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ORDER - 1 

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

KAREN A. BROWN, 

Plaintiff,

v.

UNITED PARCEL SERVICE, INC., 

Defendant.

No. C05-1718MJP

ORDER GRANTING PLAINTIFF’S

MOTION FOR REMAND

This matter comes before the Court on Plaintiff’s Motion for Remand to King County

Superior Court. (Dkt. No. 6). Defendant United Parcel Service (“UPS”) removed this action to

federal court on October 11, 2005. (Dkt. No. 1), claiming that Plaintiff had fraudulently joined a nondiverse co-defendant in the state court action, only to dismiss him in a voluntary non-suit over a year

later. Defendant claims that this dismissal should make the case removable to federal court. Plaintiff

claims that there was no fraudulent joinder and that the non-diverse defendant was dismissed from the

state court action because of legitimate concerns about the orderly prosecution of that case. Having

considered Plaintiff’s Motion, Defendant’s Response, and all other pertinent papers and documents

concerning this motion, the Court finds that Defendant has not met the heavy burden required to

establish fraudulent joinder. For this reason, the Court GRANTS Plaintiff’s motion and REMANDS

this case to state court. 

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ORDER - 2 

BACKGROUND

In July 2004, Karen Brown filed suit in King County Superior Court against her former

employer UPS and her former supervisor Michael Yokoyama, alleging sexual harassment claims

under the Washington Law Against Discrimination (“WLAD”). While both Ms. Brown and Mr.

Yokoyama are Washington residents, Defendant UPS is a Georgia corporation. 

On October 18, 2004, Ms. Brown received a right-to-sue letter from the EEOC regarding her

federal discrimination claims. (Def’s Resp. at 3). On October 26, 2004, Ms. Brown amended her

Complaint to include state claims of disability discrimination. (Id.) December 20, 2004 was Ms.

Brown’s deadline for filing the Confirmation of Joinder of Parties, Claims, and Defenses in state

Court. She did not join her federal claims to her state case at that time. (Id.). 

Tuesday, January 18, 2005, was the last day on which Ms. Brown could file a case based on

her federal discrimination claims. (Id. at 4). A few days earlier, on January 13, 2005, she sought a

stipulation from UPS allowing her Title VII claims to be joined to the action in state court. UPS

refused this stipulation and on January 18, 2005, Ms. Brown filed a suit based on her federal claims in

the King County Superior Court. On February 9, 2005, UPS removed those claims to this Court.

(Dkt. No. 14 at 3). These claims are now pending before Judge Lasnik as civil case number 05-

00237RSL. 

On September 9, 2005, Ms. Brown moved for voluntary non-suit against Mr. Yokoyama. On

September 13, 2005, the Superior Court granted Ms. Brown’s motion for dismissal of Mr. Yokoyama

from the state court case. (Dkt. No. 1 at 2-3). UPS filed its Notice of Removal of the state court

action to this Court on October 11, 2005. (Id.). Defendant UPS is now alleging that Mr. Yokoyama

was fraudulently joined to the prior state court action and for this reason asks the Court for equitable

waiver of the one year deadline for removal of a case found in 28 U.S.C. §1446(b). Defendant claims

that its allegation is supported by the time line on which Ms. Brown handled this case and the fact

that Ms. Brown engaged in almost no discovery against Mr. Yokoyama. Ms. Brown asks for remand

to state court and supports her argument by observing that UPS has not provided evidence that she

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ORDER - 3 

was unable to make out a cause of action against Mr. Yokoyama. Ms. Brown also argues that the

fact that she sought and received dismissal without prejudice is favorable to remand and that the

reason she sought non-suit against Mr. Yokoyama was related to the orderly prosecution of her case,

rather than fraudulent intent. 

ANALYSIS

Removal of cases to federal court is governed by 28 U.S.C. §1446(b). In pertinent part, this

statute provides:

If the case stated by the initial pleading is not removable, a notice of removal may be

filed within thirty days after receipt by the defendant. . .of a copy of an amended

pleading, motion, order or other paper from which it may first be ascertained that the

case is one which is or has become removable, except that a case may not be removed

on the basis of jurisdiction conferred by section 1332 of this title more than 1 year

after commencement of this action. 28 U.S.C. §1446(b).

In the case at hand, the parties agree that Defendant’s removal occurs after the one-year anniversary

of the commencement of this action. Plaintiff brings her motion for remand on this basis. However,

Defendant claims that Defendant Yokoyama was fraudulently joined to this action and Plaintiff never

had any intent to prosecute her claims against him. Because of Plaintiff’s alleged fraudulent joinder,

Defendant states that this action was not removable to federal court until Plaintiff filed a voluntary

non-suit against Mr. Yokoyama in September of this year. Because this type of chicanery should not

be encouraged, says Defendant, the Court should recognize an equitable exception to section

1446(b). 

In the Ninth Circuit, joinder of a non-diverse defendant is viewed as fraudulent if the Plaintiff

fails to state a cause of action against the non-diverse defendant and this omission is obvious under

relevant state law. Morris v. Princess Cruises, Inc., 236 F. 3d 1061, 1067 (9th Cir. 2001). If

plaintiff’s claims against the non-diverse defendant are substantial enough to withstand the 12(b)(6)

inquiry, however, the joinder is not deemed fraudulent. Sessions v. Chrysler Corp., 517 F. 2d. 759,

761 (9th Cir. 1975). Nonetheless, defendants claiming fraudulent joinder should be given a chance to

present evidence showing that the joinder was fraudulent. Morris, 236 F. 3d. at 761. 

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ORDER - 4 

In the case at hand, Plaintiff’s complaint alleges that Mr. Yokoyama, “personally witnessed,

promoted, and participated in the sexual and retaliatory action against Brown.” (Redaction to Am.

Walton Decl., Ex. A. at 13, ¶3.25). Paragraphs 3.26 to 3.29 of the Complaint further elaborate on

Mr. Yokoyama’s alleged discriminatory actions toward Ms. Brown.(Id.). Although Mr. Yokoyama

appears to be only one of several supervisors that Ms. Brown reported to, yet is the only individual

defendant named in this action, there is nothing on the face of the Complaint that would lead the

reader to believe that Ms. Brown’s allegations against Mr. Yokoyama are frivolous. Under

Washington’s Law Against Discrimination, supervisors who act on behalf of companies that employ

more than eight people can be held individually liable for their acts. Brown v. Scott Paper Worldwide

Co., 143 Wn. 2d 349, 358, 20 P. 3d 921 (2001). 

Before reaching a conclusion, however, on the validity of Plaintiff’s claims against Mr.

Yokoyama, the Court must also examine the evidence put forth by Defendant as to the allegedly

fraudulent nature of the joinder of Mr. Yokoyama. Defendant notes that, although Ms. Brown

deposed four current UPS managers and took three other 30(b)(6) depositions, her counsel never

sought to depose Mr. Yokoyama. (Def’s Opp. at 5). Defendant also observes that Ms. Brown

propounded at least seven sets of interrogatories, but only directed one set to Mr. Yokoyama. 

Finally, Defendant cites to the way in which Plaintiff handled the deadlines in this case pertaining to

the joinder of the federal causes of action to the state action. Defendant points out that Plaintiff

waited until the last possible day (90 days after issuance of the EEOC right-to-sue letter) to file her

federal claims. Defendant also finds it suspicious that Plaintiff waited until two months after the one

year anniversary of filing the state case to dismiss the claims against Mr. Yokoyama. 

Taken all together, these circumstances do raise a question about what Plaintiff’s motives

were in joining Mr. Yokoyama to her state Court action. However, “[t]he burden of proving a

fraudulent joinder is a heavy one.” Green v. Amerada Hess Corp., 707 F. 2d 201, 205 (5th Cir. 1982). 

Defendant must either show that Plaintiff can show no possible cause of action against the Mr.

Yokoyama, or that there is “outright fraud” in the pleadings. Id. Defendant’s submission does not

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ORDER - 5 

meet this burden, especially in light of the fact that Plaintiff asserts a plausible explanation for her

behavior. Plaintiff states that her relationship with Mr. Yokoyama became disproportionately

contentious and distracting to allow him to remain in this litigation. (Pl’s Reply at 3-4). She states

that it was a difficult decision to dismiss him, but that she sought a dismissal without prejudice to

preserve her claims against him for the future. (Id.)

 In light of these explanations, the lack of substantial evidence of fraud submitted by

Defendant UPS, and the facial validity of Plaintiff’s claims against Mr. Yokoyama, this Court does

not find that Plaintiff’s joinder of Mr. Yokoyama to this action was fraudulent under the governing

law. Because Defendant has not proven fraudulent joinder, the Court need not reach the issue of

whether or not an equitable exception to 28 U.S.C. §1446(b) deadlines exists in this Circuit. 

Accordingly, the Court REMANDS Plaintiff’s state claims to state court.

CONCLUSION

Defendant UPS has not met the heavy burden required to establish fraudulent joinder in this

Circuit. For this reason, the Court need not reach the issue of whether or not this Circuit recognizes

an equitable exception to the deadlines for removal 28 U.S.C. §1446(b). The Court GRANTS

Plaintiff’s motion and REMANDS Plaintiff’s state claims against UPS to state Court. 

The Clerk of the Court shall direct a copy of this order be sent to all counsel of record.

Dated: November 10, 2005.

A

Marsha J. Pechman

United States District Judge

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