Request Judicial Notice

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

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19CV358329 Santa Clara - Civil ANTHONY E. GUZMAN H, State Bar N0. 3 1 15 80 Email: aguzman@fisherphillips.com FISHER & PHILLIPS LLP One Embarcadero, Suite 2050 San Francisco, California 9411 Telephone: (415) 490-9028 Facsimile: (415) 490-9001 Attorneys for Defendants P. Herna Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/4/2020 5:30 PM Reviewed By: P. Hernandez Case #1 9CV358329 Envelope: 441 6461 FEDEX GROUND PACKAGE SYSTEM, INC., STEPHEN EVERSON, and ANGELA ACMOODY SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA JOSEMITE IV, INC., a California Corporation; and LONG NGUYEN, an Individual, Plaintiffs, V. FEDEX GROUND PACKAGE SYSTEMS, INC., a Delaware Corporation; MICHAEL VALENZUELA, an Individual; STEPHEN EVERSON, an Individual; ANGELA ACMOODY, an Individual; and DOES 1 t0 10, inclusive, Defendants. Case N0. 19CV358329 [Remanded from United States Northern District of California Case No. 19-CV- 08 1 84-NC] DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND TO DISMISS OR STAY PROCEEDINGS [Filed concurrently with Notice ofMotion and Motion; Memorandum 0fP0intS and Authorities; Declaration ofAnthony E. Guzman II; Declaration ofLisa Santucci; and [Proposed] Order] Date: Time: Crtrm. : State Action Filed: November 8, 2019 Removal Date: December 16, 2019 Remand Date: May 5, 2020 Trial Date: None 1 DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND TO DISMISS OR STAY PROCEEDINGS FP 379280851 ndez flO‘xUl-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that pursuant t0 California Evidence Code sections 452(d)(1) and 452(d)(2), Defendants FEDEX GROUND PACKAGE SYSTEM, INC., STEVEN EVERSON, and ANGELA ACMOODY (collectively, “Defendants”) hereby requests that this Court take judicial notice ofthe following documents and facts in support of Defendants’ Motion to Compel Arbitration and to Dismiss 0r Stay Proceedings: 1. Operative Complaint: The Complaint filed by Plaintiffs Long Nguyen and Josemite IV, Inc. (collectively “P1aintiffs”) on November 8, 2019, in this Court. A true and correct copy is attached hereto as Exhibit 1. 2. Removal to Federal Court: The Notice and Petition for Removal filed by Defendant FedEx Ground Package System, Inc. 0n December 16, 2019 in the United States District Court for the Northern District 0f California. A true and correct copy is attached hereto as Exhibit 2. 3. Remand t0 State Court: The Order issued by the United States District Court for the Northern District of California issued 0n March 10, 2020, and recognized by this Court through its reacceptance ofjurisdiction on May 5, 2020. A true and correct copy is attached hereto as Exhibit 3. Dated: June 4, 2020 FISHER & PHILLIPS LL By: E. GUZMAN II Attorneys for Defendants FEDEX GROUND PACKAGE SYSTEM, INC., STEPHEN EVERSON, and ANGELA ACMOODY 2 DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND TO DISMISS OR STAY PROCEEDINGS FP 379280851 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT 1 MOTION TO COMPEL ARBITRATION AND TO DISMISS OR STAY PROCEEDINGS FP 379280851 DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF individual, STEPHEN EVERSON, an individual, ANGELA ACMOODY, an individual, and DOES 1 SUM-100SUMMONS FOR COURTUSE ONLY {SOLO PARA USO DE LA CORTE)(CITACION JUDICIAL) E_ ‘LED NOTICETO DEFENDANT: 11 l2019 3:58 PMAwso AL DEMANDADO): CI rk of CourtFE EX GROUND PACKAGE SYSTEM, |NC., a Delaware corporation; MICHAEL VALENZUELA, 8U erior Court Of CA throu h 1O inclusive, CO nty Of santa ClaraY U ARE BEING SUED BY PLAINTlFF: 19 V358329(LO E3 TA DEMANDANDO EL DEMANDANTE): Reviewed By: J. DuongJOSEM iTE Iv, mo, a California corporation, LONG NGUYEN, an individual, I EnYeiope: 3631 099 NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the informationbelow. You have 30 CALENDAR DAYS after this summons and iegal papers are sewed on you to fiIe a written response at this court and have a copyserved on the plaintiff, A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear yourcase. There may be a court form that you can use for your response. You can find these court forms and more information at the Caiifornia CourtsOnfine Self-Heip Center (WWW.courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you. if you cannot pay the filing fee, ask thecourt derk for a fee waiver form. 1f you do not file your response on time, you may iose the case by default, and yourwages. money, and property maybe takefl without further warning from the court. There are other iegat requirements. You may want to call an aflomey rEghi away. If you do not know an attorney, you may want to cal! an attorneyreferral service. h‘ you cannot afford an attorney, you may be eligible for free legal services from a nonprofit Iega! services program. You can Iocatethese nonprofit groups at the California Legal Services Web site (www.lawhelpcalifomia.org), the California Courts Online Seif-Help Center(WWW.courtinfo.cagov/selfhe/p), or by contacting your local court or county bar association. NOTE: The court has a statutory Hen for waived fees andcosts on any settiement or arbiflation award of $10,000 or more in a civil case The court‘s Hen must be paid before the coun will dismiss the case.[A V/SO! Lo han demandado. Si no responds dentro o'e 3O dias, Ia cone puede decidir en su contra sin escuchar su versio’n. Lea la [nformacio'n acontinuacién. Tiene 3O DIAS DE CALENDARIO después de que Ie entreguen esta citacio'n y papeles legales para presenter una respuesta por escrito en estacorte y hacer que se entregue una copia a! demandante. Una cada o una l/amada telefénica no Io protegen. Su respuesta por escrito tiene que esteren formato legal correcto si desea que procesen su caso en Ia corte. Es posible que haya un formulario que usted pueda usar para su respuesta.Puede encontrar estos formularios de la corte y ma’s informacién en eI Centre de Ayuda de Ias Cones de California (www.sucon‘acagov), en labiblioteca de [eyes de su condado o en Ia corte que {e quede ma’s cerca. Si n0 puede pagar Ia cuota de presentacién, pida a} secretario de la corfe quele de’ un formulario de exencién de page de cuotas. Si no presenta su respuesta a tiempo, pueda perder ei caso porincumplimiento y Ia cone le podra'quitar su sueido, dinero y bienes sin ma’s advedencia. Hay otros requisitos lega/es. Es recomendable que [lame a un abogado inmediatamente Si no conoce a un abogado, puede Ilamar a un servicio deremisién a abogados. Si no puede pagar a un abogado, es posible que cump/a con los requisites para obtener servicios legales gratuitos de unprograma de servicios legales sin fines de Iucro. Puede encontrar estos grupos sin fines de Iucro en e/ sitio web de California Legal Services,(www.lawhelpcalifornianrg), en el Centro de Ayuda de Ias Cortes d9 California, (www.sucorz‘e.ca.gov) o poniéndose en contacto con [a cone o eloolegio de abogados locales. AVISO: Por Iey, Ia corte tiene derecho a reclamar las cuotas y Ios costos exentos por imponer un gravamen sabrecualquier recuperacién de $10.000 é ma’s de valor recibida mediante un acuerdo o una concesién de arbitraje en un caso de derecho civil. Tiene quepager el gravamen de Ia code antes de que Ia cone pueda desechar el casov The name and address ofthe court is: ' ‘ . CASE NUMBER: (Namero del Caso}:(EI nombre y direccién de Ia cone es): Superxor Court of Californla, County of Santa Clara, 191 N. First Street, San Jose, CA 951 13 - - 19CV358329 ‘ The name, address, and telephone number of plaintiff‘s attorney, or plaintiff without an attorney, is: (El nombre, Ia direccién y el anmerode te/éfono del abogado del demandante, o del demandante que no tiene abogado, es): Scott Barman, 2225 E, Bayshore Road, Suite 200, Palo Alto, CA 94303; Phone: 650-320-1685DATE 1 1/8/201 9 3:58 PM Clerk: by - Deputy(Fecha) Clerk of Court (Secretario) J. Duong (Ammo)(For proof of service of this summons, use Proof of Service of Summons (form POS-010).)(Para prueba de entrega de esta citatién use e/ formulario Proof 0f Service of Summons, (POS-O10).) NOTICE TO THE PERSON SERVED: You are served 1. as an individual defendant. 2. as the person sued under the fictitious name of (specify): 3. on behalf of (specify): under: CCP 416.10 (corporation) CCP 416.60 (minor)CCP 41 6.20 (defunct corporation) CCP 416.70 (conservatee)CCP 416.40 (association or partnership) CCP 416.90 (authorized person) : other (specify): ~ MMJ 4. by personal delivery on (date) Pa 1 H _. . . _ £6 0M.535%sdgghendcfiogfkézrggoargg Use SUMMONS Code of Civil Procedure §§ 412.20. 465 www.caufls.t:a.gov SUM-100 [Rem July 1. 2009] I HERMAN NORTH LLP 2225 E. Bayshorc Rd, Ste. 2007 Palo Alto, CA 94303 Phone: (650) 320-1685 OOOOQOU‘IAUJNW Scott A. Bcrman (State Bar N0. 191460) BERMAN NORTH LLP 2225 E. Bayshore Road, Suite 200 Palo Alto, CA 94303 Phone: (650) 320-1685 Fax: (650) 320-1686 Email: scott@bem1annorth.com Attorneys for Plaintiff JOSEMITE IV, INC. and LONG NGUYEN E-FILED 11/8/2019 3:58 PM Clerk of Court Superior Court of CA, County of Santa Clara 1QCV358329 Reviewed By: J. Duong SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED CIVIL JURISDICTION JOSEMITE IV, INC, a Califofnia corporation, LONG NGUYEN, an individual, Plaintiff. FEDEX GROUND PACKAGE SYSTEM, INC, a Delaware corporation; MICHAEL VALENZUELA, an individual, STEPHEN EVERSON an individual, ANGELA ACMOODY, an individual and DOES I through 10, inclusive, Defendants. Case N0. 1QCV358329 COMPLAINT FOR: 1. 2. >5 9°99 S"? VIOLATION 0F FEHA - HARASSMENT (GOV. CODE § 129400), ET SEQ.) VIOLATION 0F THE UNRUH CIVIL RIGHTS ACT (CIV. CODE § 51, ETSEQ.) VIOLATION 0F CALIFORNIA UNIFORM TRADE SECRET ACT (CIV. CODE §§ 3426, ETSEQ.) BREACH 0F CONTRACT BREACH 0F IMPLIED COVENANT 0F GOOD FAITH AND FAIR DEALING MISREPRESENTATION/CONCEALMENT NEGLIGENT MISREPRESENTATION INTENTIONAL INTERFERENCE WITH CONTRACT INTENTIONAL INTERFERENCE WITH PROSPECTIVE ADVANTAGE 10. NEGLIGENT INTERFERENCE WITH PROSPECTIVE ADVANTAGE 11. UNFAIR COMPETITION ACT (CAL. BUS. & PROF. CODE §§ 17200, ETSEQ.) ,1 2. DECLARATORY RELIEF DEMAND FOR JURY TRIAL COMPLAINT Case No. BERMAN NORTH LLP 2225 E. Bayshore Rd, Ste. 200, Palo Alto, CA 94303 Phone: (650) 320-1685 OKOOOQO\U!-b 11 12 13 I4 15 16 17 18 19 '20 21 22 23 24 25 26 27 28 Plaintiffs JOSEMITE IVS INC. (“Josemite”) and LONG NGUYEN (Nguyerfi) (collectively “Plaintiffs”), by and through their undersigned attorneys, hereby complain against Defendants FEDEX GROUND PACKAGE SYSTEM) INC. (“FedEx”), MICHAEL VALENZUELA (“Valenzuela”), STEPHEN EVERSON (“Everson”), ANGELA ACMOODY and DOES 1-1 0 (collectively “Defendants”) as follows: INTRODUCTION l. Plaintiffs owned and operated FedEx delivery routes in the San Francisco Bay Area. FedEx unreasonably, unlawfully, arbitrarily, discriminatorily, retaliatorily: (a) prevented Piaintiffs from selling their routes to qualified purchasers, (b) falsified performance numbers to set up Plaintiffs for termination, (c) terminated Plaintiffs" contracts, with FedEx and (d) otherwise acted to undermine, sabotage, destroy and ultimately confiscate Plaintiffs’ business. THE PARTIES AND JURISDICTION 2. Plaintiff Josemite is a California corporation with its principal place 0f business in Santa Clara County, California. Josemite contracted with FedEx t0 deliver FedEx packages to and pick up FedEx packages from residences and businesses in Hayward, San Jose, Santa Clara, Fremont, Milpitas and San Francisco. Josemite's entire revenue was derived from its contracts with FedEx. 3. PlaintiffNguyen is an individual, Vietnamese-Amcrican who résides in the Santa Clara Counfy, California and, at timeé, resided in Alameda Cofinty, Califomia. At all relevant times, Nguyen was sole owner and operator 0f Josemite. 4. Defendant FedEx is a Delaware corporation with its principal place 0f business in Los Angeles County, Califomia. FedEx outsources the last mile 0f its home and business delivery service t0 hundreds 0f small contractors around the country, such as Josemite. 5. Based on information and belief, Defendant Valenzuela is an individual who, at. all relevant times herein, resided in Alameda County, California. At relevant times, Valenzuela was the Senior Station Manager for FedEX’s distribution center in Hayward, California. COMPLAINT Case N0. BERMAN NORTH LLP 2225 E. Bayshore Rd, Ste. 200; P1110 Alto, CA 94303 Phone: (650) 320- 1 685 u OKOOOQQLh-bUJN N N N N N ix) N [\J N - y-t --t 'n- ---\ --t ~--l b-t v-t -A 00 V ON U1 $ W N H O \O 00 fl O\ U} A DJ N H 6. Based 0n information and belief, Defendant Everson is an individual who resides. and at all relevant times, resided in Alameda County, California. At all relevant times. Everson was the Senior Station Manager for FedEx’s distribution center in San Jose, California. 7. Based 0n information and belief, Defendant AcMoody is an individual Who resides, and at all relevant times herein resided, in the County 0f San Joaquin, California. AcMoody was and is FedEx’s District Managing Director for Northern California with oversight responsibilities for FedEx stations in this region. Valefizuela and Everson reported to ACMoody. 8. Plaintiffs are of the hue names and capacities of Defendants sued herein as DOES 1-10, inclusive, and therefore sue these Defendants by such fictitious names. Plaintiffs will amend this complaint to allege the true names and capacities of these fictitiously named Defendants when such infomxation is ascertained. Plaintiffs are infotmed and believe and thereon allege that each 0f the fictitiously named Defendants, DOES 1-1 0, inclusive, is responsible in some manner for the occurrences herein alleged, and that Defendants proximately caused Plaintiffs’ damages. 9. Each Defendant ratified, authorized, knew about, should have known about, and condoned the acts 0f each and evely other Defendant. GENERAL ALLEGATIONS A. FedEx Senior Station Managers Exercise Near Absolute Power Over Local Contractors 10. FedEx picks up and delivers packages around the world. As part 0f its global network, FedEx owns and operates local FedEx distribution stations. FedEx maintains several distribution stations in the Bay Area, including stations in Hayward, San Francisco, and San Jose. 1 I. FedEx contracts with and pays local contractors, such as Josemite, to pick-up packages from these distribution stations and deliver them to homes and businesses in a specified area or “route.” Contractors often invest their life savings, up to several million COMPLAINT Case N0. HERMAN NORTH LLP 2225 E. Bayshore Rd, Ste. 200, Palo Alto, CA 94303 Phone: (650) 320-1685 U.) OKDOOQQU‘I-b 11 12 13 14 15 16 17 18 I9 20 2] 22 23 24 25 26 27 28 dollars, t0 purchase rights from other contractors t0 sewice FedEx routes. Contractors work exclusively for FedEx. They are wholly dependent on FedEx for their livelihood. 12. Each distribution station is managed by a Senior Station Manager. The fate 0f any contractor rests in the hands of the Senior Station Manager. The Senior Station Manager has the ability t0 prevent contractors from selling their routes, falsify and manipulate contractors” performance numbers, arbitrarily subj ect contractors t0 discipline, and suspend and terminate contracts. They can cause contractors to forfeit their entire business. 13. As a condition ofworking for FedEx, local contractors must sign an ISP Agreement. Contractors have n0 power t0 negotiate terms. Josemite entered into several ISP Agreements with FedEx, including one for Hayward and one for San Jose. 14. In the ISP Agreements, FedEx promises to allow contractors to sell 0r “assign” their routes, transactions that may generate hundreds 0f thousands 0r several million dollars for the selling contractor. 15. Section 1.7 of the ISP Agreements provides, “Neither Party is authorized t0 assign this Agreement Without the prior written consent of the other, which consent Wil} not be unreasonably withheld. . .. The Party proposing the assignment shall notify the other Party in writing and the other Party Shall, within thirty days 0f being notified, notify the assigning party if its consent 0r lack of consent t0 the proposed assignment.” 16. Section 18.5 0fthe ISP Agreement provides: “all notice, request, demand and determinations under this Agreement. will be in writing.” It is FedEx’s policy, practice and custom, established in writing, orally and by conduct, that FedEx does not subject buyers t0 termination notices issued to the seller. 17. Section 10 0f the ISP Agreement prohibits FedEx from disclosing confidential information about Josemite, and Vice versa, including “non-public information about the other Party, the other Party’s business, the other Party’s business prospects and any other nonpublic information. . .. Neither Party may use the Confidential Information 0f the other Party, nor disclose the other Party’s Confidential Information t0 a third party.” COMPLAINT Case N0. RMAN NORTH LL'P 2225 E. Bayshorc Rd., Ste. 200, Palm Alto, CA 94303 w 4 BI! Phone: (650) 320-1685 OOOOVONUIAUJMH N N N N [\J [\J N N [\J -' --‘ - -~ pd --t --¢ --_t p-t - 00 N Q U} uh U) N “'" O IO m fl O\ U1 $ U) N P“ 18. Section 18.] incorporates “the Confidentiality and Non-Disclosure Agreement entered into in connection with the negotiations over this Agreement.” l9. Section 15.3, “Termination for Cause by Either Party” provides that “neither Party can unilaterally terminate this Agreement at will. Either Party may telminate this Agree for cause in the event the other Party commits a material brsach Ofthis Agreement. . The Parties must be afforded “an opportunity t0 cure.” Section 15.4 allows FedEx to extend the termination dates “one or more times not t0 exceed 52 weeks in total.” Further, FedEx has a policy, practice and custom, established in writing, orally and by conduct, to provide reasonable extensions 0f [elmination dates to enable contractors to sell routes. 20. Section 16.2 gives contractors the right to utilize an internal resolution process, calied the “Resolve.” It provides, among other things, “Within a reasonable period of time following receipt ofnotice, the Parties Will meet informally, either in person 0r by telephone, to attempt t0 resolve in good the Dispute.” In other documents, FedEx warrants: “If a service provider is unable t0 solve any 0f the above listed or similar problems with local management, the RESOLVE process is intended t0 provide service providers with the opportunity to escalate the issue. . .. Each complaint Will be thoroughly and confidentially investigated. Retaliation against any parties involved in. the inVestigation is prohibited and Will not be. tolerated.” 21. The ISP Agreements give contractors the right to decline t9 provide services for pick-ups scheduled after 6:30 p.m., for stops “where the package count exceeds 200 packages," 0r when contractor must “make special modifications t0 the Equipment[.]”).” Schedule A, Attachment A-2, Section 3. Further, “the Parties will have the mutual obligation t0 engage in negotiations in good faith if a change in the Services or Sefvice Offerings materially affects the reasonable costs incurred.” Id. at Section 5.3. Section 7 ailows contractors to subcontract services without penalty. 22. Schedule K applies t0 peak service, from mid-November t0 early-January, When package volume is significantly higher. During peak season, FedEx contracts with a company called Caflridge to assist with the increased volume and to provide back-up for the COMPLAINT Case N0. BERMAN NORTH LLP 2225 E. Bayshm‘e Rd, Ste. 200, Pulo Alto, CA 94303 Phone: (650) 320-1685 U.) OKOOOVOU‘I-h cure, and the contractor fails t0 cure. Section 4, provides that “in the event 0f regular contractors. FedEx cannot charge contractors for assistance provided by Caflridge unless the contractor is in breach 0f the Agreement, FedEx issues a notice of an opportunity to nonperformance by ISP ofits obligations” during peak periods, FedEx “may recover other costs incurred as a result of ISP’s breaches of this Agreement. . .. [FedEX] may be required to pay a premium t0 ensure service when ISP fails t0 Perform its Peak Service Obligations,” and ifFedEx “is required t0 utilize other services providers to ensure service, the measure 0f ISP’S ' liability to FedEx Ground shall be based on the amounts” paid by FedEx to ensure service. 23. The Schedule of Amendments provides, “the Parties agree t0 cooperate in good faith with each other and With other ISP by exchanging information, transferring service areas, and/or modifying the Expiration Date or Termination. Date of this Agreement.” B. Josemite Becomes One 0f The Most Successful FedEx Contractors In The Bay Area 24. J'osemite became a FedEx contractor in 2013. Through Josemite, Nguyen. purchased rights to service FedEx routes operating out 0f distribution stations in San Francisco, San Jose, Santa Clara, Fremont, Milpitas and Hayward. Nguyen grew his business t0 become one 0f the largest FedEx contractors in the Bay Area With over 52 separate routes and over 60 employees. Nguyen paid more than $2 million for those routes, trucks and other equipment, and invested more capita] as he grew his company over 5 years. 25. In addition to buying routes, Nguyen, at various times; sold routes t0 buyers. In August 20] 6, he sold 6 routes operating from San Francisco Station. In February 20} 7, he sold 7 routes operating from the Fremont Station. In May 2017, Nguyen sold another 6 routes operating from the Fremont Station. At those times, FedEx Senior Station Managers reviewed and approved most if not all 0f Nguyen’s proposed purchases and sales. They interviewed potfintial buyers, usually just once or twice at the most, then approved the buyers within one 0r two weeks 0f the interview. 26. By mid-ZOI 7, Nguyen still owned and operated about 29 routes, 9 operating out of Hayward and 20 operating out San Jose Station. COMPLAINT Case No. BERMAN NORTH LLP 2225 E. Bayshore Rd., Ste. 200, Palo Alto, CA 94303 Phone: (650) 320- 1 685 ©00QO\UI-§UJN._A [\J N N N N h) N N [\J -‘ --‘ '-‘ >-‘ -I --‘ ’-- >--- I-t _A m ‘4 Q (J1 $ W N H O \O 00 ‘4 a U1 h U3 N '-‘ O C. Hayward Senior Station Manager Sabotages Nguyen’s Attempts T0 Sell His Routes 27. In October 201 7, Nguyen’s life changed when Michael Valenzuela became the Senior Station Manager at Hayward. Nguyen had been in the process 0f selling his remaining Hayward routes. Nguyen presented one qualified buyer after another to Valenzuela. Valenzuela made sure Nguyen couid not sell. 28. First, Valenzuela made buyers sit for multiple interviews t0 delay the sale and. discourage buyers from completing the transaction. One buyer had to interview 6 times; another interviewed 3 times. Second, Valenzuela delayed making any decision about the buyer until the buyers simply gave up. Valenzuela strung along one buyer for 6 months before he gave up and another for 4 months. Third, Valenzuela provided confidential, false and/or damaging information, including information relating to Josemite’s business operations, equipment, employees, and services, t0 discourage buyers from completing the transactions. Fourth, when the multiple interviews, long delays, and false information did not work, Valenzuela rejected buyers outright. FedEx did not sabotage or prevent non-Asian, non-Viemamese-Amcrican contractors from selling routes during this time period. 29. For example, in August 201 8, Chintal Patel agreed to purchase Nguyen’s routes in Hayward. Around the same time, Valenzuela told Nguyen t0 disqualify and terminate one ofNguyen’ s hardest W01king and most trusted drivers Ernesto Lopez Nguyen challenued the disqualification through the Resolve process. On Septembel 28 2018, FedEx headquarters found m Nguyen s favor and reversed the disqualification order. 30. FedEx made no attempt to keep the complaint confidential. Valenzuela immediately retaliated. On October 4, 201 8, Valenzuela orally informed Nguyen that he was rejecting Pate]. He explained, “You didn’t think there would be repercussions for Emesto’s repeal?” Nguyen responded, “What does that have t0 d0 with our buyer being rejected?” Valenzuela was silent. 3]. Again, invoking the Resolve process, Nguyen challenged Valenzuela’s rejection of the sale onguyell’s routes to Patel. Again, FedEx headquarters found in Nguyen’s favor. They ordered Vaienzuela to re-open the case and re-interview Patel. 7COMPLAINT Case No. BERMAN NORTH LLP 2225 E. Bayshm‘e Rd., Ste. 200, P2110 Alto, CA 94303 Phone: (650) 320-1685 pa OOOOVOU‘I-QUJN g fl O\ U! A DJ N H O \O 00 fl O'\ {.h A U) N ’-‘ Furthen t0 prevent Valenzuela from sabotaging the deal, FedEx headquarters gave Nguyen the riglfi to attend that intewiew. 32. However, in November 201 8, when the follow up interview took place (Patel’s fifth 0r sixth interview), Valenzuela defied these instructions and excludad Nguyen from the interview room. During the interview, Valenzuela and David Louie, a FedEx manager, falsely told Patel that, if Patel purchased the routes, FedEx would not renew the contract and Patel would lose his entire investment. Unsurprisingly, Patel thereafter declined t0 proceed with the purchase. 33. Nguyen complained t0 Angela AcMoody (“AcMoody”), the District Managing Director for Northem California, about Valenzuela’s continuing and successful efforts t0 sabotage Nguyen’s sale to Patel and Valenzuela’s defiance of orders from FedEx headquarters. AcMoody laughed. Then she confirmed Valenzuela’s message that, if Patel purchased the route_sLhe would lose his entire investment at thmd 0f the contract. 34. With FedEx’s highest-level manager in Northern Ca'lifomia supporting this abuse, Nguyen stated that he might as well abandon his Hayward routes. He explained that Valenzuela was never going t0 let him sell and he would lose everything anyway. AcMoody begged Nguyen t0 stay. She pleaded with him to service his routes through the peak season in December 201 8. Repeatedly, AcMoody promised t0 allow Nguyen t0 sell his routes in January 2019 to whomever he wanted ifNguyen stayed through December. Nguyen believed her. D. FedEx Senior Station Managers Conspire T0 Set Up Josemite For Termination 35. During that same period, Defendants proceeded to set up Josemite for termination. Defendants schemed t0 sabotage and falsify Josemite’s service scores during peak season, falsely accuse Josemite of not meeting unidentified obligations, terminate all its contracts, prevent Plaintiffs from selling their routes, issue a punitive invoice in an amount so high Plaintiffs could never pay, then offer t0 withdraw that invoice 0r allow Plaintiffs t0 sci! their routes but if and only if Plaintiffs release all their claims against FedEx. COMPLAINT Case N0. BERMAN NORTH LLP 2225 E. Bayshm-e Rd, Ste. 200, Pale Am CA 94303 Phone: (650) 320-1685 OOOOQONUIALNNM ~HH#--§Hb-a-a.-A OOQQMAUJNF‘ 36. FedEx’s plan t0 set-up, terminate and obtain a release from Plaintiffs was executed as follows. First, Without cause and without Plaintiffs’ consent, Valenzueia assigned Cartridge t0 assist 0n one 0f Josemite’s easiest routes. Nguyen didn‘t ask for the assistance and he didn’t need it. For every package delivered by Canridge, station managers recorded that package as having been abandoned by Josemite, thereby falsely reducing Josemite’s service scores. Based on information and belief, station managers changed and falsified other codes to the same effect. They also insisted that Josemite make late deliveries and service stops with 400 0r more packages, Which reduced sewice scores as well. 37. Second, having set up and sabotaged Josemite, Valenzuela and Everson promptly issued, on December 20 and 24, 201 8, notices 0f opportunity t0 cure. The notices vaguely stated that Josemite was “not meeting contractual obligations.” The notices did not identify (other than a vague reference t0 “service”) which contractual, obligations Nguyen had purportedly failed to meet, how Nguyen had failed to meet them, Which documents, numbers or data supported the determination: 0r what Nguyen needed t0 d0 t0 cure the unidentified and unsupported contractual obligations. Josemite historically had some 0f highest services levels at both stations. The company was in full compliance with all contractual service requirements. Further, non-Asian, non-Vietnamese-American contractors Who we're not in compliance with service levels and/or who had far lower service scores than Josemite did not receive similar notices during this period. 38. The notices ordered Nguyen to cure all unidentified contractual breaches in two weeks 0r iose his entire business. Those two weeks spanned one 0f the busiest times 0f year. Nevertheless, Everson falsely assured Nguyen that he had nothing to worry about concerning his San Jose routes, that the opportunity t0 cure notice was just a formality and that nothing would come 0f it. Nguyen believed him. 39. Two weeks later, in January 2019, Valenzuela and Everson issued notices that all 0f Nguyen’s routes were being subjected to “termination review." The notices revealed nothing concerning the purported basis for termination review. Again, non-Asian, non- Vietnamese-American contractors who were not in compliance with service levels and/or who COMPLAINT Case N0. BERMAN NORTH LLP 2225 E. Bayshore Rd.. Ste. 200, P2110 A110, CA 94303 Phone: (650) 320-1685 p-A N NNNNNN-DH-‘b-ay-A-adb-A‘d had far lower service scores did not receive termination review notices during this period. Again, Josemite’s real service numbers fully complied with and exceeded contract benchmarks. Again, Everson gave the same false assurances t0 Nguyen. 40. On March 8, 2019, Valenzuela issued a false invoice t0 Josemite for $140,000, purportedly t0 pay Cartridge to service Josemite’s easiest route for a few weeks. To put this in perspective, Josemite’s profits during the same period, delivering about 10 times as many packages, was l/IOth 0f the invoice amount - about a 10,000% premium. The invoice, as charged, sought to erase any profit Josemite might have earned at Hayward for 201 8. Non- Asian, non-Vietnamese-American contractors who received the same 0r more assistance from Cartridge were charged nothing or just a small fraction 0f the amount charged to Josemitc. 41. Sometime in 0r around March 201 9, Valenzuela’s employment at the FedEx Hayward Station ended. But he made sure his second-in-command, Mike Clausong issued the final termination notice. On March 27, 201 9, Clauson and Everson notified Nguyen that a1] 0f Josemite’s contracts in all stations are terminated effective, April 26, 2017. The notice provided n0 explanation. Non-Asian, non-Vietnamese-American contractors who were not in compliance with service levels and/or who had far lower service scores were not terminated during this period. Further, based on information and belief, only two other contractors were terminated at the Hayward and San Jose stations during the relevant time period and both were Asian. E. FedEx Senior Station Managers Prevent Nguyen From Selling His Routes T0 Ensure He Loses Everything 42. In Januaxy 20 1 9, Nguyen endeavored to sell his Hayward routes based 0n AcMoody’s promises to allow him to d0 so. Nguyen presented a ready, willing and able buyer, Sal Raj. However, When Raj interviewed, Valenzuela told him not t0 buy at that time. Instead, Valenzuela told him t0 wait a month or two, at which point FedEx would offer t0 pay 50% more than What it was paying Josemite. 43. After waiting, Raj met with Valenzuela in 0r around March 201 9. At that point, Valenzuela told Raj the truth -- FedEx would not pay him anything extra. Raj backed 10 COMPLAINT Case No. 200, P2110 Alto, CA 94303 .RM'AN NORTH LLP hone: (650) 320-1685 LI?B 2225 E Bay hon: Rd, Ste. OOOOQO‘NUI-hww I] 12 13 I4 15 l6 l7 18 19 20 21 _ “2,2. 24 25 26 27 28 out 0f the deal. Nguyen lost all the routes. Fedex gave the routes to Valenzuela’s friend. Mike Wilkens. Wilkens paid $0 for them. 44. '[n San Jose, Everson confirmed that the termination ofJosemite’s contract in San Jose was real, would take effect, and would not be extended. Everson further stated that FedEx would subject the new buyer to Josemite’s termination deadline, thereby causing any buyer t0 forfeit the purchase several weeks afterwards. Everson stated, “I asked Robert Raveio, and you cannot sell a contract. Your buyer has t0 understand that they Will be buying your contract that will be terminated in 3O days.” Everson filrther explained that, in any event, Nguyen had n0 time t0 sell anyway. He stated, “I can start the AIM [transfer] process but you have 30 days for them t0 complete the process, and it usually takes 45-60 days to finish.” 45. AcMoody said the same thing. She stated, “You are welcome t0 bring in buyers but understand we will not extend the termination date and that buyer will need to understand that they are buying a contract that will expire in 30 days.” Robert Ravelo, the District Contractor Relation Manager, repeated the same position. 46. AcMoody later told Nguyen that he could sell, but only to an existing FedEx. contractor. Existing contractors generally only buy at heavily discounted prices. AcMoody, Ravelo and Eversonfioncealemmt they had already decidethfWIflEnguyen’s contracts - Rafino Lujano 0r Christian [last name unknown]. Not knowing the tmth, Nguyen scrambied t0 find interested contractors. AcMoody and Everson rejected or sabotaged each one. - 47. Eversofi :and 0thér FedEx emialoyees remained in secret communication with their hand-selected contractors. They gave these contractors confidential information concerning Nguyen‘s debt, business operations, employees and/or sewice. Further, one FedEx employee, Jeremy, had Rafino sign a guarantee that Rafino would service Nguyen’s routes while Nguyen continued t0 negotiate with Rafino. Rafino knew he could dictate the terms 0f any sale and he did. I 1COMPLAINT Case N0. BERMAN NORTH LLP 2225 E. Bayshore Rd, Ste. 200, Palo A110, CA 94303 Phone: (650) 320-1685 .__A OKCOOQO‘NUIbWN N NNNNNN-id-A-dfl-‘flfldfl gflgmAWNHOOOOQO\Lh-hWNH-‘ 48. Everson agreed t0 extend Nguyen"s contract by one month. b‘ul' only t0 seli E0 Rafino. However, after granting the extension, on May 2, 201 9, Everson threatened to cancel the deal and force Nguyen t0 pay the $140,000 invoice unless Nguyen agreed t0 pay $25,000 and sign a document entitled, “Confidential Agreement and General Release,” not just t0 resolve FedEx’s false invoice but t0 release all 0f Plaintiffs’ claims against FedEx, including those arising from the unlawful texmination. Nguyen declined. When that failed, 0n May 24, 201 9, FedEx employee, Oscar Martinez, at Everson’s direction, handed a document to Nguyen with the instructions that the form needed t0 be signed as a normal part of the sale process. The document, entitled “Mutual Termination,” was a ruse t0 get Nguyen to state that the termination was “mutual” and thereby nullify most 0f his claims against FedEx. FIRST CAUSE OF ACTION HARASSMENT IN VIOLATION 0F FEHA (Cal. GOV. Code § 129400)(] )) (Nguyen V. FedEx, Valenzuela, Everson, AcMoody and Does 1-] O) 49. The allegations set forth in all proceeding paragraphs 0f this Complaint are hereby inCOIporated by this reference as if fully set forth again herein. 50. California Govemment Code § 1294OG)(1) prohibits any “employer” 0r “any other person” from harassing “a person providing services pursuant to contract” based 0n race, color, national origin, or ancestry. 5 l. As alleged above, Defendants harassed Nguyen based on his race (Asian), national origin (Vietnam), and ancestry (Vietnamese) by, among other things: sabotaging - efforts t0 sell routes, providing false information t0 buyers, providing confidential information to buyers, falsifying service numbers, imposing punitive fees, mispresenting and concealing material facts, denying contractual rights, issuing notices t0 cure, terminating contracts, refusing t0 provide extensions, issuing fraudulent invoices, attempting t0 extort and/or deceive Plaintiff into releasing claims. 52. As a direct and foreseeable result 0f Defendants’ unlawful harassment, Plaintiff has suffered, and will continue t0 suffer, generally physical, mental and 12 COMPLAINT Case No. RMAN NORTH. LLP 2225 E. Bayshore Rd, Ste. 200: Palo Alto, CA 94303 V ‘4 BF Phone: (650) 320-1685 w O&OOOQQUIAUJN mfiambWN-O‘OOOQQUI-fiwt)“ psychological damages in the form 0f extreme and enduring worry, suffering, pain, humiliation, embarrassment, mental anguish and emotional distress. 53. As a result 0f Defendants' unlawful discrimination, Plaintiff has been injured in that he has suffered, and wiH continue to suffer, the loss of revenue, profits, earnings, capital gains, goodwill and business opportunities. 54. Defendants acted maliciously, fraudulently, despicably, and oppressiveiy, with the wrongful intention of injuring Plaintiff, from an improper motive amounting t0 malice, and in conscious disregard 0f Plaintiff's rights, and the persons Who committed the uniawful acts described herein were officers, directors and/or managing agents 0f Defendants and were acting within the scope of his, her or their employment. Plaintiff is entitled t0 recover punitive damages from Defendants in amounts to be proved at trial. 55. As a result 0f Defendants’ acts 0f harassment, Plaintiff is entitled t0 reasonable attorney‘s fees and costs 0f suit pursuant to Government Code § 12965(b). 56. Plaintiff therefore prays for relief as set forth below. SECOND CAUSE OF ACTION DISCRIMINATION IN VIOLATION 0F UNRUH CIVIL RIGHTS ACT (Cal. Civ. Code § 51) (Nguyen V. FedEx, Valenzuela, Everson, AcMoody and Does 1-1 0) 57. The allegations set forth in all proceeding paragraphs 0f this Complaint are hereby incomorated by this reference as if fully set forth again herein. 58. The Unruh Civil Rights Act (“Unruh Act”), provides that all persons Within Califomia are free and equal, and “n0 matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, Citizenship, primary language, 0r immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, 0r services in all business establishments 0f every kind whatsoever” within the jurisdiction of California. Cal. Civ. Code § 5} (b) 59. Defendant FedEx is a business establishment within the jurisdiction of the state 0f California and obligated to comply with the provisions ofthe Unruh Act. I3 COMPLAINT Case No. BERMAN NORTH LLP 2225 E. Bayshm‘e Rd., Ste, 200, P2110 Alto, CA 94303 Phone: (650) 320-1685 OOOOQOUIAUJN-d OO‘QQM-hWNNOCOOQONL-hhwtg“ 60. As described above. Defendant FedEx discriminated against Nguyen 0n account 0f his race (Asian), national origin (Vietnam) and ancestry (Vietnamese) by, among other things, sabotaging effons t0 sell routes, providing false infomwation t0 buyers, providing confidential information t0 buyers, falsifying service numbers, sabotaging service efforts, imposing punitive fees, misrepresenting/concealing material facts, denying contractual rights, issuing notices to cure, notice of termination review, and terminating contracts, g‘efusing to provide extensions, issuing fraudulent invoices, and attempting t0 extort and/or deceive Plaintiff into releasing claims. 61. As a result 0f Defendants’ unlawful discrimination, Plaintiff has suffered, and will continue t0 suffer, generally physical, mental and psychological damages in the fonn 0f extreme and enduring worry, suffering, pain, humiliation, embarrassment, mental anguish and emotional distress. 62. As a result of Defendants” unlawful. discrimination, Plaintiff has been inj ured in that he has suffered, and will continue to suffer, the loss 0f revenue, profits, earnings, capital gains, goodwill and business opportunities. 63. Plaintiff seeks up to three times the amount of actual damages and/or statutory damages pursuant to Cal. Civ. Code § 51(21). 64. Plaintiff seeks any attorney’s fees and costs pursuant to Cal. Civ. Code § 51 (a) 65. Plaintiff therefore prays for relief as set forth below. THIRD CAUSE OF ACTION MISAPPROPRIATION OF TRADE SECRETS (Cai. Civ. Code § § 3426, et seq.) (Josemite v. FedEx, Valenzuela and Does 1-] 0) 66. The allegations set ford} in all proceeding paragraphs 0f this Complaint are hereby incorporated by this reference as if fully set forth again herein. 67. Plaintiff owns and possesses certain confidential, proprietary, and trade secret information, as alleged above, including information about Plaintiff’ s business operations, prospects, service history, employees, equipment, debt, expense, profits, customer feedback, and notices and informal complaints by Plaintiffs. 14 COMPLAINT Case N0. BERMAN NORTH LL'P 2225 E. Bayshore Rd, Ste. 200; Palo Alto, CA 94303 Phone: (650) 320-1685 OKOOOQONUIAUJNM‘ NNNNNNNNN-‘F‘h-‘h-HH-H-t-l OGQONUl-RWNHOQOOQOU‘I-PMNH 68. Plaintiff took reasonable steps t0 protect and maintain the secrecy 0f its trade secrets, including Without limitation, by not disclosing this information except pursuant to confidentiality agreements, by not disclosing this infomlation t0 employees, contractors 0r anyone else, by storing such information on electronic files prbtected by passwords and other security features;,and by accepting FedEx’s repeated statements that FedEx employees would not disclose such information t0 any other contractor 01' any prospective buyer, and that FedEx employees would maintain the strict confidentiality of such infonnation. 69. AS described above, Defendants disclosed and improperly used the trade secrets without Plaintiff’s knowledge 0r consent to other contractors and potential buyers. 70. As a result of Defendant’s conduct, Plaintiffhas been injured in that it has suffered, and will continue t0 suffer, the loss 0f revenue, profits, earnings, capital gains, goodwill and business oppoflunities. 71. Defendants’ conduct was willful, malicious and fifaudulent. Plaintiff is entitled t0 exemplary damages under California Civil Code § 3426.3(6). 72. Plaintiff is entitled to an award of attomeys’ fees for Defendants’ misappropriation of trade secrets, pursuant to California Civil Code § 3426.4. 73. Plaintiff therefore prays for relief as set forth below. FOURTH CAUSE OF ACTION BREACH OF CONTRACT . (.Toscmite v. FedEx and Does 1-10) 74. The allegations set forth in all preceding paragraphs 0f the Complaint are re- alieged and incorporated herein by reference. 75. Plaintiff entered into agreements With FedEx, partially in writing, partially orally, and pafiially implied by conduct. Among other things, as described above, FedEx agreed to act in good faith to resolve complaints; maintain the confidentiality of complaints; not retaliate against contractors for making complaints; not unreasonably withhold consent to sales ofroutes; provide timely and written notices regarding proposed sales; maintain confidentiality of contractor’s confidential information; not impose the sellers’ termination notices 0n the buyers; allow contractors t0 decline certain stops and pickups; properly enter .15 COMPLAINT Case N0. BER AN NORTH LLP 2225 E. Bayshm Rd Ste. 200, P1110 Alto, CA 94303 Maj: {6 0) 320-1685 5 pd OKOOONQU‘I-hWN I\.) [\J N N [\J N N )--- --- _u --i p-n -_. p... H ,-. H codes for undelivered packages; negotiate in good faith if service requirements change materially; obtain written consent before re-assigning routes; provide written notice 0f any breach that requires re-assignment at contractor’s cost; limit costs 0f reassignments t0 actual amounts paid; provide reasons in writing for notices of opportunity t0 cure, termination review or termination; allow contractors the opportunity to cure alleged breaches; terminate contracts only for cause; and cooperate in good faith regarding extensions t0 termination dates. 76. Josemite performed all terms, conditions and covenants t0 be performed by the Agreement, excepfi‘onhose terms, conditions and covenants Werformance 0f which were excused, waived 0r prevented by the Defendants. 77. Defendants breached the Agreements by, among other things, the following: a. Informal Complaint Process: Failing to act in good faith t0 resolve complaints; failing to maintain the confidentiality of complaints; defying resolutions 0f complaints; and retaliating against Plaintiff for making complaints. b. Sales of Routes: Unreasonably withholding consent t0 sales and assignments proposed by Plaintiff; failing to provide timely or written notices 0f the decision t0 consent 0r not cogent to sales; disclosing confidential information concerning Plaintiffs business to prospective buyeré and other contractors; and subj ecting prospective buyers t0 termination notices issued t0 Plaintiff. c. Service Obligations: Entering false codes for undelivered packages; entering false codes for packages delivered by supporting contractor; requiring Plaintiff t0 service stops with more than 200 packages and pickups after 6pm; failing t0 negotiate in good faith concerning changes in service requirements; re-assigning routes without written notice) without consent and without cause; and overcharging for such reassignments. 16 COMPLAINT Case No. u... d. Termination: Failing t0 provide written notice 0f alleged breaches t0 support notice 0f opportunity to cure, termination review or termination; failing t0 allow opportunities t0 cure any alleged breach; terminating contracts without cause; and failing t0 cooperate in good faith regarding extensions of termination dates. 78. As a result 0f Defendants” conduct, Plaintiffhas been injured in that it has suffered, and will continue to suffer, the loss 0f revenue, profits, earnings, capital gains, BERMAN NORTH LLP 2225 E. Bayshore Rd, Ste. 200, Palo Alta CA 94303 Phone: (650) 320-1685 OOOOQOUI-QUJN N N N N N C‘s) N N [\J --- - p-x 3-- _- - H 5-. - H 00 \J ON U1 A U) N ”'- 0 \o 00 V C\ U1 fi W [\J H goodwill and business opportunities. 79. Plaintiffs therefore pray for relief as set forth below. FIFTH CAUSE OF ACTION BREACH OF IMPLIED COVENANT OFGOOD FAITHAND FAIRDEALING (Josemite V. FedEx and Does 1-] 0) 80. The allegations set foflh in all preceding paragraphs of the Complaint are re~ alleged and incorporated herein by reference. 8 1. The Agreements, like every contract, contain an implied covenant 0fgood faith and fair dealing that obligates each party t0 perform the telms and conditions of the contract fairly and in good faith and to refrain from doing any act that would deprive any other party Ofthe benefits 0f the contract. 82. Josemite perfommd all terms, conditions and covenants t0 be performed by the ISP Agreement, except for those terms, conditions and covenants the performance 0f which were excused, waived or prevented by the Defendants. 83. Defendants breached the covenant of good faith and fair dealing by, among other things: a. Informal Resolution Process: Failing to act in good faith t0 resolve complaints; failing to maintain the confidentiality 0f complaints; defying resolutions 0f complaints; and retaliating against Plaintiff for making complaints b. Sale 0f Routes: Unsreasonably withholding consent to proposed sales; rejecting buyers t0 retaliate against Plaintiff for making informal l7COMPLAINT Case No. HERMAN NORTH LLP 2225 E. Bayshm'e Rd, Ste. 200, Palo Alto, CA 94303 Phone: (650) 320-1685 AWN LII OKDOOQQ 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84. fair dealing, Plaintiffhas suffered, and continues t0 suffer, losses and damages, in addition t0 consequential damages. 85. complaints; subjecting buyers t0 multiple interviews‘ delaying decisions about buyers, and giving false and/or confidential information to buyers to sabotage sales; falsely promising to allow Plaintiff t0 sell routes; providing false and conflicting information concerning which contractors could buy routes; imposing Plaintiff’s termination notices on prospective buyers; refusing t0 provide reasonable extensions of the termination date for Plaintiff to sell his routes; disclosing confidential information to favored buyers; threatening to cancel sales if Plaintiff did not pay a false invoice and release claims against FedEx. c. Service Obligations: Entering false codes for undelivered packages; entering false codes for packages delivered by supporting contractor; requiring service 0f stops with more than 200 packages and pickups after 6pm; failing to negotiate in good faith concerning changes in service requirements; re-assigning routes without written notice, without consent and without cause; and imposing false and exorbitant charges for such reassignment. d. Termination Process: Tenninating contracts Without cause; using false information to issue notice 0f opportunity t0 cure; failing {0 provide opportunity to cure alleged breaches of contract; falsely representing that notice t0 cure and then termination review notice would be Withdrawn; concealing the alleged basis for the notices t0 cure, notices 0f termination review and notices of termination; failing to provide reasonable extension of termination of date; threatening t0 cancel sales if Plaintiff sign document stating that termination was mutual. As a result of Defendant’s breach of the implied covenant 0f good faith and Plaintiff therefore prays for relief as set forth below. COMPLAINT I8 Case No. RMAN NORTH LLP 2225 E. Bayshore Rd,, Ste. 200: P2110 Alto, CA 94303 1 4 BB Phone: (650) 320-1685 N OKOOOQONUIAUJ N NNNNNMN-aH-aH-u-t-~-«~ mgmmgmmmocooxlcxmAwm~ SIXTH CAUSE 0F ACTION INTENTIONAL MISREPRESENTATION, CONCEALMENT AND FALSE PROMISE (Josemite and Nguyen V. FedEx, Valenzuela, AcMoody, Everson and Does 1-1 0) 86. The allegations set forth in ail preceding paragraphs 0f the Complaint are re- alleged and incorporated herein by reference. _ 87. As described above, Valenzuela concealed his intent to prevent Plaintifffirom selling routes; concealed his intent to falsely code the suppom'ng contractor‘s deliveries as non-deliveries by Plaintiff; and concealed his intent to charge an exorbitant fee for work performed by the suppofiing contractor. 88. AS described above, .in November 2019, AcMoody falsely promised t0 allow Plaintiff to sell his Hayward routes in January 201 9 if he remained with FedEx through December 201.8. AcMoody concealed that she had n0 intent 0f allowing Plaintiff t0 sell his Hayward routes at any time. 89. As describe above, Everson falsely assured Nguyen that the notices 0f opportunity t0 cure and termination review for the San Jose routes were nothing t0 wony about, that they were just formalities and that Nguyen would be fine. Everson concealed that Nguyen was being set up for an actual tennination 0f his San Jose routes. 90. As described above, ACMoody, Everson and Ravelo falsely represented that Plaintiff could not sell his San Jose routes t0 an outside buyer; falsely represented that any new buyer would be subjected to Plaintiff‘s termination date; falsely represented that Plaintiff could only sell t0 a qualified existing contractor; then later falsely represented that Plaintiff could sell t0 an outside buyer; and concealed that they would not approve any sale except to one of two hand-selected contractors. 91. Had Plaintiff known the truth, Plaintiffwould have escalated his grievances t0 FedEx headquarters to challenge the notices of opportunity t0 cure, to challenge the termination review notices, and t0 challenge the decision by Senior Station Managers t0 use all means available t0 prevent Plaintiff from selling his routes. Alternatively, Plaintiffwould have notified FedEx of its multiple material breaches of contract and not serviced the Hayward routes through December 201 8. 19COMPLAINT Case N0. ._A 92. The representations, concealed facts and false promises were material. Defendants knew they were untrue; they were reckless as t0 the tmth at the time these statements were made; and did not intend t0 honor the promises When made. Defendants concealed and failed t0 disclose the truth‘ Defendants had a duty to disclose the true facts because they participated in the fraudulent and misleading statements. 93. Plaintiff was unaware that Defendants” statements were false and was unaware of the true facts. Plaintiff acted in justifiable reliance on Defendants’ false statements, false promises, concealment and non-disclosure. 2 3 4 5 6 7 8 9 10 11 12 i 13 < Egg 14 5;: 15 Eéia’oi 18 m5 m: 19 5‘3 20 21 22 23 24 25 26 27 28 94. As a result 0f Defendants’ conduct, Plaintiffs has been injured in that they have suffered, and will continue t0 suffer, the loss ofrevenue, profits, earnings, capital gains, goodwill and business opportunities. 95. As a direct and legal result 0f Defendants’ misconduct, PlaintiffNguyen has suffered and continues to suffer severe emotional and mental distress and anguish, humiliation, embarrassment, fright, shock, pain, discomfort and anxiety. 96. Defendants personally committed the unlawfill acts described above With oppression, fraud and/or malice justifying punitive damages. Each Defendant was despicable and each Defendant acted towards Plaintiffs with malice, oppression, fraud, and with a willfixl and conscious disrgga_rd of Plaintiffs’ rights. In addition, an Qffiger, director, and/or managing agent of Defendants were personally guilty of the conduct; and/or Defendants authorized and/or ratified the foregoing conduct, entitling Plaintiffs to pfinitive damages. 97. Plaintiffs therefore pray for relief as set forth below. SEVENTH CAUSE OF ACTION NEGLIGENT MISREPRESENTATION (Josemite and Nguyen V. FedEx, Valenzuela, AcMoody, Everson and Does 1-10) 98. The allegations set forth in all preceding paragraphs of the Complaint arc re~ alleged and incorporated herein by reference. 99. AS described above, in November 20] 9, AcMoody falsely promised to allow Plaintiff to sell his Hayward routes in January 20] 9 if he remained with FedEx through December 201 8. As described above, Everson falsely assured Nguyen that the notices 0f 20 COMPLAINT Case N0. BERMAN NORTH LLP 2225 E. Bayshore Rd., Ste‘ 200: P1110 Alto, CA 94303 Phone: (650) 320-1685 H OOOOQONU‘AUJN N N N N N IQ N N [\J --- --A --‘ >-- --A y-t H h- --a - m fl Q U1 g UJ N W o \O m fl O\ LI‘I 43 U) N *-‘ opportunity to cure and termination review for the San Jose routes were nothing to worry about, that they were just formalities and that Nguyen would be fine. 100. As described above, AcMoody, Everson and Ravelo falsely represented that Plaintiff could not sell his San Jose routes t0 an outside buyer; falsely represented that any new buyer would be subjected t0 Plaintiffs termination date; falsely represented that Plaintiff could only sell t0 a qualified existing contractor: then later falsely represented that Plaintiff could sell to an outside buyer. 101. Had Plaintiff known the truth, Plaintiffwould have escalated his grievances t0 FedEx headquarters to challenge the notices 0f Opportunity to cure, to challenge the termination review notices, and to challenge the decision by Senior Station Managers to use all means available to prevent Plaintiff from selling his routes. Alternatively, Plaintiffwould have notified FedEx 0f its multiple material breaches 0f contract and not serviced the Hayward routes through December 201 8. 102. The representations were material. Defendants were negligent as to the truth and had n0 legitimate basis for believing the statements were- true at the time these statements were made. Plaintiffs were unaware that Defendants’ statements were false and were unaware- of the true facts. Plaintiffs acted in justifiable reliance 0n Defendants’ false statements and false promises. 103. As a ljesult of Defendants’ conduct, Plaintiffs have been injured in that they have suffered, and will continue t0 suffer, the loss ofrevenue, profits, earnings, capital gains, goodwill and business opportunities. 104. As a direct and legal result ofDefendants’ misconduct, Plaintifnguyen has suffered. and continues t0 suffer. severe emotional and mental distress and anguish, humiliation, embarrassment, fright, shock, pain, discomfort and anxiety. 105. Defendants personally committed the unlawful acts described above with oppression, fraud and/or malice justifying punitive damages. Each Defendant was despicable: and each Defendant acted towards Plaintiff with malice, oppression, fraud, and with a willful and conscious disre ard of Plaintiffs’ ri hts. In addition, an officer, director, and/or mana ing g g g 21 COMPLAINT Case N0. BERMAN NORTH LLP 2225 E. Bayshm'e Rd., Ste. 200, P2110 Alto, CA 94303 Phone; (650) 320-1685 d OKDOOVQUIAUJN NNNNNNNNNflh-AHi-dr-I-A-Ah-xyfl OO‘QQM-hWNHOKOOOflONLthNH agent 0f Defendants were personally guilty 0f the conduct; and/or Defendants authorized and/or ratified the foregoing conduct, entitling Plaintiff t0 punitive damages. 106. Plaintiff therefore prays for relief as set forth below. EIGHTH CAUSE OF ACTION INTENTIONAL INTERFERENCE WITH CONTRACT (Josemite and Nguyen V. FedEx, Valenzuela, AcMoody, Everson and Does 1-1 O) 107. The allegations set forth in all preceding paragraphs 0f the compiaint are re- alleged and incorporated herein by reference. 108. Plaintiffs entered into contracts t0 sell routes t0 various buyers‘ Defendants had knowledge 0f the contractual relationship between Plaintiffs and buyers. 109. Defendants intentionally interfered with these contracts by, among other things, giving false and/or confidential information t0 buyers t0 discourage them from buying routes; subjecting buyers t0 multiple interviews and indefinite delays to discourage them from buying; rejecting buyers to retaliate against Plaintiffs for making complaints; issuing opportunity t0 cure notices, termination review notices and termination notices, all without cause, to prevent Plaintiffs from selling routes; subjecting buyers t0 termination notices issued to Plaintiffs; giving false information to Plaintiff about which buyers FedEx would approve; refilsing t0 allow Plaintiffs to sell routes an outside buyer; falsely telling Plaintiff he could only sell t0 existing FedEx contractors, and refusing t0 provide reasonable extensions t0 sell routes. 1 10. As a result 0f Defendants’ conduct, Plaintiffs have been injured in that they have suffered, and will continue t0 suffer, the loss 0f revenue, profits, earnings, capitai gains, goodwill and business opportunities. 11]. As a direct and legal result 0f Defendants’ misconduct; PlaintiffNguyen has suffered, and continues to suffer, severe emotional and mental distress and anguish, humiliation, embarrassment, fright, shock, pain, discomfort and anxiety. 112. Defendants personally committed the unlawfill acts described above With oppression, fraud and/or malice justifying punitive damages. Each Defendant was despicable and each Defendant acted towards Plaintiff With malice, oppression, fraud, and with a willful 22 COMPLAINT Case N0. HERMAN NORTH LLP 2225 E. Bayshore Rd, Ste. 200: Pale Alto, CA 94303 Phone: (650) 320-1685 O©OOQONUI%UJN-J NNNNNNNfiHH-~-~Hp-k and conscious disregard 0f Plaintiffs” rights. In addition, an officer, director, and/or managing agent of Defendants were personally guilty of the conduct; and/or Defendants authorized and/or ratified the foregoing conduct, entitling Plaintiff t0 punitive damages. 1 13. Plaintiff therefore prays for relief as set forth below. NINETH CAUSE OF ACTION INTENTIONAL TNTERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE (Josemite and Nguyen V. FedEx, Valenzuela, AcMoody, Everson and Does 1-1 0) I I4. The allegations set forth in all preceding paragraphs 0f the complaint are re- alleged and incmporated herein by reference. l 15. Plaintiffs had a prospective economic advantage with certain buyers who intended to purchase FedEx routes from Plaintiffs. Defendants had knowledge of the relationship between Plaintiffs and the buyers and Plaintiffs’ prospective economic advantage in that relationship. 1 .16. Defendants intentionally interfered with this prospective economic advantage by, among other things, giving false and/or confidential information t0 buyers to discourage them from buying routes; subjecting buyers t0 multiple interviews and indefinite delays to discourage them from buying; rejecting buyers to retaliate against Plaintiffs for making complaints; issuing opportunity to cure notices, tennination review notices and termination notices. all Without cause, t0 prevent Plaintiffs from selling routes; subjecting buyers t0 termination notices issued .to Plaintiffs; giving false infommtion to Plaintiffs about which buyers FedEx would approve; refusing t0 allow Plaintiffs t0 sell routes an outside buyer; falsely teliing Piaintiffhe could only sell t0 existing FedEx contractors, and refusing to provide reasonable extensions to sel} routes. 117. As a result 0f Defendants’ conduct, Plaintiffs have been injured in that they have suffered, and will continue t0 suffer, the loss ofrevenue, profits, earnings, capital gains, goodwill and business opportunities. l I 8. As a direct and legal result of Defendants“ misconduct, Plaintifnguyen has suffered, and continues to suffer severe emotional and mental distress and anguish, humiliation, embarrassment, fright, shock, pain, discomfort and anxiety. 23 COMPLAINT Case No. HERMAN NORTH LLP 2225 E. Bayshm'e Rd‘, Ste. 200, P1110 Alto, CA 94303 Phone: (650) 320-1685 OKDOOVGNU‘IAUJNr-d I 19. Defendants personally committed the unlawful acts described above with oppression, fraud and/or malice justifying punitive damages. Each Defendant was despicable and each Defendant acted towards Plaintiff with malice, oppression, fraud, and With a WinuI and conscious disregard 0f Plaintiffs’ rights. In addition, an officer, director, and/or managing agent 0f Defendants were personally guilty 0f the conduct; and/or Defendants authorized and/or ratified the foregoing conduct, entitling Plaintiff to punitive damages. 120. Plaintiffs therefore pray for relief as set forth below. TENTH CAUSE OF ACTION NEGLIGENT INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE (Josemite and Nguyen v. FedEx, Valenzuela, AcMoody, Everson and Does 1-10) 121. The ailegations set forth in all preceding paragraphs of the complaint are re- alleged and incorporated herein by reference. 122. Plaintiffs had a prospective economic advantage With certain buyers who intended to purchase FedEx routes from Plaintiffs. Defendants had knowledge of the relationship between Plaintiffs and the buyers and Plaintiffs’ prospective economic advantage in that relationship. 123. Defendants negligently interfered with this prospective economic advantage by, among other things, giving false and/or confidential information to buyers t0 discourage them from buying routes; subjecting buyers t0 multiple interviews and indefinite delays t0 discourage them from buying; rejecting buyers to retaliate against Plaintiffs for making complaints; issuing oppoftunity to cure notices, termination review notices and termination notices, all Without cause, t0 prevent Plaintiffs from selling routes; subjecting buyers t0 termination notices issued t0 Plaintiffs; giving false information to Plaintiffs about which buyers FedEx would approve; refusing t0 allow Plaintiffs t0 sell routes an outside buyer; falsely telling Plaintiff he could only sell t0 existing FedEx contractors, and refusing to provide reasonable extensions to sell routes. 124. Defendants’ conduct was independently wrongful. 24 COMPLAINT Case N0. BERMAN NORTH LLP 2225 E. Bayshore Rd, Ste. 200, P2110 Alto; CA 94303 Phone: (650) 320-1685 UJN O\DOOfl0\UI«# 11 12 13 14 15 l6 l7 18 19 20 21 22 23 24 25 26 27 28 125. As a result 0f Dcfendants" conduct, Plaintiffs have been injured in that they have suffered, and will continue t0 suffer, the loss ofrevenue, profits. earnings, capital gains, goodwill and business opportunities. 126. As a direct and legal result 0f Defendants’ misconduct, Plaintiff Nguyen has suffered, and continues to suffer severe emotional and mental distress and anguish, humiiiation, embarrassmenfi, fright, shock, pain, discomfort and anxiety. 127. Defendants personally committed the unlawful acts described above with oppression, fraud and/or malice justifying punitive damages. Each Defendant was despicable and each Defendant acted towards Plaintiffwith malice, oppression, fraud, and With a willfui and conscious disregard of Plaintiffs’ rights. In addition, an officer, director, and/or managing agent ofDefendants were personally guilty 0f the conduct; and/or Defendants authorized and/or ratified the foregoing conduct, entitling Plaintiff t0 punitive damages. 128. Plaintiff therefore prays for relief as set forth below. ELEVENTH CAUSE 0F ACTION UNFAIR COMPETITION - BUS. & PROF. CODE §17200 (Plaintiffs V. FedEx and Does 1-1 0) 129. The allegations set forth in all preceding paragraphs of the complaint are re- alleged and incorporated herein by reference. 130. Business and Professions Code § 17200 prohibits any unlawful, unfair or fraudulent business practices. An “unlawful" business practice includes any violation of the law. By the acts alleged above, Defendants conduct was unlawful and fraudulent, in Violation of Civil I3 l. Defendants’ conduct, as alleged above, directly harmed Plaintiffs in that Plaintiffs were the Victims 0f such conduct, as described above. I32. Plaintiffs seek restitution, disgorgement and an injunction t0 retum compensation, revenue and/or profits retained 0r obtained by Defendants through their misconduct. 133. WHEREFORE, Plaintiffs therefore pray for relief as set forth below. COMPLAINT Case No. HERMAN NORTH LLP 2225 E. Bayshm'e Rd, Ste. ”200, P2110 Alto, CA 94303 Phone: (650) 320-1685 OKDOONQUI-hUJNH TWELFTH CAUSE 0F ACTION DECLARATORY RELIEF (Josemite V. Fedex and Does 1-10) 134. Plaintiff realleges and incorporated herein by reference all preceding paragraphs as though fully set forth herein. 135. An actual controversy has arisen and presently exists between Plaintiff and Defendants concerning their respective rights and obligations under the ISP Agreements, including without limitations, whether Defendants unreasonably withheld? consent t0 sales proposed by Plaintiff, whether Defendants terminated Plaintiff without cause, and whether Defendants had any basis in fact, contract or law for issuing an invoice of $ 140,000 to Plaintiff. 136. Plaintiff therefore requests a judicial determination of the parties’ rights, duties and obligations, including without limitation, that Defendants unreasonably withheld? consent to sales proposed by Plaintiff, that Defendants terminated Plaintiff’s contracts without cause, and that Defendants’ invoice of $140,000 is invalid and void in its entirety. 137. WHEREFORE, Plaintiff prays for relief as set forth below. PRAYER WHEREFORE, Plaintiffs pray for judgment against Defendants as follows: 1. For compensatory damagas including loss ofrevenue, profits, earnings, capital gains, goodwill, business opponunities and other consequential damages. 2. For general damages, including Without limitation, damages for severe emotional and mental distress and anguish, humiliation, embarrassment, fright: shock, pain, discomfort and anxiety. 3. For attorney’s fees, costs and expert fees pursuant to, among other provisions, Govemment Code § 12965(b), Civil Code § 51(3), and Civil Code § 3426.4. 4. For up to three times the amount of actual damages and/or statutory damages pursuant t'o Civ. Code § 51(a). 7- 5. - Forfxemphry’and punitivedamages pursuanfiofamong other provisions, Civil Code §§ 3426.3(0) and 3294(3); 26 COMPLAINT Case N0. BERMAN NORTH LLP 2225 E. Bayshore Rd, Ste. 200, Palo Alto. CA 94303 Phone: (650) 320-1 685 \DOOQONUI-b-UJNH N N N N N l‘ \J N N [\J -‘ r-i r-A h- rd --I -d p-u -d~ r-A 6. For pre-judgment interest at the maximum legal rate; 7. For declaratory relief, restitution, disgorgement, injunctive relief and any equitable relief; 8. For such other and fuflher relief as the Court deems proper. Dated: November 8, 2019 BERMAN NORTH LLP By; Swfit’gmmw Scott A. Bennan Attorneys for Plaintiffs JOSEMJiE IV, INC. and LONG NGUYEN DEMAND FOR JURY TRIAL Plaintiff hereby demands a jury triai on all 0f the issues in this case. Dated: November 8, 201.9 BERMAN' NORTH LLP By: Swd'gmm Scott A. Bermau Attorneys for Plaintiffs JOSEMITE IV, INC. and LONG NGUYEN 27COMPLAINT Case No. ATTACHMENT cv-5012 ClV'lL LAWSUIT NOTICE Superior Court of California, County of Santa Clara CASE NUMBER: 190V358329 191 North First St, San José, CA 95113 PLEASE READ THIS ENTIRE FORM PLAINTIFF (the person suing : Within 60 days after fifing the lawsuit, you must serve each Defendant with the Complaint,Summons, an Alternative Dispute Resolution (ADR) Information Sheet, and a copy of this Civil Lawsuit Notice, and you must filewritte n proof of such service. DEFENDANT (The person sued): You must do each of the foHowing to protect your rights: You must file a written response to the Complaint, using the properIegal form or format, in the Clerk’s Office of the Court, within 30 days of the date you were served with the Summons and Complaint; You must serve by mail a copy of your written response on the Plaintiffs attorney or on the Plaintiff if Plaintiff has no attorney (to “serve by mail" means to have an adult other than yourself mail a copy); and You must attend the first Case Management Conference. Warning: If you, as the Defendant, do not follow these instructions, you may automatically lose this case. RULES AND FORMS: You must follow the California Rules of Court and the Superior Court of California, County of<‘CountyName_> Locai Civil Rules and use proper forms. You can obtain legal information‘ view the rules and'receive forms, freeof charge, from the Self-Help Center at 201 North First Street, San José (408-882-2900 x-2926). I State Rules and Judicial Council Forms: www.coumnfo.ca.gov/forms and www.courtinfo.ca.gov/rulesI Local Ruies and Forms: bfip:Iiwwwsccsuperiorcourt.org[civii/rute1toahtm CASE MANAGEMENT CONFERENCE (CMCQ: You must meet with the other parties and discuss the case, in person or bytelephone at least 30 calendar days before the CMC. You must also fit! out, file and serve a Case Management Statement(Judicial Council form CM-1 10) at least 15 calendar days before the CMC. You or your attorney must appear at the CMC. You may ask to appear by telephone - see Local Civil Rule 8. Pierce, Mark H Your Case Management Judge is: Department: 2 The 15‘ CMC is scheduled for: (Completed by Clem of Court) Date: 3/3/20 Time: 3:45 p-m- in Department: The next CMC is scheduled for: (Completed by party if the 15‘ CMC was continued or has passed) Date: Time: in Department: ALTERNATIVE DISPUTE RESOLUTION {ADRF If all parties have appeared and filed a compieted ADR Stipulation Form (localform CV-5008) at least 15 days before the CMC, the Court wilt cance‘ the CMC and mail notice of an ADR Status Conference.Visit the Court’s website at wwksccsuperiorcourtmgfciviilADRf or call the ADR Administrator (408-882-2100 x-2530) for a list ofADR providers and their qualifications, services, and fees. WARNING: Sanctions may be imposed if you do not follow the California Rules of Court or the Local Rutes of Court. cv-5012 REV 08/01116 CIVIL LAWSUIT NOTICE Page1 of1 CM-01OATTORNEY OR PARTY WITHOUT ATTORNEY (Name. Staze Bar number, and address}.Scotthrman (State Bar No.1 19I460)'BERMAN NORTH LLP 2225 E. Bayshorc Road, Suite 200 Palo Alto, CA 94303 TELEPHONE No; 650320- I 685 FAX No; ATTORNEYFOR (Namey Plaintiffs LONG NGUYEN and JOSEMITE IV, INC. SUPERIOR COURT 0F CALIFORNtA, COUNTY 0F SANTA CLARA STREET ADDRESS: MAiLtNG ADDRESS; 191 N. First Street cwv AND 2w CODE: San Jose, CA 951 13 FOR COURT USE ONLY lectronically Filed y Superior Court of CA, ounty of Santa Clara, n 11/8/2019 3:58 PM eviewed By: J. Duong ase #1 90V358329BRANCH NAME: CASE NAME: nvelope: 3631 099JOSEMITE IV, INC. v. FEDEX GROWD PACKAGE SYSTEM, et a1. J CIVIL CASE COVER SHEET Complex Case Designation CASE NUMBER: Unlimited j Limited 1:] . 190V358329 (Amount (Amount Counter Jomder JUD E.demanded demanded is Filed with first appearance by defendant G 'exceeds $25,000) $25,000 or less) (Cal. Rules of Court‘ rule 3.402) DEPT: Items 1-6 below must be completed (see instructions on page 2).I-i Check one box below for the case type that best describes this case: Auto Tort Contract Provisionafly Complex Civi! Litigation:j Auto (22) :(j Breach of contracmarramy (06) (Cal. Rules of Court, rules 3.400~3.403) Uninsured motorist (46) :3 Ruse 3.740 couections (09) [:3 Antitrustrrrade regulation (03)Other PIIPDNVD (Personal injuryIProperty D Other collections (09) [j Construction defect (10)Damage/Wmngfu‘ Death) Tort :3 Insurance coverage (18) E Mass tort (40):3 Asbestos (o4) :3 Other contract (37) E3 Securities litigation (28):1 Product habimy (24) Rea; property E Environmentalrroxic ton (30)B Medica' mamraeflce (45) :3 Eminentd°_mai“/'”V9rse D Insurance coverage claims arising fromthe:3 Other Pl/PDNVD (23) condemnat'on (14) above listed provisionally complex caseNon-PI/PD/wo (Other) Tort E] Wrongful eviction (33) types (41) :3 Business tomunfair business practice (07) E] Other real property (26) Enforcement of Judgment:3 Civil rights (08) Unlawful Detainer E] Enforcement ofjudgment (20) Defamation (13) :3 commemial (31) Miscellaneous Civil Compiaint:3 Fraud (15) 3 Residential (32) D Rico (27) .___=.._1 Intellectuai property (19) D DVUQS (38) [j Other complaint (not specified above) (42)a_- Promssmm‘ “egfigence (25) Judi‘ja' Rewew Miscellaneous Civil PetitionOther non-PUPD/WD t0” (35) j Asset forfeiture (05) E] Partnership and corporate governance (21)Empioyment E Petition re: arbitration award (1 1) E Other petition (not specified above) (43):1 Wrongful termination (36) :3 Writ 0f mandate (02): Other employment (15) j Other judicial review (39) 2. This case v- is is not complex under rule 3.400 of the California Rules of Court. If the case is complex, mark thefactors requiring exceptional judicial management: a. I Large number of separately represented parties d Large humber of witnesses. b. I Extensive motion practice raising difficult or novel e.E Coordination with related actions pending in one or more courts ‘ issues that wilt be time-consuming to resolve in other counties, states, or countries, or in a federal courtc.E Substantial amount of documentary evidence f, E3 Substantial postjudgment judicial supervision 3. Remedies sought (check ail that apply): 31:2: monetary b. :1 nonmonetary; declaratory or injunctive relief C. E: punitive4. Number of causes of action (specify): Twelve (12) 5, This case E: is is not a class action suit. 6. 1f there are any known related cases. fi|e and serve a notice of reiated case. (You may use form CM-015.) Date: November 8, 2019 Scott Barman tSwfi'fim _(TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR ATTORNEY FOR PARTY) NOTICE a Plaintiff must file this cover sheet with the first paper flied in the action or proceeding (except small claims cases or cases filedunder the Probate Code, Family Code‘ or Welfare and Institutions Code). (Cal. Rules of Court. rule 3.220.) Failure to file may resultin sanctions. fi File this cover sheet in addition to any cover sheet required by local court rule.t if this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on allother parties to the action or proceeding. 0' Unless this is a coliections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes onl . 1mageForm Ado ted for Mandatory Use Cal. Rules of Coun. rules 2.30, 3220. 3.400-3‘403, 3.740: JudicialpCounciloz‘ Calufomla CIVIL CASE COVER SHEET Cal. Siandards ofJudiciai Administration. sld.3,10 CM~01O [Rem July 1‘ 2007] www coudinfo. ca. gov INSTRUCTIONS 0N HOW TO COMPLETE THE COVER SHEET To Plaintiffs and Others Filing First Papers. If you are filing a first paper (for exam comp lete and file, along with your first paper, the Civil Case Cover Sheet contained on statistics about the types and numbers of cases filed. You must com one box for the case type that best describes the case‘ check the more specific one. If the case has multiple ca To assist you in completing the sheet, examples ofthe CM-01 0 ple, a complaint) in a civil case, you must page 1. This information will be used to compiie plete items 1 through 6 on the sheet. 1n item 1, you must check If the case fits both a general and a more specific type of case listed in item 1, uses of action, check the box that best indicates the primary cause of action. cases that belong under each case type in item 1 are provided below. A coversheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a pafly,its counsel. or both to sanctions under rules 2.30 and 3.220 0fthe California R To Parties in Rule 3.740 Collections Cases. A " owed in a sum stated to be certain that is not more t which property, services, or money was acquired on credit. A collections case does n dama ges, (2) punitive damages, (3) recovery of real property, (4) ules of Court. collections case” under rule 3.740 is defined as an action for recovery of money d attorney‘s fees, arising from a transaction in ot include an action seeking the following: (1) tort recovery of personal property, or (5) a prejudgment writ of han $25,000, exclusive of interest an attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the generaltime-for-service requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collectionscase will be subject to the requirements for service and obtaining a judgment in rule 3.740. To Parties in Complex Cases. In complex cases onl case is complex. If a plaintiff believes the case is com completing the appropriate boxes in items 1 and 2. If a complaint on all parties to the action. A defendant m y, parties must also use the Civil Case Cover Sheet to designate whether the plex under rule 3.400 of the California Rules of Court, this must be indicated by plaintiff designates a case as complex, the cover sheet must be served with the ay file and serve no later than the time of its first appearance a joinder in theplaintiff‘s designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation thatthe case is complex. Auto Tort Auto (22)-Personal lnjury/Property Damage/Wrongful Death U ninsured Motorist (46) (if the case involves an uninsured motorist claim subject to arbitration, check this item instead of Auto) Other PIIPDIWD (Personal Injury! Property DamagelWrongful Death) Tort Asbestos (04) Asbestos Property Damage Asbestos Personal lnjury/ Wrongful Death Product Liabifity (not asbestos or toxic/environrnental) (24) Medical Malpractice (45) Medical Malpractice- Physicians & Surgeons Other Professional Health Care Malpractice Other PIIPDNVD (23) Premises Liabiiity (e.g., slip and fall) lnfentional Bodily lnjurylPD/WD (e.g., assault, vandalism) Intentional Infliction of Emotionai Distress Negligent Infliction of Emotional Distress Other Pl/PDNVD Non-Pl/PDNVD (Other) Tort Business Tort/Unfair Business Practice (07) Civil Rights (e.g., discrimination, false arrest) (not civil harassment) (08) Defamation (e.g., slander, libel) (13) Fraud (1 6) Intellectual Property (19) Professional Negligence (25) Legal Malpractice Other Professional Malpractice (not medical or legal) Other Non-Pl/PDNVD Tort (35) Employment Wrongful Termination (36) Other Employment (1 5) CM-O'l O [Rev. July 1, 2007] CASE TYPES AND EXAMPLES Contract Breach of Contract/Warranty (06) Breach of Rental/Lease Contract (not unlawful detainer or wrongful eviction) Contract/Warranty Breach-Sefler Plaintiff (not fraud or negligence) Negligent Breach of Contract! Warranty Other Breach of Contract/Warranty Collections (e.g.. money owed, open book accounts) (09) 4 Coilecfion Case~Seller Plaintiff Other Promissory NoteICollections Case Insurance Coverage (not provisiona/Iy complex) (1 8) Auto Subrogation Other Coverage Other Contract (37) Contractual Fraud Other Contract Dispute Real Property Eminent Domain/Inverse Condemnation (14) Wrongful Eviction (33) ‘ Other Real Property (e.g_. quiet titfe) (26) Writ of Possession of Real Property Mortgage Foreclosure Quiet Title Other Real Property (not eminent domain, Iand/ord/tenant, or foreclosure) Unlawful Detainer Commercial (31) Residential (32) Drugs (38) (if the case involves illegal drugs, check this item; othen/vise, repofi as Commercial or Residential) Judicial Review Asset Forfeiture (O5) Petition Re: Arbitration Award (11) Writ of Mandate (02) Writ-Ad ministrative Mandamus Writ-Mandamus on Limited Court Case Matter Writ-Other Limited Court Case Review Other Judicial Review (39) Review of Health Officer Order Notice of Appeal-Labor Commissioner Appeals CIVIL CASE COVER SHEET Provisionalfy Complex Civil Litigation (Cal. Rules of Court Rules 1400-3403) Antitrust/Trade Regulation (O3) Construction Defect (10) Claims Involving Mass Tort (40) Securities Litigation (28) Environmentalfl'oxic Tort (30) Insurance Coverage C!aims (arising from provisionally complex case type listed above) (41) Enforcement of Judgment Enforcement of Judgment (20) Abstract of Judgment (Out of County) Confession of Judgment (non- domestic relations) Sister State Judgment Administrative Agency Award (not unpaid taxes) Petition/Certification of Entry of Judgment 0n Unpaid Taxes Other Enforcement of Judgment ase Miscellaneous Civil Complaint RICO (27) Oth'er Complaint (not specified above) (42) Declaratory Retief Only Injunctive Refief Only (non- harassment) Mechanics Lien Other Commercial Complaint Case (non-tort/non-complex) Other Civil Complaint (non-tort/non-complex) Miscellaneous Civil Petition Pannership and Corporate Governance (21) Other Petition (not specified above) (43) Civil Harassment Workplace Violence Elder/Dependent Adult Abuse Election Contest Petition for Name Change Petition for Relief From Late Claim Other Civil Petition Page 2 of 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT 2 MOTION TO COMPEL ARBITRATION AND TO DISMISS OR STAY PROCEEDINGS FP 379280851 DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ANTHONY E. GUZMAN II, State Bar No. 258724 Email: aguzman@fisherphillips.com FISHER & PHILLIPS LLP One Embarcadero, Suite 2050 San Francisco, California 9411 Telephone: (415) 490-9028 Facsimile: (415) 490-9001 Attorneys for Defendants FEDEX GROUND PACKAGE SYSTEM, INC. THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JOSEMITE IV, INC., a California Corporation; and LONG NGUYEN, an Individual, Plaintiffs, v. FEDEX GROUND PACKAGE SYSTEMS, INC., a Delaware Corporation; MICHAEL VALENZUELA, an Individual; STEPHEN EVERSON, an Individual; ANGELA ACMOODY, an Individual; and DOES 1 to 10, inclusive, Defendants. Case No. NOTICE AND PETITION FOR REMOVAL OF ACTION UNDER 28 U.S.C. SECTION 1441(b) (DIVERSITY) [Originally Santa Clara County Superior Court Action No. 19CV358329] State Action filed: November 8, 2019 Removal Date: Trial Date: None December 16, 2019 TO ALL PARTIES AND THE CLERK OF THE ABOVE-ENTITLED COURT: PLEASE TAKE NOTICE that Defendant FEDEX GROUND PACKAGE SYSTEM, INC., by and through its undersigned counsel, hereby submits this Notice and Petition for Removal ("Notice") pursuant to 28 U.S.C. section 1446 to remove this action from the Superior Court of the State of California in and for the County of Santa Clara to the United States District Court for the Northern District of California. This removal is based on diversity of citizenship, pursuant to 28 U.S.C. sections 1332 and 1441(a) and (b). 1 FP 36752587.1 NOTICE AND PETITION FOR REMOVAL OF ACTION Case 3:19-cv-08184 Document 1 Filed 12/16/19 Page 1 of 13 1 I. PROCEEDINGS IN STATE COURT AND TIMELINESS OF REMOVAL 2 A. Initial Filing For Arbitration 3 1. Defendant FEDEX GROUND PACKAGE SYSTEM, INC. ("FedEx Ground") is a 4 well-established package delivery company with its principal place of business in Moon Township, 5 Pennsylvania, that provides pick-up and delivery services to customers throughout the United 6 States. (Santucci Decl. at ¶ 3.) As a part of its business model, FedEx Ground contracts with local 7 transportation companies to provide trucking services and qualified drivers who perform the day- 8 to-day pick-up and delivery services on behalf of FedEx Ground. (Id. at ¶ 4.) FedEx Ground refers 9 to these local contract companies as Independent Service Providers, and requires each such 10 company to negotiate and enter into an Independent Service Provider Agreement ("ISPA"), which 11 governs all aspects of the relationship. (Id.) 12 2. On February 12, 2018, at approximately 12:46 p.m. Plaintiff LONG NGUYEN 13 ("Nguyen"), on behalf of his company, JOSEMITE IV, INC. ("Josemite) (collectively, 14 "Plaintiffs"), entered into one of these ISPAs with FedEx Ground in order to provide trucks and 15 drivers to service various FedEx Ground delivery routes throughout the San Francisco Bay Area. 16 (Santucci Decl. at ¶ 4; Ex. 1 ("ISPA") at pg. 1.) Therein, Plaintiffs agreed to a dispute resolution 17 clause that required both parties to resolve their disputes through arbitration ("Arbitration 18 Provision"). In relevant part, the ISPA's Arbitration Provision provided: 19 Any dispute, claim, or controversy between the Parties arising out 20 of or relating in any way to this Agreement and/or the relationship 21 between the Parties resulting from this Agreement, including without limitation with respect to the interpretation of any 22 provision of this Agreement, the performance by [Josemite] or [FedEx Ground], the treatment by one Party of the other, and/or 23 the terminations of this Agreement will be resolved in accordance 24 with the dispute resolution procedure providing in this Section 16. 25 (Id. at ¶ 4; Ex. 1 at § 16.1.) 26 3. On July 25, 2019, as a result of their obligations under the ISPA's Arbitration 27 Provision, Plaintiffs caused a Demand for Arbitration to be filed with the Judicial Arbitration and 28 2 NOTICE AND PETITION FOR REMOVAL OF ACTION FP 36752587.1 Case 3:19-cv-08184 Document 1 Filed 12/16/19 Page 2 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mediation Services ("JAMS"), entitled Josemite IV, Inc., et al. v. FedEx Ground Package Systems, Inc. designated as JAMS Reference No. 1100106494 (hereinafter the "Demand"), which alleged: (1) Breach of Contract; (2) Breach of Implied Covenant of Good Faith and Fair Dealing; (3) Breach of Confidentiality Agreement; (4) Violation of California Uniform Trade Secrets Act; (5) Intentional Interference with Contract; (6) Intentional Interference with Prospective Economic Advantage; (7) Negligent Interference with Prospective Economic Advantage; (8) Violation of Unruh Civil Rights Act; (9) Intentional Misrepresentation; (10) Negligent Misrepresentation; (11); False Promise; (12) Declaratory Relief; and (13) Unfair Business Practices. (Guzman Decl. at ¶ 4; Ex. 1 ("Demand").) Notably, no Co-Defendants were named in the Demand. (Id.) 4. Following Plaintiffs' filing of the Demand, several things occurred including: (a) Plaintiffs' and FedEx Ground's split payment of the $5,000 initial arbitration fee; (b) the selection of an arbitrator; (c) conferral efforts on various preliminary issues; (d) Plaintiffs' request to FedEx Ground of a $2,500 reimbursement for Plaintiffs' share of the initial arbitration fee on October 24, 2019; and (e) FedEx Ground's agreement and payment to Plaintiffs of that $2,500 reimbursement. (Id. at ¶ 5.) Defendant requested Josemite's taxpayer ID/W-9 on October 25, 2019, which Josemite provided that day, a Friday. Our firm had to set Josemite up as a new vendor in our system in order to issue payment. As soon as that was complete, on October 28, 2019, Defendant sent the reimbursement check to Plaintiffs' counsel via overnight delivery. (Id. at ¶ 5.) 5. On October 30, 2019, just two days after FedEx Ground issued a reimbursement check to Plaintiffs, Plaintiffs notified JAMS and FedEx Ground that it now found the ISPA's Arbitration Provision unconscionable, would be abandoning the arbitration process, and requested a dismissal of the Demand before JAMS without prejudice-disregarding the time and expense already incurred by FedEx Ground in cooperating in the arbitration process over the past three months. (Id. at ¶ 4, 5; Ex. 2 ("Dismissal Email").) B. Subsequent Filing In State Court 6. On November 8, 2019, Plaintiffs commenced this action in the Santa Clara Superior Court, entitled Josemite IV, Inc., et al. v. FedEx Ground Package Systems, Inc., Case No. 3 FP 36752587.1 NOTICE AND PETITION FOR REMOVAL OF ACTION Case 3:19-cv-08184 Document 1 Filed 12/16/19 Page 3 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19CV358329 (hereinafter the "Complaint"). The Complaint alleges causes of action nearly identical to the prior Demand, including: (1) Harassment under the Fair Employment and Housing Act; (2) Discrimination under the Unruh Civil Rights Act; (3) California Uniform Trade Secret Act Violations; (4) Breach of Contract; (5) Breach of Implied Covenant of Good Faith and Fair Dealing; (6) Intentional Misrepresentation; (7) Negligent Misrepresentation; (8) Intentional Interference with Contract; (9) Intentional Interference with Prospective Advantage; (10) Negligent Interference with Prospective Advantage; (11) Unfair Competitions Act Violations; and (12) Declaratory Relief. (Guzman Decl. at ¶ 7; Ex. 3 ("Complaint").) Notably, in a veiled attempt to avoid removal, Plaintiffs now also named several FedEx Ground employees as Co-Defendants, including Michael Valenzuela ("Valenzuela"), Stephen Everson ("Everson"), and Angela AcMoody ("AcMoody") (collectively "Co-Defendants"). (Id.) 7. On November 15, 2019, FedEx Ground was served with the Summons and Complaint, as well as other Santa Clara County Superior Court documents enclosed with the Summons and Complaint. (Id.) Pursuant to 28 U.S.C. section 1446(a), true and correct copies of the Summons, Complaint, and all other Santa Clara County Superior Court documents delivered to FedEx Ground on November 15, 2019, are attached as Exhibit 3 to the Declaration of Anthony E. Guzman II ("Guzman Decl."). Exhibit 3 constitutes all process, pleadings, and orders received by FedEx Ground. 8. Does 1 through 10 are unnamed and unknown, and to FedEx Ground's knowledge, have not been served with Plaintiffs' Summons and Complaint. C. Timeliness of Removal 9. In accordance with 28 U.S.C. section 1446(b), this Notice is filed with the United States District Court within thirty (30) days after "service" upon FedEx Ground of the Summons and Complaint setting forth the claim for relief upon which this civil action is based. (Guzman Decl. at ¶ 8.) Therefore, this notice of removal is timely filed. See 28 U.S.C. § 1446(b)(3). 10. In accordance with 28 U.S.C. section 1446(d), FedEx Ground will, promptly after filing, file a copy of this Notice of Removal with the Clerk of Court of the Superior Court of the 4 FP 36752587.1 NOTICE AND PETITION FOR REMOVAL OF ACTION Case 3:19-cv-08184 Document 1 Filed 12/16/19 Page 4 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 State of California - County of Santa Clara. (Id. at ¶ 9.) 11. Proof of Service of the Notice to the Superior Court Clerk of Removal to Federal Court and of the Notice to Plaintiffs of Removal to Federal Court will be filed with this Court immediately. II. JURISDICTION 12. This Court has original jurisdiction over this action under 28 U.S.C. section 1332 because it is a civil action wherein FedEx Ground, on the one hand, and Plaintiffs, on the other hand, are citizens of different states and the matter in controversy exceeds the sum of $75,000, exclusive of interest and costs. Accordingly, this action may be removed to this Court by FedEx Ground under 28 U.S.C. sections 1332(b), 1441(b). III. DIVERSE CITIZENSHIP OF THE PARTIES A. Core Parties-Plaintiffs and FedEx Ground 13. Plaintiff Nguyen alleges that he is a resident in the State of California and that his injuries occurred in the State of California. (Guzman Decl. at ¶ 7; Ex. 3 at ¶ 3.) For diversity purposes, a person is a citizen of the state in which he or she is domiciled. Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088 (9th Cir. 1983). Residence is prima facie evidence of domicile. State Farm Mut. Auto Ins. Co. v. Dyer, 29 F.3d 514, 520 (10th Cir. 1994). Thus, Defendants believe Plaintiff Nguyen resides and is domiciled in the State of California. 14. Plaintiff Josemite alleges that it is now, and was at the time this action was commenced, a citizen of the State of California, within the meaning of 28 U.S.C. section 1332(c)(1) because it is now and was at all material times incorporated under the laws of the state of California, and maintains, and at all material times has maintained, its principal place of business and headquarters in the State of California. (Id. at ¶ 7; Ex. 3 at ¶ 2.) 15. Defendant FedEx Ground, is now, and was at the time this action was commenced, a citizen of the State of Delaware and the State of Pennsylvania, within the meaning of 28 U.S.C. section 1332(c)(1) because it is now and was at all material times incorporated under the laws of the state of Delaware, and maintains, and at all material times has maintained, its principal place of 5 FP 36752587.1 NOTICE AND PETITION FOR REMOVAL OF ACTION Case 3:19-cv-08184 Document 1 Filed 12/16/19 Page 5 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 business and headquarters in the State of Pennsylvania. (Santucci Decl. at ¶¶ 3, 5-9.) 16. The citizenship of fictitiously-named Doe defendants must be disregarded for removal. 28 U.S.C. §1441(a); Newcomb v. Adolf Coors Co., 157 F.3d 686 (9th Cir. 1998). Therefore, diversity of citizenship exists between Plaintiffs and Defendant FedEx Ground. B. Fraudulently and Newly Joined Co-Defendants 17. Co-Defendants Valenzuela, Everson, and AcMoody have been fraudulently joined as parties to this action and, therefore, the claims against them should be severed from this action and dismissed. Federal Courts sitting in California have repeatedly acknowledged that "[a]n exception to the requirement of complete diversity exists where it appears that a plaintiff has fraudulently joined a 'sham' non-diverse defendant... [a] non-diverse defendant is said to be fraudulently joined where 'the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state.'" Sanchez v. Lane Bryant, Inc. (No. 215CV04247CASASX) 2015 WL 4943579 at *2 (C.D. Cal. August 17, 2015) (internal citations omitted); see Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). An additional exception exists where the joinder itself, "clearly accomplishes no other objective than the manipulation of the forum," irrespective of the ability to state a claim. Sutton v. Davol, Inc., 251 F.R.D. 500, 507 (E.D. Cal. 2008) (adopting the fraudulent misjoinder doctrine and severing claims while recognizing that "Defendants do not contend that Plaintiffs fail to state a cause of action against the California Defendants"); Greene v. Wyeth, 344 F.Supp.2d 674, 685 (D. Nev. 2004) (noting fraudulent misjoinder can apply to improperly joined co-plaintiffs or defendants and severing claims "where the joinder is procedurally inappropriate and clearly accomplishes no other objective than the manipulation of the forum, and where the rights of the parties and interest of justice is best served by severance."). Both theories are applicable here. 18. Notably, Plaintiffs' initial Demand and three month arbitration effort, wherein no efforts were made to either name or add Co-Defendants, provides sufficient evidence in itself to demonstrate Plaintiffs' palpable "manipulation of the forum," by suddenly naming these new Co- Defendants in the Complaint in an effort to avoid removal. (Compare Guzman Decl. at Ex. 1 with 6 FP 36752587.1 NOTICE AND PETITION FOR REMOVAL OF ACTION Case 3:19-cv-08184 Document 1 Filed 12/16/19 Page 6 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ex. 3.) However, given their remote relation to the true claims at issue, an independent basis also support their dismissal and/or severance under the permissive joinder rules of Federal Rule of Civil Procedure Rule 20 and 21. 19. For Discrimination under the Unruh Civil Rights Act, Co-Defendants cannot be held liable insofar as California's Unruh Civil Rights Act applies only to the discriminatory acts of "business establishments" under the express terms of California Code of Civil Procedure section 51. Accord Rotary Club of Duarte v. Board of Directors, 178 Cal. App. 3d 1035, 1046 (Cal. App. Ct. 1986) ("Both its history and its language disclose a clear and large design to interdict all arbitration discrimination by a business enterprise") (emphasis added). Thus, insofar as Co- Defendants are all individual persons, they cannot be considered "business establishments." For this reason, the cause of action will fail against Co-Defendants and should therefore be dismissed and/or severed under Federal Rule of Civil Procedure Rule 20 and 21. 20. For California Uniform Trade Secret Act Violations, Co-Defendant Valenzuela cannot be held liable insofar as California recognizes that supervisors and other corporate agents, acting within the scope of their authority, cannot be held liable for "inducing the employer to breach" its obligations to another, or for "interfering with the employer's contractual relationship" with another. Shoemaker v. Myers, 52 Ca1.3d 1, 24, 25 (Cal. 1990). Here, Plaintiffs' sole claim of misappropriation is the disclosure of allegedly trade secreted information to prospective assignees (i.e. purchasers) of Plaintiffs' routes during FedEx Ground's standard screening interviews with the prospective assignees. (Guzman Decl. at ¶ 7; Ex. 3 at ¶ 69.) Thus, insofar as Co-Defendant Valenzuela was acting as a corporate agent of FedEx Ground during these interviews, he cannot be held liable for engaging in conduct that would have constituted a breach by FedEx Ground of its confidentiality obligations to Plaintiffs in the course of their contractual relationship. For this reason, the cause of action will fail against Co-Defendant Valenzuela and should therefore be dismissed and/or severed under Federal Rule of Civil Procedure Rule 20 and 21. 21. For Intentional and Negligent Misrepresentation, Co-Defendants cannot be held liable insofar as "it is axiomatic that respondeat superior allocates risks based on policy, rather 7 FP 36752587.1 NOTICE AND PETITION FOR REMOVAL OF ACTION Case 3:19-cv-08184 Document 1 Filed 12/16/19 Page 7 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 than on fault, and arises from 'a deeply rooted sentiment' that it would be 'unjust for an enterprise to disclaim responsibility for injuries occurring in the course of its characteristic activities.'" Sheppard v. Freeman (Cal. App. Ct. 1998) 67 Cal. App. 4th 339 (quoting Mary M v. City of Los Angeles, 54 Ca1.3d 202, 208 (Cal. 1991)). Thus, the California Supreme Court has held that "in limiting the threat of lawsuit to the employer, a balance was being struck 'between the goals of eliminating [wrongdoing] in the workplace and minimizing the debilitating burden of litigation on individuals." Sheppard, 67 Cal. App. 4th at 345 (quoting Reno v. Baird, 18 Ca1.4th 640 (Cal. 1998)). Here, all alleged representations by Co-Defendants occurred within "the course of [FedEx Ground's] characteristic activities," including by way of serving and making decisions regarding FedEx Ground's contracts with Plaintiffs. (Guzman Decl. at ¶ 7; Ex. 3 at ¶ 87-89, 99, 100.) For this reason, the cause of action will fail against Co-Defendants and should therefore be dismissed and/or severed under Federal Rule of Civil Procedure Rule 20 and 21. 22. For Intentional Interference with Contract, Co-Defendants cannot be held liable insofar as it is settled that "corporate agents and employees acting for and on behalf of a corporation cannot be held liable for inducing a breach of the corporation's contract." Mintz v. Blue Cross of California, 172 Cal. App. 4th 1594, 1604 (Cal. App. Ct. 2009) (quoting Shoemaker v. Myers, 52 Ca1.3d 1, 24, 25 (Cal. 1990)). Thus, insofar as Co-Defendants were all acting as employees and agents of FedEx Ground within the course and scope of their employment relationship, they cannot be held liable for interfering with FedEx Ground's own contracts. For this reason, the cause of action will fail against Co-Defendants and should therefore be dismissed and/or severed under Federal Rule of Civil Procedure Rule 20 and 21. 23. For Intentional and Negligent Interference with Prospective Advantage, Co- Defendants cannot be held liable insofar as it is settled that "corporate agents and employees acting for and on behalf of a corporation cannot be held liable for inducing a breach of the corporation's contract." Shoemaker v. Myers, 52 Ca1.3d 1, 24, 25 (Cal. 1990) (applying rationale to claims for interference with prospective economic advantage as well). Here, the only potential economic advantage identified by Plaintiffs is the economic advantage they would have received had FedEx 8 FP 36752587.1 NOTICE AND PETITION FOR REMOVAL OF ACTION Case 3:19-cv-08184 Document 1 Filed 12/16/19 Page 8 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ground allowed them to assign (i.e. sell) their contracts which, allegedly, Co-Defendants, on behalf of FedEx Ground, unreasonably failed to do. (Guzman Decl. at 117; Ex. 3 ¶ 116, 123.) Thus, insofar as Co-Defendants were all acting as employees and agents of FedEx Ground within the course and scope of their employment relationship in allegedly making these assignment determinations, they cannot be held liable for inducing breaches of FedEx Ground's own contracts. For this reason, the cause of action will fail against Co-Defendants and should therefore be dismissed and/or severed under Federal Rule of Civil Procedure Rule 20 and 21. 24. For Harassment under the Fair Employment and Housing Act, Co-Defendants cannot be held liable insofar as Plaintiffs have failed to allege anything other than standard business decisions, made on behalf of FedEx Ground, in the furtherance of FedEx Ground's interest under its own contract with Plaintiffs. Sheppard, 67 Cal. App. 4th at 339; Mary M, 54 Ca1.3d at 208 (Cal. 1991)). For this reason, the cause of action will fail against Co-Defendants and should therefore be dismissed under Federal Rule of Civil Procedure Rule 20 and 21. 25. Accordingly, this Court should disregard the citizenship of the fraudulently joined Co-Defendants in accordance with established precedent to disregard attempted "manipulation of the forum" and dismiss and/or sever such claims under the permissive joinder rules of Federal Rule of Civil Procedure Rule 20 and 21. Based thereon, this Court has jurisdiction in the matter based on diversity of citizenship, when viewing the true core parties to the immediate Complaint- - Plaintiff Josemite IV, Inc. and FedEx Ground. IV. AMOUNT IN CONTROVERSY 26. Diversity jurisdiction exists where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs. 28 U.S.C. §1332(a). The amount in controversy for jurisdictional purposes is determined by the amount of damages at issue at the time of removal. Merit-Care, Inc. v. St. Paul Mercury Ins. Co. 166 F.3d 214, 217-218 (3rd Cir. 1999). 27. In cases where the state court complaint is silent or unclear as to the amount of damages sought by the plaintiff, a defendant must establish that the amount in controversy exceeds $75,000.00. Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997); Gaus v. 9 FP 36752587.1 NOTICE AND PETITION FOR REMOVAL OF ACTION Case 3:19-cv-08184 Document 1 Filed 12/16/19 Page 9 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Miles, Inc., 980 F.2d 564, 566-67 (9th Cir. 1992). The "amount in controversy" requirement is satisfied by setting forth, in the removal petition, underlying facts supporting defendant's assertion that the amount in controversy exceeds $75,000.00. Richmond v. Allstate Ins. Co., 897 F.Supp. 447, 450 (S.D. Cal. 1995). 28. The test for determining whether the minimum amount in controversy requirement is satisfied is whether it is "more likely than not" that Plaintiff seeks to recover more than $75,000 in this action, exclusive of interest and costs. If a plaintiff's complaint actually alleges damages in excess of $75,000, the inquiry need go no further: Jurisdictional facts are assessed on the basis of Plaintiff's complaint at the time of removal. 28 U.S.C. §1441. "[A] Plaintiff may not defeat removal by subsequently changing his damage request, because post-removal events cannot deprive a court of jurisdiction once it has attached. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 292 (1938). By choosing to overplead his complaint, Plaintiff has chosen to accept the risk that he will plead himself into federal court. Simmons v. PCR Technology, 209 F.Supp.2d 1029, 1032 (N.D. Cal 2002); Singer v. State Farm Mutual Automobile Ins. Co., 116 F.3d 373, 377 (9th Cir. 1996) (although complaint did not specify the amount sought, the amount in controversy requirement was met); Conrad Assoc. v. Hartford Accident & Indem. Co., 994 F. Supp. 1196, 1998 (N.D. Cal 1998) (jurisdictional minimum may be satisfied by claims for general and special damages, attorneys' fees and punitive damages); Richmond v. Allstate Ins. Co., 897 F. Supp. 447, 450-51 (S.D. Cal 1995) (removal proper, despite vagueness of Plaintiff's pleading because Plaintiff's emotional distress damages were "potentially substantial"). 29. In determining the amount in controversy for purposes of assessing the proprietary of a removal, a Court must assume that the allegations in the complaint are true and must assume that a jury will return a verdict for the plaintiff on all claims made in the complaint. See, e.g., Kenneth Rothschild Trust v. Morgan Stanley Dean Witter, 199 F.Supp.2d 993, 1001 (C.D. Cal. 2002). It is appropriate first to examine a plaintiff's complaint to determine whether it is "facially apparent" that the claims exceed the jurisdictional amount. See, e.g., White v. FCI USA, Inc., 319 10 FP 36752587.1 NOTICE AND PETITION FOR REMOVAL OF ACTION Case 3:19-cv-08184 Document 1 Filed 12/16/19 Page 10 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F.3d 672, 674-76 (5th Cir. 2003). As set forth below, while Defendants deny any liability as to Plaintiffs' claims, even an extremely low estimate of what Plaintiffs could recover if the jury ruled for them on all of their claims in their Complaint would unavoidably result in an overall recovery that would far exceed $75,000.00. 30. Here, the claims and allegations in Plaintiffs' Complaint make it clear that the amount in controversy "more likely than not" exceeds $75,000.00. Notably, Plaintiffs have clearly designated the case as Unlimited Jurisdiction. (Guzman Decl. at ¶ 7; Ex. 3.) By its nature, an action claiming Unlimited Jurisdiction, at a minimum, seeks damages in excess of $25,000. Cal. Code of Civ. Proc. §§ 85(a)-(b), 88. 31. Plaintiffs also seek attorneys' fees and costs. (Guzman Decl. at ¶ 7; Ex. 3 at 26:23- 24.) Attorneys' fees are properly considered in calculating the amount in controversy for purposes of removal on grounds of diversity. Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998) (claims for statutory attorneys' fees to be included in the amount in controversy, regardless of whether such an award is discretionary or mandatory). Even if Plaintiffs' counsel is extremely efficient, it would defy belief that their attorneys would incur less than $50,000 to $75,000 if they litigated twelve separate causes of action through pleadings, discovery, discovery motions, dispositive motions, pre-trial, and trial. 32. Most notably, the satisfaction of the full $75,000 amount in controversy can be proven through just one of Plaintiffs' causes of action. Here, Plaintiffs' cause of action for Declaratory Relief explicitly states that, "[a]n actual controversy has arisen and presently exists between Plaintiff and Defendants concerning their respective rights and obligations under the ISP Agreements, including without limitations...whether Defendants had any basis in fact, contract or law for issuing an invoice of $140,000 to Plaintiff." (Guzman Decl. at ¶ 7; Ex. 3 at ¶ 135.) As such, at a minimum, Plaintiffs "request a judicial determination.. .that Defendants' invoice of $140,000 is invalid and void in its entirety." (Id. at ¶ 7; Ex. 2 at ¶ 136.) 33. Based upon the foregoing, it is respectfully submitted that the amount in controversy exceeds $75,000, and that this action is properly removed to this Court. 11 FP 36752587.1 NOTICE AND PETITION FOR REMOVAL OF ACTION Case 3:19-cv-08184 Document 1 Filed 12/16/19 Page 11 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. VENUE 34. Because this action is pending in the Superior Court of Santa Clara County, California, under 28 U.S.C. sections 84(b) and 1441(a), the United States District Court for the Northern District of California is the proper forum for removal of this state court action. VI. NOTICE 35. Pursuant to 28 U.S.C. section 1446(d), a true and correct copy of this Notice is being filed with the Clerk of the Superior Court of the State of California, County of Santa Clara and served upon Plaintiffs and all parties. (Guzman Decl. at ¶ 9.) 36. In filing this Notice, FedEx Ground does not waive any available defenses. WHEREFORE, FedEx Ground prays that this action be removed to this Court, that this Court accept jurisdiction of this action, and that this action be placed on the docket of this Court for further proceedings, the same as though this action had originally been instituted in this Court. Dated: December 16, 2019 By: FISHER & PHILLIPS LLP Anchpay uzman II eys for Defendant GROUND PACKAGE SYSTEM, INC. 12 FP 36752587.1 NOTICE AND PETITION FOR REMOVAL OF ACTION Case 3:19-cv-08184 Document 1 Filed 12/16/19 Page 12 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I, the undersigned, am employed in the County of San Francisco, State of California. I am over the age of 18 and not a party to the within action; am employed with the law offices of Fisher & Phillips LLP and my business address is One Embarcadero Center, Suite 2050, California, 94111 On December 16, 2019 I served the foregoing document entitled NOTICE AND PETITION FOR REMOVAL OF AC l'ION UNDER 28 U.S.C. SECTION 1441(b) (DIVERSITY) on the party(ies) as follows: Scott A. Berman BERMAN NORTH LLP 2225 E. Bayshore Road, Suite 200 Palo Alto, CA 94303 Phone: 650-320-1685 Fax: 650-320-1686 Email: scottAbermannnorth.com Attorneys for Plaintiffs Josemite IV, Inc. and Long Nguyen El [by ELECTRONIC SUBMISSION] - I served the above listed document(s) described via the United States District Court's Electronic Filing Program on the designated recipients via electronic transmission through the CM/ECF system on the Court's website. The Court's CM/ECF system will generate a Notice of Electronic Filing (NEF) to the filing party, the assigned judge, and any registered users in the case. The NEF constitute service of the document(s). Registration as a CM/ECF user constitutes consent to electronic service through the court's transmission facilities. 1=1 [by OVERNIGHT DELIVERY] - I am readily familiar with the firm's practice for collection and processing of correspondence for overnight delivery. Under that practice such correspondence will be deposited at a facility or pick-up box regularly. maintained by the overnight service for receipt on the same day in the ordinary course of business with delivery fees paid or provided for in accordance with ordinary business practices. I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed December 16, 2019 at San Fran,ci California. MARISTELLA ROQUE By: Print Name CERTIFICATE OF SERVICE FP 36754979.1 Case 3:19-cv-08184 Document 1 Filed 12/16/19 Page 13 of 13 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT 3 MOTION TO COMPEL ARBITRATION AND TO DISMISS OR STAY PROCEEDINGS FP 379280851 DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF 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 flQUl-hUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE (CCP §§ 101 1, 1013, 1013(a) and 2015.5; Cal. Rules of Court, rule 2.306 and 2.251) I, the undersigned, am at least 18 years old and not a party t0 this action. 1am employed in the County 0f San Francisco with the law offices of Fisher & Phillips LLP and its business address is One Embarcadero Center, Suite 2050, San Francisco, California 941 1 1. On the date set forth below, I served the foregoing document entitled, DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND TO DISMISS OR STAY PROCEEDINGS on all the appearing and/or interested parties in this action as follows: Scott Adam Berman Attorneysfor Plaintiffs BERMAN NORTH LLP JOSEMITE IV, INC., and LONG 2225 E. Bayshore Road NGUYEN Suite 200 Palo Alto, CA 94303 Tel: 650-320-1685 Fax: 650-320- 1 686 Email: scott@bermannorth.com D [by MAIL] - I enclosed the document(s) in a sealed envelope or package addressed to the person(s) whose address(es) are listed above and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business” s practice for collecting and processing correspondence for mailing. On the same day that correspondence ls placed for collection and mailing, it is deposited 1n the ordinary course 0f business with the United States Postal Service in San Francisco California, in a sealed envelope With postage fully prepaid. D [by OVERNIGHT DELIVERY] - I enclosed the document(s) in an envelope or package provided by an overnight delivery carrier and addressed t0 the person(s) at the address(es) listed above. Iplaced the envelope 0r package for collection and overnight delivery at an office or a regularly utilized drop box 0f the overnight carrier. E [by ELECTRONIC SERVICE] - Based 0n a court order or an agreement of the parties to accept service by electronic transmission, I electronically served the document(s) to the person(s) at the electronic service address(es) listed above. (Cal. Rules 0f Court, rule 2.25 1; Emergency Rule 12.) I declare under penalty of perjury under the laws 0f the State 0f California that the foregoing is true and correct. Executed June 4, 2020, at San Francisco, California. Natalie Larios By; Print Name { Signature PROOF OF SERVICE FP 379280851