1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 PRISCILLA SANDOVAL, Case No. 22-cv-05552-JSC

5 Plaintiff,

ORDER GRANTING MOTION TO

6 v. REMAND

7 BEACON ROOFING SUPPLY, INC., et al., Re: Dkt. No. 10 Defendants. 8

9 10 Priscilla Sandoval sued her former employer, Beacon Roofing Supply, Inc., and her former 11 supervisor, Joseph Junsay, in Alameda County Superior Court. Beacon removed to this Court. 12 Plaintiff moves to remand. After carefully considering the arguments and briefing submitted, the 13 Court concludes that oral argument is unnecessary, see Civ. L.R. 7-1(b), and GRANTS Plaintiff’s 14 motion to remand. The hearing scheduled for December 20, 2022, is vacated. 15 DISCUSSION 16 The Court lacks subject matter jurisdiction over Plaintiff’s state law claims. Beacon 17 argues this Court has subject matter jurisdiction over Plaintiff’s state law claims under 28 U.S.C. 18 § 1332(a). But 28 U.S.C. § 1332(a) requires complete diversity of citizenship to establish federal 19 jurisdiction over state law claims. See Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th 20 Cir. 2001) (“[E]ach of the plaintiffs must be a citizen of a different state than each of the 21 defendants.”) That is not the case here. According to the complaint’s allegations, Sandoval (the 22 plaintiff) and Junsay (a defendant) are both citizens of California. (Dkt. No. 1-1 ¶¶ 1, 7.)1 Because 23 complete diversity of citizenship does not exist here, this Court lacks subject-matter jurisdiction 24 over Plaintiff’s state law claims under 28 U.S.C. § 1332(a). 25 Beacon argues complete diversity exists because Junsay was “fraudulently joined” in the 26 complaint. A defendant invoking federal court diversity jurisdiction based on fraudulent joinder 27 1 bears a “heavy burden” since there is a “general presumption against finding fraudulent joinder.” 2 Grancare, LLC y. Thrower by & through Mills, 889 F.3d 543, 548 (9th Cir. 2018) (cleaned up). 3 There are two ways to establish fraudulent joinder: “(1) actual fraud in the pleading of 4 || jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non- 5 diverse party in state court.” Jd. (quoting Hunter v. Philip Morris USA, 582 F.3d 1039, 1044 (9th 6 || Cir. 2009)). Beacon relies on the latter basis, arguing that Plaintiff fails to state a claim against 7 Junsay. (Dkt. No. 1 4] 24, 25; Dkt. No. 14 at 13-15.) 8 But Beacon has not met its burden to establish fraudulent joinder. “[T]he test for 9 fraudulent joinder and for failure to state a claim under Rule 12(b)(6) are not equivalent.” 10 Grancare, 899 F.3d at 550. A claim against a defendant may fail under Rule 12(b)(6), but that 11 defendant has not necessarily been fraudulently joined. Jd. Rather, for the purposes of fraudulent 12 || joinder, a district court “must consider .. . whether a deficiency in the complaint can possibly be 13 cured by granting the plaintiff leave to amend.” Jd. Beacon argues only that Plaintiff failed to 14 || plead sufficient facts against Junsay to state a claim for harassment or intentional infliction of 3 15 emotional distress. (Dkt. No. 1 24, 25; Dkt. No. 14 at 13-15.) But Beacon does not show that a 16 || Plaintiff cannot plead such facts in an amended complaint in state court. Thus, even assuming 3 17 Plaintiff fails to state a claim against Junsay in this complaint, Beacon fails to establish that 18 Plaintiff cannot amend the complaint to include further factual support for her claims. 19 Because Beacon fails to establish fraudulent joinder, complete diversity of citizenship does 20 || not exist here. Thus, this Court lacks subject matter jurisdiction under 28 U.S.C. 1332(a). 21 CONCLUSION 22 Plaintiff's motion to remand to Alameda County Superior Court is GRANTED. The 23 pending motion to dismiss, (Dkt. No. 5), is terminated as moot. 24 This Order disposes of Dkt Nos. 5, 10. 25 IT IS SO ORDERED. 26 Dated: December 14, 2022 27 appetite Salad

JAQQUELINE SCOTT CORL

28 United States District Judge