Onelum v. Best Buy Stores L.P.

• Decision Date: 30 May 2013
• Docket Number: No. CV 13–2198 RSWL (FFMx).,CV 13–2198 RSWL (FFMx).
• Citation: 948 F.Supp.2d 1048
• Parties: Emmanuel ONELUM, Plaintiff, v. BEST BUY STORES L.P., erroneously sued as Best Buy Co., Inc.; Dro Nersissian, erroneously sued as Dro Nasissian, and Does 1 through 50, Defendants.
• Court: U.S. District Court — Central District of California

948 F.Supp.2d 1048

Emmanuel ONELUM, Plaintiff,

v.BEST BUY STORES L.P., erroneously sued as Best Buy Co., Inc.; Dro Nersissian, erroneously sued as Dro Nasissian, and Does 1 through 50, Defendants.

No. CV 13–2198 RSWL (FFMx).

United States District Court, C.D. California.

May 30, 2013.

Donald E. Iwuchukwu, Don E. Iwuchukwu Law Offices, Los Angeles, CA, Metu C. Ogike, Metu C. Ogike Law Offices, Valley Village, CA, Chijioke O. Ikonte, Akudinobi and Ikonte, Los Angeles, CA, for Plaintiff.

John H. Dolan, Jonathan D. Meer, Seyfarth Shaw LLP, Los Angeles, CA, for Defendants.

ORDER Re: Plaintiff's Motion to Remand Removed Action [9]

RONALD S.W. LEW, Senior District Judge.

Currently before the Court is Plaintiff Emmanuel Onelum's (“Plaintiff”) Motion to Remand Removed Action [9]. The Court having reviewed all papers submitted pertaining to this Motion and having considered all arguments presented to the Court, NOW FINDS AND RULES AS FOLLOWS:

The Court hereby GRANTS Plaintiff's Motion. This action is remanded to the Los Angeles County Superior Court, Case No. BC500026.

I. BACKGROUND

Plaintiff filed this Action in Los Angeles County Superior Court against Best Buy Stores L.P., erroneously sued as Best Buy Co., Inc. (“Best Buy”); ¹ Dro Nersissian, erroneously sued as Dro Nasissian (hereinafter referred to as “Nersissian”); and Does 1 through 50 (collectively, “Defendants”), alleging claims for (1) employment discrimination based on race and national origin under California Government Code § 12940; (2) retaliation in violation of § 12940; (3) failure to prevent discrimination and harassment in the workplace in violation of § 12940; (4) intentional infliction of emotional distress (“IIED”); (5) wrongful termination in violation of public policy; and (6) harassment in violation of § 12940. Plaintiff alleges claims of IIED and harassment against Defendant Nersissian.

This Action was removed from state court based on diversity jurisdiction under 28 U.S.C. § 1332 and 1441[1].

Plaintiff is a black male of Nigerian descent residing in Los Angeles County. Compl. ¶¶ 4, 18. Best Buy is a business organized under the laws of Virginia, with its principal place of business in Minnesota, doing business in Los Angeles County. Id. ¶ 5; Notice of Removal ¶ 10.

Plaintiff was employed by Best Buy as a supervisor in the Canoga Park, California Best Buy store, from October 2010 to June 2012, when he was terminated. Compl. ¶¶ 10–11. Defendant Nersissian was Plaintiff's direct supervisor. Id. ¶ 11.

Plaintiff's Complaint alleges that throughout his employment with Best Buy, he was subjected to harassment, bullying, intimidation, and discrimination by Nersissian. Id. ¶ 12. For example, on August 17, 2011, Plaintiff “observed [Nersissian] give his cash register override code to another employee in violation of company policy”. Id. Plaintiff reported this to management. Id. Subsequently, the Complaint alleges, Plaintiff was “given a final write up and ... placed on a 30 day action plan supposedly for poor sales numbers.” Id. Later in January 2012, Plaintiff was “written up for attempting to handle an incident with a customer that was abusive towards him and his staff.” Id. ¶ 13. After Plaintiff complained to human resources about Nersissian's actions, Nersissian then started to threaten him with “forced transfers or termination”, and Best Buy began to cut his hours. Id. During this period, Nersissian repeatedly made disparaging comments about Plaintiff's accent. Id. ¶ 19.

II. LEGAL STANDARD

Removal to federal court is governed by 28 U.S.C. § 1441, which in relevant part states that “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants ....” 28 U.S.C. § 1441(a). All named defendants must join in a removal petition. Hewitt v. City of Stanton, 798 F.2d 1230 (9th Cir.1986).

District courts have diversity jurisdiction over all civil actions between citizens of different states where the amount in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. § 1332.

The Court may remand a case to state court for lack of subject matter jurisdiction or defects in removal procedure. 28 U.S.C. § 1447(c). A defendant has the burden of proving that removal was proper. See Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir.1988). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction over a case that has been removed to federal court, the case must be remanded. 28 U.S.C. § 1447(c). The Ninth Circuit strictly construes the removal statute against removal jurisdiction, and federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941) (stating that removal statutes should be construed narrowly in favor of remand to protect jurisdiction of state courts).

III. ANALYSIS

Defendants claim that this Court has subject matter jurisdiction on the basis of diversity, 28 U.S.C. § 1332(a). Defendants do not dispute that Defendant Nersissian is a citizen of California, and Plaintiff is a citizen of California and are thus not diverse. However, Defendants claim that Nersissian's citizenship should be disregarded because he was fraudulently joined. Notice of Removal ¶ 19.

“Fraudulent joinder is a term of art. 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, the joinder of the resident defendant is fraudulent.” McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir.1987). The fraudulent joinder doctrine requires courts to disregard the citizenship of defendants when no viable cause of action has been stated against them, or when evidence presented by the removing party shows that there is no factual basis for the claims alleged against the defendants. See Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir.2001). “There is a presumption against finding fraudulent joinder, and defendants who assert that plaintiff has fraudulently joined a party carry a heavy burden of persuasion.” Plute v. Roadway Package Sys., Inc., 141 F.Supp.2d 1005, 1008 (N.D.Cal.2001). “[T]he defendant must demonstrate that there is no possibility that the plaintiff will be able to establish a cause of action in State court against the alleged sham defendant.” Good v. Prudential Ins. Co. of Am., 5 F.Supp.2d 804, 807 (N.D.Cal.1998) (emphasis added). “[I]f there is a possibility that a state court would find that the complaint states a cause of action against any of the resident defendants, the federal court must find that the joinder was proper and remand the case to the state court.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1046 (9th Cir.2009) (quoting Tillman v. R.J. Reynolds Tobacco, 340 F.3d 1277, 1279 (11th Cir.2003)).

In determining whether a defendant was joined fraudulently, the courts must resolve “all disputed questions of fact and all ambiguities in the controlling state law in favor of the non-removing party.” Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42–43 (5th Cir.1992). Furthermore, “[a]ll doubts concerning the sufficiency of a cause of action because of inartful, ambiguous or technically defective pleading must be resolved in favor of remand ..., and a lack of clear precedent does not render the joinder fraudulent.” Archuleta v. Am. Airlines, Inc., No. CV 00–1286 MMM (SHX), 2000 WL 656808, *4 (C.D.Cal. May 12, 2000) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566–67 (9th Cir.1992), and Lieberman v. Meshkin, Mazandarani, 1996 WL 732506, *3 (N.D.Cal. Dec. 11, 1996)).

Here, Defendants argue that the claims asserted against Nersissian, IIED and harassment, fail as a matter of law. Specifically, Defendants argue that Plaintiff's IIED claim fails because of the “managerial privilege” rule and alternatively because it is barred by the California Worker's Compensation Preemption Act, California Labor Code § 3600 et seq.

The Court finds that Defendants have failed to demonstrate that under settled California law “there is no possibility” that Plaintiff will be able to establish a cause of action against Defendant Nersissian.

In particular, Plaintiff's IIED claim against Nersissian remains viable because state case law does not support Defendants' contention that Nersissian cannot be sued as a matter of law because he is allegedly protected by the so-called “managerial privilege”. Defendants cite several cases that they allege support the contention that the conduct of managerial employees is absolutely privileged under the doctrine of managerial immunity if the disputed conduct was within the course and scope of their employment. See, e.g., Marin v. Jacuzzi, 224 Cal.App.2d 549, 36 Cal.Rptr. 880 (1964); Aalgaard v. Merchants Nat. Bank, Inc., 224 Cal.App.3d 674, 684–86, 274 Cal.Rptr. 81 (1990); McCabe v. Gen. Foods Corp., 811 F.2d 1336 (9th Cir.1987). However, each of these cases involves intentional interference with a contract induced by a third party, which is not at issue here.

As thoroughly discussed in Calero v. Unisys Corporation, 271 F.Supp.2d 1172, 1177 (N.D.Cal.2003),

The manager's privilege arises from the notion that while a disinterested third party may be liable for interference with a contractual or economic relationship, a party having an interest in that relationship must be judged differently. See, e.g., Kozlowsky v. Westminster Nat'l Bank, 6 Cal.App.3d 593, 86 Cal.Rptr. 52 (1970). Where a managerial employee is motivated by a desire to benefit his principal, his conduct in inducing a breach of contract should be privileged. Los Angeles Airways, Inc. v. Davis, 687 F.2d 321, 328 (9th Cir.1982). The privilege is designed to further certain societal interests by fostering uninhibited advice by agents to their principals. Id. As...