Dina Abouelnasr v. US Investigations Services LLC et al
Filing
9
ORDER by Judge Andrew J. Guilford remanding case to ORANGE COUNTY SUPERIOR COURT, Case number 30-2012-00545272. Case Terminated. Made JS-6. (Mailed certified copy of this order and transmittal, and public docket to OCSC 5/24/12) (Attachments: # 1 transmittal) (rla)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
SACV 12-715 AG (RNBx)
Title
DINA ABOUELNASR v. US INVESTIGATIONS SERVICES LLC et al.
Present: The
Honorable
May 23, 2012
ANDREW J. GUILFORD
Lisa Bredahl
Deputy Clerk
Not Present
Court Reporter / Recorder
Attorneys Present for Plaintiffs:
Proceedings:
Date
Tape No.
Attorneys Present for Defendants:
[IN CHAMBERS] ORDER REMANDING CASE
On February 16, 2012, Plaintiff Dina Abouelnasr (“Plaintiff”) filed a complaint in the
Superior Court for the County of Orange asserting four state causes of action: failure to
pay overtime, unfair business practices, retaliation in violation of the California Labor
Code, and common law retaliation and wrongful constructive termination in violation of
public policy. The Defendants are Plaintiff’s former employer US Investigation Services,
LLC (“USIS”) and Plaintiff’s former USIS Supervisor, Michelle King (“King”). Plaintiff
served the Summons and Complaint on USIS on April 4, 2012.
On May 4, 2012, Defendant USIS timely removed the action to this Court on the basis of
diversity. See U.S.C. §§ 1332(a), 1441(a). Plaintiff is a citizen of California. USIS is a
citizen of Delaware and Virginia. King is a citizen of California. USIS claim that King’s
citizenship should be ignored because she is a “sham” defendant. The Court disagrees.
Removal is proper despite the presence of a non-diverse defendant where that defendant
is a fraudulently joined or sham defendant. Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68
(1996). In this Circuit, a non-diverse defendant is deemed a sham defendant if, after all
CIVIL MINUTES - GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
SACV 12-715 AG (RNBx)
Date
May 23, 2012
Title
DINA ABOUELNASR v. US INVESTIGATIONS SERVICES LLC et al.
disputed questions of fact are resolved in the plaintiff’s favor, the plaintiff could not
possibly recover against the party whose joinder is questioned. Kruso v. Int’l Tel. & Tel.
Corp., 872 F.2d 1416, 1426 (9th Cir. 1989). “The words fraud and sham imply a degree
of chicanery or deceit, and a state court plaintiff engaging in a common strategy of
pleading broadly does not engage in a fraud or sham.” Padilla v. AT&T Corp., 697 F.
Supp. 2d 1156, 1160 (C.D. Cal. 2009). Further, “[a] defendant is not a fraudulently joined
or sham defendant simply because the facts and law may further develop in a way that
convinces the plaintiff to drop that defendant.” Id. at 1159.
Here, USIS has failed to establish that King is a sham defendant, particularly given the
“strong presumption against removal jurisdiction.” Gaus v. Miles, 980 F.2d 562, 566 (9th
Cir. 1992). USIS claims that all of Plaintiff’s claims against King fail because they
cannot be asserted against an individual, or they are derivative of claims that can not be
asserted against an individual. This does not rise to the level of establishing a sham
defendant. Also, Defendants have not shown that Plaintiff “would not be afforded leave
to amend his complaint to cure [the] purported deficiency.” Burris v. AT&T Wireless,
Inc., 2006 WL 2038040, at *2 (N.D. Cal. July 19, 2006).
DISPOSITION
The Court REMANDS this action to the Superior Court for the County of Orange.
:
Initials of
Preparer
CIVIL MINUTES - GENERAL
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