United States District Court, C.D. California
Present: The Honorable DOLLY M. GEE, UNITED STATES DISTRICT
IN CHAMBERS - ORDER RE PLAINTIFF'S MOTION TO REMAND
Karen Barnes parked her car at a gas station owned by
Defendant Costco Wholesale Corporation on April 18, 2017.
Complaint [Doc. # 1-1] at ¶ 10. She alleges in her
Complaint that, as she got out of her car and walked towards
her car's fuel tank, she slipped on a pool of gasoline
“that could not be seen by the naked eye” and
fell. Id. A man came to help Plaintiff and
“informed a Costco employee of the incident.”
Id. The employee told Plaintiff that “prior to
the incident, [he] had been informed of the spilled gasoline
but had no time to get it cleaned up.” Id.
Plaintiff claims that she “suffered serious injuries
and damages” as a result of her fall. Id.
filed this suit on April 19, 2019 in Ventura County Superior
Court against Costco and the employee, whom she identified as
a “Doe Employee.” See Id. The Complaint
alleges that, while Costco is a corporate citizen of
Washington, both she and the Doe Employee are
“residents of this judicial
district.” Id. at ¶¶ 1-3.
removed the action to this Court on September 13, 2019.
Notice of Removal [Doc. # 1]. The Notice of Removal claims
that the Court has diversity jurisdiction over the action
because Plaintiff and Costco are diverse and Plaintiff's
statement of damages indicates that she seeks over $575, 000
in general damages, past medical expenses, and other costs.
Notice of Removal at ¶¶ 5-8. Plaintiff now moves to
remand the action to Ventura County Superior Court. Motion to
Remand (“MTR”) [Doc. # 10.] The MTR is fully
briefed. [Doc. ## 13 (“Opp.”), 15
may remove a case filed in a state court to a federal court
if the federal court would have original jurisdiction over
the case. 28 U.S.C. § 1441. Diversity jurisdiction under
28 U.S.C. section 1332 requires that all plaintiffs in a suit
be of diverse citizenship from all defendants. Diaz v.
Davis (In re Digimarc Corp. Derivative Litig.), 549 F.3d
1223, 1234 (9th Cir. 2008) (citing Strawbridge v.
Curtiss, 7 U.S. 267, 267 (1806)) (“Diversity
jurisdiction requires complete diversity between the
parties-each defendant must be a citizen of a different state
from each plaintiff.”). There is a “strong
presumption against removal jurisdiction, ” and courts
must reject it “if there is any doubt as to the right
of removal in the first instance.” Geographic
Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka,
599 F.3d 1102, 1107 (9th Cir. 2010) (quoting Gaus v.
Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per
curiam)) (internal quotation marks omitted); Luther
v. Countrywide Home Loans Servicing LP, 533 F.3d 1031,
1034 (9th Cir. 2008) (any “doubt is resolved against
removability”). The party “seeking removal has
the burden to establish that removal is proper” and the
“burden of establishing federal subject matter
jurisdiction.” Id.; Marin Gen. Hosp. v.
Modesto & Empire Traction Co., 581 F.3d 941, 944
(9th Cir. 2009) (citing Toumajian v. Frailey, 135
F.3d 648, 652 (9th Cir. 1998)).
contends that the Court should remand this action because the
Doe Employee's California citizenship destroys complete
diversity and Plaintiff's statement of damages is
insufficient, in and of itself, to establish that there is
more than $75, 000 in controversy. See MTR.
argues against Plaintiff's first contention primarily by
relying on the text of section 1141, which states that
“[i]n determining whether a civil action is removable
on the basis of the jurisdiction under section 1332(a) of
this title, the citizenship of defendants sued under
fictitious names shall be disregarded.” Opp. at 2-3
(citing 28 U.S.C. § 1441(b)(1)). According to Costco,
that language requires the Court to disregard the Doe
Employee's citizenship and determine that Plaintiff and
Costco are completely diverse. A review of the case law
interpreting section 1441 reveals that Costco's
characterization of its import is overly simplistic.
court in Gardiner Family, LLC v. Crimson Resource
Management Corporation explained, the interplay of two
seemingly incompatible Ninth Circuit decisions, a
congressional amendment of section 1441(b)(1), and the
subsequent vacatur of another series of Ninth Circuit
decisions has made circuit authority governing whether courts
may consider the citizenship of fictitious defendants for
removal jurisdiction purposes “unworkable and
‘riddled with exceptions.'” 147 F.Supp.3d
1029, 1035 (E.D. Cal. 2015) (citing Bryant v. Ford Motor
Co., 844 F.2d 602, 605 (9th Cir. 1987),
vacated, 886 F.2d 1526 (9th Cir. 1989)). After an
in-depth and well-reasoned analysis, the Gardiner
Family court synthesized several of those exceptions
into the following rule statement: “[t]he question . .
. becomes whether the Plaintiffs' description of Doe
defendants or their activities is specific enough as to
suggest their identity, citizenship, or relationship to the
action.” Id. at 1035-36. Subsequent decisions
within the circuit have applied that rule in examining
whether to remand cases involving non-diverse Doe Defendants.
See, e.g., Sandoval v. Republic Servs., Inc., 2018
WL 1989528, at *3 (C.D. Cal. Apr. 24, 2018) (holding that
courts should consider Doe Defendants' citizenship
especially “when a named defendant knew or should have
known the fictitious defendant's identity because that
defendant employed the fictitiously named
defendant.”); Collins v. Garfield Beach CVS,
LLC, 2017 WL 2734708, at *2 (C.D. Cal. June 26, 2017)
(“[W]hen 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.”) (citing
Brown v. TranSouth Fin. Corp., 897 F.Supp. 1398,
1401 (M.D. Ala. 1995)); c.f. Gardiner Family, 147
F.Supp.3d at 1036 (declining to consider Doe Defendant's
citizenship because “the charges against the Does are
so general that no clues exist as to their identity,
citizenship, or relationship to the action”).
Plaintiff has plainly alleged a reasonable indication of the
Doe Employee's identity, relationship to the action, and
citizenship. See Compl. at ¶¶ 2-4, 10
(alleging that: (1) the Doe Employee resides in Ventura
County, California; (2) the Doe Employee worked at the Costco
gas station located at 2001 East Ventura Boulevard, Oxnard,
California on April 18, 2017; (3) the Doe Employee would have
been in charge of cleaning up gas spills; (4) and the Doe
Employee allegedly contributed to Plaintiff's injuries by
failing to clean up the spill on which Plaintiff slipped).
Given that the Doe Employee is likely readily identifiable
based on this information, the Court agrees with
Collins that it would be “unfair” to
force Plaintiff from her chosen forum into federal court by
allowing Costco “to plead ignorance about the
defendant-employee's identity” when it “was
in a position to know that information.”
Collins, 2017 WL 2734708, at *2.
persuasive authority indicates that the Court may consider
the Doe Employee's citizenship for purposes of diversity
jurisdiction, and Plaintiff's allegations are sufficient
to demonstrate that she and the Doe Employee are both
California citizens, complete diversity does ...