Opinion
2:07-CV-1713-GEB-EFB.
January 9, 2008
ORDER
This matter was determined to be suitable for decision without oral argument. L.R. 78-230(h).
Plaintiffs move to amend their Complaint to join Robert Wickstrom ("Wickstrom") as a defendant, and contend this joinder destroys diversity jurisdiction and therefore this action should be remanded to the state court from which it was removed. Plaintiffs are California citizens and sued Defendant ITT Technical Institute, Inc. ("ITT") in state court based on Plaintiffs' claims that ITT's employees sexually harassed Plaintiffs in violation of the California Fair Employment and Housing Act ("FEHA"), retaliated against Plaintiffs in violation of the FEHA, and constructively terminated Plaintiffs. (Compl. ¶¶ 23-43.) ITT was incorporated in Delaware and has its principal place of business in Indiana. (Def.'s Not. of Removal at 2-3.)
When "[a] plaintiff seeks to join [an] additional defendant [after removal] whose joinder would destroy subject matter jurisdiction," the motion is determined under 28 U.S.C. § 1447(e). "[A] wide range of factors" may be considered when deciding whether to permit joinder, including whether joinder is intended solely to defeat diversity jurisdiction and whether the claims against the new defendant appear valid. Gunn v. Wild, 2002 WL 356642, at *3 (N.D. Cal. Feb. 26, 2002); see Palestini v. Gen. Dynamics Corp., 193 F.R.D. 654, 658 (C.D. Cal. 2000).
ITT argues that Plaintiffs seek to join Wickstrom, a California citizen who was Plaintiffs' supervisor at ITT, "for the sole purpose of destroying diversity." (Def.'s Opp'n to Pls.' Mot. for Leave to Am. and to Remand ("Opp'n") at 1:25.) ITT contends,inter alia, that "Wickstrom as an individual cannot bring relief to the Plaintiffs different from the relief [Plaintiffs seek from ITT]." (Opp'n at 3:1-2.) "However, in addition to [ITT's] potential liability, [Wickstrom] could be personally liable [under the FEHA]" because the FEHA "has been interpreted to provide that an individual supervisor can be held liable . . . under the FEHA, separate and distinct from the liability incurred by an employer." Bakshi v. Bayer Healthcare, LLC, 2007 WL 1232049, at *3 (N.D. Cal. April 26, 2007) (holding that under the FEHA plaintiff could seek to make her supervisor personally liable for her damages even though she was also seeking to establish her employer was liable). Plaintiffs allege that Wickstrom was Plaintiffs' "supervisor/co-employee"; that he verbally and physically harassed Plaintiffs, in part by showing them "pornographic material depicting Wickstrom masturbating"; and that Wickstrom wore a "pornographic sexual explicit costume" to a company party. (Compl. ¶¶ 8, 15.) Since Plaintiffs allege Wickstrom was the perpetrator of the sexual harassment and Wickstrom could be liable for this FEHA claim, ITT has not shown that Plaintiffs' motion to join Wickstrom as a defendant was brought solely for the purpose of defeating diversity jurisdiction.
ITT also argues that Plaintiffs' allegations against Wickstrom are not valid since Plaintiffs failed to name Wickstrom in the caption of the administrative complaints that Plaintiffs filed in the Department of Fair Employment and Housing. (Opp'n at 2:6-18.) ITT argues that since the caption only names ITT, Plaintiffs have not exhausted administrative remedies applicable to their action against Wickstrom. (Opp'n at 2:22-24.) Plaintiffs counter that since they named Wickstrom as the perpetrator of the sexual harassment in the body of their administrative complaints, ITT has not shown that Plaintiffs failed to exhaust administrative remedies against Wickstrom. (See Decl. of Jessica Butterfield in Supp. of Opp'n, Exs. A B.) ITT's argument fails to defeat Plaintiffs' motion.
Therefore, Plaintiff's motion to amend is granted and Plaintiffs' proposed first amended complaint filed on September 11, 2007 (attachment number 1 to docket number 11) is deemed filed and served on the date on which this Order is filed. Since the amended complaint destroys diversity jurisdiction, this action is remanded to the California Superior Court for the County of San Joaquin, Stockton Branch, from which it was removed. Lastly, Plaintiffs' request for attorney's fees incurred as a result of bringing their remand motion is denied since when ITT removed the action there was complete diversity. See Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005) (holding that courts may award attorney's fees for remand motions "only where the removing party lacked an objectively reasonable basis for seeking removal.").
IT IS SO ORDERED.