Removal to Federal Court Lifted

Cal. Super. - 6th Dist.November 8, 2019

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 280 South lst Street San Jose, CA 951 I3 www.cand.uscourts.gov Susan Y. Soong a General Court Number Clerk ofCourt - 403-535-5353 March 10, 2020 Santa Clara County Superior Court . MAY _5 L. 2020 191 N. First Street clerk ' ' San Jose, CA 951 13 l 55mmmmggggg co” RE: Josemite IV Inc., ct a1. v. FEDEX Ground Package System,- Inc.,, et a1. ‘ O EPU‘rv 19-cv-08 1 84-BLF -- 4/0 Your Case Number: 19cv358329 (6:9 Dear Clerk, Pursuant to an order remanding the above captioned case t0 your court, transmitted herewith arc: ' E Certified original and one copy ofthis letter E Certified copy of docket entries E Certified copy 0f Remand Order U Other ' Please acknowledge receipt ofthe above documents on the attached copy ofthis letter. Sincerely, Susan Y. Soong, Clerk ,,:" r ll V -. mm. 4 ~ m ~‘}U ,..‘r IN“ x 1 ' "u 1( ,‘‘ _\' xa ... .. v - I; ’ :fz‘ . c; f a 1 hereby certify thatthe annexed “xf £3» '3W ‘ -‘ [nstrumentlsatme and correct copy “(‘33 by; Susie F_ Barrera , f 1 1 fil I m . x . . . g o "flew? 0‘” e nwo 06, 1 Case Systems Admmnstrator AWESFN r » 1"” 408-535-5382 ‘SUSANY. SOONG _. ‘ x 1, rolerk. LLS. Dismal ooun , ' v. t. Norihem Dlsticiomafiforrfla \m United States District Court Northern District ofCalifomia 10 ll 12 13 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ihereby certify U131 the annaxed a‘i J2 j Instrument ls a true and correct copy A ofmeoflglnajonfileinmyoffioe ' ’ v WEST: . " ‘ ,. SUSANY. scout; .‘ ‘ fl Clerk.U.S. DIstidCourt «F 'z‘ i ,. .“°’"‘°'" DWMTWW? UNITED STATES DISTRICT COURT [1 i ' «H {Vii}EWTHERN DISTRICT OF CALIFORNIA . :y"-’:,’i‘ SAN JOSE DIVISION JOSEMITE IV INC, ct aL, Case No. 19-cv-08184-BLF Plaintiffs, ORDER GRANTING MOTION TO V' REMAND ACTION TO STATE COURT; GRANTING IN PART FEDEX GROUND PACKAGE SYSTEM, PLAINTIFFS’ REQUEST FOR INC, ct al., ATTORNEY’S FEES Defendants. [ECF I7] Before the Court is Josemite IV, Inc. and Long Nguyen’s (together, “Plaintiffs") motion to remand for lack 0f diversity jurisdiction and request for attomey’s fees. Motion t0 Remand (“MOL”), ECF 17-1. Plaintiffs bring this suit against FedEx Ground Package System, Inc. (“FedEx”), Michael Valenzuela, Stephen Everson, and Angela AcMoody (together, “Defendants”) alleging among other things, intentional and statutory tort claims. FedEx removed this action from Santa Clara Superior Court on diversity grounds. Not. ofRemoval, ECF 1. At issue, is whether the joinder of non-diverse Defendants Valenzuela, Everson, and AcMoody (together, “Individual Defendants”) is proper. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter suitable for diSposition without oral argument and VACATES the hearing set 0n March 19, 2020. For the reasons discussed below, the Court GRANTS Plaintiffs’ Motion t0 Remand and GRANTS IN PART Plaintiffs’ Request for Attorney’s Fees. I. BACKGROUND Starting in 2013, Plaintifnguyen, 0n behalfofhis company, Josemite IV? Inc. (“Joscmite”) entered into several Independent Service Provider Agreements (“ISPA”) with FedEx to pick-up packages from FedEx distribution centers and deliver them to homes and businesses in a specified area. Compl. W 10-14, ECF 1-1, Exh. 3. Through Josemite, Nguyen purchased rights to service United States District Coun Northern District ofCalifomia Case 5:19-CV-08184-BLF Document 27 Filed 03/09/20 Page 2 0f 12 FedEx routes éperating out of distribution stations in San Jose and Hayward, among others. Id. 11 24. Nguyen routinely bought routes from FedEx and sold them t0 other contractors. Id. 1] 25. Nguyen claims that “[t]he fate ofany contract [with FedEx] rests in the hands 0fthe Senior Station Manager[.]” Id. 1] 12. Nguyen alleges that he paid more than $2 million for routes, trucks and other equipment, and invested more capital as he grew his company over five years. Id. 1] 24. In October 2017, Defendant Valenzuela became Senior Station Manager at the FedEx distribution center in Hayward and “Nguyen’s life changed.” Id. fl 27. Nguyen alleges that Valenzuela “made sure that Nguyen could not sell” his routes. Id. Nguyen further alleges that Defendants Valenzuela, Everson (FedEx San Jose Senior Station Manager), and AcMoody (FedEx District Managing Director for Nonhem California) “schemed to sabotage” Josemite and set Joscmite up for termination. 1d. W 35-36. All ofjosemite’s contracts with FedEx were eventually terminated in April 2017. Id. 1M]. On July 25, 2019, Plaintiffs caused a Demand for Arbitration to be filed with the Judicial Arbitration and Mediation Services - naming only FedEx. Not. ofRemovaI 1] 3. By October 201 9, however, the arbitration efforts fell apart. 1d. 1H] 4-5. On November 8, 201 9, Plaintiffs commenced this action in the Santa Clara Superior Court (Case No. 19CV358329). Not. 0f Removal {I 6. Plaintiffs assert the following claims: (l) Harassment in violation 0fthe Fair Employment and Housing Act (Nguyen against all Defendants); (2) Discrimination in violation of Unruh Civil Rights Act (Nguyen against All Defendants); (3) Misappropriation ofTrade Secrets (Josemite against FedEx and Valenzuela); (4) Breach ofContract (Josemite against FedEx); (5) Breach ofImplicd Covenant ofGood Faith and Fair Dealing (Josemite against FedEx); (6) Intentional Misrepresentation, Concealment, and False Promise (Plaintiffs against alI Defendants); (7) Negligent Misrepresentation (Plaintiffs against All Defendants); (8) Intentional Interference with Contract (Plaintiffs against All Defendants); (9) Intentional Interference with Prospective Economic Advantage (Plaintiffs against All 2 United States District Court Northern District 0f California Case 5:19-cv-08184-BLF Document 27 Filed 03/09/20 Page 3 0f 12 Defendants); (10) Negligent Interference with Prospective Economic Advantage (Plaintiffs against All Defendants); (l l) Unfair Competition (Plaintiffs against FedEx); and (12) Declaratory Relief. See generally, Comp]. On December 16, 2019, Defendant FedEx filed a notice of removal 0n the basis ofdiversity jurisdiction and fraudulentjoinder. See Not. 0f Removal. Plaintiffs moved t0 remand this action back to state court on January 14, 2020, claiming that because the joinder of the n0n~diversc Individual Defendants is not fraudulent, complete diversity does not exist between the parties. Mot. at 2. Plaintiffs allege (l) Valenzuela resides in Alameda County, California, (2) Everson resides in Alameda County, California, and (3) AcMoody resides in San Joaquin County, California. Compl. 1H] 5-7. FedEx opposes the motion to remand on the ground that the joinder of the Individual Defendants is fraudulent. Opp’n, ECF 24. II. LEGAL STANDARD “[A]ny civil action brought in a State court of which the district courts ofthe United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court 0fthe United states for the district and division embracing the place where such actionjs pending.” 28 U.S.C. § 1441(a). “A defendant may remove an action t0 federal court based 0n federal question jurisdiction 0r diversityjurisdiction.” Hunter v. Phillip Morrisl USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (citing 28 U.S.C. § 1441). District courts have diversity jurisdiction over all civil actions between citizens of different states where the amount in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. § 1332. “Although an action may be removed t0 federal court only where there is complete diversity of citizenship, ‘one exception t0 the requirement for complete diversity is where a nonLdiverse defendant has been ‘fraudulentlyjoined.”” Hunter, 582 F.3d at 1043 (quoting Morris v. Princess Cruises, Ina, 236 F.3d 106], 1067 (9th Cir. 2001)) (internal citation omitted); see also Ritchey v. Upjohn Drug Ca, 139 F.3d l3 l3, 1318-19 (9th Cir. 1998), “Ifthe plaintiff fails to state a cause of 3 United States District Court Northern District 0f California 23 24 25 26 27 28 Case 5:19-cv-08184-BLF Document 27 Filed 03/09/20 Page 4 0f 12 action Against 'a resident defendant, and the failure is obvious according t0 the settled rules of the state, the joinder 0fthe resident defendant is fraudulent.” McCabe v. Gen. Foods Corp, 811 F.2d 1336, 1339 (9th Cir. 1987). That said, there is a “general presumption against fraudulentjoinder,” and defendants who assert that a party is fraudulently joined carry a “heavy burden.” Hunter, 582 F.3d at 1046. Defendants must “show that the individualsjoined in the action cannot be liable on any theory,” Ritchey, 129 F.3d at 13 l 8, and that “there is n0 possibility that the plaintiffwill be able to establish a cause of action is Stale court against the alleged sham defendant.” Good v. Prudential Ins. Co. ofAm., 5 F. Supp. 2d 804, 807 (ND. Cal. Apr. 16, 1998). That is, “[r]emand must be granted unless the defendant shows that the plaintiff ‘would not be afforded leave to amend his complaint to cure [the] purported deficiency.” Padilla v. AT&TCorp., 697 F. Supp. 2d 1156, 1159 ‘ (CD. Cal. 2009) (quoting Burris v. AT&T Wireless, Ina, No. 06-cv-02904-JSW, 2006 WL 20 1 8040, at *2 (ND. Cal. July l9, 2006)). As such, a court’s “doubts concerning the sufficiency 0f a cause ofaction because of inartful, ambiguous or technically defective pleading must be resolved in favor 0f remand.” Plule v. Roadway Package Sys., Ina, 141 F. Supp. 2d 1005, 1008 (ND. Cal. Apr. 18', 2001) (citations and internal quotation marks omitted). 1 “Where fraudulentjoinder is an issue . . . [t]he defendant seeking removal to the federal court is entitled t0 present the facts showing the joinder to be fraudulent.” Ritchey, 139 F.3d at 1318 (internal quotation marks omitted). If factual issues are in dispute, the Court must resolve all disputed questions of fact in favor 0fthe plaintiff. See Kalawe v. KFC Nat. Mgmr. C0,, Civ: No. 90-007799, I991 WL 338566, at *2 (D. Haw. July 16, 1991) (citing Kruso v. Inl'l Tel. & Tel. Corp, 872 F.2d I416, 1426 (9th Cir. 1989)); see also Moirammed v. Watson Pharm, Ina, N0. SA CV09- 0079, 2009 WL 857517, at *6 (CD. Cal. Mar. 26, 2009) (“A party is only deemed t0 have been joined ‘fraudulently’ ifafter a1] disputed questions offzict and fill ambiguities in the controlling state law are resolved in the plaintiff's favor, the plaintiff could not possibly recover against the party whosejoinder is questioned”) (citations and internal quotation marks omitted). [fa district court ultimately determines that it lacksjurisdiction, the action must be remanded back t0 the state court. Martin v. Franklin Capital Corp, 546 U.S. 132, 134 (2005) (citing 28 U.S.C. § 1447). The Ninth Circuit recognizes a “strong presumption against removal.” Hunter, 582 F.3d 4 United States District Coun Northem District of California 10 11 12 13 14 15 16 17 13 19 20 21 22 23 24 25 26 27 28 Case 5:19-cv-08184-BLF Document 27 Filed 03/09/20 Page 5 0f 12 at 1042 (quotihg Gaus v. Miles, Ina, 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)). Thus, “‘the defendant always has the burden of establishing that removal is proper,” and . . . the court resolves all ambiguity in favor ofremand to state court.” Id. (quoting Gaus, 980 F.2d at 566). III. DISCUSSION A. Fraudulent Joinder Plaintiffs argue that this case should be remanded to the state court because FedEx has not met its heavy burden of showing fraudulent joinder and thus, complete diversity between the opposing pfirties is lacking under 28 U.S.C. § 1332. Mot. 2. As an initial matter, there appears t0 be no dispute that the Individual Defendants [are nofi-diversc. Plaintiffs claim that Individual Defendants are residents 0f California. Comp]. W 5-7. By resting its arguments solely on fraudulentjoinder, FedEx concedes that the Individual Defendants arc citizens 0f California. Not. 0f Removal 1] 17; see also Opp’n at 10 (“By the very nature ofthese ‘fraudulentjoindcr’ arguments, FedEx Ground plainly disclosed that the Individual Defendants were in fact n6ndiverse.”). Plaintiffs argue that the Individual Defendants were not fraudulently joined becauseror “every claim asserted against an Individual Defendant, California law imposes individual liability.” Mot. at 2. ' Plaihtiffs provide arguments and supporting case law that persona] liability may be imposed 0n Individual Defendants on their fraud, harassment, economic interference, and trade secret misappropriation claims. Id. at 8-14. Thus, according t0 Plaintiffs, FedEx fails t0 show that there is “no possibility” that Plaintiffs could assert those claims - defeating the fraudulentjoinder theory. Id. FedEx responds that Plaintiffs have failed to state any claim against Individual Defendants. Opp’n at 10-18. To establish fraudulentjoinder, FedEx must “show that the individuals joined in the action cannot be liable 0n any theory,” Ritchey, 129 F.3d at 1318 (emphasis added). Thus, if the Court finds that FedEx has failed to show that “there is no possibility” that the Plaintiffs will be able t0 establish a cause 0f action for any 0fthe claims against the Individual Defendants, remand is preper l The Court notes that in their Complaint, Plaintiffs assert a claim under the Unruh Civil Rights Act against all Individual Defendants. Comp]. 1H] 57-65. Plaintiffs fail, however, to show in this Motion that the Unruh Act carries personal liability. 5 United States District Court Northern District OfCalifomia 12 13 I4 15 16 17 18 l9 20. 21 22 Case 5:19-cv-08184-BLF Document 27 Filed 03/09/20 Page 5 of 12 and the Court' need not address the remaining claims and arguments. See Good, 5 F. Supp. 2d at 807. For the reasons stated below, the Court is persuaded that FedEx has not met its heavy burden 0f showing fraudulent joinder as to Plaintiffs’ economic interference, harassment, and trade secret misappropriation claims. Thus, complete diversity does not exist and the Court need not address the parties’ arguments as t0 the fraud claim against Individual Defendants. 1. Economic Interference Claims Plaintiffs argué that their three economic interference claims, (1) intentional interference with contract, (2) intentional interference with prospective advantage, and (3) negligent interference with prospective advantage carry individual liability. Mot. at 11. FedEx responds that because FedEx is a party to the contracts between Plaintiffs and third parties (regarding FedEx routes), Individual Defendants cannot be held individually liable for economic interference: Opp’n at 11. FedEx argues that “buyers cannot simply ‘purchase FedEx routes from Plaintiff” through an isolated third-party transaction; the transaction may only be accomplished through an assignment of Plaintiffs’ rights under its contract with FedEx Ground.” Opp’n at 1 1 (citing ISPA § l7, ECF 24-2, Exh. 1). As such, according to FedEx, “FedEx Ground will always be a party to the ‘prospective economic opportunities’ identified by Plaintiffs (Le. ‘selling routes’), as, in all cases, the only thing that’s actually occurring is a transfer 0fthe rights under a contract with FedEx Ground, that requires approval from FedEx Ground.” Opp’n at 12L Plaintiffs reply that “Plaintiff Nguyen Long, 0n behalf ofJosemite, personally participated in approximately ten separatp transactions whereby Josemite purchased routes from 0r sold routes to other contractors” and FedEx was “never included as a ‘party’ t0 any 0fthose contracts,” nor did FedEx “ever sign those contracts.” Reply at 2, ECF 25 (citing Supplemental Declaration of Long Nguyen (“‘Supp. Nguyen Decl.”) 1] 2, ECF 25-1). Under California law, “corporate agents and employees acting for and on behalf 0f a corporation cannot be held liable for inducing a breach OFthe corporation’s contract.” Shoemaker v. Myers, 52 Cal. 3d 1, 24 (1990). But, “the manager’s privilege does not exempt a manager from liability when he 0r she tomuously interferes with a contract or relationship between third parties.” Asahi Kasai Pharma Corp. v. Actelion Ltd, 222 Cal. App. 4th 945, 967-68 (2014). 6 United States District Court Northem District OfCalifomia Case 5:19-cv-08184-BLF Document 27 Filed 03/09/20 Page 7' 0f 12 'Here, the parties present a clear factual dispute: whether FedEx was a party t0 Plaintiffs’ contracts with third parties purchasing the routes. And, the parties appear t0 agree that if FedEx wasrnot a party to Plaintiffs’ contracts with third parties, Individual Defendants could - ifproven - be held liable. See Opp’n at 11-12. In assessing a claim of fraudulent joinder, if factual issues are in dispUte, courts must resolve all disputed questions of fact in the plaintiff's favor. Pacumio v. Wells Fargo Bank, NA, No. 20-CV-00251-JCS, 2020 WL 887929, at *2 (ND. Cal. Feb. 24, 2020). Thus, resolving the faCtual dispute in Plaintiffs’ favor (i.e., FedEx was not a party t0 Plaintiffs’ contracts with third panics), the Court agrees with Plaintiffs that FedEx has failed to meet its heavy burden under the fraudulentjoinder doctrine - that there is “no possibility that the plaintiff will be able t0 establish a cause ofaction” against Individual Defendants, See Good, 5 F. Supp. 2d at 807; see also California Crane Sch, Inc. v. Nat‘l Comm ’n for Certification 0f Crane Operators, N0. 2:08-CV-00816-MCEEFB, 2008 WL 3863426, at *4 (ED. Cal. 'Aug. l9, 2008) (granting motion for remand where defendants failed to show that, under established California law, the privilege applies t0 the facts 0fthe case). 2. Harassment Claim Next, Plaintiffs argue that Nguyen’s claim for harassment in violation of the Fair Employment and Housing Act (“FEHA”) carries individual liability. Mot. 10. Section 129400)(1) ofthe FEHA prohibits harassment against “a person fil‘oviding services pursuant to a contract” based on race, ancestry 0r national origin. Cal. Gov. Code § I2940(j)(1). Section 1294OG)(3) establishes that “[a]n employee . . . is personally liable for any harassment prohibited by this section.” Cal. Gov. Code § 1294OG)(3). FedEx, citing Reno v. Baird, argues that because “commonly necessary personnel management actions” do not come within the meaning of harassment, Plaintiffs have ’ “failed t0 "state a true harassment claim against any ofthe Individual Defendants.” Opp’n at 12-13 (citing Reno v. Baird, 18 Cal. 4th 640, 647 (1998)). Those “commonly necessary personnel management actions” include “hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, perfo.rmance evaluations, the provision 0f support, the assignment or nonassignment ofsupervisory functions, deciding who will and Who will not attend meetings, deciding who will be laid off, and the like.” Baird, 18 Cal. 4th at 646-47. Plaintiffs reply 7 United States District Court Northern District ofCalifomia Case 5:19-cv-08184-BLF Document 27' Filed 03/09/20 Page 8 0f 12 that (I) the cohduct alleged in the Complaint (e.g., sabotaging efforts to sell routes, providing false information t0 buyers, attempting to extort and/or deceive Nguyen into releasing claims (Compl. 1| 51)) are not “personnel actions” 0r “official employment actions” and (2) even ifthcy were, under California Iaw, “some official elfiployment actions” may “also have a secondary effect of communicating a hostile message” and thus be the basis for a harassment claim. Reply at 4 (citing Roby v. McKesson Corp, 47 CaI. 4th 686, 709 (2009), as modified (Feb. 10, 2010)). The Court agrees with Plaintiffs. The statute i's clear - harassment under FEHA carries personal liability. See Cal. Gov. Code § l2940(j)(3). FedEx appears t0 challenge the sufficiency 0f PIaintiffs’ harassment allegations - but “the test for fraudulentjoinder and for failure t0 state a claim under Rule 12(b)(6) are not equivalent." Grancare, LLC v. Thrower by & through Mills, 889 F.3d 543, 549 (9th Cir. 2018). A district court must remand the case to state court ifthere is a “possibility that a state court would find Athat the complaint states a cause ofaction against any 0f the [non-diverse] defendants.” Hunter, 582 F.3d at 1046 (emphasis added) (internal quotations and citation omitted). As for Nguyen’s harassment claim, “the California Supreme Court has held that ‘official employment actions’ can be considered as part of the conduct supporting a harassment 3’ claim when the actions convey an offensive and hostile message to the employee. Landuccr' v. Stare Farm Ins. C0., 65 F. Supp. 3d 694, 705-06 (ND. Cal. 2014) (citing Roby, 47 Cal. 4th at 708). Here, Plaintiffs have alleged several wrongful acts 0n the basis onguyen’s race and national origin -- specifically, “sabotaging efforts t0 sell routes, providing false information t0 buyers, providing confidential information t0 buyers, falsifying service numbers, imposing punitive fees, mispresenting and concealing material facts, denying contractual rights, issuing notices to cure, terminating contracts, refusing to provide extensions, issuing fraudulent invoices, attempting t0 extort and/or deceive Plaintiff into releasing claims.” See Compl. 11 5 1. Thus, the Court cannot find that there is “no possibility” that a state court would find that Nguyen has stated a cause 0f action for harassment, because a stale court may find that the alleged wrongful acts (1) are not “official employment actions” 0r (2) “convey an offensive and hostile message.” See Roby, 47 Cal. 4th at 708. United States District Court, Northern District of California 10 ll 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:19-Cv-08184-BLF Document 27 Filed 03/09/20 Page 9 0f 12 3. Trade Secret Misappropriation Claim Plaintiffs also argue that theircIaim for misappropriation 0ftrade secrets under the California Uniform Trade Secrets Act (“CUTSA”), carries personal liability. Mot. at I3. FedEx responds that “(3) Plaintiffs have failed t0 allege any actual trade secrets that were ‘improperly disclosed’; and (b) even if they had, Valenzuela always possessed ‘express or implied consent’ t0 make limited disclosures.” Opp’n at 16. T0 support its first challenge to PIaintiffs’ trade secret misappropriation claim, FedEx argues that Plaintiffs have failed t0 allege that Valenzuela disclosed “any actual trade secrets.” Opp’n at 17. Citing t0 the Complaint, FedEx argues that the Specific information allegedly disclosed (e.g., representations to a potential purchasers) are not trade secrets. Id. Plaintiffs reply that they allege “Valenzuela provided confidential, false and/or damaging infomlation, including information relating t0 Joéexnite’s business operations, equipment, employees, and services, t0 discourage buyers from completing the transaction.” Reply at 8; see also Comp]. 1] 28. According to Plaintiffs, these allegations are “more thén satisfactory.” Reply at 8. There appears t0 be no dispute that “[u]nder the plain terms of the Uniform Trade Secrets Act, defendants may be personally liable: ifthey used, through the corporation, [plaintiff‘s] trade secrets[.]” PMC, Inc. v. Kadisha, 78 Cal. App. 4th 1368, 1383 (2000). FedEx appears to challenge the sufficiency 0f Plaintiffs’ specific allegations regarding the specific trade secrets Valenzuela allegedly disclosed. The Court finds that Plaintiffs’ allegations that “information relating to Josemite’s business operations, equipmeht, employees, and services” were disclosed are sufficient at this stage. See Compl. 1] 28, 67-69. California Code OfCivil Procedure § 2019.2] 01 provides for a procedure whereby Plaintiffs must “identify the trade secret with reasonable particularity” before commencing discovery - but at the pleading stage, Plaintiffs’ allegations are sufficient to show that there is a “possibility” they could state a Claim under CUTSA. As for FedEx’s second argument, FedEx cites t0 the provisions ofthe Independent Service Provider Agreement t0 argue that “Valenzuela, had both ‘express [and] implied consent’ t0 make these disclosures, as well as others, when vetting proposed assignees who sought t0 assume Plaintiffs’ responsibilities under the ISPA.” Opp’n at 17 (citing (ISPA, at § IO (“Confidential 9 United States District Court Northern District of California 15 l6 17 19 20 21 22 23 24 25 26v 27 28 Case 5:19-cv-08184-BLF Document 27 Filed 03/09/20 Page lO of 12 Infomiation”); § 17 (“Assignment”)). In respbnse, Plaintiffs provide a declaration from Nguyen stating that from 2013 to 2019, he worked with approximately six station managers, all ofwhom “told [Nguyen] and other contractors that they were not permitted to discuss with prospective purchasers anything about the specific operations of the sellingparty (e.g., Josemite) including, employees, finances, ratings, penalties, complaints, performance, notices, 0r discipline.” Supp. Nguyen Decl. fl 3. Again, the panics present a factual dispute (Ila, whether Valenzuela was authorized to disclose Plaintiffs” business information) - and that factual dispute must be resolved in Plaintiffs’ favor. 'See Pacumio, 2020 WL 887929, at *2. Accordingly, the Court cannot find that there is “no possibility” that Plaintiffs could state a claim under California UTSA. alum 1n sum, FedEx has failed t0 meet its heavy burden that the non-diverse Individual Defendants cannot be liable under any theory and thus, the Court declines to find that the Individual Defendants ware fraudulentlyjoined. Thus, the Court lacks subject matterjurisdiction and GRANTS Plaintiffs’ Motion to Remand. B. Attorney’s Fees and Costs Plaintiffs request $7,500 in attorney’s fees and costs. Mot. at 14-15. Plaintiffs argue that “[t]here is no objectively reasonable basis for Defendants to remove the entire case by positing that ‘it is obvious’ under established California law that individual supervisors enjoy absolute immunity for intentional and statutory torts committed at work” and “California law has long established the exact opposite.” 1d. at 15. FedEx responds that because “FedEx Ground’s positions are well crafted and amply supported, often by California Supreme Court authority”, t0 recover attorney‘s fees, Plaintiffs must show “something more” than lack of merit in FedEx’s arguments. Opp’n at 18. FedEx also points t0 the procedural history of this case and the fact that Plaintiffs filed a near identical complaint in arbitration without naming Individual Defendants - which, according to 'FedEx, supports FedEx’s position that the Individual Defendants were named only to defeat removal. 1d. at l9. Upon issuing an order remanding the case, a court may award “just costs and any actual expenses, including attorney fees, incurred as a result of the removal” pursuant to 28 U.S.C. § 10 United States District Court Northern District OfCalifornia oo,\10\ OD Case 5:19-cv-O8184-BLF Document 27 Filed 03/09/20 Page 11 0f 12 1447(0‘). The'“award 0f fees under § 1447(c) is lefi t0 the district court’s discretion.” Martin v. Franklin Capital Corp, 546 U.S. 132, 139 (2005).. The standard for awarding fees turns “on the reasonableness of the removal.” Id. at 141. “Absent unusual circumstances, courts may award attomey‘s fees under§ 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal.” Id. Courts have determined whether removal was objectively reasonable in part “by looking to the clarify ofthe law at the time ofremov‘al.” See Lussier v. Dollar Tree Stores, Ina, 518 F.3d 1062, 1066 (9th Cir. 2008) (citing Martin, 546 U.S. at 141). After reviewing the briefing and relevant authority, the Court agrees with Plaintiffs that an award ofattomey’s fees under § 1447(c) isjustified in these circumstances. Plaintiffs asserted eight causes of action against the Individual Defendants - and several of those causes of action cany personal liability under well-settled California law (e.g., economic interference claims, harassment claim, and trade secret claim). In fact, FedEx’s opposition brief repeatedly argues that Plaintiffs “failed t0 state a cause of action” (see Opp’n at 11-17) instead of applying the well-established standard for analyzing fraudulentjoinder - that “there is no possibility that the plaintiff willibe able to establish a cause. 0f actio}: is State court against the alleged sham defendant.” Good, 5 F.‘ Supp. 2d at 807 (emphasis added). Thus, the Court concludes that FedEx lacked an objectively reasonable basis for Seeking removal (119., that there was no possibility that Plaintiffs could establish a cause of action against the Individual Defendants) and awards reasonable attomey’s fees to Plaintiffs under 28 U.S.C. § 1447(c). The Court next determines whether the requested amount of $7,500 is a reasonable award. The Court finds that the requested fees are excessive and will award only $5,580. In support 0f their request, Plaintiffs submitted a declaration from their counsel, Scott Berman, who incurred fees in relation to the instant motion. Declaration of Scott A. Berman in Support of Motion t0 Remand Action to State Court and Request for Costs and Attorney’s Fees (“Berman DecI.”), ECF 17-2. Mr. Barman states that he Spent over 15.5 hours “researching case law, drafiing the Motion to Remand, drafting [his] Declaration and other supporting papers.” 1d. fil 7. Mr. Berman also anticipated spending another 4.5 hours preparing the reply brief and attending the hearing on the matter. Id. Mr. Berman declares that his customaryhourly rate is $465, bringing 11 United States District Court Nonhem District 0f California 10 11 12 13 14 15 16 17 '19 20 21 22 23 24 25 26 27 28 Case 5:19-cv'-08184-BLF Document 27- Filed 03/09/20 Page 12 of 12 the total estim’ated attorney’s fees to $9,300. 1d. Plaintiffs, however, reducst only $7,500 “t0 avoid any disputes concerning billing 0r efficiency.” Mot. at IS. The Court finds that the amount oftifime spent on the motion was excessive and determines that 12 hours rather than 20 hours is a reasonable amount oftime to research and draft the fifteen- page motion for remand, the supporting declarations, and the reply brief. Moreover, the Court ruled 0n this motion based 0n the written submissions and cbunsel did not incur any costs attending a hearing. Accordingly, the Court finds that the reasonable fees incurred by Mr. Berman amounts t0 $5,580 for twelve hours total at a $465-per-hour rate. IV. ORDER For the foregoing'reasons, the Court GRANTS Plaintiffs; Motion t0 Remand to State Court and GRANTS IN PART Plaintiffs’ Request for Attorney’s Fees in the amount of$5,580. TheICIerk ofthe Court shall’remand this action to Superior Court of California for the County of Santa Clara and close the case. T0 be clear, the Court makes n0 ruling as t0 FedEx’s pending motion to compel arbitration at ECF 6. FedEx’s pending motion t0 compel arbitration will be remanded to state court with this action. IT IS SO ORDERED. Dated: March 9,2020 wtWWW BETH LABSON FREEMAN United States District Judge 12 CAND-ECF https:l/ecf.cand.circ9.dcn/cgi-bin/DkIRpt.pl?5527 l 7369720248-L_1_0-1 IofS ADRMOP,CLOSED U.S. District Court ‘ California Northern District (San Jose) CIVIL DOCKET FOR CASE #z 5:19-cv-08184-BLF Internal Use Only Josemite IV, Inc. ct a1 v. FEDEX Ground Package System, Inc., Date Filed: 12/16/2019 et a1 Date Terminated: 03/09/2020 Assigned t0: Judge Beth Labson Freeman ~ Jury Demand: Plaintiff Referred to: Judge Nathanael M. Cousins Nature of Suit: 190 Contract: Other Case in other court: Superior Court of California County of Jurisdiction: Diversity Santa Clara, 19CV3S8329 Cause: 2811441 Petition for Removal- Civil Rights Act Plaintiff Josemite IV Inc. represented by Scott Adam Berman a California Corporation Berman North LLP 2225 E. Bayshore Road Suite 200 Palo Alto, CA 94303 650-320-1685 Fax: 650-320-1686 Email: scott@bermannorth.com LEAD ATTORNEY ATTORNEY T0 BE NOTICED Plaintiff Long Nguyen represented by Scott Adam Berman an individual (See above for address) LEAD ATTORNEY ATTORNEY T0 BE NOTICED V. Defendant FEDEX Ground Package System, Inc , represented by Anthony Eugene Guzman , II A Delaware Corporation i ._ a _. Fisher Phillips LLP Izzy}: f §:‘,§‘_3"_§fi;; One Embarcadero Center 7 ml" ‘ * "A ' Suite 2050 «léflmfimmigmfiw 3. San Francxsco, CA 941-11 ‘ ‘ ofme original on filoinmyoffioe E“ ‘43:. 4 1 5-490-9000 .; x;WST » ‘ Fax: 415-490-9001 ‘SUSANY- SOONG Email: aguzman@fisherphi11ips.com{U dCou ’1' g giffi'g‘r’nspgfifla cinglm ~, ATTORNEY T0 BE NOTICED fl”! .. a 1" K Defendant “ g:- ‘ H: 3/10/2020, 10:30 AM CAND-ECF 20f5 Michael Valenzuela an individual Defendant Stephen Everson an Individual Defendant Angela Acmoody an Individual https:i/ecf.cand.cir09.dcn/cgi-binkatRpt.pI?5527 I 7869720248-L_I_0-l represented by Anthony Eugene Guzman , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED represented by Anthony Eugene Guzman , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Date Filed # Docket Text 12/16/2019 l NOTICE OF REMOVAL Under 28 U.S.C. SectiOn 1441(b) from Superior Court County 0f Santa Clara. Their case number is 19cv358329. (Filing fee $400 receipt number 0971-]3985550). Filed byFEDEX Ground Package System, Inc.,, Josemite IV Inc., Long Nguyen. (Attachments: # 1 Declaration ofAnthony E. Guzman in Support ofNotice and Petition for Removal ofAction, # g Declaration ofLisa Santucci in SUpport ofNotice and Petition for Removal of Action, # g Civil Cover Sheet)(Guzman, Anthony) (Filed on 12/1 6/2019) (Entered: 12/16/2019) 12fI6/2019 IN CERTIFICATE OF SERVICE by FEDEX Ground Package System, Inc., re l Notice 0f Removal,, and Supporting Documents (Guzmar'l, Anthony) (Filed 0n 12/16/2019) (Entered: 12/16/2019) 12/16/2019 ID.) Certificate oflnterested Entities by FEDEX Ground Package System, Inc., re l Notice 0f Remova1,, and Supporting Documents (Guzman, Anthony) (Filed 0n 12/16/2019) (Entered: 12/16/20] 9) 12/16/2019 4 Case assigned to Judge Nathanael M. Cousins. Counsel for plaintifTor the removing party is responsible for serving the Complaint 0r Notice of Removal, Summons and the assignedjudge's standing orders and all other new case documents upon the opposing parties. For information, visit E~FilingA New Civil Case at http://cand.uscourts.g0v/ecf/caseopening. Standing orders can be downloaded from the court's web page at www.cand.uscourts.g0v/judges. Upon receipt, the summons will be issued and retumed electronically. Counsel is required t0 send chambers a copy of the initiating documents pursuant to LR. 5-1(e)(7). A scheduling order will be sent by Notice ofElectronic Filing (NEF) within two business days. Consent/Declination due by 12/30/2019. (wa, COURT STAFF) (Filed on 12/16/20] 9) (Entered: 12/ 1 7/2019) 12/17/2019 ILA Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 3/11/2020. Initial Case Management Conference set for 3/18/2020 10:00 AM in San Jose, Courtroom 5, 4th Floor. V 3/10/2020, 10:30 AM CAND-ECF https://ecr.cand.circ9.dcn/cgi-bin/DktRpt.pl?55271736972024s-L_1fi0-1 (sbe, COURT STAFF)~.(FiIed 0n 12/17/2019) (Entered: 12/17/2019) MOTION t0 Compel Memorandum ofPoints and Authorities in Support 0f Defendan! ‘s Motion to Compel Arbitration and Io Dimsiss 0r Stay Proceedings filed by FEDEX Ground Package System, Inc.,. Motion Hearing set for 2/5/2019 01:00 PM in Oakland, Courtroom 5, 2nd Floor before Judge Nathanael M. Cousins. Responses due by 1/13/2020. Replies due by 1/21/2020. (Attachments: # l Memorandum ofPoint and Authorities, # g Request for Judicial Notice, # g Declaration of Anthony Guzman, # fl Declaration of Lisa Santucci, # Q Proposed Order, # Q Ccrtificate/Préof 0f Service)(Guzman, Anthony) (Filed on 12/30/2019). Modified on 3/9/2020 (sbe, COURT STAFF). (Entered: 12/30/2019) _ 01/02/2020 7 CLERK'S NOTICE REGARDING Consent or Declination: All parties are . requested to file a consent or declination to proceed before a magistrate judge by 1/9/2020. Note that any party is free to withhold consent to proceed before a magistrate judge without adverse substantive consequences. The forms are available at: http:l’lcand.uscou1‘ts.gov/civilforms. (This is a rext-only entry generated by (he court. There 1's n0 document associated with this entry.) (lmh, COURT STAFF) (Filed 0n 1/2/2020) (Entered: 01/02/2020) 01/06/2020 8 CLERK'S NOTICE RESETTING Defendant's Motion to Compcl Arbitration and to Dismiss or Stay Proceedings Q . Motion Hearing reset for 2/5/2020 01:00 PM in San Jose, Courtroom 5, 4th Floor before Judge Nathanael M. Cousins. (This 1's a text-only entry generated by the court. There is n0 document associated with this entry.) (lmh, COURT STAFF) (Filed on 1/6/2020) (Entered: 01/06/2020) CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Joscmite IV Inc., LOng Nguyen. (Berman, Scott) (Filed on 1/8/2020) (Entered: 01/08/2020) 01/09/2020 '10 CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk ofthis Court will now randomly reassign this case to a District Judge because a party has not cbnsented to the jurisdiction ofa Magistrate Judge. You will be informed by separate notice of the districtjudge t0 whom this case is reassigned. 12/30/201 9 lax 01/08/2020 IKO ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE-NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED. This is a text only docket entry; there i3 n0 document associated with this notice. (lth, COURT STAFF) (Filed on 1/9/2020) (Entered: (31/09/2020) 01/09/2020 ll CONSENT/DECLINATION t0 Proceed Before a US Magistrate Judge by FEDEX Ground Package System, Inc.,.. (Attachments: # l Certificate/Proof of Service) (Guzman, Anthony) (Filed on 1/9/2020) (Entered: 01/09/2020) 01/10/2020 12 ORDER REASSIGNING CASE. Case reassigned using a proportionate, random, and blind system pursuant to General Order N0. 44 to Judge Beth Labson Freeman for all further proceedings. Notice: The assigned judge participates in the Cameras in the Courtroom Pilot Project. See General Order N0. 65 'and http://cand.uscourts.gov/cameras. Magistrate Judge Nathanael M. Cousins remains as referral judge assigned t0 case. 3 ofS 3/10/2020, 10:30 AM CAND-ECF https:/fecf.cand.circ9.dcru’cgi~bin/DktRpt.pI?5527 1 7869720248-L_l _0-l Reassignment Order signed by Clerk 0n 1/1-0/2019. (Attachments: #_I_ Notice of Eligibility for Video Recording) (wa, COURT STAFF) (Filed 0n 1/10/2020) (Entered: 01/10/2020) 01/1 0/2020 l3 CLERK'S NOTICE SETTING CASE MANAGEMENT CONFERENCE. Case Management Statement due by 3/26/2020. Initial Case Management Conference set for 4/2/2020 at 11:00 AM in San Jose, Courtroom 3, 5th Floor. (Thfs is a text- 0m’y entry gene! ated by the court There is n0 document associated with [his enny) (kedS, COURT STAFF) (Filed on 1/10/2020) Modified 0n 1/10/2020 (kedS, COURT STAFF) (Entered. 01/10/2020) 01/10/2020 14 STIPULATION WITH PROPOSED ORDER re é MOTION to Compel Memorandum ofPoints and Authorities in Support ofDefendant ‘s Marion t0 Compel Arbitration and lo Dimsiss 0r Stay Proceedings filed by Josemite IV Inc., Long Nguyen. (Berman, Scott) (Filed 0n 1/10/2020) (Entered: 01/10/2020) 01/1 3/2020 15 ORDER GRANTING 13 STIPULATION REGARDING BRIEFING SCHEDULE ON MOTION TO COMPEL ARBITRATION. Signed by Judge Beth Labson Freeman 0n 1/13/2020. (blflc3S, COURT STAFF) (Filed 0n 1/13/2020) (Entered: 01/13/2020) 01/14/2020 16 CLERK'S NOTICE RESETTING MOTION HEARING as t0 Q MOTION to Compel Memorandzmz ofPoims and Authorities in Suppor! ofDefendanl ‘S Motion r0 Compel Arbitration and Io Dimsiss or Stay Proceedings. Oppositions due by 1/27/2020. Replies due by 2/13/2020. Motion Hearing set for 4/2/2020 09:00 AM in San Jose, Courtroom 3, 5th Floor before Judge Beth Labson Freeman. (This 1's a text-only entry generated by the court. There is n0 documem‘ associated with this entry.) (tshS, COURT STAFF) (Filed 0n 1/14/2020) (Entered: 01/14/2020) 01/14/2020 17 MOTION to Remand filed by Josemite IV Inc., Long Nguyen. Motion Hearing set for 3/19/2020 09:00 AM in San Jose, Courtroom 3, 5th Floor before JudgeBeth Labson Freeman. Responses due by 1/28/2020. Replies due by 2/4/2020. (Attachments: # l Memorandum 0f Points and Authorities, # g Declaration Declaration of Scott A. Berman, # g Proposed Order, # fl Certificate/Proof 0f Service)(Berman, Scott) (Filed on 1/14/2020) (Entered: 01/14/2020) 01/27/2020 18 OPPOSITION/RESPONSE (re é MOTION t0 Compel Memorandum ofPoims and Authorities in Support ofDefendam ‘s A/[otion lo Compel Arbitration and to Dimsiss 0r Stay Proceedings ) Plaintyj’s’ Opposition 1‘0 Malian (0 Compel Arbitration filed byJosemite 1V Inc., Long Nguyen. (Attachments: # l Declaration Declaration of Long Nguyen ISO Opposition, # g Declaration Declaration 0f Scott Berman SO Opposition)(Bcrman, Scott) (Filed on 1/27/2020) (Entered: 01/27/2020) 01/29/2020 l9 DECLARATION 0f Long Nguyen in Opposition t0 fl Opposition/Response t0 Motion, AMENDED Declaration ofLong Nguyen ISO Opposition t0 MTC Arbitration filed byJosemite IV Inc., Long Nguyen. (Related document(s) 1_8_) (Berman, Scott) (Filed on 1/29/2020) (Entered: 01/29/2020) 02/1 0/2020 20 REPLY (refl MOTION t0 Remand ) filed byJosemite IV Inc., Long Nguyen. (Attachments: # l Certificate/ProofofService)(Berman, Scott) (Filed 0n 2/10/2020) (Entered: 02/10/2020) 02/12/2020 21 STIPULATION WITH PROPOSED ORDER re _2_Q Reply to Opposition/Response, fl MOTION t0 Remand Briefing Schedule filed by FEDEX Ground Package 4 ofS 3/10/2020, 10:30 AM CAND-ECF https://ecf.cand.cir09.dcnfcgi-binkatRpt.pl?5527l 7869720248-L_l_0;l System, Inc.,. (Guzman, Anthony) (Filed 0n 2/12/2020) (Entered: 02/12/2020) . 02/12/2020 Q STIPULATION AND ORDER REGARDING BRIEFING SCHEDULE ON . - MOTION FOR REMAND (RE: ECFa ). Signed by Judge Beth Labson Freeman 0n 2/12/2020. (blflc3S, COURT STAFF) (Filed 0n 2/12/2020) (Entered: 02/12/2020) 02/ 13/2020 23 REPLY (re g MOTION to Compel Memorandum ofPoints and Authorities in Support ofDefendant ‘s Motion t0 Compel Arbitration and t0 Dimsiss 0r Stay Proceedings) filed byFEDEX Ground Package System, Inc.,. (Attachments: # l Declaration [Supplemental] of Lisa Santucci, # g Exhibit 1, # g Exhibit 2, # g Exhibit 3, # g Exhibit 4, # § Exhibit 5, # 1 Exhibit 6, # § Exhibit 7, # 2 Exhibit 8)(Gu2man, Anthony) (Filed on 2/13/2020) (Entered: 02/13/2020) 02/24/2020 24 OPPOSITION/RESPONSE (refl MOTION t0 Remand ) and Requestfor Altorneys Fees and Costs filed byFEDEX Ground Package System, Inc.,. (Attachments: # l Declaration Declaration ofAnthony E. Guzman II ISO Opposition t0 Motion to Remand and Request for Attorneys Fees and Costs, # g Declaration Declaration ofLisa Santucci ISO Opposition to Motion to Remand and Request for Attorneys Fees and Costs, # Q Proposed Order [Proposed] Order Denying Motion to Remand and Request for Attorneys Fees and Costs)(Guzman, Anthony) (Filed on 2/24/2020) (Entered: 02/24/2020) 03/02/2020 25 REPLY (re 1_7 MOTION to Remand ) filed byJosemite IV Inc., Long Nguyen. (Attachments: # l Declaration, # g Certificate/Proof of Servicc)(Berman, Scott) (Filed on 3/2/2020) (Entered: 03/02/2020) 03/04/2020 é Joinder re g MOTION t0 Compel Memorandum ofPoints andAurhorities in Support ofDefendant ‘s Motion to Compel Arbitration and to Dimsiss or Stay Proceedings by Angela Acmoody, Stephen Everson. (Attachments: # l Memorandum of_P0ints and Authorities in Support of Stephen Everson and Angela AcMoodys Joinder t0 FedEx Grounds Motion to Compel Arbitration and to Dismiss 0r Stay Proceedings; # g Declaration ofAnthony E. Guzman II in Support OfStephen Everson and Angela AcMoodys Joinder to FedEx Grounds Motion t0 Compel Arbitration and to Dismiss 0r Stay Proceedings, # g Request for Judicial Notice in Support of Stephen Declaration ofAnthony E. Guzman II in Support of Stephen Everson and Angela AcMoodys Joinder to FedEx Grounds Motion to Compel Arbitration and to Dismiss or Stay Proceedings, # fl Proposed Order GrantingSteven Request for Judicial Notice in Support of Stephen Declaration 0f Anthony E. Guzman II in Support of Stephen Everson and Angela AcMoodys Joinder to FedEx Grounds Motion to Compel Arbitration and to Dismiss 0r Stay Proceedings, # § Certificate/ProofofService)(Guzman, Anthony) (Filed 0n 3/4/2020) (Entered: 03/04/2020) 03/09/2020 27 ORDER GRANTING MOTIONg T0 REMAND ACTION TO STATE COURT; GRANTING IN PART PLAINTIFFS' REQUEST'FOR ATTORNEYS FEES. Signed by Judge Beth Labson Freeman on 3/9/2020. (blflc35, COURT STAFF) (Filed on 3/9/2020) Modified on 3/9/2020 (blflc3S, COURT STAFF). (Entered: 03/09/2020) 03/09/2020 Ia (Court only) ***Civil Case Terminated. (sibS, COURT STAFF) (Filed 0n , ' 3/9/2020) (Entered: 03/09/2020) 5 0f5 3/10/2020, 10:30 AM