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3 4 5 6 7 g UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 12 Case No.: SACV 21-01522-CJC(KESx) '3 || MAEVE COURTNEY, 14 15 Plaintiff, ORDER GRANTING PLAINTIFF'S y MOTION TO REMAND [Dkt. 15] AND 16 REMANDING ACTION TO ORANGE

COUNTY SUPERIOR COURT

'7 USI INSURANCE SERVICES, LLC, ig ||and DUKE TOMEI, 19 Defendants. 20 21 22 23

24 25 26 27 28

1 I. INTRODUCTION 2 3 On August 9, 2021, Plaintiff Maeve Courtney filed this action in Orange County 4 Superior Court alleging employment discrimination against her former employer, 5 Defendant USI Insurance Services, LLC (“USI”), and her former supervisor, Defendant 6 Duke Tomei (Tomei). (See Dkt. 1-1 [Original Complaint].) Defendants removed the 7 action to this Court on September 16, 2021, asserting diversity jurisdiction. (Dkt. 1 8 [Notice of Removal, hereinafter “NOR”].) Although Plaintiff and Tomei are both 9 residents of California, Defendants argued that Tomei had been fraudulently joined to 10 defeat diversity jurisdiction because employment discrimination claims cannot be 11 maintained against individuals like Tomei. (NOR at 4-7.) After removal, Defendants 12 moved to dismiss the employment discrimination claims against Tomei. (Dkt. 9 13 [Defendants’ First Motion to Dismiss].) The Court granted that motion. (Dkt. 13 [Order 14 Granting Defendants’ First Motion to Dismiss].) However, just before the Court issued 15 its Order Granting Defendants’ Motion to Dismiss, Plaintiff filed an amended complaint 16 raising a harassment claim against Tomei, (Dkt. 12 [First Amended Complaint, 17 hereinafter “FAC”]), a claim which can be brought against individuals under California 18 law, see Cal. Gov’t Code § 12940(j)(1). The Court then issued a clarification that its 19 Order Granting Defendants’ Motion to Dismiss did not affect Plaintiff’s First Amended 20 Complaint. (Dkt. 16 [Clarification on Dkts. 12-13].) Now before the Court is Plaintiff’s 21 Motion to Remand, (Dkt. 15-1 [Motion to Remand, hereinafter “MTR”]), and 22 Defendants’ Motion to Dismiss Plaintiff’s harassment claim against Tomei, (Dkt. 18 23 [Defendants’ Second Motion to Dismiss]). For the following reasons, Plaintiff’s Motion 24 to Remand is GRANTED. Consequently, the Court lacks jurisdiction to rule on 25 Defendants’ Motion to Dismiss.1 26

27 1 Having read and considered the papers presented by the parties, the Court finds this matter appropriate 1 II. BACKGROUND 2 3 Plaintiff alleges that she worked at USI as a “Producer” (or salesperson) beginning 4 around October 2018 and initially excelled in the role. (FAC ¶¶ 16-17.) Tomei joined 5 USI in late 2019 as a “Practice Leader,” a role which gave him supervisory authority over 6 Plaintiff. (FAC ¶ 18.) Plaintiff alleges that Tomei’s leadership proved to be “toxic and 7 abusive toward women.” (Id.) In her complaint, Plaintiff provides “a few examples” of 8 Tomei’s misconduct, including that he told Plaintiff and another female colleague that 9 “women should use what they were born with to land business,” (id. ¶ 18(a)), denied 10 Plaintiff flexibility in her work schedule to attend to her autistic son while granting that 11 same flexibility to Plaintiff’s male counterpart, (id. ¶ 18(b)), refused Plaintiff’s request 12 for training while granting that same training to Plaintiff’s male counterpart, (id. ¶ 18(c)), 13 placed Plaintiff on a Performance Improvement Plan (“PIP”) even though her 14 performance metrics were the same as those of some of her male counterparts who were 15 not placed on a PIP, (id. ¶¶ 24, 27), and directed other supervisors to treat Plaintiff 16 differently due to her gender, including not acknowledging her during a meeting and 17 telling her to “move on from” a certain large sale opportunity, (id. ¶¶ 31-32). Plaintiff 18 alleges that one of her female coworkers informed her that she too was being treated 19 differently by Tomei due to her gender. (Id. ¶ 19.) USI terminated Plaintiff’s 20 employment on October 29, 2020. (Id. ¶ 37.) 21 22 III. LEGAL STANDARD 23 24 “Federal courts are courts of limited jurisdiction,” and possess “only that power 25 authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) 26 (internal quotations omitted). A civil action brought in state court may only be removed 27 by the defendant if the action could have been brought in federal court originally. 28 1 more than $75,000 is in controversy and the citizenship of each plaintiff is different from 2 that of each defendant. 28 U.S.C. § 1332(a). When a case is removed, the burden of 3 establishing subject matter jurisdiction falls on the defendant, and the removal statute is 4 strictly construed against removal jurisdiction. See Gaus v. Miles, Inc., 980 F.2d 564, 5 566 (9th Cir. 1992). “Federal jurisdiction must be rejected if there is any doubt as to the 6 right of removal in the first instance.” Id. 7 8 IV. DISCUSSION 9 10 Federal courts only have diversity jurisdiction over a matter if the parties are 11 completely diverse. See 28 U.S.C. § 1332(a). Plaintiff argues that that requirement is not 12 met here, as both she and Tomei are citizens of California. (Mot. at 6.) Defendants do 13 not dispute Tomei’s citizenship but instead assert that he was fraudulently joined and 14 cannot be used to destroy complete diversity. (Dkt. 22 [Defendant’s Opposition to 15 Plaintiff’s Motion to Transfer, hereinafter “Opp.”] at 11-19.) The Court finds that Tomei 16 was not fraudulently joined. 17 18 Fraudulently joined defendants do not defeat diversity jurisdiction. Ritchey v. 19 Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998). Thus, when a sufficient showing 20 of fraudulent joinder is made, a court will not consider the citizenship of the fraudulently 21 joined party when determining whether there is complete diversity in a case. See 22 Grancare, LLC v. Thrower by and through Mills, 889 F.3d 543, 548 (9th Cir. 2018). “A 23 defendant invoking diversity jurisdiction on the basis of fraudulent joinder bears a heavy 24 burden since there is a general presumption against fraudulent joinder.” Id. (internal 25 quotations omitted). Defendants can establish fraudulent joinder only by showing that 26 the defendant who purportedly destroys complete diversity “cannot be liable on any 27 theory.” See Ritchey, 139 F.3d at 1318. This is an exacting standard because “if there is 1 against any of the resident defendants, the federal court must find that the joinder was 2 proper and remand the case to the state court.” Hunter v. Philip Morris USA, 582 F.3d 3 1039, 1046 (9th Cir. 2009). Joinder is only fraudulent when a plaintiff's claims against 4 the resident defendant fail “and the failure is obvious according to the settled rules of the 5 state.” Id. at 1043. “Fraudulent joinder must be proven by clear and convincing 6 evidence.” Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 7 2007). 8 9 The tests for fraudulent joinder and for failure to state a claim under Federal Rule 10 of Civil Procedure 12(b)(6) are not equivalent.2 See Grancare, 889 F.3d at 549 (“A 11 standard that equates fraudulent joinder with Rule 12(b)(6) conflates a jurisdictional 12 inquiry with an adjudication on the merits.”) Even if a plaintiff’s claims against a 13 defendant could not withstand a 12(b)(6) motion, that does not mean that the defendant 14 has been fraudulently joined. See id. In Grancare, the Ninth Circuit emphasized that on 15 a motion to remand, the focus is on whether there is a “possibility that a state court would 16 find the complaint states a cause of action against any of the [non-diverse] defendants.” 17 Id. (emphasis in original) (internal quotation and citation omitted). The Ninth Circuit 18 explained that the standard is similar to the “wholly insubstantial and frivolous” standard 19 for dismissing claims for lack of federal question jurisdiction. Id. A court must also 20 determine “whether a deficiency in the complaint can possibly be cured by granting the 21 plaintiff leave to amend.” Id. at 550. When determining whether a defendant was 22 fraudulently joined, “all disputed questions of fact and all ambiguities in the controlling 23 state law must be resolved in favor of remand to state court.” Hunter, 582 F.3d at 104 at 24 1042. 25 26

27 2 Defendants ignore the Ninth Circuit’s decision in Grancare and improperly equate the motion to 1 The Fair Employment and Housing Act (“FEHA”) prohibits an employer from 2 harassing an employee on the basis of, among other protected grounds, the employee’s 3 gender. See Cal. Gov't Code § 12940(j)(1). “[H]arassment in the workplace can take the 4 form of discriminatory intimidation, ridicule, and insult that is sufficiently severe or 5 pervasive to alter the conditions of the victim’s employment and create an abusive 6 working environment.” Rehmani v. Superior Court, 204 Cal. App. 4th 945, 951 (2012) 7 (internal quotation marks omitted). FEHA harassment claims can be asserted against 8 individuals. See Cal. Gov’t Code § 12940(j). While official employment actions do not 9 typically constitute harassment, see Reno v. Baird, 18 Cal. 4th 640, 646-47 (1998), such 10 actions are not per se shielded from harassment claims, but rather “can provide 11 evidentiary support for a harassment claim by establishing discriminatory animus on the 12 part of the manager responsible for the discrimination, thereby permitting the inference 13 that rude comments or behavior by that same manager was similarly motivated by 14 discriminatory animus.” Roby v. McKesson Corp., 47 Cal.4th 686, 709 (2009), as 15 modified (Feb. 10, 2010). “[I]n some cases the hostile message that constitutes the 16 harassment is conveyed through official employment actions, and therefore evidence that 17 would otherwise be associated with a discrimination claim can form the basis of a 18 harassment claim.” Id. at 708 19 20 Defendants contend that much of Tomei’s alleged conduct constitutes official 21 employment actions. (Opp. at 13-15.) Defendants are correct. Tomei’s conduct of 22 denying Plaintiff flexibility in her work schedule, placing her on a PIP, refusing to train 23 her, and directing another supervisor to tell Plaintiff to let a big sale opportunity go are all 24 actions that sound in discrimination, rather than harassment. Viewing the First Amended 25 Complaint in the light most favorable to Plaintiff, however, Defendants have not shown 26 that there is no possibility that Plaintiff could show that Tomei’s many adverse 27 managerial actions were the means by which he harassed Plaintiff because of her gender. 1 to Plaintiff and her female coworker that “women should use what they were born with to 2 land business,” (FAC ¶ 18(a)), which was certainly not a managerial personnel decision,3 3 and in light of Plaintiff’s female coworker’s alleged complaint that she too was being 4 treated differently by Tomei because of her gender, (id. ¶ 19).4 5 6 Even assuming that Plaintiff has presently failed to state a claim for harassment 7 against Tomei, Defendants have not shown that Tomei cannot amend the pleading to state 8 a viable harassment claim. “[R]emand must be granted unless the defendant shows that 9 the plaintiff would not be afforded leave to amend his complaint to cure the purported 10 deficiency.” Rangel v. Bridgestone Retail Operations, LLC, 200 F. Supp. 3d 1024, 1033 11 (C.D. Cal. 2016) (internal quotations omitted); see also Ontiverso v. Michaels Stores, 12 Inc., 2013 WL 815975, at *6 (C.D. Cal. Mar. 5, 2013) (“Even if the complaint does not 13 allege sufficient facts to plead a viable harassment claim against [an individual 14 defendant], [removing defendant] has not shown that the [plaintiff] could not amend to 15 add additional allegations of harassment.”) It is possible that Plaintiff could amend her 16 complaint to provide additional allegations of harassment.5 Jacobson v. Swisher Int'l, 17 2020 WL 1986448, at *4 (C.D. Cal. Apr. 27, 2020) (granting motion to remand in part 18 3 Defendants argue that Tomei was “providing business advice” to Plaintiff when he made this 19 comment, which is a “supervisory function.” (Opp. at 17.) The Court disagrees. 20 4 Defendants also argue that Plaintiff has failed to plead facts to support a finding that Tomei engaged in objectively offensive behavior that would alter the conditions of Plaintiff’s employment and failed to 21 plead facts to support a finding that Tomei’s behavior was pervasive. (Opp. at 15-18.) Again, Defendants conflate the motion to dismiss standard with the motion to remand standard. See Grancare, 22 889 F.3d at 549. Applying the correct standard, the Court finds that it is at least possible that a state court would find Tomei’s conduct pervasive and objectively offensive. 23 5 Defendants argue that leave to amend should not be granted “in the fact [sic] of Defendants’ strong 24 evidence that Plaintiff only sued Tomei in bad faith to try to destroy diversity.” (Opp. at 18.) The Court is not deciding whether to grant leave to amend here. That will be the job of Orange County Superior 25 Court should they decide to dismiss the harassment claim against Tomei. Further, Defendants cite to no evidence supporting their bad faith allegation. Defendants also point to emails in which they highlighted 26 deficiencies in Plaintiff’s harassment claim against Tomei, arguing that leave to amend would be futile 27 because Plaintiff failed to cure her complaint even after these email exchanges. (Opp. at 19.) Though leave to amend may be futile when a plaintiff fails to cure her complaint after a court has identified its 1 || because the defendant “offered no reason for why [the plaintiff] could not amend her 2 || Complaint to add more detailed facts [of harassment]”). 3 4 CONCLUSION 5 6 For the foregoing reasons, Plaintiff's Motion to Remand is GRANTED. The 7 || Court hereby REMANDS the case to Orange County Superior Court. Consequently, the s || Court lacks jurisdiction to rule on Defendants’ Motion to Dismiss. 9 10 DATED: November 16, 2021

12 CORMAC J. CARNEY 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28