1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RICKY MONTES, Case No. 2:22-cv-02551-FLA (Ex)

12 Plaintiff,

ORDER DENYING PLAINTIFF’S

13 v. MOTION FOR LEAVE TO FILE

SECOND AMENDED COMPLAINT

14 [DKT. 20] AND MOTION TO

STATE FARM MUTUAL

15 REMAND [DKT. 19]

AUTOMOBILE INSURANCE

16 COMPANY, et al., Defendants. 17

18 19 RULING 20 Before the court are Plaintiff Ricky Montes’ (“Plaintiff” or “Montes”) Motion 21 for Leave to Amend Pleadings to File a Second Amended Complaint (“Motion to 22 Amend,” Dkt. 20) and Motion for Remand (Dkt. 19). Defendants State Farm Mutual 23 Automobile Insurance Company (“State Farm Automobile”) and State Farm General 24 Insurance Company (“State Farm General”) (collectively, “Defendants” or “State 25 Farm”) oppose the Motions. Dkts. 24, 25. On November 15, 2022, the court found 26 these matters appropriate for resolution without oral argument and vacated the hearing 27 set for November 18, 2022. Dkt. 32; see Fed. R. Civ. P. 78(b); Local Rule 7-15. 28 For the reasons stated herein, the court DENIES the Motions in their entirety. 1 BACKGROUND 2 On March 1, 2022, Plaintiff filed the Complaint in this action in the Los 3 Angeles County Superior Court, asserting nine causes of action against State Farm 4 and former Defendant Nicole Barker (“Barker”) for: (1) discrimination based on 5 physical disability in violation of the California Fair Employment and Housing Act 6 (“FEHA”), (2) violation of the California Family Rights Act (“CFRA”), (3) 7 harassment based on physical disability in violation of FEHA, (4) failure to 8 accommodate physical disability in violation of FEHA, (5) failure to engage in the 9 interactive process in violation of FEHA, (6) failure to prevent discrimination and 10 harassment in violation of FEHA, (7) retaliation in violation of FEHA, (8) retaliation 11 in violation of California Labor Code § 1102.5, and (9) wrongful termination in 12 violation of public policy. Dkt. 1-1 at 2.1 Plaintiff asserted all causes of action 13 against State Farm but asserted only the third cause of action against Barker. On 14 March 4, 2022, Plaintiff filed the operative First Amended Complaint (“FAC”), 15 asserting the same claims against State Farm and Barker. Id. at 31.2 16 On April 15, 2022, State Farm removed the action to this court, pursuant to the 17 court’s diversity jurisdiction. Dkt. 1. On May 30, 2022, the parties filed a joint 18 stipulation voluntarily dismissing Barker from the action. Dkt. 14. On June 6, 2022, 19 20 1 The court cites documents by the page numbers added by the court’s CM/ECF System, rather than any page numbers listed natively. 21 2 The Complaint and FAC name as Defendants both State Farm Automobile and State 22 Farm General. Dkt. 31 at 2, 31. On April 14, 2022, State Farm Automobile alone 23 filed an Answer to the FAC. Dkt. 1-2 at 2. In their oppositions to Plaintiff’s Motions, Defendants state they notified Plaintiff on March 9, 2022, that Plaintiff had not been 24 employed by State Farm General. Dkt. 24 at 2 n. 1; Dkt. 25 at 2 n. 1. Plaintiff does 25 not dispute this statement (see Dkt. 26) or refer to State Farm General in his Motions (see Dkt. 20 at 6; see generally Dkt. 19). Accordingly, the court ORDERS the parties 26 to show cause in writing why the court should not either dismiss State Farm General 27 from this action or enter its default. The parties are ORDERED to meet and confer on this issue and to submit a joint statement, which is not to exceed 10 pages, within 14 28 days of this Order. 1 the court approved the stipulation and dismissed Barker from the action without 2 prejudice. Dkt. 16. 3 On September 27, 2022, Plaintiff filed the subject Motion to Amend, requesting 4 leave to reassert the third cause of action for harassment in violation of the FEHA 5 against Barker and assert a tenth cause of action for intentional infliction of emotional 6 distress (“IIED”) against State Farm and Barker. Dkt. 20. If the Motion to Amend is 7 granted, Plaintiff requests the court remand the action to the Los Angeles County 8 Superior Court for lack of complete diversity. Dkt. 19. Defendants oppose both 9 Motions. Dkts. 24, 25. 10 MOTION TO AMEND 11 I. Legal Standard 12 Although the Ninth Circuit has not explicitly addressed this issue, district courts 13 in this circuit have held that motions to add a diversity-destroying party after removal 14 are governed by 28 U.S.C. § 1447(e) (“Section 1447(e)”), rather than Fed. R. Civ. P. 15 15(a) (“Rule 15(a)”). Sagrero v. Bergen Shippers Corp., Case No. 2:22-cv-04535- 16 SPG (RAOx), 2022 WL 4397527, at *2 (C.D. Cal. Sept. 23, 2022) (“Rule 15(a) does 17 not apply when a plaintiff amends her complaint after removal to add a diversity 18 destroying defendant.” (internal quotation marks omitted)); Clinco v. Roberts, 41 F. 19 Supp. 2d 1080, 1086–88 (C.D. Cal. 1999) (“Rule 15(a) does not apply to allow 20 permissive amendment destroying diversity jurisdiction. … [A] district court must 21 scrutinize an attempted diversity-destroying amendment to ensure that it is proper; in 22 other words, § 1447(e) applies.”). The parties agree Section 1447(e) applies here 23 instead of Rule 15(a). See Dkt. 20 at 10; Dkt. 24 at 6. 24 Pursuant to Section 1447(e): “[i]f after removal the plaintiff seeks to join 25 additional defendants whose joinder would destroy subject matter jurisdiction, the 26 court may deny joinder, or permit joinder and remand the action to the State court.” 27 28 U.S.C. § 1447(e). “Under § 1447, whether to permit joinder of a party that will 28 destroy diversity jurisdiction remains in the sound discretion of the court; and will be 1 reviewed under an abuse of discretion standard.” IBC Aviation Servs., Inc. v. 2 Compania Mexicana de Aviacion, S.A. de C.V., 125 F. Supp. 2d 1008, 1011 (N.D. 3 Cal. 2000) (citations omitted). “In this regard, the court has greater discretion in 4 determining whether to allow an amendment to add a non-diverse party that would 5 destroy existing, diversity jurisdiction, than it does under Rule 15.” Rosas v. NFI 6 Indus., Case No. 2:21-cv-00046-WBS-CKD, 2021 WL 1264921, at *2 (E.D. Cal. Apr. 7 6, 2021) (citing Newcombe v. Adolf Coors Co., 157 F.3d 686, 691 (9th Cir. 1998)). 8 When deciding whether to permit amendment and joinder under Section 9 1447(e), courts consider factors including: 10 (1) whether the party sought to be joined is needed for just 11 adjudication and would be joined under Federal Rule of Civil Procedure 19(a); (2) whether the statute of limitations would prevent 12 the filing of a new action against the new defendant should the court 13 deny joinder; (3) whether there has been unexplained delay in seeking the joinder; (4) whether joinder is solely for the purpose of defeating 14 federal jurisdiction; and (5) whether the claim against the new party 15 seems valid. 16 Clinco, 41 F. Supp. 2d at 1082. This list of factors is non-exclusive. See Murphy v. 17 Am. Gen. Life Ins. Co., 74 F. Supp. 3d 1267, 1278 (C.D. Cal. 2015) (listing factors). 18 “A court need not consider all the issues, as any factor can be decisive, and no one of 19 them is a necessary condition for joinder.” Sagrero, 2022 WL 4397527, at *2 20 (quotation marks and citation omitted). 21 II. Analysis 22 “When determining whether to allow amendment to add a nondiverse party, 23 courts consider whether the amendment was attempted in a timely fashion.” Clinco, 24 41 F. Supp. 2d at 1083 (citing Lopez v. Gen. Motors Corp., 697 F. 2d 1328, 1332 (9th 25 Cir. 1983)). Plaintiff contends the subject Motion is timely because he sought leave to 26 amend “shortly after obtaining objective evidence establishing harassment and IIED 27 allegations against a non-diverse defendant, Nicole Barker,” and since the case is still 28 in the early stages of litigation. Dkt. 20 at 12–13. Specifically, Plaintiff contends 1 State Farm produced a letter in discovery, dated November 2, 2020 (the “November 2 2020 Letter”), that evidences Plaintiff’s claims he was terminated because State Farm 3 and Barker believed he faked his disability. Id. at 13–14. Defendants respond 4 Plaintiff was aware of all facts supporting his proposed amendment since the inception 5 of the action and that the attorney’s statement in question is neither newfound nor 6 evidence and cannot establish grounds to support granting leave to amend. Dkt. 24 at 7 16. The court agrees with Defendants. 8 In the proposed Second Amended Complaint (“SAC”), Plaintiff seeks to allege 9 State Farm’s counsel in a related workers’ compensation matter stated in the 10 November 2020 Letter: “it is the employer’s position that Mr. Montes conjured his 11 injury following a poor performance review” which had been provided by Barker, and 12 that “Barker inaccurately reported Plaintiff on an unapproved medical leave due to her 13 belie[f] that he was faking his injury due to a poor performance review she provided 14 him.” Dkt. 20-1 at 18–19, ¶¶ 67–68, 70. Plaintiff, however, pleaded the same facts in 15 the FAC. See Dkt. 1-1 at 37, ¶ 39 (“Defendant and Barker believed that Plaintiff was 16 malingering and faking his injury, physical condition and need for workplace 17 accommodations due to Barker’s disciplinary action in March 2020.”). It is 18 undisputed Plaintiff was aware of the facts underlying his proposed claims against 19 Barker when he stipulated to her dismissal from the action on May 30, 2022 (Dkt. 14). 20 See Dkt. 26 at 12–13. As the November 2020 Letter was directed to Plaintiff’s 21 counsel, it is also undisputed that Plaintiff was aware of the existence and contents of 22 the November 2020 Letter when he filed the Complaint and FAC in 2022 (see Dkt. 23 20-2 (Slatkin Decl.) at 3, ¶ 12), and when he dismissed Barker from the action 24 voluntarily (see Dkt. 14). 25 Furthermore, State Farm Automobile’s statement in 2020, that it believed 26 Plaintiff was faking his injury after a poor performance review and his termination 27 was proper, does not constitute evidence establishing Barker harassed or intentionally 28 inflicted emotional distress on Plaintiff. At most, this statement establishes only State 1 Farm’s stated position on the issue, as of 18 months before Plaintiff dismissed Barker 2 from the action. 3 In short, Plaintiff’s proposed amendment seeks to reassert his harassment claim 4 and add an additional claim for IIED against Barker based on factual allegations 5 pleaded in the FAC and which were known to Plaintiff before he filed the Complaint 6 and dismissed Barker from the action voluntarily—without any explanation for why 7 Barker should be added back to this action based on this information. Plaintiff, thus, 8 fails to demonstrate the proposed amendment is timely. 9 Plaintiff further argues the court should allow leave to amend because Barker is 10 a necessary party and to avoid a separate and redundant action against her in state 11 court. Dkt. 20 at 11–12; Dkt. 26 at 7. As stated, however, Plaintiff was aware of both 12 the November 2020 Letter and Barker’s alleged role in the events in question when he 13 stipulated to her dismissal from the FAC. Plaintiff’s desire to reassert his disability 14 harassment claim and add a new claim for IIED against Barker, alone, is insufficient 15 to establish good cause for the court to allow Plaintiff to rejoin this non-diverse former 16 Defendant. 17 Finally, Plaintiff contends he would be prejudiced if the court refused his 18 request, since he would be required to pursue two substantially similar lawsuits in two 19 different forums. Dkt. 20 at 14–15. Given that Plaintiff knew or should have known 20 of the November 2020 Letter when he agreed to dismiss Barker from the action 21 voluntarily, the court finds Plaintiff would not be prejudiced by denial of leave to 22 amend. 23 CONCLUSION 24 For the aforementioned reasons, the court DENIES Plaintiff’s Motion to Amend 25 (Dkt. 20) in its entirety. See 28 U.S.C. § 1447(e). Plaintiff moves to remand the 26 action on the grounds that there will no longer be complete diversity between the 27 parties if Plaintiff is granted leave to rejoin Barker to the action. Dkt. 19 at 3–4. 28 Having denied the Motion to Amend, the court, likewise, DENIES the Motion for 1 | Remand (Dkt. 19). 2 Given the uncertain status of Defendant State Farm General Insurance 3 || Company, the court ORDERS the parties to show cause in writing why the court 4 | should not either dismiss this Defendant from this action or enter its default. The 5 || parties are ORDERED to meet and confer on this issue and to submit a joint statement 6 | regarding the status of State Farm General Insurance Company within 14 days of this 7 | Order. 8 9 IT IS SO ORDERED. 10 11 | Dated: September 19, 2023 cco) 13 FERNANDO L7AENLLE-ROCHA 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28