1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROSIE CASAMPOL TRAHAN, Case No. 25-cv-05743-JD

8 Plaintiff,

ORDER RE REMAND

v. 9

10 WAL-MART ASSOCIATES, INC., et al., Defendants. 11

12 13 Plaintiff Rosie Casampol Trahan sued defendants Wal-Mart Associates, Inc. (Walmart), 14 her former employer, and Allison Ferra, her supervisor at Walmart, on a variety of California state 15 law employment claims primarily under the Fair Employment and Housing Act (FEHA), Cal. 16 Gov’t Code § 12900 et seq. Dkt. No. 1-1. The claims range from age and disability 17 discrimination to harassment and wrongful termination. Trahan originally filed the case in the 18 Superior Court for the County of Contra Costa. Walmart removed to this Court on an allegation 19 of traditional diversity jurisdiction under 28 U.S.C. § 1332(a). Dkt. No. 1. Trahan asks for a 20 remand to state court. Dkt. No. 17. The parties’ familiarity with the record is assumed, and the 21 case is remanded. 22 The parties agree that Trahan and Walmart have diverse citizenship, see Dkt. Nos. 1, 17, 23 but disagree about the effect of Ferra, who is a California resident and would destroy complete 24 diversity. Ferra and Walmart are defendants for all causes of action. Dkt. No. 1-1 ¶¶ 35-131. 25 Walmart says Ferra is a sham defendant who was fraudulently joined and should be disregarded 26 for jurisdictional purposes. See Dkt. No. 1 at 3; Dkt. No. 18 at 2. 27 “This question arises with some frequency in removed employment cases, and the 1 WL 520874, at *1 (N.D. Cal. Feb. 18, 2025). “As in all federal cases, the foundational principle is 2 that the jurisdiction of the federal courts is limited to what is authorized by the Constitution and 3 statute.” Id. (citing Kokkonan v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). 4 “Diversity jurisdiction arises when a plaintiff sues a citizen of a different state over an amount in 5 controversy exceeding $75,000.” Id. (quoting Dole v. Verisk Analytics, Inc., No. 22-cv-06625-JD, 6 2023 WL 2985116, at *1 (N.D. Cal. Apr. 17, 2023)). “An out-of-state defendant may remove to 7 federal court ‘any civil action brought in a State court of which the district courts of the United 8 States have original jurisdiction.’” Id. (quoting Dole, 2023 WL 2985116, at *1). “A plaintiff may 9 move to remand the action to state court if the case was improperly removed because of a lack of 10 subject-matter jurisdiction.” Id. (quoting Dole, 2023 WL 2985116, at *1). “There is a strong 11 presumption against removal jurisdiction, and any doubt about removal weighs in favor of 12 remand.” Id. (internal quotation and citation omitted). “Principles of federalism, comity, and 13 respect for the state courts also counsel strongly in favor of scrupulously confining removal 14 jurisdiction to the precise limits that Congress has defined.” Id. (quoting California v. AbbVie 15 Inc., 390 F. Supp. 3d 1176, 1180 (N.D. Cal. 2019)). 16 “There are two ways to establish fraudulent joinder: (1) actual fraud in the pleading of 17 jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non- 18 diverse party in state court.” Id. (internal quotation omitted). “[S]hort of proving that the plaintiff 19 committed actual fraud in pleading jurisdictional facts, a defendant urging fraudulent joinder must 20 show that the non-diverse party who was joined in the action cannot be liable on any theory.” Id. 21 (alteration in original) (quoting Geisse v. Bayer HealthCare Pharms. Inc., No. 17-cv-07026-JD, 22 2019 WL 1239854, at *2 (N.D. Cal. Mar. 18, 2019)). “Our circuit has emphasized that this 23 inquiry is not the same as the Rule 12(b)(6) review for failure to state a plausible claim.” Id. 24 (quoting Geisse, 2019 WL 1239854, at *2). “It has a lower bar and requires only that there is a 25 possibility that a state court would find that the complaint states a cause of action against any of 26 the [non-diverse] defendants.” Id. (alteration and emphasis in original) (quoting Geisse, 2019 WL 27 1239854, at *2). “This means that the joinder of a non-diverse party will not necessarily be 1 at *2). “In effect, the ‘possibility’ standard is akin to the ‘wholly insubstantial and frivolous 2 standard for dismissing claims under Rule 12(b)(1).’” Id. (quoting Geisse, 2019 WL 1239854, at 3 *2). “If there is any possibility above the trivial or frivolous that the plaintiff can state a claim 4 against the non-diverse defendant, ‘the federal court must find that the joinder was proper and 5 remand the case to state court.’” Id. (quoting Hunter v. Philip Morris USA, 582 F.3d 1039, 1046 6 (9th Cir. 2009)). 7 “There is a general presumption against finding fraudulent joinder, which adds to the usual 8 presumption against removal in all cases under Section 1332(a) and imposes a particularly heavy 9 burden on the defendant to prove.” Id. at *2 (internal quotation omitted). “The defendant has 10 some leeway to present facts outside the complaint, but the complaint is usually the best guide in 11 determining whether joinder was fraudulent, and in any event the defendant must prove fraudulent 12 joinder by clear and convincing evidence.” Id. (citations omitted). 13 For purposes of a remand, Trahan focuses on the harassment claim against Ferra. Dkt. No. 14 17 at 4. The complaint alleges that Ferra harassed Trahan by saying “on numerous occasions” that 15 she “is old” and by urging her to retire. See, e.g., Dkt. No. 1-1 ¶ 23. 16 This is enough to warrant a remand. FEHA permits a claim against a supervisor like Ferra 17 along the lines Trahan has alleged. See Cal. Gov’t Code §§ 12923, 12940(j)(3); Pollock v. Tri- 18 Modal Distribution Servs., Inc., 11 Cal. 5th 918, 932-33 (2021) (“a supervisor can be liable for 19 harassment”). Walmart forthrightly acknowledges the point by agreeing that “an individual 20 supervisor or coworker may be held liable for harassment in violation of the FEHA.” Dkt. No. 18 21 at 4. Consequently, it cannot be said that Trahan has no chance of recovering against Ferra. 22 Walmart has not demonstrated otherwise. Walmart’s main point is that the harassment 23 claim against Ferra is not plausibly alleged. See id. at 4-6. That misconstrues the inquiry with 24 respect to fraudulent joinder. The salient question is whether Trahan’s claim against Ferra is 25 wholly insubstantial and frivolous, which is not the case. Walmart did not carry its heavy burden 26 of establishing that there is no possibility of a state court finding in favor of Trahan. 27 1 Removal to federal court was improper, and the case is remanded to the Superior Court for 2 the County of Contra Costa. 28 U.S.C. § 1447(c). Each side will bear its own costs and fees in 3 connection with the removal and remand proceedings. 4 IT IS SO ORDERED. 5 Dated: October 23, 2025 6 7

JAMES PONATO

8 United States District Judge 9 10 11 12

13

© 15 16

= 17

Z 18

19 20 21 22 23 24 25 26 27 28