ORDER REASSIGNING CASE AND REPORT AND RECOMMENDATION IN FAVOR OF GRANTING MOTION TO REMAND

Regarding Docket Nos. 8, 9

SALLIE KIM, Magistrate Judge.

Plaintiff Dayana Medina ("Plaintiff") moves to remand this action to state court. The Court has carefully considered the parties' papers, relevant legal authority, the record in the case, and has heard oral argument. Because not all Defendants have appeared and consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636, the Court hereby ORDERS that this matter be REASSIGNED to a district judge. Based on the Court's review of the case, the Court RECOMMENDS that the district judge GRANT Plaintiffs' motion for the reasons set forth below.

BACKGROUND

Plaintiff filed her original complaint against Defendants Wells Fargo & Company, Wells Fargo National Bank, N.A., Wells Fargo Bank, Ltd., and Wells Fargo Central Pacific Holdings, Inc. ("Defendants") on June 14, 2019, in California Superior Court for the County of Alameda. (Dkt. 1-1.) Plaintiff's complaint alleges that she began working at a Wells Fargo Bank branch in Alameda County, California in June of 2010. (Id.) Plaintiff alleges that she received a promotion, a position transfer, and positive performance reviews over the course of her employment. (Id.) She also completed on 30-day performance improvement plan. (Id.) Plaintiff alleges that she informed her manager she was pregnant on January 2, 2018. (Id.) On January 11, 2018, Plaintiff's employment was terminated. (Id.) Plaintiff brings claims for violation of the California Pregnancy Disability Leave Act, Cal. Gov. Code § 12945, et seq., retaliation for taking CFRA leave in violation of the California Fair Employment and Housing Act, Cal. Gov. Code § 12940, et seq., discrimination on the basis of sex in violation of the California Fair Employment and Housing Act, Cal. Gov. Code § 12940, et seq., and wrongful termination in violation of public policy. (Id.) Plaintiff's complaint alleges only claims under California law.

Defendant Wells Fargo Bank, N.A. ("Wells Fargo N.A.") removed the complaint to federal district court on July 25, 2019. (Dkt. 1.) In its notice of removal, Wells Fargo N.A. contends that its co-Defendants Wells Fargo & Company, Wells Fargo Bank, Ltd., and Wells Fargo Central Pacific Holdings, Inc. are all separate corporate entities that had nothing to do with Plaintiff's employment, which was through Wells Fargo N.A. alone. (Id.) Accordingly, Wells Fargo N.A. argues that the other three Defendants are sham defendants who have been fraudulently joined to this suit and whose citizenship should not be considered for purposes of determining subject matter jurisdiction. Wells Fargo N.A. removed the action on the basis of diversity jurisdiction. (Id.) Wells Fargo N.A. is a citizen of South Dakota. (Dkt. 1-4.) Wells Fargo & Company ("Wells Fargo & Co."), Wells Fargo Bank, Ltd., and Wells Fargo Central Pacific Holdings, Inc., are all citizens of California. (Dkt. 1-7.) Plaintiff is a citizen of California. (Dkt. 1-1.) Plaintiff's complaint alleges damages of an indefinite amount; Defendants assert that the amount in controversy exceeds $75,000. (Dkts. 1, 1-1.)

ANALYSIS

A. Legal Standards on Motion to Remand.

While diversity jurisdiction under 28 U.S.C. § 1332 ordinarily requires complete diversity of the parties, see Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996), removal is proper despite the presence of a nondiverse defendant when that defendant is fraudulently joined. "Fraudulent joinder is a term of art. If 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, the joinder of the resident defendant is fraudulent." McCabe v. Gen. Foods, 811 F.2d 1336, 1339 (9th Cir. 1987). "[A]ll disputed questions of fact and all ambiguities in the controlling state law are [to be] resolved in plaintiff's favor." Calero v. Unisys Corp., 271 F.Supp.2d 1172, 1176 (N.D. Cal. 2003). If after doing so, "there is a non-fanciful possibility that plaintiff can state a claim under [state] law against the non-diverse defendants[,] the court must remand." Macey v. Allstate Prop. & Cas. Ins. Co., 220 F.Supp.2d 1116, 1117 (N.D. Cal. 2002). The party asserting the fraudulent joinder bears the burden of proof, and the court must remand unless the defendant can show that there is no possibility that the plaintiff could prevail on any cause of action brought against the non-diverse defendant. See Levine v. Allmerica Fin. Life Ins. & Annuity Co., 41 F.Supp.2d 1077, 1078 (C.D. Cal. 1999). "Courts should resolve doubts as to removability in favor of remanding the case to state court." Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992) (internal quotations omitted).

B. Plaintiff's Motion to Remand.

Plaintiff argues that Defendants improperly removed this action because there is a "non-fanciful possibility" that nondiverse Defendant Wells Fargo & Co. was properly named alongside diverse Defendant Wells Fargo N.A. in Plaintiff's complaint. Macey, 220 F. Supp. 2d at 1117. Plaintiff's argument is that joinder of Wells Fargo & Co. was not fraudulent because Wells Fargo & Co. was Plaintiff's joint employer, with Wells Fargo N.A. In support of her position, Plaintiff provides her personnel records — which contain the terms and conditions of her employment as well as performance goals, means of measuring her performance, and comments from supervisors. (Dkt. 8-3.) The majority of these documents are clearly marked "Wells Fargo & Co." (Id.) Some refer only to "Wells Fargo" (e.g., Offer Letter, Dkt. 8-3 at 28-30), and some are marked "Wells Fargo Bank, N.A." (e.g., Harassment Policy, Dkt. 8-3 at 31-34). Pages from each of these categories of documents show the same square logo with the text "Wells Fargo" in capital block letters inside. (Compare Dkt. 8-3 at 28, 31, 52.)

Plaintiff also directs the Court's attention to Fraser v. Wells Fargo Bank, N.A., 2015 WL 1938448 (N.D. Cal. Apr. 28, 2015). In that case, a plaintiff sued Wells Fargo Bank, N.A. alongside Wells Fargo Bank, Ltd., in California state court, alleging employment-based claims. Id. at *1. Defendants removed the suit to federal court, and the plaintiff objected because Wells Fargo Bank, Ltd., is a California entity. Id. Defendants argued that the plaintiff had joined the California entity as a sham defendant. The court held that "Defendants [...] failed to meet their heavy burden" of showing that Wells Fargo Bank, Ltd., was a sham defendant because there was insufficient evidence that the two entities were not joint employers under California law. Id. The defendants submitted "two perfunctory declarations" saying they were not joint employers, but the court found those statements insufficient to meet the defendants' burden of proof. Id. Similarly, in Jankins, a plaintiff brought employment-based claims against Wells Fargo Bank, N.A., with Wells Fargo & Co. (the California entity, as here). Jankins v. Wells Fargo Bank, N.A., et al., 2017 WL 1181562 (C.D. Cal. Mar. 29, 2017). Defendants removed based on fraudulent joinder. Id. at *5. The court remanded the action, finding that "[a]s Plaintiff has presented some evidence that [Wells Fargo & Co.] could be Plaintiff's joint employer, construing this evidence in Plaintiff's favor [...] Defendants have failed to carry their heavy burden of demonstrating the improper joinder by clear and convincing evidence." Id. at *6 (quotation omitted).

C. Defendants' Opposition.

Defendants counter that the labelling of the documents in Plaintiff's personnel file is irrelevant because Wells Fargo & Co. lacked day-to-day control over Plaintiff's employment. They argue that an entity that pays an employee's salary is presumptively the employer, citing Helmick v. Dave & Buster's, Inc., 2018 U.S. Dist. LEXIS 42246, at *15-18 (C.D. Cal. Mar. 14, 2018). Defendants further contended at oral argument that the case at bar is distinguishable from Fraser and Jankins because the declarations they submit here are more fulsome and address the requirements for finding a joint employer relationship.

D. Discussion.

The Court concludes that Plaintiff has established a non-fanciful possibility that she can state a claim against Wells Fargo & Co. as her joint employer under California law. The Court must weigh the facts in Plaintiff's favor, and if there is any possibility that Plaintiff could establish liability against the nondiverse defendant, remand is required. Levine, 41 F. Supp. 2d at 1078; Macey, 220 F. Supp. 2d at 1117. Under California law, a party may be liable under a joint enterprise theory of employment where there are several factors, including payment of salary or benefits, ownership of equipment necessary to perform the job, location of work, obligation to train the employee, authority to hire, fire, discipline, reward, or transfer the employee, authority to establish work schedules and compensation, the extent of supervision, the skill required to perform the employment, and the duration of the relationship between the parties. Vernon v. State of California, 116 Cal.App.4th 114, 125 (2004). "There is no magic formula for determining whether an organization is a joint employer." Id. at 124-25 (citation omitted). Courts look most closely at the extent to which a defendant has the right to control the means and manner of the employee's performance, including "the level of control an organization asserts over an individual's access to employment opportunities." Id. at 126. Plaintiff's personnel records clearly establish a likelihood that there is some corporate relationship between Wells Fargo N.A. and Wells Fargo & Co. The Court does not find it "fanciful" for a Plaintiff to conclude that an entity whose name is on many pages of her personnel files — including on documents related to directing and evaluating her performance — has some control over her employment. Wells Fargo N.A.'s conclusory assertion that the documents do not reflect any sort of joint enterprise is insufficient to dispel this inference.

Wells Fargo N.A. leans heavily on its initial declarations in support of removal, asserting that they are less conclusory than those found insufficient in Fraser. However, upon reviewing the declarations, the Court finds them conclusory in this case as well. (Dkts. 1-6, 1-7.) Both state that the entities at issue are separate, but the Declaration of Jeannine E. Zahn also states that "Wells Fargo & Company is a holding company which, at this time, indirectly holds 100 % of Wells Fargo Bank, N.A.'s common stock." (Dkt. 1-7.) The Declaration of Cathy Tautkus states that only Wells Fargo N.A. controlled Plaintiff's employment, but does not explain why Wells Fargo & Co.'s mark appears so frequently in her personnel file. (Dkt. 1-6.) At oral argument, counsel for Wells Fargo N.A. argued that the only reason the name of Wells Fargo & Co. appeared on documents is that they were a relic of previous documents but conceded that theory is only speculation unsupported by any evidence in the record. Here, the personnel files provide more concrete evidence of a joint enterprise than was present in either Fraser or Jankins.

Plaintiff has adduced specific evidence that Wells Fargo N.A. and Wells Fargo & Co. were her joint employers. Wells Fargo N.A. in turn has not carried its burden of showing that liability of nondiverse Defendant Wells Fargo & Co. is fanciful under California law. The appropriate course is therefore remand.

CONCLUSION

For the foregoing reasons, the Court RECOMMENDS that the district judge GRANT Plaintiffs' motion to remand.

IT IS SO ORDERED.