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Aceves v. Wagner Spray Tech Corp.

January 9, 2009

LIBRADO ACEVES, PLAINTIFF,
v.
WAGNER SPRAY TECH CORPORATION, A CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Presently before the Court is Plaintiff's Motion to Amend the Complaint and Motion to Remand. For the following reasons, Plaintiff's Motion is granted.*fn1

BACKGROUND

Plaintiff alleges that on July 17, 2006, while working with a paint sprayer, he was injured by an electrical shock.

The sprayer was manufactured by Wagner Spray Tech Corporation ("Wagner") and its electrical cord was manufactured by Kord King Company ("Kord King"). ICI, now owned by Anzo Nobel, distributed the sprayer, and, approximately four months prior to the incident, the sprayer was repaired by LAD Enterprises, Inc. ("LAD"), at its Elk Grove facility.

As a result of the shock, Plaintiff allegedly suffered from brain, cardiac and neurological damage, psychological and psychiatric injury, ongoing anxiety and depression, and post traumatic stress disorder.

Because Plaintiff was injured during the course of his employment, he filed a workers' compensation claim. The workers' compensation carrier subsequently filed a subrogation action ("Subrogation Action") in Yolo County.

Plaintiff initially sought the advice of counsel, Jeffrey Jacobs, in February of 2008. Plaintiff subsequently filed the current Complaint in Yolo County Superior Court on July 17, 2008. Plaintiff alleged products liability and general negligence causes of action against Wagner; Spray Tech Systems, Inc. ("Spray Tech"); King Associates Ltd. ("King Assoc."); Kord King; ICI Group, Inc.; ICI; Anzo Nobel; LAD; and Does 1-100.

According to Mr. Jacobs, at the time he filed this action, he knew the identifies of some, but not all of the potentially responsible parties. Accordingly, pursuant to California law, he named Does 1-100 as fictitious defendants.

At the time or removal of this action, Plaintiff had not yet served any Defendants. Nevertheless, Defendant Kord King had actual notice of Plaintiff's suit and voluntarily answered the Complaint on August 29, 2008. That same day, Kord King removed the action to this Court alleging diversity of citizenship under 28 U.S.C. § 1332.

On September 29, 2008, Plaintiff filed the current Motion to Amend his Complaint, seeking to substitute the following parties for Doe Defendants: Westech Services, Inc., a California corporation ("Westech"); United Services Group, LLC, an LLC organized under California law ("USC CA"); United Services Group, LLC, an LLC organized under the laws of Washington ("USC WA"); and David Butler ("Butler"), a California citizen. Because such an amendment will destroy diversity, Plaintiff simultaneously moved to remand to state court.

Mr. Jacobs alleges that, at the time he filed the Complaint, he was unaware of the identity or potential liability of the above Defendants he now seeks to substitute. However, Kord King argues that because Plaintiff was present at depositions conducted in the Subrogation Action, Plaintiff had knowledge of the identities of the prospective defendants and is thereby precluded from making any substitutions. Specifically, Kord King claims that on March 27, 2008, three LAD documents were marked as exhibits to the deposition of one Edward Armas. Kord King claims that those documents put Mr. Jacobs on notice of the absent defendants' identities.

However, Mr. Jacobs contends that it was inspection of the paint sprayer, subsequent to the filing of the Complaint, that ultimately led him to believe either the Spraytech defendants or the repair technician, David Butler, was responsible for Plaintiff's injuries.

Moreover, Mr. Jacobs stated that he only recently discovered that LAD was dissolved on or about June 1, 2007. According to Mr. Jacobs, LAD was acquired by Westech and both LAD and Westech participated in some manner in the entity USG WA. However, USG WA was also dissolved on or about February 1, 2008, and on approximately February 22, 2008, USG CA was formed. Thus, Plaintiff alleges that ...


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