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Bleakley v. Birdcage Shopping Center

April 13, 2010

MAXINE BLEAKLEY, PLAINTIFF,
v.
BIRDCAGE SHOPPING CENTER, TARGET CORPORATION, AND DOES 1-20, DEFENDANTS.



MEMORANDUM AND ORDER RE: REMAND

Plaintiff Maxine Bleakley brought this action in state court against defendants Birdcage Shopping Center ("BSC") and Target Corporation ("Target") alleging premises liability and negligence under California law and asking for compensatory damages. (Notice of Removal, (Docket No. 1) Ex. A.) Defendant Target subsequently removed the action to this court on the basis of diversity jurisdiction. (Id.); 28 U.S.C. § 1441(b). Before the court is plaintiff's motion to remand the action to state court.

I. Factual and Procedural Background

Plaintiff is a disabled person who was allegedly injured on February 7, 2007, in a Citrus Heights Target parking lot. (Pl.'s Mem. in Supp. of Mot. to Remand, at 1 (Docket No. 13).) Target provided her with a motorized scooter, with which she transported herself through the parking lot and toward her car. (Id.) Plaintiff allegedly drove the scooter over a speed bump in the parking lot when it to come to an abrupt stop and caused the scooter handle to hit plaintiff's left hand. (Id.) A Target employee allegedly led plaintiff over the speed bump. (Id.) Plaintiff alleges injuries resulting from the scooter accident, including pain and limited mobility in her left hand and wrist, a recurrent cyst on her left thumb, and scarring of her left middle finger and palm. (Id. at 2.)

On February 9, 2009, plaintiff filed this action in Sacramento County Superior Court. (Notice of Removal Ex. A.) Plaintiff has alleged, among other things, that a speed bump in the Target parking lot was too high for motorized scooters and that the parking lot was configured in a manner that encouraged disabled persons to direct such scooters over the speed bump. (Id.) Plaintiff alleged that defendants were negligent in the organization, configuration, maintenance, and operation of the parking lot by designing, installing, and maintaining an excessively high speed bump in an area configured for disabled access and by failing to warn of the hazard, and requested compensatory damages. (Id.) BSC has never appeared in the state court action and has made no appearance before this court. On February 8, 2010, Target filed a notice of removal, based upon diversity jurisdiction pursuant to 28 U.S.C. § 1441(b). (Notice of Removal.) Plaintiff filed the instant motion to remand on March 1, 2010, arguing that Target has failed to establish diversity or meet its burden to show that the action meets the amount in controversy requirement of $75,000, making Target's removal of this action improper. (Docket No. 12.)

II. Discussion

"Under 28 U.S.C. § 1441, a defendant may remove an action filed in state court to federal court if the federal court would have original subject matter jurisdiction over the action." Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1243 (9th Cir. 2009). A district court will have original jurisdiction based on diversity when the amount in controversy is greater than $75,000 and there is complete diversity between the parties--i.e., the parties are "citizens of different states."

28 U.S.C. § 1332(a). When a plaintiff moves to remand a case, the defendant bears the burden of establishing that removal was proper. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Any questions regarding the propriety of removal are resolved in favor of the party moving for remand. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). If removal was improper, "the district court lack[s] subject matter jurisdiction, and the action should [be] remanded to the state court." Toumajian v. Frailey, 135 F.3d 648, 653 (9th Cir. 1998) (citing 28 U.S.C. § 1447(c)).

Target's Notice of Removal states that removal is appropriate on the basis of diverse parties because Target is the only defendant that had been served with a Summons and Complaint at the time of removal, and because Target is incorporated as a Minnesota corporation and has its principal place of business there. (Notice of Removal ¶ 4.) Target attached a copy of a computer print-out from the California Secretary of State's database as evidence that Target is a Minnesota corporation with its principal place of business in Minnesota. (Mordaunt Decl. in Support of Removal (Docket No. 2) Ex. 1.) Target subsequently dropped its argument that BSC had not been served, and now argues that BSC was fraudulently joined such that its citizenship should not be considered for the purpose of establishing diversity jurisdiction. (Opp'n to Pl.'s Mot. to Remand (Docket No. 19), at 4-5.)

A. Target's Citizenship

Plaintiff argues that Target has not met its burden to establish its citizenship through evidentiary objections to Mourdant's declaration. Plaintiff challenges Mourdant's declaration as violating Federal Rule of Evidence 602 (Pl.'s Obj. to Mourdant Decl. (Docket No. 15) ¶ 1). Specifically, plaintiff asserts that Mourdant's statement that "I am informed of and believe that" Target is a Minnesota corporation with its principal place of business there is not admissible because it is not based on Mourdant's personal knowledge. (Pl.'s Mem. in Supp. of Mot. to Remand, at 4; (Pl.'s Obj. to Mourdant Decl. ¶ 1; see (Mordaunt Decl. in Support of Removal.) Federal Rule of Evidence 602 requires the introduction of evidence "sufficient to support a finding that the witness has personal knowledge" of the matter testified to. Mourdant attached to his declaration a print-out from the California Secretary of State's website indicating Target's place of incorporation and address. This is sufficient to satisfy Rule 602, and plaintiff's objection is overruled.

Plaintiff also challenges the exhibit attached to Mourdant's declaration as not within the scope of Federal Rule of Evidence 1005's exception to the best evidence rule for copies of public records. (Pl.'s Reply to Target's Opp'n to Mot. to Remand (Docket No. 20, at 3; see Mordaunt Decl. in Support of Removal Ex. 1.) While the California Secretary of State website's business record page is neither an official state document nor a certified copy that would fall under Rule 1005, it is admissible under Rule 1003 because there is no "genuine question as to the authenticity" of the record. Plaintiff does not contest the record's authenticity or provenance, and because the record is generated by an official government website its accuracy is not reasonably in dispute. Indeed, courts in this and other districts frequently take judicial notice of such print-outs pursuant to Federal Rule of Evidence 201(b). See, e.g., Edejer v. DHI Mortg. Co., No. 09-1302, 2009 WL 1684714, at *4 (N.D. Cal. June 12, 2009); East Bay Mun. Util. Dist. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., No. 09-614, 2009 WL 975442 (N.D. Cal. Apr. 10, 2009); Piazza v. EMPI, Inc., No. 07-954, 2009 WL 590494, at *4 (E.D. Cal. Feb. 29, 2008); see also Denius v. Dunlap, 330 F.3d 919, 926-27 (7th Cir. 2003) (taking judicial notice of information on official government website). Plaintiff's objection is therefore overruled.

Plaintiff's primary objection to the California Secretary of State record concerns whether the record provides sufficient detail with which to determine Target's citizenship. (Pl.'s Reply to Target's Opp'n to Mot. to Remand, at 3.) A corporation is deemed a citizen of the state under which it is incorporated and in which it has its principal place of business.

28 U.S.C. ยง 1332(c); see Hertz Corp. v. Friend, --- U.S. ---, 130 S.Ct. 1181 (2010) (holding that a corporations "principal place of business" for diversity purposes is the corporation's "nerve center," which is ordinarily its headquarters). The record provided in Mourdant's declaration includes a hyperlink to "Field Descriptions and Status Definitions" which describe the various fields presented on the record. (Mourdant Decl. in Supp. of Removal Ex. 1.) Following the hyperlink on the Secretary of State's website provides a list of field descriptions used on the business entity detail pages that defines "Jurisdiction" as "The state or country under which laws a business entity was organized," and "Entity Address" as "The executive office or mailing address of a business entity." California Secretary of State, Business Search, Field Descriptions and Status Definitions, www.sos.ca.gov/business/be/cbs-field-status-definitions.htm (last visited April 7, 2010). The "Jurisdiction" entry clearly ...


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