Roland-Warren v. Sunrise Senior Living, Inc. et al, No. 3:2009cv01199 - Document 13 (S.D. Cal. 2009)
Court Description: ORDER denying 8 Plaintiff's Motion for Remand. Accordingly, Plaintiff's claim for defamation against Raj D'Souza, Cher Horst, and Terry Brown is dismissed without prejudice. Signed by Judge Jeffrey T. Miller on 8/4/09. (tkl) (jrl).
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Roland-Warren v. Sunrise Senior Living, Inc. et al Doc. 13 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DELAINE ROLAND-WARREN, 12 13 14 15 16 17 CASE NO. 09 CV 1199 JM (WMc) Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR REMAND v. Doc. No. 8 SUNRISE SENIOR LIVING, INC.; SUNRISE SENIOR LIVING MANAGEMENT, INC.; TERRY BROWN; CHER HORST; RAJ D’SOUZA; and DOES 1 through 20, inclusive, Defendants. 18 On March 17, 2009, Plaintiff Delaine Roland-Warren (“Plaintiff”) filed a complaint in the 19 Superior Court of the State of California for the County of San Diego, raising claims for racial 20 discrimination, retaliation, and constructive discharge under the state’s Fair Employment and Housing 21 Act, Cal. Gov’t Code § 12900 et seq., and for defamation, all stemming from her employment 22 relationship with Defendant Sunrise Senior Living, Inc. (Doc. No. 1, Exh. 1, “Compl.”) Defendants 23 filed an Answer to the Complaint on June 1, 2009. (Doc. No. 1, Exh. 4.) On June 2, 2009, Defendants 24 timely removed the action to federal court. (Doc. No. 1.) 25 In their Notice of Removal, Defendants claim federal subject matter jurisdiction based on 26 diversity. 28 U.S.C. §§ 1332(a), 1441(b). Defendants allege the amount in controversy exceeds 27 28 -1- 09cv1199 Dockets.Justia.com 1 $75,000,1 the Sunrise corporate defendants are not California citizens as suggested by Plaintiff, and 2 the California citizenship of the individual defendants should be disregarded because they were 3 fraudulently joined. (Doc. No. 1 at 2-8.) At the court’s request (Doc. No. 4), Plaintiff submitted an 4 opposition to the Notice, styled as a Motion for Remand and considered by the court as such. (Doc. 5 No. 8, “Mot.”) Defendants filed an opposition to the Motion on July 7, 2009. (Doc. No. 10, 6 “Opp’n.”) 7 For the reasons set forth below, the court DENIES Plaintiff’s Motion for Remand and 8 DISMISSES the defamation claims against Defendants Terry Brown, Cher Horst, and Raj D’Souza 9 without prejudice. 10 I. Background 11 The Sunrise organization provides senior living services across the United States, Canada, the 12 United Kingdom, and Germany. (Opp’n at 6.) The independent living and assisted living services 13 are offered through senior facilities called “communities.” (Id.) Sunrise Senior Living, Inc. 14 (“Sunrise”) develops facilities for itself, for joint ventures, or for third parties. (Id.) Sunrise Senior 15 Living Management, Inc. (“SSLM”) is a wholly-owned subsidiary of Sunrise which “enters into 16 operating contracts with the owners of the senior living physical facilities.” (Id.) 17 According to the allegations in the Complaint, Plaintiff, an African-American woman, was 18 employed with Sunrise through a temporary agency from February 13, 2006 to late March 2007. 19 (Compl. ¶¶ 6, 12, 14.) Plaintiff was initially hired as a Charge Nurse, but was promoted in May 2006 20 to Director of Staff Development at a higher pay rating. (Compl. ¶ 9.) After her promotion, Plaintiff 21 covered additional nursing shifts at her elevated hourly rate. (Id.) However, in September 2006, 22 Plaintiff noticed her pay had been reduced to the original Charge Nurse level and that other non- 23 African-American nurses received higher pay. 24 discriminatory treatment to several Sunrise managers and directors, including the named individual 25 defendants, without success. (Id.) On September 24, 2006, Plaintiff was demoted from her 26 management position to that of a Licensed Vocational Nurse. (Id.) (Id.) Plaintiff complained about the alleged 27 28 1 Plaintiff does not dispute the amount in controversy exceeds the $75,000 threshold required for diversity jurisdiction. 28 U.S.C. § 1332(b). -2- 09cv1199 1 According to Plaintiff, in January 2007, she received unjustified reprimands for being late to 2 work and for failing to transcribe lab orders, while other Licensed Vocational Nurses who were not 3 African-American received no reprimands for more serious transgressions. (Id.) To avoid being 4 subjected further to the alleged discriminatory treatment, Plaintiff changed her status to part-time on- 5 call. (Id.) Throughout February 2007, Plaintiff was not assigned any shifts despite informing Sunrise 6 regularly of her availability. (Compl. ¶ 12.) When Plaintiff called Defendant D’Souza, Executive 7 Director of the facility, for an explanation, she was informed that she had been terminated because she 8 had not worked any shifts. (Id.) Plaintiff’s temporary agency told her “D’Souza had requested that 9 plaintiff not be sent to the Sunrise facility.” (Id.) Another Sunrise employee asked “Luz,” the 10 Director of Nurses, why Plaintiff had not been assigned nursing shifts and was told, in essence, “We 11 don’t need that kind of help here.” (Id.) 12 Plaintiff contends the defendants neither investigated her complaints about racial 13 discrimination and retaliation nor took any corrective action. (Compl. ¶ 13.) The intolerable working 14 conditions allegedly forced Plaintiff’s constructive termination on March 28, 2007. (Id.) 15 Plaintiff also alleges the defendants made defamatory statements about her, communicating 16 “in substance, the innuendos that plaintiff is incompetent, untrustworthy, and unfit for a management 17 position.” (Compl. ¶ 23.) Plaintiff believes Defendants published the statements to, among others, 18 “Rhona Jones, Carol Treadway, Terry Brown, Peggy Tyson, Cher Horst, Ruth Sills, Raj D’Souza, 19 Jennifer Delise, Luz (LNU), Nancy Bright, Rick (LNU), Norelle Johnson, Cheryl Martinez, [and] 20 Gayle Thomas....” (Compl. ¶ 25.) Plaintiff offers that the publications occurred between August 2006 21 and the date of her complaint. (Compl. ¶ 22.) 22 II. Citizenship of Corporate Defendants 23 In her Complaint, Plaintiff alleges Defendants Sunrise and SSLM are both incorporated under 24 California law with their principal places of business in California. (Compl. ¶ 2.) Defendants counter 25 that neither Sunrise corporation is a California citizen for diversity purposes. (Not. ¶ 8.) As the 26 parties’ arguments focus on parent company Sunrise, the court assumes for purposes of this motion 27 28 -3- 09cv1199 1 2 that SSLM is not a California citizen.2 A. Legal Standards 3 For diversity purposes, “a corporation shall be deemed a citizen of any State by which it has 4 been incorporated and of the State where it has its principal place of business....” 28 U.S.C. § 5 1332(c)(1). Defendants offer Sunrise is a Delaware corporation. (Not. ¶ 8.) In her Motion, Plaintiff 6 has apparently conceded this point. However, Plaintiff pursues the theory that Sunrise’s principal 7 place of business is indeed California rather than Virginia, where Sunrise’s corporate headquarters 8 are located. 9 To determine a corporation’s principal place of business, the parties agree Ninth Circuit courts 10 first apply the “place of operations test.” Davis v. HSBC Bank Nevada, N.A., 557 F.3d 1026, 1028 11 (9th Cir. 2009); Tosco Corp. v. Communities for a Better Env’t, 236 F.3d 495, 500 (9th Cir. 2001)(per 12 curiam). Under this test, the court determines whether one state “contains a substantial predominance 13 of corporate operations.” Davis, 557 F.3d at 1028. If so, that state is the deemed the principal place 14 of business. Otherwise, the court moves to the “nerve center test,” under which the state housing the 15 majority of the corporation’s executive and administrative functions is the principal place of business. 16 Id.; Indus. Techtonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990). 17 Factors relevant to the “place of operations” inquiry include the “location of employees, 18 tangible property, production activities, sources of income, and where sales take place[,]” as well as 19 the location of the corporation’s executive and administrative offices. Davis, 557 F.3d at 1028; Tosco, 20 236 F.3d at 500, 502 (citing Indus. Techtonics, 912 F.2d at 1094). Although courts have not precisely 21 defined “substantial predominance” in this context, the determination “plainly requires a comparison 22 of that corporation’s business activity in the state at issue to its business activity in other individual 23 states.” Tosco, 236 F.3d at 500. To satisfy the test, “the corporation’s activity in one state must be 24 ‘substantially larger’ than the corporation’s activity in any other state.” Davis, 557 F.3d at 1029 25 (quoting Tosco, 236 F.3d at 500). Notably, “when a corporation has operations spread across many 26 states, the nerve center test is usually the correct approach.” Davis, 557 F.3d at 1029. 27 2 28 Plaintiff mentions she was unable to find specific information regarding SSLM’s facility locations. (Mot. at 4, fn. 1.) As mentioned above, SSLM is headquartered in Virginia and manages contractual obligations for the assisted living organization. -4- 09cv1199 1 The court also notes the burden of persuasion on this issue falls on “the party seeking to invoke 2 the court’s diversity jurisdiction.” Ghaderi v. United Airlines, Inc., 136 F.Supp.2d 1041, 1045 3 (N.D.Cal. 2001) (citing Indus. Techtonics, 912 F.2d at 1092. Thus, employing the Tosco test, the 4 defendants bear the burden of showing Sunrise is not a California citizen. 5 B. Analysis 6 In evaluating whether California hosts a “substantial predominance” of Sunrise’s corporate 7 activities, the court reviews the distribution of activities through the comprehensive data provided by 8 Defendants.3 The Sunrise evidence on its U.S. operations is as follows: 9 1) Communities (374): California, 56 (14.97%); New Jersey, 28 (7.49%); Illinois, 25 (6.68%); 10 Virginia, 24 (6.42%); Pennsylvania, 23 (6.15%); Ohio, 20 (5.35%); and Georgia, 18 (4.81%). 11 2) Residents (35,423): California (14.33%); New Jersey (7.90%); Virginia (7.89%); Illinois 12 (6.58%); Florida (6.50%); Pennsylvania (5.77%); and Maryland (4.91%). 13 3) Employees (35,336): California (14.28%); Virginia (8.13%); New Jersey (7.46%); Illinois 14 (7.27%); Pennsylvania (5.73%); New York (5.47%); and Maryland (4.93%). 15 4) Property Owned or Operated (32 million sq. ft.): California (14.17%); Virginia (9.29%); 16 Florida (8.31%); Maryland (6.86%); New Jersey (6.53%); Illinois (6.02%); and Pennsylvania 17 (5.90%). 18 5) Sales Revenue ($2.1 billion): California (15.88%); New Jersey (8.31%); Illinois (7.60%); 19 Virginia (7.44%); Pennsylvania (5.77%); New York (5.59%); and Maryland (4.99%). 20 (Opp’n, Decl. of Maryann R. Owen.) 21 Plaintiff argues California meets the “place of operations test” because twice as many Sunrise 22 communities are in California than in New Jersey, the second highest domestic representation. (Mot. 23 24 25 26 27 28 3 Plaintiff requests the court take judicial notice of statistics provided in motion exhibits 1-6, documented on pages from Sunrise’s 2008 10-K filing. (Mot., Decl. of Walter H. Root, ¶ 8.) Jurisdiction is assessed as of the date of removal which was June 2, 2009. Ghaderi, 136 F.Supp.2d at 1045 fn. 3. Defendants provide statistics as of June 26, 2009, a date more relevant to the present motion than the December 31, 2008 fiscal year-end date reflected in the 10-K filing. The court therefore declines to take judicial notice of Plaintiff’s data because it is less relevant to the issue at hand. Furthermore, the statistics provided by each party reflect roughly the same distribution of activity among individual states and thus, reliance on Defendants’ figures would not significantly alter Plaintiff’s statistical arguments. For these reasons, Defendants’ figures are recited in the present analysis. -5- 09cv1199 1 at 4.) In addition, Plaintiff points out there are approximately 78% more residents in Sunrise’s 2 California facilities than in second-place Virginia. (Id.) While Plaintiff suggests these numbers 3 represent Sunrise’s significantly greater exposure to litigation in California, her analysis does not take 4 the figures into the context advocated by the Ninth Circuit. 5 Plaintiff relies primarily on Ghaderi, where the court compared United Airlines’ business 6 activity in California and Illinois, two states which together accounted for more than 50% of the 7 company’s employees, passengers, assets, and revenues. Ghaderi, 136 F.Supp.2d at 1045-46. The 8 Ghaderi court noted that where a corporation has a high concentration of its activity in two states, the 9 gap between the two need not be substantial for one to pass the Tosco test. Id. at 1047. Although 10 United was headquartered in Illinois, the court ultimately concluded California was its place of 11 operations. Id. at 1046-47. Here, as Sunrise’s operations are not concentrated in one or two states, 12 Ghaderi’s facts are distinguishable. 13 “The substantial predominance test does not require that a majority of corporate operations 14 occur in a single state, . . . [b]ut the test requires a ‘substantial’ predominance, not mere 15 predominance.” Davis, 557 F.3d at 1029. In Davis, cited by Sunrise, Defendant Best Buy had the 16 largest percentage of activity in California in terms of stores (11%), sales (13%), and employees 17 (13%). Davis, 557 F.3d at 1032. Texas had the next largest proportion in each category, at 9 to 10%. 18 Id. at 1032-33. The court found the company’s predominance in California to “roughly reflect 19 California’s larger population[,]” observing the company’s per capita exposure to consumers was 20 actually less in California than elsewhere. Id. at 1029, 1030 fn. 4. Considering the rationale for the 21 diversity statute, the Davis court observed that if raw numbers alone could confer California 22 citizenship on a corporation, “nearly every national retailer–no matter how far flung its 23 operations–will be deemed a citizen of California....” Id. at 1029-30. The court reversed the district 24 court’s ruling that California had satisfied the Tosco “place of operations” test. Id. at 1030. 25 Similarly, in Ho v. Ikon Office Solutions, Inc., 143 F.Supp.2d 1163, 1167 (N.D.Cal. 2001), 26 the court found no state satisfied the place of operations test for Defendant Ikon because none held 27 a “substantial percentage of Ikon’s business activity.” Further, there were “a good many states in 28 which the level of Ikon’s activity, measured as a percentage of all the corporation’s business, [was] -6- 09cv1199 1 only a few percentage points less than in California.” Id. at 1167. 2 Finally, in Arellano v. Home Depot U.S.A., Inc., 245 F.Supp.2d 1102 (S.D.Cal. 2003), a case 3 out of this district, the court considered Home Depot’s place of operations. Home Depot maintained 4 stores in 49 states, with 15.1% of its employees in California, 9.3% in Georgia, 6.9% in New York, 5 and 6.9% in Texas. Arellano, 245 F.Supp.2d at 1106. The court found Home Depot had no 6 substantial predominance in any state. Id. at 1108. Where a national corporation’s contacts are 7 “spread relatively evenly among many states,” a small margin of difference among several states is 8 insufficient to show a substantial predominance of activity in any one state. Id. at 1107. Furthermore, 9 “[b]ecause California is the state with the largest population, business activity on a national scale can 10 be expected to be greater in California.” Id. (citing Ho, 143 F.Supp.2d at 1167-68). The court held 11 Ikon’s place of operations was not California. 12 Upon review of the statistics in the present case, the court finds the distribution of Sunrise’s 13 business activities closely parallels that observed in Davis, Ho, and Arellano. No one state 14 substantially predominates over the others in terms of property, employees, customers, or sales 15 revenue. Once the population differentials among the most heavily represented states are considered, 16 other states actually contend for the top spot. For example, Sunrise maintains one senior living 17 community for every 656,369 residents of California, yet one for every 323,712 Virginia residents. 18 (Opp’n at 12.) 19 Muddying the waters further, the court must also take into account the location of Sunrise’s 20 executive and administrative functions. Tosco, 236 F.3d at 502. Here, it is undisputed that Sunrise 21 maintains all of its executive and administrative functions at its corporate headquarters in northern 22 Virginia, including its executive offices and its “finance, development, accounting, purchasing, 23 marketing, training, human resources, information systems, and legal departments.” (Opp’n at 14-15, 24 Decl. of Maryann R. Owen, ¶ 15.) Sunrise does not maintain any regional offices. (Opp’n, Owen 25 Decl., ¶ 17.) The company has strong historical ties to and significant brand recognition in the Fairfax 26 County area. (Opp’n ¶¶ 4-6, 9.) 27 Based on the preceding analysis, the court finds no state contains a substantial predominance 28 of Sunrise’s business activities. Thus, the court defers to the “nerve center” test for determining -7- 09cv1199 1 Sunrise’s principal place of business. Indus. Techtonics, 912 F.2d at 1092. As discussed above, the 2 evidence demonstrates the bulk of Sunrise’s executive and administrative functions take place in 3 Virginia. Thus, the court concludes Sunrise is a citizen of Delaware and Virginia, and that diversity 4 of citizenship exists between it and Plaintiff, a California citizen. 5 III. Fraudulent Joinder of Individual Defendants 6 In the Complaint, individual defendants Raj D’Souza, Cher Horst, and Terry Brown are 7 charged only with defamation. Both Plaintiff and Defendants recognize these defendants are 8 California citizens for diversity purposes. Sunrise argues these defendants were fraudulently joined4 9 in the action and their citizenship should be disregarded in evaluating whether complete diversity 10 11 exists. Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). A. Legal Standards 12 “The burden of establishing federal jurisdiction is upon the party seeking removal...and the 13 removal statute is strictly construed against removal jurisdiction.” Emrich v. Touch Ross & Co., 846 14 F.2d 1190, 1195 (9th Cir. 1988) (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921) 15 and Salveson v. Western States Bankcard Ass’n, 731 F.2d 1423, 1426 (9th Cir. 1984)). However, a 16 plaintiff may not avoid the reach of the diversity statute by joining a non-diverse defendant without 17 stating a viable claim against that defendant. Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th 18 Cir. 1998), cert. denied, 525 U.S. 963 (1998). Under Ninth Circuit precedent, the key question for the 19 court is whether the Complaint “fails to state a cause of action against a resident defendant, and the 20 failure is obvious according to the settled rules of the state.” Morris, 236 F.3d at 1067. The standard 21 parallels that used in deciding motions to dismiss under Rule 12(b)(6). Id. at 1067-68; Ritchey, 139 22 F.3d at 1319-20; McCabe, 811 F.2d at 1339. Thus, the complaint’s “factual allegations must be 23 enough to raise a right to relief above the speculative level....” Bell Atl. Corp. v. Twombly, 550 U.S. 24 544, 556 (2007) (allegations must provide “plausible grounds to infer” that plaintiff is entitled to 25 relief). Furthermore, the claim fails if it lacks facts sufficient to support a cognizable legal theory. 26 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 27 4 28 As many courts have noted, “fraudulent” or “sham” joinder is a term of art and is not intended to reflect the Plaintiff’s mental state in joining the particular defendants. McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). -8- 09cv1199 1 Sunrise argues Plaintiff has failed to state a claim for defamation against the individual 2 defendants because she has not sufficiently identified any statements which would survive the 3 applicable statute of limitations. “Under California law, although a plaintiff need not plead the 4 allegedly defamatory statement verbatim, the allegedly defamatory statement must be specifically 5 identified, and the plaintiff must plead the substance of the statement.” Jacobson v. Schwarzenegger, 6 357 F.Supp.2d 1198, 1216 (C.D.Cal. 2004) (citing Okun v. Superior Court, 29 Cal.3d 442, 458 (1981), 7 cert. denied, 454 U.S. 1099 (1981)). “Even under liberal federal pleading standards, ‘general 8 allegations of the defamatory statements’ which do not identify the substance of what was said are 9 insufficient.” Id. (citing Silicon Knights, Inc. v. Crystal Dynamics, Inc., 983 F.Supp. 1303, 1314 10 (N.D.Cal. 1997)). The applicable statute of limitations for a defamation claim under California law 11 is one year. Cal. Civ. Proc. Code § 340(c). 12 B. Analysis 13 As mentioned above, Plaintiff alleges that while she was employed at Sunrise, her temporary 14 agency told her “D’Souza had requested that plaintiff not be sent to the Sunrise facility,” and that 15 Sunrise Director of Nurses “Luz,” told another Sunrise employee, “We don’t need that kind of help 16 here.” (Compl. ¶ 12.) As these statements were made prior to Plaintiff’s departure in March 2007, 17 they fall outside the limitations period and thus, do not provide an adequate basis for Plaintiff’s 18 defamation claim. 19 Plaintiff offers the defendants communicated statements to a number of possible recipients 20 which suggested, “in substance, the innuendos that plaintiff is incompetent, untrustworthy, and unfit 21 for a management position.” (Compl. ¶¶ 23, 25.) Plaintiff alleges these statements were published 22 sometime between August 2006 and the date of her Complaint. (Compl. ¶ 22.) 23 Sunrise argues these contentions lack a sufficient factual predicate to survive dismissal. 24 (Opp’n at 21-23.) Plaintiff contends she should not be required to provide the particulars at this stage 25 because the “exact details of each defamatory statement are better known to the defendants who made 26 them.” (Mot. at 7.) Plaintiff relies on Okun, supra, and Schessler v. Keck, 125 Cal.App.2d 827 27 (1954), for this proposition, but fails to note the factual distinctions between those cases and her own. 28 In Okun, the court specifically noted the complaint did provide sufficient details regarding the time, -9- 09cv1199 1 place, and recipients of the statements. Okun, 29 Cal.3d at 458. Such allegations, along with a 2 detailed substantive description of the allegedly defamatory statements, put the defendants on 3 sufficient notice of the charges against them. Id. Similarly, in Schessler, although the court allowed 4 the plaintiff to support part of her claim with contentions that statements were made at “various times 5 and places to numerous persons,” the complaint was packed with specific details of related statements. 6 Schessler, 125 Cal.App.2d at 830. 7 In contrast, Defendants direct the court to three cases which stand on comparable factual 8 footing with the present case. In Silicon Knights, the plaintiff company alleged the defendants had 9 made “false and defamatory statements” to the company’s customers about the “quality and 10 reliability” of its products, the “competence and ability” of its employees, and its “cooperation and 11 ability to work with customers, suppliers,” or others in the industry. Silicon Knights, 983 F.Supp. at 12 1313-14. Although the plaintiff identified the speaker, time, place, and recipients of the statements, 13 the court dismissed the claim, finding the complaint set forth only “general allegations of the 14 defamatory statements and [did] not identify the substance” of what was said. Id. at 1314. In addition, 15 the statements appeared “to be expressions of opinion rather than factual assertions.” Id. 16 Although the two other cases cited by Defendants are unpublished, the court finds their 17 analyses informative. In Williams v. County of Los Angeles, 2006 U.S. Dist. LEXIS 96769, at *14-15 18 (C.D.Cal. Jun. 19, 2006), the plaintiff claimed the defendant made “defamatory” statements about her 19 “work performance, ethics, veracity, alleged criminal conduct and competency.” Even though the 20 statements clearly related to the plaintiff’s work performance, the assertions were too vague to put the 21 defendant on fair notice of the basis for the plaintiff’s claim. Id. at *15-17. Without more specific 22 factual allegations regarding the statements’ substance or the context in which they were made, the 23 court was unable to assess whether the statements were privileged or whether they were intended as 24 opinion or factual assertion. Id. at *16. Finally, in Jones v. Thyssenkrupp Elevator Corp., 2006 U.S. 25 Dist. LEXIS 13978, at *15 (N.D.Cal. Mar. 14, 2006), the plaintiff claimed the defendant made false 26 comments which “expressly and impliedly stated that Plaintiff was dishonest, lazy, incompetent and 27 a poor performer.” The plaintiff noted that while “the precise dates of these publications are not 28 known...[she] believes that the publication may have started in December 2003” and were continuing. - 10 - 09cv1199 1 Id. at *15, 19. The Jones court dismissed the claim because “[n]owhere in the FAC does Ms. Jones 2 provide any reference to the speakers of the defamatory communications, the recipients, the timing, 3 or the context in which they were made, sufficient to provide [the defendant] sufficient notice of the 4 issues to enable preparation of a defense.” Id. at *17. Furthermore, the plaintiff’s general belief that 5 republication of the statements was ongoing did not parry the one-year statute of limitations. Id. at 6 *19. 7 In the present case, Plaintiff merely alleges the defendants made statements suggesting she was 8 “incompetent, untrustworthy, and unfit for a management position” and that the statements were made 9 sometime between August 2006 and March 17, 2009, the date she filed her Complaint. (Compl. ¶¶ 10 22-23, 25.) Plaintiff does not identify the time, place, particular speakers, or recipients of these 11 statements, nor does she mention their substance or context. The court cannot determine whether the 12 statements were intended as opinion or fact or whether they were privileged. The assertions fail to 13 put Defendants on notice of the factual underpinnings of Plaintiff’s claim. 14 Plaintiff mentions she will seek leave of court to amend her complaint when discovery reveals 15 certain details of the alleged defamation. (Compl. ¶ 25.) However, fraudulent joinder is assessed 16 based on the assertions in the complaint, not on the potential yield of future discovery. TPS Utilicom 17 Servs., Inc. v. AT&T Corp., 223 F.Supp.2d 1089, 1103 (C.D.Cal. 2002) (“[T]he propriety of removal 18 is determined at the time of removal – not according to the factual allegations stated at a later date.”). 19 Because Plaintiff has failed to state a claim for defamation against California citizen 20 defendants Raj D’Souza, Cher Horst, and Terry Brown, the court concludes these defendants have 21 been fraudulently joined in the action. As complete diversity exists among the remaining defendants, 22 this court enjoys federal subject matter jurisdiction over the dispute and removal was proper. 28 23 U.S.C. §§ 1332(a), 1441(b). 24 IV. Plaintiff’s Request for Sanctions 25 Plaintiff requests the court order for Defendants to pay costs and attorney fees incurred by 26 Plaintiff as a result of the removal pursuant to 28 U.S.C. § 1447(c). (Mot. at 8.) Because removal was 27 proper, the court declines to make such an award. 28 // - 11 - 09cv1199 1 V. Conclusion 2 For the reasons set forth above, Plaintiff’s motion for remand is DENIED. Accordingly, 3 Plaintiff’s claim for defamation against Raj D’Souza, Cher Horst, and Terry Brown is DISMISSED 4 WITHOUT PREJUDICE. 5 DATED: August 4, 2009 6 7 Hon. Jeffrey T. Miller United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 12 - 09cv1199
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