Nijem v. U.S. Bankcorp et al, No. 4:2011cv04042 - Document 13 (N.D. Cal. 2011)
Court Description: ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION TO REMAND AND DENYING PLAINTIFF'S REQEUST FOR ATTORNEYS' FEES by Judge Claudia Wilken denying 10 Motion to Remand (cwlc3, COURT STAFF) (Filed on 10/26/2011)
Download PDF
<![CDATA[
Nijem v. U.S. Bankcorp et al Doc. 13 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 HAISAM NIJEM, 5 6 7 8 9 Plaintiff, v. U.S. BANCORP dba U.S. BANK, a Delaware Corporation; U.S. BANK NATIONAL ASSOCIATION; CHRIS DELEGANS, an individual; and DOES 1-50, 10 United States District Court For the Northern District of California No. C 11-04042 CW ORDER DENYING WITHOUT PREJUDICE PLAINTIFF S MOTION TO REMAND AND DENYING PLAINTIFF'S REQUEST FOR ATTORNEYS' FEES (Docket No. 10) Defendants. 11 12 13 14 15 ________________________________/ This case is a wrongful termination lawsuit. After Plaintiff Haisam Nijem brought suit in Alameda County Superior Court, Defendants U.S. Bancorp, doing business as U.S. Bank; U.S. Bank 16 17 18 National Association; and Chris Delegans removed the action to this Court. Plaintiff seeks an order remanding the case to state 19 court. Docket No. 10. 20 considered the parties' submissions, the Court DENIES without 21 prejudice the motion to remand and DENIES Plaintiff's request for 22 attorneys' fees. 23 Defendants oppose the motion. Having BACKGROUND 24 Plaintiff's complaint refers to U.S. Bancorp, doing business 25 26 as U.S. Bank, and U.S. Bank National Association, collectively, as 27 his employer. According to the allegations, Plaintiff worked for 28 his employer as a mortgage loan officer from October 8, 2007 Dockets.Justia.com 1 through January 12, 2011, based at a branch office in Fremont, 2 California. 3 descent. 4 based on his race and national origin and retaliated against him, 5 in violation of the California Fair Employment and Housing Act, 6 7 Plaintiff was born in Lebanon and is of Palestinian He claims that his employer discriminated against him Cal. Govt. Code § 12900, et seq., and other provisions of California law. Plaintiff further alleges a tort cause of action 8 9 United States District Court For the Northern District of California 10 11 against his employer and individual defendant Delegans for assault and battery. With respect to the assault and battery claim, Plaintiff 12 alleges the following. 13 Plaintiff was called into a meeting with his District Manager, 14 Helen Anderson, and Delegans, who had just recently obtained the 15 On or about Thursday, September 2, 2010, position of Regional Manager. First Amended Complaint at ¶ 16. 16 17 18 This meeting was Plaintiff's first occasion to meet Delegans. Id. Delegans "began the meeting by stating directly to Plaintiff, 'If 19 you had not noticed, you don't look like us.'" 20 shocked as he was in compliance with the company dress code for 21 persons in his position. 22 the employer "was trying to give the customer a great experience, 23 24 Id. Id. Plaintiff was Delegans continued, stating that and if a customer came in and saw Plaintiff, their experience would be 'ruined.'" Id. After making several other "offensive 25 26 and unfounded comments" to Plaintiff, as the meeting came to a 27 close, Delegans "without Plaintiff's permission . . . touched 28 Plaintiff several times on his back." 2 Id. at ¶ 16-17. Plaintiff 1 further claims that his "[e]mployer, through Defendant Delegans, 2 intended to cause or to place Plaintiff in apprehension of an 3 offensive contact with Plaintiff's person, and in fact placed 4 Plaintiff in great apprehension of an offensive contact with his 5 person." 6 7 Id. at ¶ 79. In addition, the "employer, through Defendant Delegans, intended to make a contact with Plaintiff's person and in fact made such a contact." Id. at ¶ 80. Plaintiff 8 9 claims that his employer and Delegans' "conduct in this regard was United States District Court For the Northern District of California 10 willful, wanton, malicious, oppressive and in violation of 11 Plaintiff's rights . . ." LEGAL STANDARD 12 13 14 15 Id. at ¶ 84. A defendant may remove a civil action filed in state court to federal district court so long as the district court could have exercised original jurisdiction over the matter. 28 U.S.C. 16 17 18 § 1441(a). “The „strong presumption against removal jurisdiction means that the defendant always has the burden of establishing 19 that removal is proper.” 20 (9th Cir. 1992). 21 is any doubt as to the right of removal in the first instance.” 22 Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996) (citations 23 24 Gaus v. Miles, Inc., 980 F.2d 564, 566 Federal jurisdiction “must be rejected if there omitted). District courts have original jurisdiction over all civil 25 26 actions “where the matter in controversy exceeds the sum or value 27 of $75,000, exclusive of interest and costs, and is between . . . 28 citizens of different States.” 28 U.S.C. § 1332(a). 3 When federal 1 subject matter jurisdiction is predicated on diversity of 2 citizenship, complete diversity must exist between the opposing 3 parties. 4 74 (1978). 5 6 7 Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373– A non-diverse party named in a complaint can be disregarded for purposes of determining whether diversity jurisdiction exists if a district court determines that the party's inclusion in the 8 9 action is a “sham” or “fraudulent.” McCabe v. General Foods United States District Court For the Northern District of California 10 Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). 11 fails to state a cause of action against a resident defendant, and 12 the failure is obvious according to the settled rules of the 13 state, the joinder of the resident defendant is fraudulent.” 14 The defendant need not show that the joinder of the non-diverse 15 “If the plaintiff party was for the purpose of preventing removal. Id. The defendant 16 17 18 need only demonstrate that there is no possibility that the plaintiff will be able to establish a cause of action in state 19 court against the alleged sham defendant. 20 Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998). 21 a presumption against finding fraudulent joinder and defendants 22 who assert it have a heavy burden of persuasion. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). Fraudulent 23 24 Id.; Ritchey v. Upjohn However, there is joinder claims may be resolved by piercing the pleadings and 25 26 27 considering evidence such as affidavits and deposition testimony. See Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1068 (9th 28 4 1 2 Cir. 2001) (citing Cavallini v. State Farm Mutual Auto Ins. Co., 44 F.3d 256, 263 (5th Cir. 1995)) DISCUSSION 3 4 5 6 7 Defendants assert that Delegans is a sham defendant. Defendants contend that Plaintiff lacks any viable cause of action against Delegans because the allegations of assault and battery are preempted by California s workers compensation law, which 8 9 generally provides the exclusive remedy against fellow employees United States District Court For the Northern District of California 10 who, while acting within the scope of employment, cause a 11 plaintiff injury. 12 failed to plead the statutory exception to the exclusivity of 13 workers' compensation remedies under Labor Code section 14 3601(a)(1). 15 Defendants further argue that Plaintiff has This provision states that an employee has, in addition to the right to compensation against the employer, a 16 17 18 right to bring an action at law for damages against an employee when the injury “is proximately caused by the willful and 19 unprovoked physical act of aggression of the other employee.” 20 Cal. Labor Code § 3601(a)(1). 21 22 23 24 Plaintiff argues first that Hunter v. Phillip Morris, 582 F.3d 1039 (9th Cir. 2009), forecloses Defendants argument. In Hunter, the Ninth Circuit reversed a district court s fraudulent joinder ruling in an action in which a plaintiff brought a 25 26 wrongful death suit against a cigarette manufacturer, its parent 27 company and an Alaska corporation that sold cigarettes in that 28 state. The district court found that federal law preempted the 5 1 plaintiff s state product liability claim against the non-diverse 2 defendant, the Alaska corporation, and, therefore, the Alaska 3 corporation was fraudulently joined and the district court 4 retained diversity jurisdiction. 5 Circuit reversed the district court, stating, “When a defendant 6 7 Id. at 1043-44. The Ninth asserts that the plaintiff s claim is impliedly preempted by federal law, it cannot be said that the plaintiff s failure to 8 9 state a claim against the resident defendant is „obvious according United States District Court For the Northern District of California 10 to the settled rules of the state. ” 11 preemption question requires an inquiry into the merits of the 12 plaintiff s claims against all defendants and an analysis of 13 federal law. . . the defendant has failed to overcome the „strong 14 presumption against removal jurisdiction. ” 15 Id. at 1045. Id. Because “the Hunter is inapposite, with respect to the present case, because Defendants' 16 17 18 argument is not one of federal preemption. Rather, Defendants contend that Plaintiff has failed to state a claim against 19 Delegans because the claim is precluded by California's workers' 20 compensation law. 21 22 23 24 The Ninth Circuit in Ritchey v. Upjohn Drug. Co., 139 F.3d 1313, 1319 (9th Cir. 1998), also grappled with a defendant's contention that a sham defendant had been alleged to destroy diversity jurisdiction. The court noted that, where the complaint 25 26 does not otherwise include a federal cause of action, the defense 27 of federal preemption must generally be raised in state court, 28 relying on well established law that a defense based on federal 6 1 law does not give rise to federal jurisdiction. Id. Thus, 2 Ritchey's reasoning supports the conclusion that the present case 3 is distinguishable from Hunter. 4 5 6 7 Ninth Circuit cases demonstrate that the court may determine whether a defendant is fraudulently named by evaluating, under state law, whether a claim can be proved against the non-diverse defendant. In McCabe, the court, weighing allegations in the 8 9 plaintiff's complaint, as well as evidence submitted by United States District Court For the Northern District of California 10 declaration, held that two managers were fraudulently named as 11 individual defendants because their allegedly wrongful conduct was 12 privileged under California law, precluding the plaintiff's 13 wrongful discharge claims. 14 claim for negligent infliction of emotional distress failed 15 Id. at 1339. The McCabe plaintiff's because the plaintiff conceded that the claim flowed from his 16 17 18 cause of action for interference with a contractual relationship, but the interference with contract claim was defective. Id. 19 Similarly, the claim for intentional infliction of emotional 20 distress was not viable because it lacked the requisite 21 allegations and evidence of outrageousness. 22 23 24 Id. In Kruso v. Int'l Telephone & Telegraph Corp., 872 F.2d 1416 (9th Cir. 1989), the Ninth Circuit affirmed the dismissal of claims against two sham defendants and the refusal to remand the 25 26 action to state court, based on its determination that the 27 plaintiffs could not prevail on their claims against the non- 28 diverse defendants because the plaintiffs were not party to the 7 1 2 3 agreement underlying the claims alleged against the non-diverse defendants. Defendants are correct with respect to two points. First, to 4 circumvent preemption by California's workers' compensation law, 5 Plaintiff must plead an injury that “is proximately caused by the 6 7 willful and unprovoked physical act of aggression of the other employee,” Cal. Labor Code § 3601(a)(1), such that Delegans' 8 9 conduct occurred outside the scope of his employment. Defendants United States District Court For the Northern District of California 10 are also correct that the present allegations describe an incident 11 less egregious than that at issue in Jones v. Department of 12 Corrections and Rehabilitation, 152 Cal. App. 4th 1367 (2007), 13 where the court held that the workers' compensation exclusivity 14 rule precluded the plaintiff's assault and battery claim. 15 Jones held that undisputed evidence that a defendant co-worker grabbed 16 17 18 the plaintiff's arm and started "banging her body around and stuff" during an altercation over a wheelbarrow was insufficiently 19 severe to demonstrate that the conduct occurred outside the scope 20 of the defendant's employment. 21 this conclusion by comparing the incident to a case in which the 22 California Supreme Court found that an employee's act of throwing 23 24 Id. at 1383-84. Jones arrived at a hammer at a coworker was within the scope of employment for purposes of determining the employee's immunity from liability 25 26 27 under section 3601(a)(1). Id. at 1384 (citing Torres v. Parkhouse, 26 Cal. 4th 995, 1008 (2001)). 28 8 1 Here, the parties have argued the motion solely on the basis 2 of the complaint. 3 his back several times without his permission. 4 occurred in the context of a conversation in which Delegans 5 allegedly made several offensive, discriminatory statements 6 7 Plaintiff alleges that Delegans touched him on The touching directed at Plaintiff because of his race and national original. In his briefing Plaintiff represents that Delegans hit him several 8 9 times on the back. Although Plaintiff insufficiently alleges that United States District Court For the Northern District of California 10 Delegans engaged in a willful and unprovoked physical act of 11 aggression against Plaintiff, he may be able to do so in an 12 amended complaint. 13 WL 1980223, *4-5 (N.D. Cal.) (granting plaintiff's motion to 14 remand, holding that although plaintiff's complaint may fall short 15 See Vincent v. First Republic Bank Inc., 2010 of alleging outrageous conduct, with respect to the claim for 16 17 18 intentional infliction of emotional distress, the court could not conclude that plaintiff had absolutely no possibility of stating a 19 claim, if permitted the opportunity to amend.) 20 standard to determine whether a defendant has been fraudulently 21 joined turns on whether there is any possibility that Plaintiff 22 could allege a viable claim against the non-diverse defendant. 23 24 The applicable Given Defendants' heavy burden of persuasion and the presumption against finding fraudulent joinder, as well as Plaintiff's 25 26 27 insufficient allegations of assault and battery, Plaintiff's motion to remand is denied without prejudice. 28 9 CONCLUSION 1 Plaintiff's motion to remand this action is DENIED without 2 3 prejudice. 4 order, Plaintiff may file an amended complaint with further 5 allegations regarding his assault and battery claim against Mr. 6 7 Docket No. 10. Within a week of the date of this Delegans to remedy the deficiencies identified in this order, if he can do so truthfully. If Plaintiff does so, Plaintiff may, at 8 9 that time, renew his motion to remand the case to Alameda County United States District Court For the Northern District of California 10 Superior Court. 11 additional argument. 12 motion to remand, addressed to the amended complaint, seven days 13 later. 14 that. 15 He need not notice the motion for hearing or file Defendants may file an opposition to the Plaintiff may file a brief reply within four days after The motion will be decided on the papers. Unless the matter has been remanded by that time, a case management 16 17 18 19 20 21 conference will be held as scheduled on November 29, 2011 at 2:00 pm. Plaintiff's request for attorneys' fees, pursuant to Title 28 U.S.C. § 1447, is DENIED. IT IS SO ORDERED. 22 23 24 Dated: October 26, 2011 CLAUDIA WILKEN United States District Judge 25 26 27 28 10
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
