United States District Court, C.D. California
PRESENT: HONORABLE JOHN F. WALTER, UNITED STATES DISTRICT
JUDGE
CIVIL MINUTES -- GENERAL
PROCEEDINGS
(IN CHAMBERS): ORDER GRANTING PLAINTIFF'S MOTION FOR AN
ORDER REMANDING ACTION TO STATE COURT [filed 12/10/2019;
Docket No. 14]
On
December 10, 2019, Plaintiff Rosaura Aguirre Cordero
(“Plaintiff”) filed a Motion for an Order
Remanding Action to State Court (“Motion to
Remand”). On December 23, 2019, Defendant Walmart Inc.
(“Walmart”) filed its Opposition. Plaintiff did
not file a Reply. Pursuant to Rule 78 of the Federal Rules of
Civil Procedure and Local Rule 7-15, the Court finds that
this matter is appropriate for decision without oral
argument. The hearing calendared for January 13, 2020 is
hereby vacated and the matter taken off calendar. After
considering the moving and opposing papers, and the arguments
therein, the Court rules as follows:
I.
FACTUAL AND PROCEDURAL BACKGROUND
On June
5, 2017, Plaintiff fell while shopping at a Walmart store
located in Downey, California, and sustained injuries to her
back, right elbow, right shoulder, left foot, and left knee.
On April 25, 2019, Plaintiff filed a Complaint against
Walmart and Does 1 to 30 in Los Angeles County Superior
Court, alleging claims for negligence and premises liability.
On November 7, 2019, Plaintiff filed a Doe Amendment to the
Complaint naming Nelisa Blackwell as a co-defendant. On
November 14, 2019, Walmart filed a Notice of Removal of
Action Pursuant to 28 U.S.C. Sections 1332 and 1441(a) and
(b) (“Notice of Removal”), alleging that this
Court has diversity jurisdiction pursuant to 28 U.S.C. §
1332(a).
At the
time of removing this action, Walmart was apparently unaware
that Plaintiff had filed a Doe Amendment naming Nelisa
Blackwell as a co-defendant.[1] In its Notice of Removal, Walmart
alleged that Plaintiff was a citizen of California and that
it was a citizen of Delaware and Arkansas, but failed to
allege the citizenship of Defendant Nelisa Blackwell.
Plaintiff
moves to remand this action, arguing in relevant part that
the parties are not completely diverse, and thus that the
Court lacks subject matter jurisdiction over this action.
II.
LEGAL STANDARD
A
motion to remand is the proper procedure for challenging
removal. See N. Cal. Dist. Council of Laborers v.
Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1038 (9th
Cir.1995). The removal statute is strictly construed, and any
doubt about the right of removal is resolved in favor of
remand. See Gaus v. Miles, Inc., 980 F.2d 564, 566
(9th Cir.1992); see also Prize Frize, Inc. v. Matrix,
Inc., 167 F.3d 1261, 1265 (9th Cir.1999). Consequently,
if a plaintiff challenges the defendant's removal of a
case, the defendant bears the burden of establishing the
propriety of the removal. See Gaus, 980 F.2d at 566;
see also Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th
Cir.1996) (citations and quotations omitted) (“Because
of the Congressional purpose to restrict the jurisdiction of
the federal courts on removal, the statute is strictly
construed, and federal jurisdiction must be rejected if there
is any doubt as to the right of removal in the first
instance”).
III.
DISCUSSION
Diversity
jurisdiction founded under 28 U.S.C. § 1332(a) requires
that (1) all plaintiffs be of different citizenship than all
defendants, and (2) the amount in controversy exceed $75,
000. See 28 U.S.C. § 1332. Because Walmart has
not met its burden of demonstrating that the parties are
completely diverse, this action must be remanded.
Walmart
does not contest that both Plaintiff and Defendant Nelisa
Blackwell are citizens of California. Instead, Walmart
inexplicably argues that this Court should deny
Plaintiff's motion to remand based on a six-factor test
that is only applicable when a plaintiff attempts to join a
non-diverse party after removal. See
Opposition at 5 (“In a case such as this one where a
plaintiff attempts to destroy diversity through post-removal
joinder of a defendant who would destroy diversity, courts
apply 28 U.S.C. § 1447(c) and a six-factor test, often
called the IBC Aviation test.”). In this case,
Plaintiff filed a Doe Amendment adding Nelisa Blackwell prior
to the filing of Walmart's Notice of Removal. As such,
this six-factor test is inapplicable. Instead, the applicable
test is whether Nelisa Blackwell has been fraudulently
joined, and, thus, that her presence in this action should be
ignored.
“Although
an action may be removed to federal court only where there is
complete diversity of citizenship, . . . one exception to the
requirement for complete diversity is where a non-diverse
defendant has been ‘fraudulently joined.'”
Hunter v. Philip Morris USA, 582 F.3d 1039, 1043
(9th Cir. 2009) (quotations and citations omitted). If 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, the joinder of the
resident defendant is fraudulent.” McCabe v. Gen.
Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987)
(emphasis added). If the Court finds that the joinder of a
non-diverse defendant is fraudulent, that defendant's
presence in the lawsuit is ignored for the purposes of
determining diversity. See, e.g., Morris v. Princess
Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001).
“There
is a presumption against finding fraudulent joinder, and
defendants who assert that plaintiff has fraudulently joined
a party carry a heavy burden of persuasion.” Plute
v. RoadwayPackage Sys., Inc., 141 F.Supp.2d
1005, 1008 (N.D. Cal. 2001). Indeed, “[f]raudulent
joinder must be proven by clear and convincing
evidence.” Hamilton Materials, Inc. v. Dow Chemical
Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). A claim of
fraudulent joinder should be denied if there is any
possibility that the plaintiffs may prevail on the cause
of action against the in state defendant. See Plute,
141 F.Supp.2d at 1008. “The standard is not whether
plaintiffs will actually or even probably prevail on the
merits, but whether there is a possibility that they
may do so.” Lieberman v. Meshkin, Mazandarani,
1996 WL 732506, at *3 (N.D. Cal. Dec. 11, 1996) (emphasis
added). “In determining whether a defendant was joined
fraudulently, the court must resolve ‘all disputed
questions of fact and all ambiguities in the controlling
state law in favor of the non-removing party.'”
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