Unreported / Non-Citable
Background
Gustavo Silva and Manuela Vasquez-Silva, both former employees of a Target store in Marina, California, filed a 16-count complaint in Monterey County Superior Court on June 25, 2026, alleging violations of the Fair Employment and Housing Act, whistleblower protections under Labor Code section 1102.5, the Unfair Competition Law, and various wage-and-hour provisions. They named as defendants Target Corporation and Jenenne Nickell, the store's human resources manager. The complaint alleged that Nickell made disparaging comments about Mr. Silva's race and tattoos, suggested he looked like a gang member, warned him she was watching cameras to ensure he did not steal, prohibited him from speaking Spanish at work, ignored his requested medical accommodations, and treated Ms. Vasquez-Silva in a hostile manner based on her race and national origin.
Plaintiffs served Target on July 13, 2026, but did not serve Nickell until September 25, 2026. Before Nickell was served, Target removed the case to the Northern District of California on August 3, 2026, invoking diversity jurisdiction and arguing either that Nickell was fraudulently joined or that the snap removal doctrine permitted removal before the forum defendant was served. Plaintiffs moved to remand, contending that Nickell's California citizenship destroyed complete diversity because both they and Nickell were California citizens while Target was a Minnesota citizen.
The Court’s Holding
Judge Edward J. Davila granted the motion to remand, concluding that Target failed to establish fraudulent joinder by clear and convincing evidence. The court explained that fraudulent joinder requires showing either actual fraud in pleading jurisdictional facts or that the plaintiff cannot establish any cause of action against the non-diverse defendant in state court, a test distinct from and more demanding than a Rule 12(b)(6) analysis. Because Plaintiffs alleged facts supporting each element of a FEHA harassment claim against Nickell—including protected-class membership, unwelcome race-based harassment, creation of a hostile work environment, and proximate causation—the court could not conclude the claim was destined to fail, particularly given the possibility of amendment and the California legislature's caution that harassment cases are rarely appropriate for paper disposition. Although the court agreed that Nickell could not be individually liable for FEHA retaliation because only employers may be held liable for discrimination or retaliation, that did not alter the conclusion because the harassment claim remained viable.
The court also rejected Target's snap removal argument, holding that the forum-defendant rule is irrelevant where the court lacks original jurisdiction in the first place. Because Nickell and Plaintiffs were all California citizens, complete diversity was absent, and snap removal could not solve that fundamental jurisdictional defect. In a footnote, the court addressed Target's argument that Plaintiffs' two-day-late service on Nickell warranted dismissal under Rule 4(m), finding good cause for the delay based on reasonable service efforts and minimal prejudice. Finally, the court declined to evaluate Target's evidentiary objections to third-party declarations, finding it unnecessary to consider them given the jurisdictional ruling. The case was remanded to the Superior Court of California, County of Monterey.
Key Takeaways
- A removing defendant bears a heavy burden to prove fraudulent joinder by clear and convincing evidence, and must show the plaintiff cannot possibly establish a cause of action against the non-diverse defendant on any theory, not merely that the complaint fails to state a claim.
- Individual supervisors may be personally liable for harassment under FEHA even though they cannot be held liable for discrimination or retaliation, so naming a supervisor on a harassment claim can defeat a fraudulent joinder theory.
- Snap removal cannot create federal jurisdiction where complete diversity is lacking; the forum-defendant rule presupposes that the case is otherwise removable, so it cannot cure the absence of original jurisdiction.
- A two-day delay in serving a defendant after removal may be excused for good cause where plaintiffs made reasonable service efforts through a process server and the delay caused minimal prejudice early in the litigation.
- Doubts about the right of removal are resolved in favor of remand, and the party invoking federal jurisdiction bears the burden of establishing it.
Why It Matters
This order reinforces the demanding standard defendants face when attempting to remove employment cases to federal court by disregarding in-state supervisors as fraudulently joined. Because FEHA expressly permits harassment claims against any person, including individual supervisors, plaintiffs can often preserve state-court jurisdiction by pleading harassment claims against local managers with sufficient factual detail. The decision also confirms that snap removal, while permitted in some circumstances in the Northern District of California, is no substitute for complete diversity and cannot rescue a removal where a properly joined in-state defendant shares citizenship with the plaintiffs.