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Torres v. Costco Wholesale Corp.

United States District Court, S.D. California

June 27, 2019

ANDRES TORRES, an individual, Plaintiff,
v.
COSTCO WHOLESALE CORPORATION, a business entity; and DOES 1 through 100, inclusive, Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO AMEND [ECF NO. 7]

          Honorable Barry Ted Moskowitz, United States District Judge.

         I. INTRODUCTION

         Pending before the Court are Plaintiff's Motion to Remand and Motion for Leave to Amend. (ECF No. 7). The action arises out of a personal injury claim filed in San Diego Superior Court against Defendants Costco Wholesale Corporation (“Costco”) and Does 1-100. Defendant Costco removed the action to federal court.

         For the reasons set forth below, the Court GRANTS Plaintiff's Motion for Leave to Amend. (ECF No. 7).

         II. BACKGROUND

         On October 12, 2017, Plaintiff Andres Torres allegedly tripped over a low-level display while shopping at Costco, causing physical injuries. Plaintiff filed a Complaint in San Diego Superior Court on August 28, 2018. (ECF No. 11-1, Exh. A “Compl.”). The Complaint asserts two causes of action-negligence and premises liability-and states that Plaintiff suffered injuries “including, but not limited to, a shattered elbow requiring emergency room surgery.” (Compl. ¶ 22). The Complaint largely relies on a theory of vicarious liability against Costco, but states that Does 1-100, including individuals, each “bear some legal responsibility and are liable to Plaintiff.” (Compl. ¶ 5). The Prayer for Relief seeks damages to be determined at trial, as well as other unascertained fees and costs. (Compl. at 16).

         Plaintiff served Costco on September 12, 2018, and Costco answered the Complaint on September 27, 2019. Costco served discovery on Plaintiff in October 29, 2018 and Plaintiff responded to Costco's interrogatories on December 31, 2018. (ECF No. 1-5). Plaintiff's responses indicate that Plaintiff lost full function of his right dominant arm, impacting his quality of life and requiring ongoing physical therapy, and that various providers had recommended elbow reconstruction and replacement surgery. (ECF No. 1-5). Plaintiff's responses also included an attachment of Plaintiff's medical bills, which included a four day hospital stay and totaled over $100, 000 as of February 2018. (ECF No. 11-1 ¶ 6; ECF No. 7-6). Costco filed a notice of removal premised on diversity jurisdiction on January 9, 2019. (ECF No. 1).

         III. LEGAL STANDARD

         A. Remand

         Congress has authorized district courts to exercise jurisdiction over “all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between . . . citizens of different States.” 28 U.S.C. § 1332(a). The removal statute specifies that defendant may remove any civil action brought in a state court that meets section 1332(a)'s criteria, unless defendant “is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b). The removing defendant always has the burden of establishing that removal is proper, and the court resolves all ambiguity in favor of remand to state court. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

         B. Amendment

         Following the short period of time when pleadings may be amended “as a matter of course, ” thereafter “a party may amend its pleading only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). Courts “should freely give leave when justice so requires, ” Fed.R.Civ.P. 15(a)(2), and they must apply the policy favoring amendment “with extreme liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). Courts apply the same policy of liberality in granting leave to amend “whether the amendment will add causes of action or parties.” DCD Programs Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987); Fed.R.Civ.P. 21 (“the court may at any time, on just terms, add or drop a party”). Factors that may support denial of leave to amend include bad faith, undue delay, prejudice to the opposing party, and futility of amendment. DCD Programs Ltd., 833 F.2d at 185; Foman v. Davis, 371 U.S. 178, 182 (1962). However, “[u]ndue delay by itself... is insufficient to justify a motion to amend.” Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999).

         IV. DISCUSSION

         Plaintiff asserts that removal was improper because Defendant's notice of removal was untimely, and that Plaintiff's proposed First Amended Complaint (“FAC”) would deprive the Court of subject ...


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