United States District Court, C.D. California
Present: Honorable Fernando M. Olguin, United States District
CIVIL MINUTES - GENERAL
(In Chambers) Order Remanding Action
March 29, 2017, plaintiff Clarence Collins
(“plaintiff”) filed a complaint against Garfield
Beach CVS, L.L.C. (“Garfield Beach” or
“defendant”) and “Does 1-75
inclusive” in Los Angeles County Superior Court.
(See Dkt. 1, Notice of Removal (“NOR”)
at ¶ 1; Dkt 1-1, Complaint). On May 4, 2017, defendant
removed that action on diversity jurisdiction grounds
pursuant to 28 U.S.C. § 1332(a) and §§ 1441(a)
& (b). (See Dkt. 1, NOR at ¶ 6).
alleges that Defendant Doe 1 is “a pharmacist duly
licensed to practice his/her profession in the State of
California.” (See Dkt. 1-1, Complaint at
¶ 4). According to the Complaint, Defendant Doe 1
“was engaged in the filling of prescriptions for drugs
for the general public, ” (see id. at ¶
8), and “misfilled” plaintiff's
prescriptions. (See id. at ¶ 9). As a result,
plaintiff alleges that he was “hurt and injured in his
health . . . sustaining injury to his nervous system and
person[.]” (See id. at ¶ 11).
24, 2017, the court issued an Order to Show Cause Re: Remand
requiring the parties to “identify Defendant Doe 1 and
set forth the relevant facts in each party's possession
regarding the citizenship of Defendant Doe 1” no later
than May 31, 2017. (See Dkt. 11, Court's Order
of May 24, 2017, at 1-2). The parties failed to respond by
the May 31, 2017, deadline, (see,
generally, Dkt.), and the court, noting that the
defendant always has the burden of establishing that removal
is proper, issued another Order to Show Cause Re: Remand
(“OSC”) on June 5, 2017, requiring defendant to
address “whether this action should be remanded for
lack of subject matter jurisdiction.” (See,
Dkt. 12, Court's Order of June 5, 2017, at 1).
9, 2017, defendant responded to the OSC and identified
Defendant Doe 1 as Teny Simonians, a California citizen.
(See Dkt. 14, Response of Defendant Garfield Beach
CVS, L.L.C. to Further OSC Re Remand,
(“Response”) at 2). Having reviewed the NOR and
documents attached thereto, defendant's response to the
OSC and the record before the court, the court hereby remands
this action to state court for lack of subject matter
jurisdiction. See 28 U.S.C. § 1447(c).
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute[.]”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377, 114 S.Ct. 1673, 1675 (1994). The courts are
presumed to lack jurisdiction unless the contrary appears
affirmatively from the record. DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 342 n. 3, 126 S.Ct. 1854, 1861
(2006). Federal courts have a duty to examine jurisdiction
sua sponte before proceeding to the merits of a
case, see Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 583, 119 S.Ct. 1563, 1569 (1999), “even in the
absence of a challenge from any party.” Arbaugh v.
Y&H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 1244
(2006). Indeed, “[i]f the court determines at any time
that it lacks subject-matter jurisdiction, the court must
dismiss the action.” Fed.R.Civ.P. 12(h)(3); see
Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir.
2002) (“Federal Rule of Civil Procedure 12(h)(3)
provides that a court may raise the question of subject
matter jurisdiction, sua sponte, at any time during
the pendency of the action, even on appeal.”) (footnote
removing defendant bears the burden of establishing that
removal is proper. See Abrego Abrego v. The Dow Chem.
Co., 443 F.3d 676, 684 (9th Cir. 2006) (per
curiam) (noting the “longstanding, near-canonical
rule that the burden on removal rests with the removing
defendant”); Gaus v. Miles, Inc., 980 F.2d
564, 566 (9th Cir. 1992) (“The strong presumption
against removal jurisdiction means that the defendant always
has the burden of establishing that removal is
proper.”) (internal quotation marks omitted). Moreover,
if there is any doubt regarding the existence of subject
matter jurisdiction, the court must resolve those doubts in
favor of remanding the action to state court. See
Gaus, 980 F.2d at 566 (“Federal jurisdiction must
be rejected if there is any doubt as to the right of removal
in the first instance.”).
subject matter jurisdiction may be established on the basis
of diversity jurisdiction under 28 U.S.C. § 1332. A
district court has diversity jurisdiction “where the
matter in controversy exceeds the sum or value of $75, 000, .
. . and is between citizens of different states[.]” 28
U.S.C. § 1332(a). Diversity of citizenship must exist
both at the time the state-court complaint is filed and the
time removal is effected. See Strotek Corp. v. Air
Transport Association of America, 300 F.3d 1129, 1131
(9th Cir. 2002) (noting “core principle of federal
removal jurisdiction on the basis of diversity - namely, that
it is determined (and must exist) as of the time the
complaint is filed and removal is effected”);
Gonzalez v. Starwood Hotels & Resorts Worldwide,
Inc., 2016 WL 6094084, *3 (C.D. Cal. 2016) (“For
removal purposes, diversity must exist both at the time the
action was commenced in state court and at the time of
removal.”) (internal quotation marks omitted).
should not generally consider the citizenship of fictitious
defendants in assessing complete diversity for removal
purposes. See 28 U.S.C. § 1441(b)(1). However,
“when a plaintiff's allegations give a definite
clue about the identity of the fictitious defendant by
specifically referring to an individual who acted as a
company's agent, the court should consider the
citizenship of the fictitious defendant.” Brown v.
TranSouth Fin. Corp., 897 F.Supp. 1398, 1401 (M.D. Ala.
1995) (emphasis added). When a defendant “knew or
should have known of the fictitious defendant's identity,
because [that person] was employed by [defendant] and acted
as an agent” in the events giving rise to the suit, and
that individual is not diverse from the plaintiff, removal
jurisdiction should be declined. See id. This is
because “[i]t would be unfair to force  plaintiffs
from their state court forum into federal court by allowing
[a defendant] to plead ignorance about the
defendant-employee's identity and citizenship when [a
defendant] was in a position to know that information.”
Id. at 1401-02.
plaintiff's Complaint gave a “definite clue about
the identity” of Ms. Simonians. See Brown, 897
F.Supp. at 1401. The Complaint identified the specific store
location where Ms. Simonians was employed as a pharmacist,
the CVS pharmacy at 2130 N. Bellflower Blvd. in Long Beach,
CA. (See Dkt. 1-1, Complaint at ¶ 1, 4-5 &
8). The Complaint also specified a particular date, April 4,
2016, that Ms. Simonians was employed by defendant, (see
id. at ¶ 9), making it even more likely that
defendant could identify Defendant Doe 1. Indeed, defendant
stated in its Response to the OSC that Defendant Doe 1 was
“easily identifiable” as a California resident.
(See Dkt. 14, Response at 2). In fact, not only was
defendant able to easily identify Ms. Simonians as Defendant
Doe 1, but defendant even provided the month and year Ms.
Simonians began her employment with defendant, November 2006,
and the specific city of her residence, Fountain Valley,
California. (See id.). In short, there is no dispute
that “plaintiff's complaint provide[d] a
description of a fictitious defendant in such a way that his
or her identity cannot reasonably be questioned[.]”
Marshall v. CSX Transp. Co., 916 F.Supp. 1150, 1152
(M.D. Ala. 1995) (remanding action to state court).
defendant knew or should have known the identity of Defendant
Doe 1 because that person was employed by defendant. See
Brown, 897 F.Supp. at 1401. Under the circumstances, it
“would be unfair to force . . . plaintiff from [his]
state court forum into federal court by allowing [defendant]
to plead ignorance about the defendant-employee's
identity and citizenship when [defendant] was in a position
to know that information.”Id. at 1401-02;
see Tompkins v. Lowe's Home Ctr., Inc., 847