Jackson v. Ceva Logistics ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 BYRON JACKSON, Case No. 19-CV-07657-LHK 13 Plaintiff, ORDER DENYING MOTION TO REMAND 14 v. Re: Dkt. No. 20 15 CEVA LOGISTICS, et al., 16 Defendants. 17 18 Plaintiff Byron Jackson (“Plaintiff”) brings suit against Defendants CEVA LOGISTICS 19 (“CEVA”), RANDSTAD INC. (“Randstad”), and TESLA MOTORS (“Tesla”) (collectively, 20 “Defendants”) for violations of California’s Fair Employment and Housing Act (“FEHA”), 21 intentional infliction of emotional distress, and negligent infliction of emotional distress. Before 22 the Court is Plaintiff’s motion to remand. Having considered the parties’ submissions, the 23 relevant law, and the record in this case, the Court DENIES Plaintiff’s motion to remand.1 24 I. BACKGROUND 25 26 1 Plaintiff’s motion to remand contains a notice of motion that is separately paginated from the memorandum of points and authorities in support of the motion. See ECF No. 20 at i-ii. Civil 27 Local Rule 7-2(b) provides that the notice of motion and points and authorities should be contained in one document with a combined limit of 25 pages. See Civ. Loc. R. 7-2(b). A. Factual Background 1 In February 2018, Plaintiff Byron Jackson, an African American man, was hired by 2 Randstad, a temporary staffing agency that contracts to provide workers to various industries in 3 California. ECF No. 1-1 (“Compl.”) ¶¶ 1-2, 28. Randstad contracted with CEVA to provide 4 employees and workers to CEVA. Id. ¶ 3. CEVA is a world-wide supply chain management 5 company that designs and implements solutions for freight management and contract logistics. Id. 6 CEVA contracted with Randstad for Plaintiff’s services at a CEVA “facility located at 1710 Little 7 Orchard, in San Jose, Santa Clara County, California” (“the San Jose Facility”). Id. ¶ 3, 28. 8 Plaintiff alleges that the San Jose Facility where he worked was owned, operated, and controlled 9 by CEVA “for the benefit of [Tesla].” Id. ¶¶ 4, 6. Plaintiff alleges that Tesla “contracted with 10 [CEVA] and [Randstad], directly or indirectly for the services of Plaintiff . . . at facilities engaged 11 in the manufacture and production of [Tesla] products.” Id. ¶ 7. Randstad and CEVA are not 12 citizens of California. ECF No. 1 ¶¶ 15, 19 (“Notice of Removal”). Tesla has its principal place 13 of business in California and is therefore considered a citizen of California. Id. ¶ 20. 14 Plaintiff alleges that employees of CEVA “blatantly demonstrated that [] racist behavior 15 would be tolerated at sites on which Randstad contracted to provide employees for [CEVA], and 16 for the benefit of [Tesla].” Compl. ¶¶ 9-12, 26. According to Plaintiff, Randstad, CEVA, and 17 Tesla “have allowed a racially hostile environment to exist on its worksite, without restraint,” 18 especially with respect to “African American employees.” Id. ¶ 25. Plaintiff was constantly 19 harassed and subjected to derogatory epithets, and despite Plaintiff’s pleas to his supervisors, who 20 worked for Randstad and CEVA, the harassment continued unabated. Id. ¶¶ 30-33. Plaintiff also 21 alleges that he “was exposed to similar treatment from the employees of [Tesla] who worked in 22 the quality inspection area of the facility owned by [CEVA].” Id. ¶ 40. 23 Furthermore, Plaintiff alleges that on November 29, 2018, Plaintiff sustained a work- 24 related injury but was refused an accommodation by Randstad. Id. ¶ 44. Plaintiff “believes that 25 [his supervisors] intentionally failed to offer a reasonable accommodation both in response to his 26 complaints regarding the racial harassment and discriminatory treatment, and in response to his 27 1 request for an accommodation.” Id. 2 “Finding the continual onslaught of offensive conduct unbearable, along with the employer 3 [Randstad’s] failure to accommodate his workplace injury, Plaintiff . . . could no longer bear the 4 conduct and resigned in January 2019.” Id. ¶ 39. 5 B. Procedural History 6 On October 11, 2019, Plaintiff filed suit against Defendants in California Superior Court 7 for the County of Santa Clara. Notice of Removal ¶ 1. The Complaint alleges seven causes of 8 action: (1) discrimination based upon race in violation of California’s Fair Employment and 9 Housing Act (“FEHA”) against all Defendants, Compl. ¶¶ 52-57; (2) harassment based on race in 10 violation of FEHA against all Defendants, id. ¶¶ 58-65; (3) failure to engage in an interactive 11 process in violation of FEHA against Randstad, id. ¶¶ 66-70; (4) failure to provide reasonable 12 accommodation in violation of FEHA against Randstad, id. ¶¶ 71-75; (5) wrongful constructive 13 termination in violation of public policy and FEHA against Randstad, id. ¶¶ 76-80; (6) intentional 14 infliction of emotional distress against all Defendants, id. ¶¶ 81-84; and (7) negligent infliction of 15 emotional distress against all Defendants, id. ¶¶ 85-90. Plaintiff seeks lost wages, punitive 16 damages, emotional distress damages, and reasonable attorney’s fees. Id. at 19; see also id. ¶¶ 54- 17 56, 62-64. 18 Plaintiff served the Complaint on all Defendants on October 21, 2019. ECF No. 1 ¶¶ 1-2 19 (“Notice of Removal”). On November 20, 2019, Defendants filed answers and removed the 20 instant case to this Court. Id. 21 On December 6, 2019, Plaintiff filed a motion to remand. ECF No. 20 (“Mot.”). Plaintiff 22 argues that this case must be remanded because (1) Tesla is a proper defendant with respect to 23 Plaintiff’s causes of action under FEHA, Mot. at 3-6; and (2) the $75,000 amount in controversy 24 requirement is not satisfied, id. at 7-10. On December 20, 2019, Defendants filed an opposition to 25 Plaintiff’s motion to remand. ECF No. 21 (“Opp.”). On December 27, 2019, Plaintiff filed a 26 reply. ECF No. 28 (“Reply”). 27 Additionally, with their opposition to Plaintiff’s motion to remand, Defendants submitted 1 various sworn declarations. First, Defendants filed a declaration from Doug Evans, CEVA’s 2 Director of Logistics, who served as the General Manager of the San Jose Facility where Plaintiff 3 worked during the time at issue in the instant case. ECF No. 22 ¶ 2 (“Evans Decl.”). Second, 4 Defendants submitted the sworn declaration of Charles Grayson, Tesla’s Manager of Production, 5 Warehousing, who worked at the San Jose Facility at the time Plaintiff worked there. ECF No. 23 6 ¶¶ 2-3 (“Grayson Decl.”). Third, Defendants submitted a sworn declaration from Christine Woo, 7 who serves as Senior Vice President for Randstad. ECF No. 26 ¶ 2 (“Woo Decl.”). Plaintiff did 8 not file any sworn declarations in response, nor did Plaintiff rebut or respond to the facts proffered 9 in Defendants’ sworn declarations. 10 Finally, Defendants also filed a request for judicial notice in support of their opposition to 11 Plaintiff’s motion to remand. ECF No. 27 (“RJN”). Defendants ask the Court to take judicial 12 notice of various state court jury verdicts in analogous FEHA actions involving successful hostile 13 work environment lawsuits filed by African American plaintiffs. Id. Courts regularly take 14 judicial notice of “undisputed matters of public record, including documents on file in federal or 15 state courts.” Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012); see also Dawson v. 16 Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006) (“We take judicial notice of . . . state court orders 17 and proceedings.” (citing Fed. R. Evid. 201(b), (c))). Plaintiff does not oppose this request. 18 Accordingly, the Court GRANTS Defendants’ request for judicial notice. 19 II. LEGAL STANDARD 20 A. Motion to Remand 21 A suit may be removed from state court to federal court only if the federal court would 22 have had subject matter jurisdiction over the case. 28 U.S.C. § 1441(a); see Caterpillar Inc. v. 23 Williams, 482 U.S. 386, 392 (1987) (“Only state-court actions that originally could have been filed 24 in federal court may be removed to federal court by the defendant.”). If it appears at any time 25 before final judgment that the federal court lacks subject matter jurisdiction, the federal court must 26 remand the action to state court. 28 U.S.C. § 1447(c). 27 The party seeking removal bears the burden of establishing federal jurisdiction. Provincial 1 Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). “The removal 2 statute is strictly construed, and any doubt about the right of removal requires resolution in favor 3 of remand.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing 4 Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). 5 For federal subject matter jurisdiction to exist, a case must either involve diversity of 6 citizenship between the parties or involve a claim arising under federal law. See Wayne v. DHL 7 Worldwide Express, 294 F.3d 1179, 1183 n.2 (9th Cir. 2002). Under 28 U.S.C. § 1332(a)(1), 8 federal courts have diversity jurisdiction over civil actions “where the matter in controversy 9 exceeds the sum or value of $75,000 . . . and is between . . . citizens of different States.” 28 10 U.S.C. § 1332. The statute “applies only to cases in which the citizenship of each plaintiff is 11 diverse from the citizenship of each defendant.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). 12 III. DISCUSSION 13 Under 28 U.S.C. § 1332(a)(1), federal courts have diversity jurisdiction over civil actions 14 “where the matter in controversy exceeds the sum or value of $75,000 . . . and is between 15 . . . citizens of different States.” 28 U.S.C. § 1332. Plaintiff argues that Defendants fail to 16 demonstrate that either the complete diversity or $75,000 amount in controversy requirement is 17 met. Defendants respond that both requirements are met because (1) Tesla was fraudulently 18 joined in the instant case, and (2) Plaintiff’s request for damages and attorney fee awards easily 19 satisfies the $75,000 amount in controversy requirement. The Court begins its analysis with the 20 issue of fraudulent joinder before addressing the amount in controversy. 21 A. Plaintiff Fraudulently Joined Tesla in the Instant Action, and Therefore, the Parties Fulfill the Complete Diversity Requirement for Diversity Jurisdiction 22 Defendants first argue that the Court has diversity jurisdiction over this case such that 23 subject matter jurisdiction is proper. For the Court to have diversity jurisdiction, complete 24 diversity of parties is required. “[I]n a case with multiple plaintiffs and multiple defendants, the 25 presence in the action of a single plaintiff from the same State as a single defendant deprives the 26 district court of original diversity jurisdiction over the entire action.” Abrego v. Dow Chem. Co., 27 1 443 F.3d 676, 679 (9th Cir. 2006) (quoting Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 2 546, 553 (2005)). 3 Defendants acknowledge that Tesla is a citizen of California such that its inclusion in the 4 lawsuit would typically destroy complete diversity. Opp. at 3. Defendants, however, argue that 5 Tesla is not a proper defendant because Tesla was fraudulently joined. Id. This argument is 6 crucial because fraudulently joined defendants who destroy diversity do not defeat removal. 7 McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). 8 “Fraudulent joinder is a term of art” and does not require a showing of bad faith. Id. As 9 this Court has previously explained, “[t]here is a ‘general presumption against fraudulent joinder’ 10 and the defendant’s burden of demonstrating that a joinder is fraudulent is a ‘heavy’ one.” Beutel 11 v. Wells Fargo Bank N.A., 2018 WL 3084660, at *2 (N.D. Cal. Jun. 22, 2018) (quoting Hunter v. 12 Philip Morris USA, 582 F.3d 1039, 1046 (9th Cir. 2009)). Joinder is fraudulent only when it is 13 “obvious according to the settled rules of the state that [a plaintiff] has failed to state a claim 14 against [a joined defendant].” Hunter, 582 F.3d at 1046. 15 This standard imposes a very high bar on removing defendants, which “accords with the 16 presumption against removal jurisdiction, under which we strictly construe the removal statute, 17 and reject federal jurisdiction if there is any doubt as to the right of removal in the first instance.” 18 Grancare, LLC v. Thrower by and through Mills, 889 F.3d 543, 550 (9th Cir. 2018) (quotation 19 marks omitted). The Ninth Circuit has repeatedly held that “if there is a possibility that a state 20 court would find that the complaint states a cause of action against any of the resident defendants, 21 the federal court must find that the joinder was proper and remand the case to the state court.” Id. 22 at 548 (emphasis in original) (citations and quotation marks omitted). “In the Ninth Circuit, a 23 non-diverse defendant is deemed to be fraudulently joined if, after all disputed questions of fact 24 and all ambiguities in the controlling state law are resolved in the plaintiff’s favor, the plaintiff 25 could not possibly recover against the party whose joinder is questioned.” Mireles v. Wells Fargo 26 Bank, N.A., 845 F. Supp. 2d 1034, 1063 (C.D. Cal. 2012) (internal quotation marks and citations 27 omitted). Additionally, “[f]raudulent joinder must be proven by clear and convincing evidence.” 1 Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). 2 Specifically, in Grancare, the Ninth Circuit held that “the test for fraudulent joinder and 3 for failure to state a claim under Rule 12(b)(6) are not equivalent.” Grancare, 889 F.3d at 549. 4 “A claim against a defendant may fail under Rule 12(b)(6), but that defendant has not necessarily 5 been fraudulently joined.” Id. In other words, courts should only find that a defendant was 6 fraudulently joined if any deficiency in the complaint cannot possibly be cured by granting the 7 plaintiff leave to amend. Id. at 550 (“If a defendant cannot withstand a Rule 12(b)(6) motion, the 8 fraudulent inquiry does not end there. For example, the district court must consider, as it did in 9 this case, whether a deficiency in the complaint can possibly be cured by granting the plaintiff 10 leave to amend.”). 11 Nonetheless, though the bar for establishing fraudulent joinder is high, it is not an 12 impossible one. Typically, in cases where a party has been fraudulently joined, courts “pierc[e] 13 the pleadings and consider[] summary judgment-type evidence such as affidavits and deposition 14 testimony.” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1068 (9th Cir. 2001) (quoting 15 Cavallini v. State Farm Mutual Auto Ins. Co., 44 F.3d 256, 263 (5th Cir. 1995)) (affirming district 16 court’s determination that defendant was fraudulently joined); OpenGov, Inc. v. GTY Tech. 17 Holdings Inc., 2019 WL 978769, at *6 (N.D. Cal. Feb. 28, 2019) (“[F]raudulent joinder claims 18 may be resolved by ‘piercing the pleadings’ and considering summary judgment-type evidence 19 such as affidavits and deposition testimony.” (quoting Morris, 236 F.3d at 1068)). In such 20 situations, defendants generally introduce evidence that establishes that a plaintiff cannot maintain 21 a cause of action against the so-called sham defendant. If the plaintiff does not “offer[] any 22 evidence that substantively rebuts Defendants’ evidence,” courts may conclude that defendants 23 “have sufficiently established fraudulent joinder.” Barajas v. Carriage Cemetery Servs. of 24 California, Inc., 2019 WL 2499711, at *4 (N.D. Cal. June 17, 2019); Harwood v. Option Care 25 Enterprises, Inc., 2019 WL 1952692, at *8 (C.D. Cal. May 2, 2019) (holding defendant was 26 fraudulently joined because “Defendants offered facts to demonstrate why [the defendant] could 27 not be liable on any theory, and Plaintiff did not dispute or refute those facts. Therefore, the Court 1 determines that Defendants established that there is no possibility that Plaintiff can state a claim 2 against [the fraudulently joined defendant].”). 3 In the instant case, Plaintiff moves to remand on the basis that Tesla is a proper defendant 4 with respect to Plaintiff’s causes of action under FEHA. Mot. at 3-6. Specifically, the Court 5 considers whether Defendants adequately establish that Plaintiff was not Tesla’s employee, and 6 therefore, that Tesla cannot be held liable under Plaintiff’s FEHA causes of action. As explained 7 more fully below, the Court concludes that Tesla was fraudulently joined in the instant action. 8 “FEHA’s purpose is to protect and safeguard the right and opportunity of all persons to 9 seek and hold employment free from discrimination.” Jimenez v. U.S. Cont’l Mktg., Inc., 41 Cal. 10 App. 5th 189, 196 (2019). “To this end, FEHA makes it unlawful for an employer to harass or 11 retaliate against an employee.” Id. “To be entitled to relief for allegations of harassment and 12 retaliation, a FEHA claimant must first demonstrate an employment relationship with his or her 13 alleged employer.” Id. 14 “In determining whether a defendant is an employer, courts consider the ‘totality of 15 circumstances’ that ‘reflect upon the nature of the work relationship of the parties, with emphasis 16 upon the extent to which the defendant controls the plaintiff’s performance of work 17 duties.’” Nepomuceno v. Cherokee Med. Servs., LLC, 2013 WL 5670960, at *4 (S.D. Cal. Oct. 18 16, 2013) (quoting Vernon v. State, 116 Cal.App.4th 114, 124 (2004)). As the California Supreme 19 Court has noted, “[t]his standard requires ‘a comprehensive and immediate level of ‘day-to-day’ 20 authority’ over matters such as hiring, firing, direction, supervision, and discipline of the 21 employee.” Patterson v. Domino’s Pizza, LLC, 60 Cal. 4th 474, 499 (2014) (quoting Vernon, 116 22 Cal. App. 4th at 127-28). 23 Plaintiff notes that under California law and “[i]n the context of an individual who is 24 employed by a temporary agency and assigned to work on the premises of the agency’s client, 25 . . . the purpose of FEHA to safeguard an employee’s right to hold employment without 26 experiencing discrimination is best served by applying the traditional labor law doctrine of ‘dual 27 employers,’ holding both the agency and the client are employers.” Mathieu v. Norrell Corp., 115 1 Cal. App. 4th 1174, 1183 (2004); Mot. at 5. In other words, “a worker employed by one entity 2 [can] also [be] considered an employee of a second entity if that borrowing entity exercises certain 3 powers of control over the employee.” Hirst v. City of Oceanside, 236 Cal. App. 4th 774, 783 4 (2015). 5 In these situations involving temporary-staffing, “factors under the contractual control of 6 the temporary-staffing agency (such as hiring, payment, benefits, and timesheets being handled by 7 a temporary-staffing agency) are not given any weight in determining the employment relationship 8 with respect to the contracting employer.” Jimenez, 41 Cal. App. 5th at 193. Rather, courts must 9 look at employer relationships practically and under the totality of the circumstances. In this 10 regard, plaintiffs must still allege that a purported employer exercised “‘a comprehensive and 11 immediate level of ‘day-to-day’ authority’” over the employee. Patterson, 60 Cal. 4th at 499 12 (quoting Vernon, 116 Cal. App. 4th at 127-28); Bradley v. Dep’t of Corr. & Rehab., 158 Cal. App. 13 4th 1612, 1626 (2008) (“[T]he employment relationship for FEHA purposes must be tied directly 14 to the amount of control exercised over the employee.”). Nonetheless, “[t]he key is that liability is 15 predicated on the allegations of harassment or discrimination involving the terms, conditions, or 16 privileges of employment under the control of the employer, and that the employment relationship 17 exists for FEHA purposes within the context of the control retained.” Bradley, 158 Cal. App. 4th 18 at 1629. Put more simply, “the main factor is the second entity’s right to control job 19 performance.” Hirst, 236 Cal. App. 4th at 783. 20 Here, Plaintiff claims that the aforementioned case law requires remand. In his Complaint, 21 Plaintiff states: “At all relevant times, he was an employee of RANDSTAD.” Compl. ¶ 1. 22 However, Plaintiff asserts that although he was an employee of Randstad, a temporary staffing 23 agency, Plaintiff was assigned to work on the premises of Tesla, Randstad’s client, and that 24 Plaintiff’s work “directly or indirectly” benefitted Tesla. Compl. ¶¶ 2, 6, 7. Specifically, the 25 Complaint alleges “a work environment controlled by Tesla and requiring him to work at Tesla 26 locations alongside Tesla employees.” Mot. at 2, 5 (citing Compl. ¶¶ 30, 31, 38, 41, 49). Plaintiff 27 also claims that he was “exposed to [racially motivated harassment] from the employees of [Tesla] 1 who worked in the quality inspection area of the facility.” Compl. ¶ 40. However, in the instant 2 case, Defendants submitted sworn declarations that rebut Plaintiff’s allegations. 3 First, Defendants filed a declaration from Doug Evans, CEVA’s Director of Logistics, who 4 served as the General Manager of the San Jose Facility where Plaintiff worked during the time at 5 issue in the instant case. ECF No. 22 ¶ 2 (“Evans Decl.”). Evans was “responsible for overseeing 6 all day to day operations of the San Jose Facility on CEVA’s behalf, including, but not limited to 7 employee staffing at the San Jose Facility, the work performed at the San Jose Facility, the 8 physical layout of the San Jose Facility[,] and the companies whose employees had access to and 9 worked in the San Jose Facility.” Id. ¶ 3. At the time Plaintiff worked at the San Jose Facility, 10 “CEVA exclusively leased the San Jose Facility as a space for its work, and CEVA controlled the 11 San Jose Facility from late 2017 to early 2019 as a result of leasing this property.” Id. ¶ 4. 12 “CEVA, rather than Tesla, selected Randstad to provide leased employees for this work,” and 13 “Tesla did not lease any Randstad employee to perform work at the San Jose Facility.” Id. ¶ 5. 14 Furthermore, “Randstad employees [such as Plaintiff] working at the San Jose Facility 15 performed work under the sole direction of Randstad and CEVA employees,” and “Tesla 16 employees did not manage or supervise Randstad employees’ work.” Id. ¶ 6. “CEVA 17 employees exclusively trained all Randstad employees working at the San Jose [F]acility 18 regarding the performance of the work tasks that they performed,” and “CEVA managers and 19 supervisors and Randstad managers and supervisors also worked together to set work schedules 20 and job duties for Randstad employees working at the San Jose Facility.” Id. 21 Tesla employees held none of these responsibilities. Id. (“Tesla employees did not 22 participate [in] setting work schedules or job duties for Randstad employees or train Randstad 23 employees regarding the performance of their job duties at the San Jose Facility.”). Evans states 24 that to his knowledge, Tesla did not have the authority to direct or control the work of Randstad 25 employees nor did it ever in practice direct or control the work of Randstad employees. Id. ¶ 8. In 26 fact, Tesla’s only presence at the San Jose Facility was “an approximately 200 square foot office 27 in one corner of the approximately 300,000 square foot San Jose Facility,” and “[o]nly 1 approximately four Tesla employees worked in this office,” which was separate from the “work 2 floor” where Plaintiff worked. Id. ¶ 9. 3 Second, Defendants submitted the sworn declaration of Charles Grayson, Tesla’s Manager 4 of Production, Warehousing, who worked at the San Jose Facility at the time Plaintiff worked 5 there. ECF No. 23 ¶¶ 2-3 (“Grayson Decl.”). Grayson confirms Evans’s statement that “no Tesla 6 employee supervised, controlled, or directed the day to day work performed by employees of 7 CEVA or Randstad at the San Jose Facility.” Id. ¶ 4. Tesla employees did not make decisions to 8 terminate, promote, or hire CEVA or Randstad employees working at the San Jose Facility. Id. 9 ¶ 5. Finally, with respect to Plaintiff’s allegation that he was racially harassed by Tesla employees 10 working in the quality inspection area of the facility, Compl. ¶ 40, Grayson notes that “Tesla only 11 maintained a very small office in one corner of the very large San Jose Facility.” Grayson Decl. 12 ¶ 6. Though “the San Jose Facility did contain a quality control/quality inspection area, . . . . the 13 individuals that performed the day to day work in this area were employees of Thyssenkrupp 14 Industrial & Supply Chain Services, informally known as ‘TK Logistics,’ a separate staffing 15 company, not Tesla.” Id. ¶ 7. Evans’s Declaration also explains that “the individuals that actually 16 performed work in this area [i.e., the quality control/quality inspection area] were employees [of] a 17 third party company known as TK Logistics.” Evans Decl. ¶ 10. 18 Third, Defendants submitted a sworn declaration from Christine Woo, who serves as 19 Senior Vice President for Randstad. ECF No. 26 ¶ 2 (“Woo Decl.”). Woo explains that CEVA is 20 a customer of Randstad, and the two organizations “have entered into services agreements, in the 21 past and at present, which call for Randstad to provide CEVA with temporary 22 workers. . . . Plaintiff was such an employee of Randstad, assigned to work at CEVA’s facility in 23 San Jose, California.” Id. ¶ 5. Crucially, the same is not true of Tesla. Woo notes that Tesla “is 24 not a customer of Randstad,” and that Randstad has never in the past had, and does not currently 25 have, a services agreement with Tesla.” Id. ¶ 6. 26 Given these sworn declarations, Plaintiff may hold CEVA liable as an employer. This 27 evidence, however, does not allow Plaintiff to hold Tesla liable as an employer because Tesla was 1 never Randstad’s client, Tesla did not own or manage the facilities where Plaintiff worked, and 2 Tesla did not in practice exercise “a comprehensive and immediate level of day-to-day authority” 3 over Plaintiff. See Patterson, 60 Cal. 4th at 499 (quotation marks omitted); Woo Decl. ¶ 6; Evans 4 Decl. ¶¶ 4-9; Grayson Decl. ¶¶ 4-7. Indeed, Defendants even rebut Plaintiff’s allegation that he 5 was “exposed to [racially motivated harassment] from the employees of [Tesla] who worked in the 6 quality inspection area of the facility,” as multiple declarations explain that those employees were 7 not Tesla’s employees. See Compl. ¶ 40; Grayson Decl. ¶ 7; Evans Decl. ¶ 10. 8 Therefore, as it stands, the evidence establishes that Tesla did not exercise “‘a 9 comprehensive and immediate level of ‘day-to-day’ authority’” over Plaintiff. See Patterson, 60 10 Cal. 4th at 499 (quoting Vernon, 116 Cal. App. 4th at 127-28); Hirst, 23 Cal. App. 4th at 783 11 (“[A] worker employed by one entity [can] also [be] considered an employee of a second entity if 12 that borrowing entity exercises certain powers of control over the employee.”). 13 Importantly, Plaintiff did not file any evidence to rebut or contest Defendants’ declarations 14 that Plaintiff was never employed by Tesla. Plaintiff therefore resorts to the argument that Tesla 15 can be held liable because Plaintiff’s work “directly or indirectly” benefitted Tesla.2 Compl. ¶¶ 6, 16 7; Reply at 4-5. As discussed previously, however, that is not the proper test for determining 17 whether Plaintiff can be considered Tesla’s employee under FEHA. Rather, the proper inquiry is 18 whether Tesla exercised “a comprehensive and immediate level of day-to-day authority” over 19 Plaintiff. Patterson, 60 Cal. 4th at 499 (quotation marks omitted). 20 Indeed, the Ninth Circuit, relying on California law, rejected a similar argument in a 21 published opinion. In Doe I v. Wal-Mart Stores, Inc., the plaintiffs were employed by separate 22 suppliers but alleged that they were Wal-Mart’s employees because their work for their employers 23 benefitted Wal-Mart. 572 F.3d 677, 683 (9th Cir. 2009). According to the plaintiffs, Wal-Mart 24 could be held liable under FEHA because “Wal-Mart contracted with suppliers regarding 25 26 2 Elsewhere, Plaintiff conclusorily states that Tesla “exercised a level of control of the workplace” without anything more. Reply at 4-5. Such a “general statement that [Tesla] exercised control 27 over [Plaintiff’s] day-to-day employment is a conclusion, not a factual allegation stated with any specificity.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th Cir. 2009). 1 deadlines, quality of products, materials used, prices, and other common buyer-seller contract 2 terms.” Id. The Ninth Circuit, however, held that “[s]uch supply contract terms do not constitute 3 an ‘immediate level of day-to-day’ control over a supplier’s employees so as to create an 4 employment relationship between a purchaser and a supplier’s employees.” Id. (quotation marks 5 omitted). That same conclusion follows here. 6 As a result, what the Court is left with are Defendants’ unrebutted sworn declarations. 7 Plaintiff has not proffered any evidence of their own or contested Defendants’ declarations. In 8 situations where the evidence conclusively establishes that a plaintiff cannot maintain a cause of 9 action against a defendant, courts may “pierc[e] the pleadings” and find that a defendant was 10 fraudulently joined. See Morris, 236 F.3d at 1068 (affirming district court’s conclusion that 11 defendant was fraudulently joined); OpenGov, Inc., 2019 WL 978769, at *6 (“[F]raudulent joinder 12 claims may be resolved by ‘piercing the pleadings’ and considering summary judgment-type 13 evidence such as affidavits and deposition testimony.” (quoting Morris, 236 F.3d at 1068)); 14 Barajas, 2019 WL 2499711, at *4 (holding Defendants “sufficiently established fraudulent 15 joinder” because “Plaintiffs have not offered any evidence that substantively rebuts Defendants’ 16 evidence”); Harwood, 2019 WL 1952692, at *8 (holding defendant was fraudulently joined 17 because “Defendants offered facts to demonstrate why [the defendant] could not be liable on any 18 theory, and Plaintiff did not dispute or refute those facts. Therefore, the Court determines that 19 Defendants established that there is no possibility that Plaintiff can state a claim against [the 20 fraudulently joined defendant].”). That is precisely the situation here. 21 Plaintiff moves to remand on the basis that Tesla is a proper defendant with respect to only 22 Plaintiff’s causes of action under FEHA. Mot. at 3-6. As discussed above, Defendants have 23 sufficiently established Plaintiff’s fraudulent joinder of Tesla as to Plaintiff’s FEHA causes of 24 action such that the Court disregards Tesla’s California citizenship. Accordingly, the parties in the 25 instant case are completely diverse. Therefore, the Court must next address whether Plaintiff’s 26 suit satisfies the $75,000 amount in controversy requirement in order to determine whether the 27 Court has subject matter jurisdiction over the instant action. B. Plaintiff’s Suit Satisfies the $75,000 Amount in Controversy Requirement for 1 Diversity Jurisdiction 2 Where, as here, it is not facially evident from the Complaint that the $75,000 amount in 3 controversy was satisfied at the time of removal, a defendant must prove, by a preponderance of 4 the evidence, that the amount in controversy meets the jurisdictional threshold. Valdez v. Allstate 5 Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). When filing a notice of removal, however, a 6 defendant “need include only a plausible allegation that the amount in controversy exceeds the 7 jurisdictional threshold.” Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89, 8 (2014) (citing 18 U.S.C. § 1446(a)). Rather, “[e]vidence establishing the amount is required by 9 § 1446(c)(2)(B) only when the plaintiff contests, or the court questions, the defendant’s 10 allegation.” Id. 11 Here, Defendants assert that Plaintiff could seek approximately $38,700 in lost wages. 12 Notice of Removal ¶ 47; Opp. at 11. Plaintiff does not dispute this $38,700 figure. Mot. at 8. 13 Therefore, in order to satisfy the $75,000 amount in controversy necessary to assert diversity 14 jurisdiction, Defendants must establish that Plaintiff’s other requests for recovery—for punitive 15 damages, emotional distress damages, and attorney’s fees—are greater than the remaining $36,300 16 necessary to meet the $75,000 threshold. 17 First, Defendants argue that punitive damages and emotional distress damages are enough 18 to satisfy the amount in controversy. Second, Defendants contend that Plaintiff’s attorney’s fees 19 are also sufficient to satisfy the $75,000 amount in controversy requirement. Because the Court 20 agrees with Defendants as to their first argument, the Court does not reach Defendants’ second 21 argument. 22 “To establish probable punitive damages, [a defendant] may introduce evidence of jury 23 verdicts in cases involving analogous facts.” Simmons v. PCR Tech., 209 F. Supp. 2d 1029, 1033 24 (N.D. Cal. 2002). Though a defendant’s cited cases may “involve distinguishable facts[, that 25 alone] is not dispositive” because analogous jury verdicts can nonetheless “amply demonstrate the 26 potential for large punitive damage awards.” Id. The same is true for emotional distress damages. 27 See Rodriguez v. Home Depot, U.S.A., Inc., 2016 WL 3902838, at *5 (N.D. Cal. July 19, 2016) 1 (“A defendant may introduce evidence of jury verdicts in cases involving analogous facts to 2 establish probable emotional distress damages. The facts of such case need not be perfectly 3 analogous, however, to meet the ‘more-likely-than-not standard.’” (quotation marks and citations 4 omitted)); see also Lopez v. Healthcare Servs. Grp., Inc., 2019 WL 1646083, at *3 (C.D. Cal. Apr. 5 2, 2019) (holding that a defendant may introduce evidence of jury verdicts from cases with 6 analogous facts to establish probable emotional distress damages and probable punitive damages). 7 Here, Plaintiff seeks punitive damages and emotional distress damages based on 8 allegations that he was discriminated against, harassed, and subjected to a “racially hostile work 9 environment” “due to his membership in the protected classes of a Black, African American 10 male.” Compl. ¶¶ 54-56, 62-64. Defendants proffer jury verdicts from various successful hostile 11 work environment lawsuits filed by African American plaintiffs in California. ECF No. 27 12 (“RJN”). These jury verdicts include punitive damages and emotional distress damages far in 13 excess of the $75,000 necessary to establish diversity jurisdiction. See id., Ex. 1 (awarding 14 $1,300,000 for emotional distress damages); Ex. 2 (awarding $100,000 for emotional distress 15 damages); Ex. 3 (awarding $1,200,000 for “non-economic loss” damages); Ex. 4 (awarding 16 $400,000 in punitive damages). 17 Plaintiff, in his Reply brief, offers no substantive response to the proffered jury verdicts. 18 See Reply at 2 (“As to the value of the case, this Court is not required to rely upon reports of 19 verdicts in other cases. Plaintiff asks this Court to find that defendants have failed to meet their 20 burden to show that the ‘value’ of this case exceeds $75,000.00.”). 21 The Court therefore finds that Defendants have met their burden by demonstrating that 22 Plaintiff’s request for punitive damages and emotional distress damages likely exceeds $75,000. 23 Though Defendants’ jury verdicts are “not perfectly analogous,” these cases “amply demonstrate 24 the potential for large punitive damage awards in employment discrimination cases” and 25 “indicate[] that emotional distress damages in a successful employment discrimination case may 26 be substantial.” Simmons, 209 F. Supp. 3d at 1033-34. 27 As a result, Defendants have established that the parties in the instant action are completely 1 diverse and that the amount in controversy exceeds $75,000 such that diversity jurisdiction is 2 proper. Because the Court has subject matter jurisdiction over the instant action, the Court 3 DENIES Plaintiff’s motion to remand. 4 IV. CONCLUSION 5 For the foregoing reasons, the Court DENIES Plaintiff’s motion to remand. 6 IT IS SO ORDERED. 7 Dated: April 24, 2020 8 ______________________________________ LUCY H. KOH 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27