Unreported / Non-Citable
Background
Plaintiff Yolanda Jimenez Cervantez sued Target Corporation, an individual named Ashley Doe, and Does 1 through 50 in Orange County Superior Court on April 6, 2026. She alleges disability discrimination, harassment, retaliation, and wrongful termination under the California Fair Employment and Housing Act (FEHA). Six of the seven causes of action are against Target alone; the harassment and hostile work environment claim is against all defendants. She alleges that Doe, a human resources representative, advised her around May 2022 and on February 12, 2024 to resign and reapply when able to work after medical leave. These are allegations only.
Target, a Minnesota citizen, removed on May 5, 2026 on diversity grounds; plaintiff is a California citizen. After a scheduling discussion with the parties, the court set September 18, 2026 as the deadline for a motion to amend and remand. Plaintiff filed that day, seeking to substitute Ashley McFadden Kuntzman, a California citizen, for Ashley Doe, along with remand and sanctions against defense counsel. The proposed first amended complaint (FAC) also moves the first resignation statement from about May 2022 to after September 2022. Target opposed, arguing misjoinder under 28 U.S.C. § 1447(e), alternatively fraudulent joinder, and that Kuntzman was not employed by Target in May 2022. Neither party declined magistrate judge jurisdiction.
The Court’s Holding
Because plaintiff seeks to add a diversity-destroying defendant after removal, the court applied the six-factor test under § 1447(e) rather than Rule 15(a) or California's Doe-defendant practice. It noted that the Ninth Circuit's Lindley decision predates the 1988 removal amendments, and that under Ninth Circuit authority the citizenship of fictitious defendants is disregarded until a named defendant is substituted.
Four factors favored joinder. On just adjudication, FEHA allows individual liability for harassment, so excluding Kuntzman would force a separate and redundant state action. On delay, plaintiff could not move until she learned Doe's identity and filed within the court's deadline. On motive, plaintiff named Ashley Doe before removal and sought to join only Kuntzman, not the other former Does; the date change bore on credibility but did not show a solely jurisdictional motive. On prejudice, denial would force duplicative litigation or abandonment of claims against Kuntzman. Two factors weighed against joinder: plaintiff conceded the limitations period had not run, so she could sue in state court, and the claim against Kuntzman was not facially valid.
On validity, the court held that two statements made more than a year apart were not shown to be because of a protected characteristic and were not severe or pervasive. Fraudulent joinder, assuming it applies, was still not established because amendment might cure the deficiency. Sanctions were denied because removal was proper when made and Target's opposition was reasonable. The court granted leave to file the FAC by October 28, 2026; remand to Orange County Superior Court will be ordered once it is filed.
Key Takeaways
- A plaintiff who seeks to add a nondiverse defendant after removal is judged under the discretionary six-factor test of 28 U.S.C. § 1447(e), not the more liberal Rule 15(a) standard.
- No single § 1447(e) factor is decisive, so joinder and remand can be permitted even when the claim against the new defendant is weak, as here with four factors for joinder and two against.
- Naming a Doe defendant in the state-court complaint before removal can support a finding that later substitution of a nondiverse defendant was not solely meant to defeat jurisdiction.
- Because FEHA permits individual liability for harassment, denying joinder can prejudice a plaintiff by forcing duplicative state litigation or abandonment of that claim.
- Two brief statements advising an employee to resign and reapply, made over a year apart, did not establish a facially valid harassment claim, yet a fraudulent joinder finding still required more.
Why It Matters
This is a district-court minute order by a magistrate judge presiding by consent. It is not binding precedent and is useful only as persuasive reasoning on Doe substitution after removal. It joins recent Central District decisions treating the § 1447(e) facial-validity inquiry as distinct from fraudulent joinder and lower than a Rule 12(b)(6) inquiry, while still requiring the elements of the claim.
Much remains open. The order is neither a final judgment nor yet a remand; remand follows only after plaintiff files the FAC by October 28, 2026. The court did not decide whether Kuntzman is the Doe described in the original complaint or whether any FEHA claim will succeed. It also noted that further amendment in state court might state a harassment claim against her.