MEMORANDUM AND ORDER RE: MOTION TO REMAND
Plaintiffs Leah Roberson, Matthew Roberson, and Anthony Gallagher brought this action against defendants Anatoly Fauryan and Rees Enterprizes, Inc. ("Rees Enterprizes"), stating claims arising out of a motor vehicle accident involving a trailer driven by Fauryan, an employee of Rees Enterprizes. Presently before the court is plaintiffs' motion to remand.
I. Factual and Procedural Background
Plaintiffs allege that, on January 17, 2010, their motor vehicle was struck by a tractor trailer driven by Fauryan. (Compl. at 4; Mot. to Remand at 3:11-13 (Docket No. 5.).) They further allege, and Rees Enterprizes agrees, that Fauryan was acting in the scope of his employment with Rees Enterprizes when the accident occurred. (Compl. at 4; Not. of Removal ¶ 5 (Docket No. 1).)
On October 19, 2011, plaintiffs, who are California residents, filed suit in state court against Fauryan, a California resident, and Rees Enterprizes, a Washington corporation. (Not. of Removal ¶ 1, Ex. A.) Rees Enterprizes was served on October 26, 2011, (id. ¶ 2, Ex. B), and filed a Notice of Removal on November 10, 2011, (Docket No. 1). Fauryan was served on November 12, 2011. (Bozarth Decl. Ex. C at 5.)
Plaintiffs now move to remand this action to state court on the grounds that removal was improper as this court lacks subject matter jurisdiction over the proceeding. (Docket No. 5.)
A. Remand to State Court "[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district . . . where such action is pending." 28 U.S.C. § 1441(a). The Ninth Circuit strictly construes the removal statute against removal jurisdiction, and the party seeking removal bears the burden of establishing federal jurisdiction. Geographic Expeditions, Inc. v. Estate of Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010) (citing 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)).
Federal courts have original jurisdiction over cases where all parties are citizens of different states and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. Here, the parties do not dispute that the amount in controversy exceeds $75,000. The remaining issue, therefore, is whether diversity exists between all parties.
On the face of the Complaint, it seems clear that complete diversity does not exist between all parties as Fauryan and plaintiffs are California citizen and that, therefore, removal was improper. Rees Enterprizes, however, argues that Fauryan is a fraudulently joined defendant and that the court should therefore disregard his citizenship for purposes of determining diversity jurisdiction. (Def.'s Opp'n to Pls.' Mot. for Remand at 3:25-4:6 (Docket No. 6).)
A non-diverse defendant may be disregarded for purposes of complete diversity if that defendant was fraudulently joined. Hamilton Materials Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). A plaintiff has fraudulently joined a defendant when 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." McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). There is a general presumption against a finding of fraudulent joinder, and the removing party must prove by clear and convincing evidence that joinder was fraudulent. Hamilton Materials Inc., 494 F.3d at 1206. If there is a "non-fanciful possibility that the plaintiffs can state a claim against the non-diverse defendant, the [district] court must remand." Vu v. Ortho-McNeill Pharm., Inc., 602 F. Supp. 2d 1151, 1154 (N.D. Cal. 2009).
Plaintiffs bring claims against Fauryan alleging negligence and against Rees Enterprizes under the doctrine of respondeat superior and as a motor carrier*fn1 responsible for the negligence of the operator of one of its vehicles. Rees Enterprizes seems to admit that it would be liable under either theory, and claims that its liability would eliminate the liability of its employee, making it impossible for plaintiffs to state a claim against both defendants. However, this is not the case.
First, when an employee commits a tort, the employee is always personally liable to the victim of that tort. Cal. Civ. Code § 2343; 3 Witkin, Summary of Cal. Law Agency and Employment § 199, p. 252 (2005). The doctrine of respondeat superior does not eliminate the employee's liability, rather it merely allows a plaintiff to also assert claims against the employer. Hartford Fire Ins. Co. v. Fellin, Nos. E030795, E031280, 2003 WL 1299076, at *6 (4th Dist. Mar. 19, 2003).
Second, the statutes cited by defendant that hold motor carriers "entirely" liable for harm caused by the negligent operation of a truck regardless of the employment relationship with the operator, (Def.'s Opp'n to Pls.' Mot. for Remand at 3:8-17 (citing 49 U.S.C. §§ 13501 et seq., 31100 et seq.; Cal. Veh. Code §§ 34500 et seq.)), do not eliminate operator liability. One purpose of the federal statutes cited by defendant is to ensure that motor carriers are "fully responsible for the maintenance and operation of [their] equipment and the supervision of [their] drivers, thereby protecting the public from accidents, preventing public confusion about who was financially responsible if accidents occurred, and providing financially responsible defendants." Castro v. Budget Rent-A-Car Sys. Inc., 154 Cal. App. 4th 1162, 1171-72 (2d Dist. 2007) (quoting Morris v. JTM Materials, Inc., 78 S.W.3d 28, 37--38 (Tex. Ct. App. 2002) (footnote omitted)). In other words, the statutes "render . . . carriers vicariously liable, notwithstanding traditional principles of agency, for injuries sustained by third parties resulting from the negligence of the drivers of . . . vehicles. Id. at 1172 (quoting Johnson v. S.O.S. Transp., Inc., 926 F.2d 516, 521 (6th Cir. 1991)). Thus, like the doctrine of respondeat superior, federal statutes governing motor carriers provide plaintiffs with an additional claim, rather than replacing a claim against a wrongful operator with a claim against a motor carrier. As the only state statutes cited by Rees Enterprizes regulate the safety standards applicable to larger vehicles, see Cal. Veh. Code § 34500, defendant has not pointed to anything in the California Vehicle Code that would eliminate Fauryan's liability. In fact, as plaintiffs point out, the California Vehicle Code states that in an action against the owner of a motor vehicle for the negligent act of the operator of a vehicle, "the operator shall be made a party defendant if service of process can be made in a manner sufficient to secure personal jurisdiction over the operator," suggesting that Fauryan is a required party. See Cal. Veh. Code § 17152.
Rees Enterprizes has not shown that plaintiffs may not state a viable claim against Fauryan. Accordingly, it has not proven by clear and convincing evidence ...