Rosas v. NFI Industries ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 MARIA ROSAS, No. 2:21-cv-00046 WBS CKD 13 Plaintiff, 14 v. ORDER RE: PLAINTIFF’S MOTION FOR LEAVE TO FILE A FIRST 15 NFI INDUSTRIES, AKA NATIONAL AMENDED COMPLAINT DISTRIBUTION CENTERS LLC; and 16 DOES 1 through 50, inclusive 17 Defendants. 18 19 ----oo0oo---- 20 Plaintiff Maria Rosas brought this action against her 21 former employer, National Distribution Centers LLC (“NDC”), 22 alleging violations of the California Family Rights Act (“CFRA”), 23 the California Fair Employment and Housing Act (“FEHA”), 24 California Labor Code § 1102.5, intentional infliction of 25 emotional distress (“IIED”), and wrongful termination in 26 violation of California public policy. (See Compl. (Docket No. 27 1-1).) Plaintiff now moves for leave to file a First Amended 28 Complaint, in which she seeks to join two individuals--Angela 1 Brown and Nathan Sorenson, who are both citizens of California 2 for diversity purposes--as defendants. (See Mot. for Leave to 3 Amend (Docket No. 9).) 4 I. Factual and Procedural Background 5 Plaintiff originally filed her complaint in this matter 6 on November 25, 2020, in San Joaquin County Superior Court. (See 7 Compl.) Plaintiff alleged that she “experienced favoritism” 8 while working at NDC because “temporally employees”1--who were 9 referred and/or hired by her managers--were treated more 10 favorably by management. (See Compl. ¶ 16.) Though these 11 temporary employees had accidents that should have led to instant 12 termination, plaintiff alleged, they were “treated special” and 13 advised how to avoid future accidents. (Id.) 14 Plaintiff’s complaint identified Angela Brown as 15 plaintiff’s manager, and Nathan Sorenson as one of the operations 16 managers at NDC. (See id. at ¶¶ 17-18.) Plaintiff alleged that 17 Brown was aware of the favoritism shown towards temporary 18 employees but did nothing about it, and that Sorenson would 19 “constantly criticize” or find fault with her, “giv[e] her a hard 20 time,” generally make her work time miserable and unpleasant, and 21 never provide plaintiff with support or encouragement, causing 22 plaintiff to work under pressure and constant fear. (Id. at 23 ¶¶ 17-19.) The complaint alleged that Sorenson’s conduct caused 24 plaintiff to have panic and anxiety attacks at work, such that 25 she had to be placed on anxiety medications. (Id. at ¶ 20.) 26 Though plaintiff’s complaint identified Brown and 27 1 The court assumes that plaintiff’s complaint refers to 28 temporary employees of NDC. 1 Sorenson by name and position as plaintiff’s supervisors, 2 plaintiff only named NDC as a defendant.2 Because plaintiff is a 3 California citizen and NDC is a citizen of New Jersey, 4 Pennsylvania, and Texas for purposes of diversity, NDC removed 5 the case to this court on January 8, 2021. (Docket No. 1.) 6 Plaintiff then filed a motion to remand, arguing that 7 this court could not assert diversity jurisdiction over her 8 claims because she was “in the process” of naming Brown and 9 Sorenson as Does 1 and 2 from her complaint. (See Pl.’s Mot. to 10 Remand at 2 (Docket No. 3).) The court denied plaintiff’s 11 motion, noting that, under binding Ninth Circuit precedent, the 12 citizenship of fictitious defendants is disregarded for removal 13 purposes and becomes relevant only if and when the plaintiff 14 seeks leave to substitute a named defendant.3 See (Docket No. 8 15 at 8-10); Soliman v. Philip Morris Inc., 311 F.3d 966, 971 (9th 16 Cir. 2002). At the hearing on plaintiff’s motion, plaintiff’s 17 counsel indicated that he intended to amend plaintiff’s complaint 18 to add Brown and Sorenson as named defendants, which would “kill 19 diversity.” (See Def.’s Opp’n, Ex. A (“Mot. to Remand Hr’g 20 Tr.”), at 2:15-24 (Docket No. 12-2).) 21 22 2 Plaintiff’s complaint erroneously named defendant as “NFI Industries, AKA National Distribution Centers LLC.” The 23 parties agree that the correct identity of defendant and plaintiff’s employer is National Distribution Centers LLC. 24 Plaintiff seeks to correct defendant NDC’s name in her Proposed First Amended Complaint. (See Pl.’s Mot. for Leave to Amend at 2 25 (Docket No. 9).) 26 3 The court also rejected plaintiff’s argument that the court should consider the traditional trusts that make up NFI, 27 LP--the sole member of defendant--as “unincorporated associations” for the purposes of diversity jurisdiction. (See 28 Docket No. 8 at 5-8.) 1 Two days after the court denied plaintiffs’ motion to 2 remand, plaintiff filed the instant motion for leave to amend her 3 complaint, to which she attached a proposed First Amended 4 Complaint (“Proposed FAC”). (Docket No. 9-1.) 5 II. Analysis 6 Plaintiff contends that her motion is properly 7 evaluated under Federal Rule of Civil Procedure 15, which states 8 that the court “should freely give leave when justice so 9 requires.” Fed. R. Civ. P. 15(a)(2); see also DCD Programs, Ltd. 10 v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (“Rule 15’s policy 11 of favoring amendments to pleadings should be applied with 12 extreme liberality.”). However, because plaintiff’s proposed 13 amendments to the complaint would destroy diversity, the 14 appropriate standard under which to evaluate plaintiff’s motion 15 is provided by 28 U.S.C. § 1447(e), which states: “If after 16 removal the plaintiff seeks to join additional defendants whose 17 joinder would destroy subject matter jurisdiction, the court may 18 deny joinder, or permit joinder and remand the action to the 19 State court.” See Hardin v. Wal-Mart Stores, Inc., 813 F. Supp. 20 2d 1167, 1173 (E.D. Cal. 2011) (Ishii, J.) (“Plaintiffs may not 21 circumvent 28 U.S.C. § 1447(e) by relying on [Rule 15] to join 22 non-diverse parties.” (citing Clinco v. Roberts, 41 F. Supp. 2d 23 1080, 1086 (C.D. Cal. 1999))). 24 The Ninth Circuit has stated that “the language of 25 § 1447(e) is couched in permissive terms and it clearly gives the 26 district court the discretion to deny joinder.” Newcombe v. 27 Adolf Coors Co., 157 F.3d 686 (9th Cir. 1998). In this regard, 28 the court has greater discretion in determining whether to allow 1 an amendment to add a non-diverse party that would destroy 2 existing, diversity jurisdiction, than it does under Rule 15. 3 Id. at 691. The court may (1) deny joinder; or (2) permit 4 joinder and remand the action to State court. Id. 5 In determining whether to grant leave to amend under 6 section 1447, the court considers the following six factors: 7 (1) whether the new defendants should be joined under Fed. R. Civ. P. 19(a) as “needed for 8 just adjudication”; 9 (2) whether the statute of limitations would 10 preclude an original action against the new defendants in state court; 11 (3) whether there has been unexplained delay in 12 requesting joinder; 13 (4) whether joinder is intended solely to defeat 14 federal jurisdiction; 15 (5) whether the claims against the new defendant appear valid; and 16 17 (6) whether denial of joinder will prejudice the plaintiff. 18 19 Davis v. Tower Select Ins. Co., Inc., No. Civ S-12-1593 KJM-CKD, 20 2013 WL 127724, *2 (E.D. Cal. Jan. 9, 2013). As the following 21 discussion shows, none of these factors favor granting plaintiff 22 leave to amend her complaint in this case. 23 A. The Extent to which the new Defendants Should be Joined under Rule 19, as Needed for Just Adjudication 24 25 Rule 19(a) provides that joinder is required if, in the 26 absence of the person, “the court cannot accord complete relief 27 among the parties” or if that person “claims an interest relating 28 to the subject of the action and is so situated” that proceeding 1 without the person would “impair the person's ability to protect 2 the interest,” thus leaving that party susceptible to multiple, 3 or inconsistent obligations. Fed. R. Civ. P. 19(a). Joinder 4 under Rule 19 is not mandatory, however, if it would destroy 5 subject matter jurisdiction. Lopez v. Gen. Motors Corp., 697 6 F.2d 1328, 1332 (9th Cir. 1983). 7 In cases where addition of the person would destroy 8 diversity, joinder is not appropriate where, as here, the absence 9 of the non-diverse defendants “will not prevent complete relief.” 10 Id.; Northrop Corp. v. McDonnell Douglas Corp., 705 F.2d 1030, 11 1043-44 (9th Cir. 1983). Though plaintiff’s allegations are 12 aimed at actions taken by the individual defendants, they are not 13 necessary parties because “any alleged liability for [the 14 individual defendants’] actions as [employees would be] imputed 15 to [their] employer under the doctrine of respondeat superior.” 16 Calderon v. Lowe’s Home Centers, LLC, No. 2:15-cv-01140-ODW-AGR, 17 2015 WL 3889289, at *4 (C.D. Cal. June 24, 2015). 18 Under the doctrine of respondeat superior, an employer 19 is vicariously liable for its employee’s torts committed within 20 the scope of employment. Id. (citing Perez v. Van Groningen & 21 Sons, Inc., 41 Cal. 3d 962, 967 (Cal. 1986)). A plaintiff 22 seeking to hold an employer liable for injuries caused by an 23 employee acting within the scope of her employment is not 24 required to name or join the employee as a defendant. Id. 25 (citing Perez v. City of Huntington Park, 7 Cal. App. 4th 817, 26 820 (2d Dist. 1992)). 27 Here, plaintiff’s complaint already names NDC as a 28 defendant in each of her eight claims. (See Compl.) The 1 allegations contained in plaintiff’s Proposed FAC do not suggest 2 that Brown or Sorenson took any actions outside the scope of 3 their employment that would give rise to individual liability for 4 any harm caused to plaintiff: plaintiff’s claims of harassment 5 and discrimination all arise from allegations that Brown failed 6 to prevent certain employees from being treated more favorably 7 than plaintiff, and that Sorenson would “constantly criticize or 8 find fault with” plaintiff’s performance, making her “work time” 9 “miserable and unpleasant.” (See Proposed FAC ¶¶ 18-22.) 10 Because the Proposed FAC does not seek any additional relief 11 other than that sought from NDC, the court finds that the 12 individual defendants are not needed for just adjudication, and 13 that this factor weighs against permitting joinder. See 14 Calderon, 2015 WL 3889289, at *4. 15 B. Statute of Limitations 16 Joinder is favored under the second factor if plaintiff 17 would be time-barred from bringing a new action against the 18 individual defendants by the statute of limitations. See Davis, 19 2013 WL 127724, at *2. Here, plaintiff does not argue that a new 20 action against the individual defendants would be time-barred. 21 Indeed, plaintiff alleges that her termination occurred on June 22 3, 2020, well within the three-year statute of limitations 23 provided by the California Government Code for FEHA claims, Cal. 24 Gov’t Code § 12960(e) and the two-year state of limitations 25 provided by the California Code of Civil Procedure for suits for 26 IIED claims, Cal. Code Civ. P. § 335.1. This factor weighs 27 against joinder. 28 C. Delay in Requesting Joinder 1 Plaintiff filed her motion for leave to amend 2 approximately three months after filing her original complaint 3 and a month and a half after the case was removed to this court. 4 (Docket No. 1.) While three months is not an unreasonable delay 5 on its face, see Boon v. Allstate Co., 229 F. Supp. 2d 1016, 1023 6 (C.D. Cal. 2002) (three months after original state court filing 7 not an unreasonable delay), “under § 1447(e), [the] court has 8 discretion to deny joinder of a party ‘whose identity was 9 ascertainable and thus could have been named in the first 10 complaint.’” Calderon, 2015 WL 3889289, at *5 (quoting Murphy v. 11 Am. Gen. Life Ins. Co., No. ED CV14-00486 JAK, 2015 WL 542786 12 (C.D. Cal. 2015)). 13 The allegations in plaintiff’s complaint reveal that 14 she has been aware of Brown and Sorenson’s identities since the 15 outset of this case. Plaintiff included Brown and Sorenson’s 16 full names in the complaint, and alleged that they took actions 17 which form the basis of her claims for harassment, 18 discrimination, and retaliation in violation of California state 19 law. (See Compl. ¶¶ 17-20.) Plaintiff’s Proposed FAC does not 20 present any new facts pertaining to the individual defendants or 21 expand on her allegations describing their conduct at all-- 22 plaintiff simply seeks to name Brown and Sorenson as defendants 23 based on the same alleged conduct included in her original 24 complaint. (Compare Compl. ¶¶ 17-20 with Proposed FAC ¶¶ 19-22.) 25 Plaintiff provides no reasonable justification for her delay in 26 seeking to join Brown and Sorenson as defendants in this case. 27 See Maldonado v. City of Oakland, C 01 1970 MEJ, 2002 WL 826801, 28 at *6 (N.D. Cal. Apr. 29, 2002) (denying motion for leave to 1 amend to add three individual defendants where plaintiff knew of 2 the identities of the proposed defendants at least eight months 3 prior to the inception of the cause of action and the plaintiff 4 could not “adequately explain the undue delay in finally naming 5 them now”). This factor therefore weighs against joinder. 6 D. Whether Joinder is Intended to Defeat Diversity 7 Notwithstanding counsel’s protestations to the 8 contrary, there is little doubt that plaintiff’s motivation for 9 amending her complaint is primarily to destroy diversity so that 10 this action can be remanded to state court. Plaintiff expressly 11 states in her motion for leave to amend that, “[t]hrough the 12 proposed Amended Complaint, Plaintiff also seek [sic] to 13 establish the State Court jurisdiction as this action lacks the 14 requisite complete diversity of the parties . . . .” (Mot. for 15 Leave to Amend at 5.) Plaintiff filed her motion just two days 16 after the court denied her motion to remand--a motion in which 17 plaintiff sought to remand this case because plaintiff was “in 18 [the] process of naming” Brown and Sorenson as defendants. 19 (Pl.’s Mot. to Remand at 4; see also Mot. to Remand Hr’g Tr. at 20 2:15-24 (“there are Does that we’re going to add to the complaint 21 . . . instead of dismissing the complaint and refiling, I would 22 just ask that this court remand [the case] back to state court 23 because of diversity issues . . . there wouldn’t be no diversity 24 once we add the two defendants.”). 25 Given plaintiff’s obvious motivation in seeking to 26 amend her complaint, this factor weighs strongly against granting 27 plaintiff’s motion. 28 E. Whether Plaintiff’s New Claims Appear Valid 1 Under the fifth factor, the court examines whether 2 plaintiff’s claims against the individual defendants “seem[] 3 meritorious.” IBC Aviation Services, Inc. v. Compania Mexicana 4 de Aviacion, S.A. de C.V., 125 F. Supp. 2d 1008, 1012 (N.D. Cal. 5 2000). The court evaluates the merit of plaintiff’s claims under 6 the standard for a Rule 12(b)(6) motion to dismiss set forth in 7 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft 8 v. Iqbal, 556 U.S. 662 (2009). See Davis, 2013 WL 1278724, at *4 9 (denying amendment to complaint finding “Davis’ conclusory 10 allegations, devoid of specific facts, would not survive a motion 11 to dismiss and the court must conclude that her claim has no 12 merit”). 13 1. Plaintiff’s Claims for Retaliation, Discrimination, and Wrongful Termination 14 15 Plaintiff’s first, second, fourth, fifth, sixth, and 16 seventh claims against the individual defendants would fail as a 17 matter of law because under the applicable California law 18 discrimination, wrongful termination, and retaliation may only be 19 asserted against employers, not individuals. 20 Plaintiff’s first claim is for retaliation under CFRA. 21 (See Proposed FAC ¶¶ 26-33.) “CFRA makes it an unlawful 22 employment practice for an employer of 50 or more persons to 23 refuse to grant a request by an employee to take up to 12 24 workweeks in any 12-month period for family care and medical 25 leave.” Faust v. Cal. Portland Cement Co., 150 Cal. App. 4th 26 864, 878 (2d Dist. 2007) (citing Cal. Gov’t Code §§ 12945.2(a), 27 (c)(2)(A)). To state a claim that an employer retaliated against 28 the employee after the employee took CFRA leave, a plaintiff must 1 first establish that a defendant was an employer covered by CFRA. 2 Id. at 885 (stating elements of a CFRA retaliation claim). 3 Because NDC, not the individual defendants, employed plaintiff, 4 plaintiff cannot sustain her CFRA claim against the individual 5 defendants. See McLaughlin v. Solano Cnty., No. 2:07-cv-02498- 6 MCE-GGH, 2008 WL 2977959, at *3 (E.D. Cal. July 28, 2008) (“Under 7 the CFRA, individual supervisors may not be sued.”); Miskuski v. 8 Crescent Heights of Am., Inc., 2007 U.S. Dist. LEXIS 37223, at 9 *14 (S.D. Cal. May 21, 2007) (“Under the plain meaning of the 10 statute, individual supervisors cannot be sued for retaliation 11 under the CFRA.”) 12 Plaintiff’s second, fourth, fifth, and sixth claims 13 allege that plaintiff was discriminated against in violation of 14 FEHA and wrongfully terminated in violation of California public 15 policy. (See Proposed FAC ¶¶ 34-39, 46-68.) Similar to CFRA, 16 plaintiff’s FEHA discrimination and wrongful termination claims 17 would fail because such claims do not give rise to individual 18 liability under California law--they may only be brought against 19 an employer. See Reno v. Baird, 18 Cal. 4th 640, 663-64 (Cal. 20 1998) (holding that supervisors may not be sued individually 21 under FEHA for alleged discriminatory acts and may not be held 22 liable for wrongful discharge in violation of public policy). 23 Plaintiff’s seventh claim is for retaliation in 24 violation of California Labor Code § 1102.5. “Labor Code section 25 1102.5 is a whistleblower statute, the purpose of which is to 26 encourage workplace whistle-blowers to report unlawful acts 27 without fearing retaliation.” United States ex rel. Lupo v. 28 Quality Assurance Servs., Inc., 242 F. Supp. 3d 1020, 1029 (S.D. 1 Cal. 2017) (quoting Soukup v. Law Offices of Herbert Hafif, 39 2 Cal. 4th 260, 287 (Cal. 2006) (internal quotations and 3 alterations omitted)). The statute provides in relevant part: 4 “An employer, or any person acting on behalf of the employer, 5 shall not retaliate against an employee for disclosing 6 information, or because the employer believes that the employee 7 disclosed or may disclose information . . . if the employee has 8 reasonable cause to believe that the information discloses a 9 violation of state or federal statute . . . .” Cal. Lab. Code 10 § 1102.5. 11 The statute was amended, effective January 1, 2014, to 12 include the addition of “or any person acting on behalf of the 13 employer” instead of solely referring to “[a]n employer.” Bales 14 v. Cnty. of El Dorado, No. 2:18-cv-01714-JAM-DB, 2018 WL 4558235 15 (E.D. Cal. Sep. 20, 2018). Plaintiff does not cite to, and the 16 court is not aware of, any California court that has addressed 17 the issue of whether supervisors may be held individually liable 18 under § 1102.5 since the statute’s amendment. See id. (“No 19 California court has addressed the issue of individual liability 20 since the amendment to the language.”). Numerous federal courts, 21 however, have granted motions to dismiss § 1102.5 claims brought 22 against individual defendants since the statute’s amendment, 23 largely on the ground that the California Supreme Court has 24 interpreted similar statutory language to preclude individual 25 liability. See id.; Tillery v. Lollis, No. 1:14-cv-02025-KJM, 26 2015 WL 4873111, at *10 (E.D. Cal. Aug. 13, 2015) (citing Reno, 27 18 Cal. 4th at 640; Jones v. Lodge at Torrey Pines P’ship, 42 28 Cal. 4th 1158 (Cal. 2008)). The court agrees with those district 1 courts, and finds that plaintiff’s seventh claim would also 2 likely fail because § 1102.5 does not impose individual 3 liability. 4 2. Plaintiff’s Harassment Claim 5 To state a claim for harassment, a plaintiff must 6 allege that (1) she is a member of a protected group; (2) she was 7 subjected to harassment because she belonged to this group; and 8 (3) the harassment was so severe or pervasive that it created a 9 hostile work environment. Lawler v. Montblanc N. Am., LLC, 704 10 F.3d 1235, 1244 (9th Cir. 2013). The totality of plaintiff’s 11 allegations regarding Brown, Rosas’ manager, are (a) that 12 plaintiff “experienced favoritism all the time while working at 13 NDC” because temporary employees that were referred or hired by 14 her managers would have accidents which should have led to 15 instant termination; (b) management overlooked those mistakes and 16 accidents, and instead of firing the temporary employees, would 17 advise them how to avoid future accidents; (c) plaintiff’s own 18 performance was “under scored” for her entire tenure at NDC; and 19 (d) Brown was aware of the favoritism shown towards temporary 20 employees but did nothing about it. (Proposed FAC ¶¶ 18-19.) 21 Notably absent from plaintiff’s Proposed FAC is any 22 allegation that plaintiff is a member of a protected group. 23 Although the Proposed FAC’s section for the “Third Cause of 24 Action” indicates that her claim is for “race harassment,” none 25 of plaintiff’s allegations even suggest that Brown’s conduct was 26 taken because of plaintiff’s race--in fact, the only basis upon 27 which plaintiff alleges certain employees received more favorable 28 treatment is the length of time they had spent working for NDC. 1 (See FAC ¶¶ 18-19.) Because plaintiff does not allege that Brown 2 punished her for the same sorts of accidents for which temporary 3 employees were excused, it is not clear that plaintiff’s 4 allegations have any bearing on Brown’s treatment of plaintiff, 5 let alone that they constitute harassment. Finally, personnel 6 actions, including discipline, cannot constitute harassment as a 7 matter of California law. See Lawler, 704 F.3d at 1244 (holding 8 that personnel management actions such as hiring and firing, job 9 or project assignments, promotions or demotions, and performance 10 evaluations do not constitute harassment under FEHA). 11 Plaintiff’s allegations therefore likely fails to state a claim 12 for FEHA harassment against Brown. See id. 13 Plaintiff’s allegations against Sorenson are similarly 14 defective. Plaintiff alleges that Sorenson gave her a “hard 15 time,” “ma[de] her work time miserable and unpleasant,” 16 “constantly criticized” her performance, and “never provided 17 support and encouragement, even [though] Ms. ROSAS was able to 18 handle and manage certain accounts, for which usually was 19 required to be handled by several employees.” (Proposed FAC 20 ¶¶ 20-21.) Not only do these allegations fail to rise to the 21 requisite level of “severe or pervasive” harassment necessary to 22 support an actionable claim, see Lyle v. Warner Brothers 23 Television Prods., 38 Cal. 4th 265, 295 (Cal. 2006) (“the FEHA is 24 ‘not a civility code’” (quoting Sheffield v. Los Angeles Cnty. 25 Dep’t of Soc. Servs., 109 Cal. App. 4th 153, 161 (2d Dist. 26 2003)), plaintiff’s allegations again wholly fail to indicate 27 that Sorenson’s treatment was based upon plaintiff’s membership 28 in any protected class. See Lawler, 704 F.3d at 1244. 1 Accordingly, plaintiff’s FEHA harassment claim against Sorenson 2 would also fail. 3 3. Plaintiff’s IIED Claim 4 To state a claim for intentional infliction of 5 emotional distress, a plaintiff must allege that a defendant 6 intentionally caused the plaintiff to experience “severe or 7 extreme emotional distress” by engaging in “extreme and 8 outrageous conduct.” Hughes v. Pair, 46 Cal. 4th 1035, 1050-51 9 (Cal. 2009). “Liability for intentional infliction of emotional 10 distress ‘does not extend to mere insults, indignities, threats, 11 annoyances, petty oppressions, or other trivialities.’” Id. 12 (citing Rest. 2d Torts § 46, com. d)). Rather, for a defendant’s 13 conduct to be “outrageous,” it must be “so extreme as to exceed 14 all bounds of that usually tolerated in a civilized community.” 15 Id. (quoting Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 16 965, 1001 (Cal. 1993)). 17 Here, plaintiff’s allegations plainly do not describe 18 behavior by Brown or Sorenson that is “so extreme as to exceed 19 all bounds of that usually tolerated in a civilized community.” 20 (See Proposed FAC ¶¶ 18-22.) Plaintiffs’ IIED claim against the 21 individual defendants therefore would also fail. 22 F. Prejudice to Plaintiff of Denying Joinder 23 Finally, the sixth factor also favors denial of 24 plaintiff’s motion because plaintiff has not shown that she will 25 be prejudiced if Brown and Sorenson are not joined. As discussed 26 above, plaintiff can ultimately obtain complete recovery on all 27 of her claims from NDC under the doctrine of respondeat superior. 28 Because each of the six factors the court must consider eee I III IERIE I ERI OID INE EO III I SD 1 under 28 U.S.C. § 1447 weigh against joinder, the court will deny 2 plaintiff’s motion for leave to amend her complaint. See Hardin, 3 813 F. Supp. 2d at 1173. 4 IT IS THEREFORE ORDERED THAT plaintiff’s motion for 5 leave to file a First Amended Complaint (Docket No. 9) be, and 6 the same hereby is, DENIED. 7 | Dated: April 6, 2021 tleom ah. A. be—~ 8 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16