 1447(c).

DISCUSSION

The parties do not dispute the amount in controversy. Accordingly, this motion turns on whether the diversity of citizenship requirement is met.

I. Fraudulent Joinder

Civil actions not involving a federal question are removable to a federal district court only if there is diversity of citizenship between the parties. 28 U.S.C. § 1332(a)(1). Section 1332 requires complete diversity of citizenship; each of the plaintiffs' citizenship must be diverse from each of the defendants.' Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996). However, one exception to the requirement of complete diversity is where a non-diverse defendant has been "fraudulently joined." Therefore, a defendant who has been fraudulently joined need not be considered in evaluating diversity of citizenship.

In the case at bar, Turner is a resident of the state of California, the same citizenship as plaintiff. Defendants argue that plaintiff's joinder of non-diverse defendant Turner was solely to defeat diversity and avoid removal to federal court. Defendants, therefore, assert that Turner should not be considered in evaluating diversity of citizenship of the parties because he was fraudulently joined.

The Ninth Circuit has held that "[i]f the plaintiff fails to state a cause of action against a resident defendant, and failure is obvious according to the settled rules of the state, joinder of the resident defendant is fraudulent and the defendant's presence in the lawsuit is ignored for purposes of determining diversity." McCabe v. General Foods, 811 F.2d 1336, 1339 (9th Cir.1987). Defendants must be able "to show that the individuals joined in the action cannot be liable on any theory." Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir.1998) (emphasis added). Here, plaintiff asserts that Turner has not been fraudulently joined because defendants cannot meet this high standard.

The Ninth Circuit has not provided more specific direction on the exact fraudulent joinder standard. Bellecci v. GTE Sprint Communications Corp., 2003 WL 151538, at *3 (N.D.Cal. Jan. 14, 2003) (Alsup, J.). Courts in the Northern District, however, have expressed a standard referencing the "possibility" of a claim. Id. Specifically, a district court assessing fraudulent joinder examines whether there is any possibility that plaintiff will be able to establish a cause of action against the allegedly non-diverse party. Id. (citing Plute v. Roadway Packages Sys., 141 F.Supp.2d 1005, 1008 (N.D.Cal.2001) (Illston, J.)). A defendant will be deemed fraudulently joined only if, "after all disputed questions of fact and all ambiguities in the controlling state law are resolved in plaintiff's favor," plaintiff could not recover against the non-diverse party. Id. (quoting Soo v. United Parcel Service, Inc., 73 F.Supp.2d 1126 (N.D.Cal.2001) (Breyer, J.)).

In deciding whether a cause of action is stated, the court looks "only to a plaintiff's pleadings to determine the removability." Gould v. Mutual Life Ins. Co. of New York, 790 F.2d 769, 773 (9th Cir.1986). Where fraudulent joinder is an issue, however, the court "will go somewhat further." Ritchey, 139 F.3d at 1318. Accordingly, a "defendant seeking removal to the federal court is entitled to present the facts showing joinder to be fraudulent." McCabe, 811 F.2d at 1339.

Plaintiff has also requested leave to amend his complaint and suggests that this court consider a sixth cause of action, in addition to the five stated in the complaint, in deciding the issue at hand. However, "[w]hether an action should be remanded must be resolved by reference to the complaint at the time the petition for removal was filed." Kruso v. I.T.T., 872 F.2d 1416, 1426 n. 12 (9th Cir.1989) (citations omitted). The complaint as it existed at removal contains one cause of action against Turner — a claim against all defendants of intentional infliction of emotional distress.

Here, defendants argue that Turner cannot be subject to liability for the intentional infliction of emotional distress claim asserted in the complaint. Defendants set forth four arguments supporting their contention. The court will address each argument in turn.

A. Cause of Action for Intentional Infliction of Emotional Distress

Defendants argue that plaintiff has failed to allege facts to demonstrate the "outrageous conduct" element of the intentional infliction of emotional distress tort. California permits recovery for conduct "so extreme and...