United States District Court, E.D. California
ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE
DISMISSED FOR LACK OF SUBJECT-MATTER JURISDICTION
November 14, 2019, plaintiff Martina Duran Duran
(“plaintiff) commenced this action against defendants
FCA U.S. LLC (“FCA”), Turlock Chrysler Dodge Jeep
Ram (“Turlock Chrysler”), and Does 1 through 10,
inclusive (collectively “defendants”) in the
Madera County Superior Court. (Doc. No. 1-1.) On December 19,
2019, FCA removed the action to this federal court. (Doc. No.
1.) The notice of removal states that this court has subject
matter jurisdiction over this action pursuant to 28 U.S.C.
§§ 1331, 1332, 1441, and 1446. (Id. at 1.)
Although both plaintiff and Turlock Chrysler are citizens of
California, FCA alleges that complete diversity exists
because plaintiff fraudulently joined Turlock Chrysler in
this action for no reason other than to defeat diversity
jurisdiction. (Id. at ¶¶ 25-27.) FCA,
however, must provide additional information for the court to
be able to determine whether Turlock Chrysler is a
fraudulently joined defendant.
courts are courts of limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). “A suit may be removed to federal
court under 28 U.S.C. § 1441(a) only if it could have
been brought there originally.” Sullivan v. First
Affiliated Sec., Inc., 813 F.2d 1368 (9th Cir. 1987). A
district court has “a duty to establish subject matter
jurisdiction over the removed action sua sponte,
whether the parties raised the issue or not.”
United Invs. Life Ins. Co. v. Waddell & Reed,
Inc., 360 F.3d 960, 967 (9th Cir. 2004).
of a non-diverse defendant is deemed fraudulent, and the
defendant's presence in the lawsuit is ignored for
purposes of determining diversity, ‘[i]f 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.'” Morris v.
Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir.
2001) (quoting McCabe v. General Foods Corp., 811
F.2d 1336, 1339 (9th Cir.1987)). The Ninth Circuit has
“a ‘general presumption against fraudulent
joinder,' and defendant's burden of proof is
‘heavy.'” Latino v. Wells Fargo Bank,
N.A., No. 2:11-cv-02037-MCE, 2011 WL 4928880, at *4
(E.D. Cal. Oct. 17, 2011) (quoting Hunter v. Philip
Morris USA, 582 F.3d 1039, 1046 (9th Cir.2009)).
“Fraudulent joinder must be proven by clear and
convincing evidence.” Hamilton Materials, Inc. v.
Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir.2007).
FCA contends that while plaintiff has sued both FCA and
Turlock Chrysler under California's Song-Beverly Consumer
Warranty Act, “FCA believes Plaintiff has no intention
of prosecuting her warranty claims against [Turlock
Chrysler], and only added [Turlock Chrysler] in an attempt to
defeat diversity. Indeed, a review of the Complaint's
allegations show only bare-boned, non-specific allegations as
related to [Turlock Chrysler].” (Doc. No. 1 at ¶
26.); see also Mireles v. Wells Fargo Bank, N.A.,
845 F.Supp.2d 1034, 1064 (C.D. Cal. 2012) (noting that
“frequent use throughout the complaint of the plural
‘defendants,' failing to specify which particular
defendant or defendants were involved in the allegedly
unlawful conduct” supported a finding that the
complaint's allegations were “questionable”).
However, here, plaintiff's complaint does allege that
Turlock Chrysler is a “seller” and
“retailer” under the Song-Beverly Act. (Doc. No.
1-1 at ¶ 16.) It also alleges that “Defendants
were unable to conform Plaintiffs vehicle to the applicable
express and implied warranties after a reasonable number of
attempts.” (Doc. No. 1-1 at ¶ 20.) The
Song-Beverly Act “imposes service and repair
obligations on manufacturers, distributors, and retailers
who make express warranties.” Duale v.
Mercedes-Benz USA, LLC, 148 Cal.App.4th 718, 721 n. 1
(2007) (internal quotation marks and citations omitted)
(emphasis added). While the court will “not presently
decide the sufficiency of plaintiffs' . . . allegations,
” the court finds “it is untrue that the
complaint lacks allegations that could result in [Turlock
Chrysler] being held liable for the wrongful conduct
charged.” See Mireles, N.A., 845 F.Supp.2d at
also contends that “FCA's counsel's vast
litigation experience in opposing these types of cases has
been that individual dealerships have not been regularly
sued.” (Id. at ¶ 27.) However, even if
individual dealerships are not regularly sued under the
Song-Beverly act, FCA has not yet demonstrated by clear and
convincing evidence that individual dealerships
cannot be properly named in such actions. FCA
therefore has not met its burden of proof.
FCA is hereby directed to show cause within fourteen (14)
days of service of this order as to why this matter should
not be dismissed for lack of subject matter jurisdiction. FCA
may discharge this order to show cause by submitting evidence
that plaintiff fails to state a cause of action against
Turlock Chrysler. Any opposition briefing must be filed no
less than fourteen (14) days after FCA's initial filing,
and any reply briefing must be filed no less than seven (7)
days after oppositions.
 Although the notice of removal states
that this court also has federal question, plaintiffs cause
of action arises under state law and FCA makes no other
mention of a federal constitutional or statutory right
implicated in this action. To the extent that FCA believes a
federal question is present, FCA may also discharge this