Sanaa Guirguis v. The Neiman Marcus Group LLC et al, No. 2:2019cv00901 - Document 29 (C.D. Cal. 2019)
Court Description: ORDER GRANTING PLAINTIFF'S MOTION TO REMAND 17 by Judge Cormac J. Carney. Plaintiff's motion to remand is GRANTED. The Court hereby REMANDS this case to Los Angeles Superior Court. Since the Court lacks jurisdiction over this action, Defendants' motion to compel arbitration is DENIED AS MOOT. MD JS-6. Case Terminated. (iv)
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Sanaa Guirguis v. The Neiman Marcus Group LLC et al Doc. 29 JS-6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 SANAA GUIRGUIS, 13 Plaintiff, 14 15 16 17 18 19 v. THE NEIMAN MARCUS GROUP LLC, MARK OSHIMA, and DOES 1 through 10, inclusive, Defendants. 20 21 ) ) Case No.: CV 19-00901-CJC(FFMx) ) ) ) ) ) ) ORDER GRANTING PLAINTIFF’S ) MOTION TO REMAND [Dkt. 17] ) ) ) ) ) ) ) ) ) ) ) ) 22 23 I. INTRODUCTION 24 25 Plaintiff Sanaa Guirguis brings this lawsuit against Defendants The Neiman 26 Marcus Group LLC (“Neiman Marcus”), Mark Oshima, and Does 1 through 10, alleging 27 a number of claims under California employment law. (Dkt. 1-2 [Complaint, hereinafter 28 -1Dockets.Justia.com 1 “Compl.”].) Before the Court is Plaintiff’s motion to remand the case to Los Angeles 2 Superior Court. (Dkt. 17.) For the following reasons, the motion is GRANTED.1 3 4 II. BACKGROUND 5 In August 2005, Neiman Marcus hired Plaintiff to work as a sales associate in 6 7 designer handbags. (Compl. ¶ 7.) Plaintiff was allegedly an exemplary employee who 8 performed her job well. (Id.) In 2015, Plaintiff got a new supervisor, Mark Oshima, who 9 purportedly “began to immediately harass, discriminate, and retaliate against her based 10 on her age.” (Id. ¶ 8.) Plaintiff allegedly made numerous complaints to supervisory and 11 managerial employees, but the harassment, discrimination, and retaliation continued. (Id. 12 ¶ 9.) 13 In September 2016, Plaintiff was forced to take a medical leave of absence due to 14 15 the stress she encountered in the workplace. (Id. ¶ 10.) In early December 2016, Plaintiff 16 returned to work for nine days, but she was then forced to take an additional medical 17 leave of absence. (Id. ¶ 11.) In November 2017, Plaintiff was released to return to work 18 with medical restrictions. (Id. ¶ 12.) Defendants, however, refused to return Plaintiff to 19 her previous position, or to a similarly situated position, and ultimately terminated her 20 employment on January 5, 2018. (Id. ¶ 13.) 21 On December 4, 2018, Plaintiff filed this lawsuit in Los Angeles Superior Court. 22 23 (Dkt. 1-1.) Plaintiff asserts causes of action against Neiman Marcus for (1) 24 discrimination in violation of the California Fair Employment and Housing Act 25 (“FEHA”), (2) retaliation in violation of FEHA, (3) harassment in violation of FEHA, (4) 26 27 28 1 Having read and considered the papers presented by the parties, the Court finds this matter appropriate for disposition without a hearing. See Fed. R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing set for April 15, 2019 at 1:30 p.m. is hereby vacated and off calendar. -2- 1 failure to prevent discrimination and harassment, (5 & 6) failure to provide reasonable 2 accommodation, and (7) wrongful termination in violation of public policy. (Compl. 3 ¶¶ 15–73.) She asserts a cause of action against Oshima for harassment in violation of 4 FEHA. (Id. ¶¶ 31–38.) On February 6, 2019, Neiman Marcus removed the case to 5 federal court, asserting diversity jurisdiction and contending that Oshima had been 6 fraudulently joined. (Dkt. 1 [Notice of Removal, hereinafter “NOR”].) 7 8 III. ANALYSIS 9 A civil action brought in state court, but over which a federal court may exercise 10 11 original jurisdiction, may be removed by the defendant to a federal district court. 28 12 U.S.C. § 1441(a). The burden of establishing subject matter jurisdiction falls on the 13 defendant, and the removal statute is strictly construed against removal jurisdiction. 14 Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (“Federal jurisdiction must be 15 rejected if there is any doubt as to the right of removal in the first instance.”). If at any 16 time before final judgment, the court determines that it is without subject matter 17 jurisdiction, the action shall be remanded to state court. 28 U.S.C. § 1447(c). Federal 18 district courts have diversity jurisdiction over suits for more than $75,000 where the 19 citizenship of each plaintiff is different from that of each defendant. 28 U.S.C. § 1332(a). 20 21 The parties dispute whether there is diversity of citizenship. Plaintiff is a 22 California resident. (Compl. ¶ 1.) Defendant Neiman Marcus is a citizen of Delaware 23 and Texas. (See NOR ¶¶ 14–18.) Defendant Oshima is a citizen of California. (Compl. 24 ¶ 3.) Defendants, however, assert that the Court should not consider Oshima’s 25 citizenship because he was fraudulently joined. (Id.) Plaintiff disagrees, contending the 26 Court must remand this action and award attorneys’ fees for the costs of removal. 27 28 // -3- 1 A. Fraudulent Joinder 2 3 Although diversity jurisdiction requires complete diversity of citizenship, there 4 is an exception to the diversity requirement “where a non-diverse defendant has been 5 ‘fraudulently joined.’” Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 6 2009). “There are two ways to establish fraudulent joinder: ‘(1) actual fraud in the 7 pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of 8 action against the non-diverse party in state court.’” Grancare, LLC v. Thrower ex rel. 9 Mills, 889 F.3d 543, 548 (9th Cir. 2018) (internal citation omitted). Here, Defendants 10 assert fraudulent joinder based on Plaintiff’s inability to establish a cause of action 11 against Oshima. In such circumstances, “[j]oinder is fraudulent ‘if the plaintiff fails to 12 state a cause of action against a resident defendant, and the failure is obvious 13 according to the settled rules of the state.’” Hunter, 582 F.3d at 1043 (alterations 14 omitted) (quoting Hamilton Materials Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 15 (9th Cir. 2007)). Conversely, “if there is any possibility that the state law might 16 impose liability on a resident defendant under the circumstances alleged in the 17 complaint, the federal court cannot find that joinder of the resident defendant was 18 fraudulent, and remand is necessary.” Id. at 1044 (quoting Tillman v. R.J. Reynolds 19 Tobacco, 340 F.3d 1277, 1279 (11th Cir. 2003)). 20 21 Defendants have not carried their burden of showing that Plaintiff obviously 22 fails to state a cause of action against Oshima. Plaintiff brings a claim against Oshima 23 for harassment in violation of FEHA. (Compl. ¶¶ 31–38.) In support of this claim, 24 Plaintiff alleges that Oshima harassed, discriminated, and retaliated against her based 25 on her age. (Id. ¶ 8.) In her complaint to the California Department of Fair Employment 26 and Housing, which Plaintiff attaches to her Complaint, Plaintiff further alleges that she 27 is sixty-eight years old and that “[t]he harassment, discrimination, and retaliation against 28 [Plaintiff] has taken numerous forms, including, but not limited to, denial of promotion, -4- 1 demotion, denial of a work environment free of discrimination and retaliation, denial of 2 [her] employment benefits or privileges, forced transfer, denial of reasonable 3 accommodation of [her] disability, denial of a good faith interactive process, failure to 4 receive equal consideration in employment decisions, and ultimately, [her] wrongful 5 termination.” (Id. Ex. A.) 6 7 Defendants fail to show that there is no possibility that FEHA might impose 8 liability on Oshima for harassment. Under FEHA, is it unlawful “[f]or an employer . . 9 . or any other person, because of . . . age . . . to harass an employee.” Cal. Gov’t Code 10 § 12940(j)(1). Harassment in the workplace consists of “discriminatory intimidation, 11 ridicule, and insult” that is “sufficiently severe or pervasive to alter the conditions of the 12 victim’s employment and create an abusive working environment.” Kelly-Zurian v. Wohl 13 Shoe Co., 22 Cal. App. 4th 397, 409 (1994) (quoting Harris v. Forklift Systems, Inc., 510 14 U.S. 17, 21 (1993)). Harassing conduct takes place “outside the scope of necessary job 15 performance,” and is “presumably engaged in for personal gratification, because of 16 meanness or bigotry, or for other personal motives.” Reno v. Baird, 18 Cal. 4th 640, 646 17 (1998). “[H]arassment focuses on situations in which the social environment of the 18 workplace becomes intolerable because the harassment (whether verbal, physical, or 19 visual) communicates an offensive message to the harassed employee.” Roby v. 20 McKesson Corp., 47 Cal. 4th 686, 707 (2009). Personnel-related decisions involving 21 discipline, performance evaluations, compensation, or job assignments do not inherently 22 constitute unlawful harassment. Reno, 18 Cal. 4th at 646-47. But “some official 23 employment actions done in furtherance of a supervisor’s managerial role can also 24 have a secondary effect of communicating a hostile message. This occurs when the 25 actions establish a widespread pattern of bias.” Roby, 47 Cal. 4th at 709. 26 27 Plaintiff’s allegations demonstrate that there is a possibility that Plaintiff can 28 state a claim against Oshima for harassment. Plaintiff alleges that Oshima began to -5- 1 harass her based on her age, starting in 2015. (Compl. ¶ 8.) Plaintiff does not describe 2 the harassment in significant detail, but she alleges that age-related harassment from 3 Oshina and other associates caused her a substantial level of stress and forced her to 4 take a medical leave of absence in September 2016. (Id. ¶ 10.) She further alleges that 5 Oshima refused to return Plaintiff to her previous position after her medical leave of 6 absence and ultimately terminated her based on her age. While some of these actions 7 appear to be taken in the context of personnel-related decisions, they could also have 8 the “secondary effect of communicating a hostile message.” Roby, 47 Cal. 4th at 709. 9 10 Defendants contend that Plaintiff cannot establish any severe or pervasive 11 conduct by Oshima within the relevant limitations period. Plaintiff filed her 12 Complaint on December 8, 2017, so her harassment claim is limited to contact that 13 occurred on or after December 8, 2016. See Cal. Gov’t Code § 12960(d). Based on 14 Neiman Marcus’s records, Plaintiff worked only on December 8th, 9th, and 10th 15 during this time period. When harassment occurs over a short period of time, it must 16 be extremely severe to be actionable. Fisher v. San Pedro Peninsula Hosp., 214 Cal. 17 App. 3d 590, 609–12 (1989); Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991) 18 (discussing, in the Title VII context, “that the required showing of severity or 19 seriousness of the harassing conduct varies inversely with the pervasiveness or 20 frequency of the conduct”). Defendants, however, have not proved that it would be 21 impossible for FEHA to impose liability for harassment within a three-day period. 22 According to the Complaint, the harassment was so severe that Plaintiff was forced to 23 take an additional medical leave of absence until November 2017. (Compl. ¶¶ 11–12.) 24 25 In light of the presumption against removal jurisdiction, see Gaus, 980 F.2d at 26 566, Defendants have failed to show that Oshima was fraudulently joined. Because the 27 fraudulent joinder exception to the diversity requirement does not apply, the parties in 28 this action are not completely diverse and this Court lacks subject matter jurisdiction. -6- 1 The action was improperly removed and must be remanded to Los Angeles County 2 Superior Court. See 28 U.S.C. § 1447(c) (“If at any time before final judgment it 3 appears that the district court lacks subject matter jurisdiction, the case shall be 4 remanded.”) 5 B. 6 Attorneys’ Fees 7 Plaintiff also seeks reasonable costs and attorneys’ fees associated with the case’s 8 9 removal to federal court. A court may, at its discretion, award reasonable costs and 10 attorneys’ fees incurred as a result of removal. 28 U.S.C. § 1447(c). “[A]bsent unusual 11 circumstances, attorney’s fees should not be awarded when the removing party has an 12 objectively reasonable basis for removal.” Martin v. Franklin Capital Corp., 546 U.S. 13 132, 136 (2005). The Court declines to exercise its discretion to award attorneys’ fees. 14 Here, the three-day statutory period for Plaintiff’s harassment claim, plus the requirement 15 that harassment be severe or pervasive when it occurs over a short period of time and 16 Plaintiff’s cursory allegations in the Complaint, provided an objectively reasonable basis 17 for Defendants to believe that Oshima was fraudulently joined. 18 19 20 21 22 23 24 25 26 27 // 28 -7- 1 IV. CONCLUSION 2 3 For the foregoing reasons, Plaintiff’s motion to remand is GRANTED. The Court 4 hereby REMANDS this case to Los Angeles Superior Court. Since the Court lacks 5 jurisdiction over this action, Defendants’ motion to compel arbitration is DENIED AS 6 MOOT. 7 8 9 10 11 DATED: April 8, 2019 __________________________________ CORMAC J. CARNEY 12 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-
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