finding the district court need not consider 4|| arguments raised for the first time in a reply brief
How later courts described this case
- finding the district court need not consider 4|| arguments raised for the first time in a reply brief
- holding “[i]f personnel management decisions are 12 improperly motivated, the remedy is a suit against the employer for discrimination”
Written by the judges who cited it.
The opinion
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United States District Court
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Central District of California
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11 ELWYN ROBINSON, Case №: 2:19-cv-04033-ODW (RAOx)
12 Plaintiff,
ORDER DENYING MOTION TO
13 v.
REMAND [11]
14 PPG INDISTRIES, INC., et al.,
15 Defendants.
16 I. INTRODUCTION
17 On March 8, 2019, Plaintiff Elwyn Robinson (“Robinson”) filed this action for
18 violation of the California Fair Employment and Housing Act (“FEHA”) in the
19 Superior Court of California for the County of Los Angeles. (Notice of Removal Ex.
20 B (“Compl.”), ECF No. 1-2.) Defendant PPG Industries, Inc. (“PPG”) removed this
21 matter based on federal diversity jurisdiction. (Notice of Removal 1, ECF No. 1.)
22 Robinson moves to remand. (Mot. to Remand (“Mot.”), ECF No. 11.) For the
23 reasons that follow, the Court DENIES Robinson’s Motion.1
24 II. FACTUAL AND PROCEDURAL BACKGROUND
25 Robinson was born on November 16, 1957. (Compl. ¶ 10.) Robinson has
26 substantial experience and education pertinent to commercial manufacturing
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28 1 After carefully considering the papers filed in connection with the Motion, the Court deemed the
matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15.
1 operations, including a Master’s Degree in Business Administration, Project
2 Management Professional, and a graduate degree in Lean Six S. (Compl. ¶¶ 11–12.)
3 In early October 2018, PPG’s agent Ron Lyndon (“Lyndon”) informed
4 Robinson about the availability of a Manufacturing Manager position at PPG’s facility
5 in Mojave, California. (Compl. ¶ 14.) On or about October 10, 2018 Robinson
6 participated in a telephonic interview with the Mojave facility’s on-site manager
7 David Sebold (“Sebold”) (Compl. ¶¶ 14–15.) Sebold told Robinson he was under
8 consideration for the position and the interview concluded on cordial and favorable
9 terms. (Compl. ¶ 15.)
10 On October 15, 2018, Lyndon told Robinson that Sebold was concerned that
11 Robinson was “too senior” for the role. (Compl. ¶ 16.) Robinson disagreed with the
12 perception that he was “too senior.” (Compl. ¶ 16.) On October 23, 2018 Lyndon
13 sent an email stating that Robinson was “too senior” for the position and PPG did not
14 offer him the position. (Compl. ¶ 18.)
15 On March 8, 2019, Robinson brought this action against Defendants PPG, and
16 Sebold for violations of the California Fair Employment and Housing Act (“FEHA”)
17 pursuant to Cal. Govt. Code § 12940. (Compl. ¶ 2.) Robinson alleges that substantial
18 factors motivating PPG’s decision to not hire him were his age, 61 at the time, and his
19 opposition to the perception that he was “too senior.” (Compl. ¶ 19.)
20 On May 8, 2019, PPG removed this action based on federal diversity
21 jurisdiction. (Notice of Removal 1.) PPG alleges that, although Sebold is a citizen of
22 California, he was fraudulently joined to this action as a sham defendant, and
23 therefore, Sebold’s citizenship should be disregarded for purposes of diversity
24 jurisdiction. (Notice of Removal ¶¶ 18–19.) Robinson now moves to remand on the
25 basis that the Court does not have jurisdiction over the matter because diversity
26 jurisdiction is not satisfied. (Mot. 6–13.)
27 III. LEGAL STANDARD
28 Federal courts have subject matter jurisdiction only as authorized by the
1 Constitution and Congress. U.S. Const. art. III, § 2, cl. 1; see also Kokkonen v.
2 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A suit filed in state court
3 may be removed to federal court only if the federal court would have had original
4 jurisdiction over the suit. 28 U.S.C. § 1441(a). Federal courts have original
5 jurisdiction where an action arises under federal law, id. § 1331, or where each
6 plaintiff’s citizenship is diverse from each defendant’s citizenship and the amount in
7 controversy exceeds $75,000, id. § 1332(a).
8 The removal statute is strictly construed against removal, and “[f]ederal
9 jurisdiction must be rejected if there is any doubt as to the right of removal in the first
10 instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The party seeking
11 removal bears the burden of establishing federal jurisdiction. Id.
12 IV. DISCUSSION
13 PPG invokes diversity jurisdiction as grounds for this Court’s subject matter
14 jurisdiction. (Notice of Removal ¶ 1.) The Supreme Court “ha[s] consistently
15 interpreted § 1332 as requiring complete diversity: In a case with multiple plaintiffs
16 and multiple defendants, the presence in the action of a single plaintiff from the same
17 State as a single defendant deprives the district court of original diversity jurisdiction
18 over the entire action.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546,
19 553 (2005).
20 Under section 1332, “a corporation shall be deemed to be a citizen of every
21 State and foreign state by which it has been incorporated and of the State where it has
22 its principal place of business.” 28 U.S.C. § 1332(c). The “nerve center” test is used
23 to determine where a corporation’s principal place of business is located. Hertz Corp.
24 v. Friend, 559 U.S. 77, 78 (2010). A corporation’s principal place of business, for
25 diversity jurisdiction purposes, is its “nerve center,” where the corporation’s officers
26 direct, control, and coordinate the corporation’s activities. Id. at 90, 93. The nerve
27 center of a corporation is ordinarily the location where it maintains its headquarters.
28 Id. at 93. If there is doubt about whether diversity exists, the Court may demand the
1 party claiming diversity jurisdiction justify its allegations by a preponderance of the
2 evidence. Harris v. Rand, 682 F.3d 846, 851 (9th Cir. 2012).
3 A. Robinson’s Diversity
4 Robinson argues that complete diversity does not exist because he and PPG are
5 citizens of California. (Mot. 6.) Robinson and PPG agree that Robinson is a citizen
6 of California. (Notice of Removal ¶ 13.) Thus, the Court finds that Robinson is a
7 citizen of California for diversity purposes.
8 B. PPG’s Diversity
9 Robinson argues PPG is a Pennsylvania corporation with its principal place of
10 business is in Glendale, California. (Mot. 6.) Robinson’s counsel, Francis X. Flynn
11 (“Flynn”), states he conducted an internet search which revealed that PPG lists their
12 corporate headquarters in Pittsburgh, Pennsylvania. (Decl. of Francis X. Flynn
13 (“Flynn Decl.”) ¶ 2, ECF No. 11-1.) The search also revealed PPG acquired
14 Courtaulds, located in Glendale, California, in 2000 for $512.5 million (Flynn Decl.
15 ¶ 3.) Flynn then states, “[t]he foregoing information, which admittedly does not
16 constitute evidence, serves to place doubt on defense counsel’s unsupported and
17 conclusory statement that PPG’s ‘nerve center’ and thus its principal place of business
18 is in Pittsburg[h], Pennsylvania.” (Flynn Decl. ¶ 3.)
19 PPG argues that it is a citizen of Pennsylvania because it was incorporated in
20 the State of Pennsylvania and its nerve center is located at One PPG Place, Pittsburgh,
21 Pennsylvania. (Notice of Removal 14–15.)
22 PPG filed an opposition to the Motion and the Declaration of Greg E. Gordon
23 (“Gordon”) on June 17, 2019. (Decl. of Greg E. Gordon (“Gordon Decl.”), ECF No.
24 13-1.) Gordon is the Senior Counsel for PPG. (Gordon Decl. ¶ 2.) Gordon states that
25 PPG has several headquarters across the world, but its global headquarters is in
26 Pittsburgh, Pennsylvania. (Gordon Decl. ¶ 4.) Further Gordon states that, “PPG’s
27 primary administrative and financial offices, including human resources, benefits and
28 payroll are located in the Commonwealth of Pennsylvania, and a substantial majority
1 of the corporate decisions including operational, executive and administrative policy
2 are all made at its headquarters.” (Gordon Decl. ¶ 4.) Gordon states the majority of
3 PPG’s corporate officers including the Chief Executive Officer, Senior Vice President,
4 and Chief Financial Officer all maintain offices at the headquarters in Pittsburgh.
5 (Gordon Decl. ¶ 7.) The annual meeting of shareholders is held in Pittsburgh,
6 Pennsylvania. (Gordon Decl. ¶ 9.)
7 Based on all of the information provided by both parties, the Court finds that
8 PPG’s nerve center is located in Pittsburgh, Pennsylvania. See L’Garde, Inc. v.
9 Raytheon Space & Airborne Sys., 805 F. Supp. 2d 932, 940 (C.D. Cal. 2011) (finding
10 defendant’s nerve center in Massachusetts despite extensive business activity in
11 California, because the board of directors met in Massachusetts, the CEO worked
12 there, nationwide operations, control of human resources, information technology and
13 finance departments originated in Massachusetts and the California Secretary of State
14 recognized the company’s headquarters was located in Massachusetts).
15 Here, several corporate officers, including the CEO, work out of the Pittsburgh
16 headquarters. (Gordon Decl. ¶ 7.) The annual shareholders meeting is in Pittsburgh.
17 (Gordon Decl. ¶ 9.) Furthermore, Flynn’s declaration concedes that PPG’s corporate
18 headquarters, registered with the State of California, is in Pittsburgh, Pennsylvania.
19 (Flynn Decl. ¶ 2.) The purchase of Courtaulds, almost twenty years ago, does not cast
20 any doubt that PPG’s nerve center remains in Pittsburgh, Pennsylvania. See In re
21 Hydroxycut Mktg. & Sales Practices Litig., No. 09MD2087-BTM(AJB), 2010 WL
22 2998855, at *2 (S.D. Cal. July 29, 2010) (finding that the company nerve center was
23 in Ontario, Canada despite the presence of a large New York facility because high
24 level executive decisions were made in Ontario, Canada). Therefore, the Court finds
25 that PPG is a citizen of Pennsylvania.
26 C. Sham or Nominal Defendant
27 Robinson argues that complete diversity does not exist because he and Sebold
28 are both citizens of California. (See Mot. 6; Compl. ¶¶ 5, 9.) As PPG does not
1 dispute that Sebold is a citizen of California, the issue is whether Sebold is a proper
2 party to the action. (See Opp’n to Mot. (“Opp’n”) 2, ECF No. 13.)
3 Complete diversity of citizenship is required to remove an action to federal
4 court, except for “where a non-diverse defendant has been ‘fraudulently joined.’”
5 Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). A non-diverse
6 defendant is fraudulently joined “[i]f the plaintiff fails to state a cause of action
7 against a resident defendant, and the failure is obvious according to the settled rules of
8 the state.” McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987); see
9 also Padilla v. AT & T Corp., 697 F. Supp. 2d 1156, 1158 (C.D. Cal. 2009) (citing
10 Kruso v. Int’l Tel. & Tel. Corp., 872 F.2d 1416, 1426 (9th Cir. 1989) (“[A] non-
11 diverse defendant is deemed a sham defendant if, after all disputed questions of fact
12 and all ambiguities in the controlling state law are resolved in the plaintiff’s favor, the
13 plaintiff could not possibly recover against the party whose joinder is questioned.”).
14 Courts recognize a strong presumption against fraudulent joinder, which must
15 be “proven by clear and convincing evidence.” Hamilton Materials, Inc. v. Dow
16 Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). Consequently, the standard for
17 establishing fraudulent joinder is more exacting than for dismissal for failure to state a
18 claim. Grancare, LLC v. Thrower ex rel. Mills, 889 F.3d 543, 549–50 (9th Cir. 2018);
19 see also Revay v. Home Depot U.S.A., Inc., No. 2:14-CV-03391-RSWL-AS, 2015 WL
20 1285287, at *3 (C.D. Cal. Mar. 19, 2015) (“Merely showing that an action is likely to
21 be dismissed against the alleged sham defendant does not demonstrate fraudulent
22 joinder.”). Thus, remand is necessary “[i]f there is any possibility that the state law
23 might impose liability on a resident defendant under the circumstances alleged in the
24 complaint, or in a future amended complaint.” Revay, 2015 WL 1285287, at *3
25 (internal quotation marks omitted); see also Barsell v. Urban Outfitters, Inc., No. CV
26 09-02604 MMM (RZx), 2009 WL 1916495, at *3 (C.D. Cal. July 1, 2009) (alteration
27 in original) (“[I]f there is a non-fanciful possibility that plaintiff can state a claim
28 under [state] law against the non-diverse defendants[,] the court must remand.”).
1 | Courts should decline to find fraudulent joinder where “a defendant raises a defense
that requires a searching inquiry into the merits of the plaintiff's case, even if that
3 || defense, if successful, would prove fatal.” Grancare, 889 F.3d at 549-50.
4 Here, the face of the Complaint fails to name Sebold as a defendant in the four
5 || causes of action. (See Compl. 6, 7, 10, & 11.) Robinson concedes to a Scrivener’s
6 || error and asserts that the heading for the third cause of action of harassment is
7 || erroneously asserted against PPG and DOES 1-10. (Mot. 4.) Robinsons argues that
8 | the substance of the Complaint makes it clear the harassment cause of action is
9 || asserted against Sebold. (Mot. 4; see Compl. 50-56.) Even if the Court determines
10 || omitting Sebold in the heading of the third cause of action is a Scrivener’s error,
11 || Robinson fails to establish that Sebold can be held liable for harassment. (See Compl.
12} Yj 50-56.)
13 Under FEHA, only an employer can be held liable for discriminatory
14 || employment actions, whereas an individual employee and an employer can be held
15 || liable for harassment. Tipton v. Airport Terminal Servs., Inc., No. 2:18-CV-09503-
16 | AB-JEM, 2019 WL 185687, at *6 (C.D. Cal. Jan. 14, 2019).
17 As to the issue of the Court deciding whether Sebold can be held liable for
18 | harassment is a central issue to resolving the Motion, the Court now turns to the
19 || precedent established in Janken v. GM Hughes Electronics, 46 Cal. App. 4th 55
20 | (1996).
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[T]he Legislature intended that commonly necessary personnel management
22 actions such as hiring and firing, job or project assignments, office or work
23 station assignments, promotion or demotion, performance evaluations, the
34 provision of support, the assignment or nonassignment of supervisory functions,
deciding who will and who will not attend meetings, deciding who will be laid
25 off, and the like, do not come within the meaning of harassment. These are
2% actions of a type necessary to carry out the duties of business and personnel
management. These actions may retrospectively be found discriminatory if
27 based on improper motives, but in that event the remedies provided by the
28 FEHA are those for discrimination, not harassment. Harassment, by contrast,
consists of actions outside the scope of job duties which are not of a type
1
necessary to business and personnel management. This significant distinction
2 underlies the differential treatment of harassment and discrimination in the
3 FEHA.
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Janken, 46 Cal.App. 4th at 64-65. Here, the allegation of Sebold choosing not to hire
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Robinson is a management action. (Mot. 8.) Deciding who not to hire is the kind of
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action that is necessary to business and personnel management. See Reno v. Baird, 18
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Cal. 4th 640, 646, (1998) (finding a supervisory employee simply cannot perform
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their job duties without making personnel decisions). Consequently, if Sebold
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decided to not hire Robinson because he was “too old” the remedy provided by FEHA
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is for discrimination against the employer, not harassment against an employee. See
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Janken, 46 Cal.App. 4th at 80 (holding “[i]f personnel management decisions are
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improperly motivated, the remedy is a suit against the employer for discrimination”).
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According to the alleged facts in the complaint, Robinson cannot establish that Sebold
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committed harassment pursuant to the FEHA, therefore, the Court finds Sebold is a
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sham defendant. Accordingly, the Court DISMISSES Sebold from this case WITH
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PREJUDICE.
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The Court finds that there is complete diversity between Robinson and PPG.
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D. Amount in Controversy
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The amount in controversy in a diversity action is determined from the
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allegations or prayer of the complaint. St. Paul Mercury Indem. Co. v. Red Cab Co.,
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303 U.S. 283, 289 (1938). Here, Robinson alleges, “[a]ll foregoing damages in an
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aggregate amount not less that $2 million.” (Compl., Pl.’s Prayer for Relief ¶ 9, ECF
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No. 1-1.) PPG denies liability to Robinson in any amount, but states the Complaint
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affirmatively places the amount in controversy greater than $75,000. (Notice of
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Removal ¶ 25, ECF No. 1.)
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Robinson does not discuss the amount in controversy in his Motion. (Mot. 3–
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13.) Robinson does state that the amount in controversy does not necessarily exceed
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$75,000 in his reply to PPG’s Opposition. (Pl.’s Repl. 4, ECF No. 15.) The Court
1 || will not consider this argument because it was first raised in Robinson’s reply brief.
See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) citing Koerner v. Grigas,
3 || 328 F.3d 1039, 1048 (9th Cir. 2003) (finding the district court need not consider
4|| arguments raised for the first time in a reply brief). Thus, the Court finds the amount
5 | in controversy is over $75,000.
6 Vv. CONCLUSION
7 For the foregoing reasons, Plaintiff's Motion to Remand is DENIED.
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9 IT IS SO ORDERED.
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11 October 17, 2019 es
12 Kg
Ged luot
14 OTIS D. WRIGHT, II
Is UNITED STATES DISTRICT JUDGE
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