Metcalf v. Walmart, Inc.
| Docket Number | 1:21-CV-1630 AWI BAK |
| Decision Date | 23 March 2022 |
| Parties | SARAH METCALF, Plaintiff v. WALMART, INC., “LIZ, ” and DOES 1-25 inclusive, Defendants |
| Court | U.S. District Court — Eastern District of California |
ORDER ON PLAINTIFF'S MOTION TO REMAND
This is a personal injury lawsuit brought by Plaintiff Sarah Metcalf against Walmart, Inc. (“Walmart”) and a manager of one of Walmart's stores, “Liz.” Walmart removed this matter from the Kern County Superior Court on November 8, 2021, on the basis of diversity jurisdiction. See Doc. No. 1. Currently before the Court is Metcalf's motion to remand and request for attorney's fees. For the reasons that follow, the Court will grant the motion to remand, but decline to award fees.
The removal statute (28 U.S.C. § 1441) is strictly construed against removal jurisdiction. Geographic Expeditions Inc. v. Estate of Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010); Provincial Gov't of Marinduque v. Placer Dome Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). It is presumed that a case lies outside the limited jurisdiction of the federal courts, and the burden of establishing the contrary rests upon the party asserting jurisdiction. Geographic Expeditions, 599 F.3d at 1106-07; Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009). “The strong presumption against removal jurisdiction” means that “the court resolves all ambiguity in favor of remand to state court.” Hunter, 582 F.3d at 1042; Gaus v Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). That is, federal jurisdiction over a removed case “must be rejected if there is any doubt as to the right of removal in the first instance.” Geographic Expeditions, 599 F.3d at 1107; Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996); Gaus, 980 F.2d at 566. “If at any time prior to judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c); Gibson v. Chrysler Corp., 261 F.3d 927, 932 (9th Cir. 2001). Remand under 28 U.S.C. § 1447(c) “is mandatory, not discretionary.” Bruns v. NCUA, 122 F.3d 1251, 1257 (9th Cir. 1997); Demartini v. Demartini, 964 F.3d 813, 819 (9th Cir. 2020).
From the Complaint, Metcalf went to shop at a Walmart store located in Bakersfield, California. Metcalf went into the store's restroom. When Metcalf entered a bathroom stall, suddenly and without warning, she slipped on water and/or a similar substance on the floor and fell violently. Metcalf sustained serious injuries from the fall. It is alleged that the Defendants knew or should have known that the restroom/stall was in a dangerous, defective, and unsafe condition, that Defendants failed to properly clean and maintain the restroom and the floors, and failed to warn Metcalf and others of the unsafe condition of the restroom.
Based on information and belief, Liz was a supervisor or manager of the store at the time of Metcalf's slip and fall. Liz was responsible for: maintenance of the store, verifying that there was a policy in place which provided for store maintenance in accordance with industry standards, training and educating store employees who were tasked with store maintenance, and verifying that the store was being maintained according to industry standards. Liz was an adult resident of Kern County, California.
Metcalf argues diversity jurisdiction does not exist. The Complaint alleges that Liz was a manager at the Bakersfield store and a resident of Kern County. Because Plaintiff and Liz are California citizens, there is no diversity jurisdiction. Moreover, Liz is not a sham defendant. There is at least a possibility that a recovery against Liz under a negligence theory is possible. Liz, as a manager, can be liable for her own negligent inspecting, maintaining, and managing of the store and store employees. Although Liz's full name is not identified, Metcalf argues that the name “Liz” was on the manager's name tag and that was all the information that was available to her. Finally, the Complaint alleges only general damages, and a failure to stipulate that damages are less than $75, 000 is not by itself sufficient to satisfy the jurisdictional minimum for diversity jurisdiction.
Additionally, Metcalf argues that removal was untimely. Although Walmart alleges that it did not have evidence of her citizenship until discovery responses were served on October 8, 2021, the Complaint, which was served on June 11, 2021, and contains jurisdictional allegations. The Complaint alleged that Metcalf was a resident of Kern County. Therefore, removal was not timely.
Walmart argues that the Court has jurisdiction. The only named and served parties are Metcalf, a citizen of California, and Walmart, a citizen of Delaware and Arkansas. Metcalf confirmed in a request for admission that she is seeking more than $75, 000 in damages. Walmart argues that Metcalf has provided insufficient information to identify Liz and as a result, Liz's full name, address, and citizenship are unknown. Because Liz is unknown, Metcalf cannot make allegations regarding her citizenship. Walmart argues that it is not its job to ferret out whom Metcalf meant by naming only “Liz, ” and Walmart should not have to speculate who “Liz” might be based on inaccurate information in the Complaint. Metcalf has not propounded discovery, or apparently returned to the store, or done anything to identify Liz's name. Thus, it is clear that Liz has been added solely as an attempt to defeat diversity jurisdiction. Moreover, Liz has not been served and, under Ninth Circuit precedent, she need not be considered for purposes of removal. Since Liz is unknown and fraudulently joined, Liz can be disregarded for purposes of establishing diversity jurisdiction, which means that removal was proper.
28 U.S.C. § 1441 provides in part, “[i]n determining whether a civil action is removable on the basis of [diversity jurisdiction], the citizenship of defendants sued under fictitious names shall be disregarded.” 28 U.S.C. § 1441(b)(1). Some courts in the Ninth Circuit hold that this language is absolute and forbids consideration of the citizenship of any fictitiously named defendants. E.g. Rojas v. Sea World Parks & Entm't, Inc., 538 F.Supp.3d 1008, 1023 (S.D. Cal. 2021). Other courts hold that the citizenship of fictitiously named defendants may be considered if the “description of the [fictitiously named defendants] or their activities is specific enough to suggest their identity, citizenship, or relationship to the action.” Johnson v. Starbucks Corp., 475 F.Supp.3d 1080, 1083 (C.D. Cal. 2020); Gardiner Family, LLC v. Crimson Res. Mgmt. Corp., 147 F.Supp.3d 1029, 1036 (E.D. Cal. 2015). This Court has adopted the latter view and will consider the citizenship of a fictitiously named defendant so long as the allegations regarding that defendant are sufficiently detailed and descriptive. Seanez v. Union Pac. R.R. Co., 2021 U.S. Dist. LEXIS 109178, *17-*18 (E.D. Cal. June 10, 2021).
An exception to the complete diversity requirement is where a non-diverse defendant has been “fraudulently joined.” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). The joinder or inclusion of a non-diverse defendant is deemed “fraudulent, ” and the non-diverse defendant's presence will be ignored for diversity purposes, if the “plaintiff fails to state a cause of action against [the non-diverse] defendant, and the failure is obvious according to the settled rules of the state.” Weeping Hollow Ave. Trust v. Spencer, 831 F.3d 1110, 1113 (9th Cir. 2016); Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009). Because there is a “general presumption against fraudulent joinder, ” the party invoking federal jurisdiction has the “heavy burden” of demonstrating fraudulent joinder. Weeping Hollow, 831 F.3d at 1113; see Hunter, 582 F.3d at 1046. Remand will be required “if there is a possibility that a state court would find that the complaint states a cause of action against any of the resident defendants . . . .” GranCare, LLC v. Thrower, 889 F.3d 543, 548 (9th Cir. 2018); Hunter, 582 F.3d at 1046.
28 U.S.C. § 1446(b) “provides for two thirty-day windows during which a case can be removed: (1) during the first thirty days after the defendant receives the initial pleading, or (2) during the first thirty days after the defendant receives ‘an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.'” Reyes v. Dollar Tree Stores, Inc., 781 F.3d 1185 1189 (9th Cir. 2015) (quoting 28 U.S.C. § 1446(b)); see Dietrich v. Boeing Co., 14 F.4th 1089, 1090 (9th Cir. 2021). Defendants are not charged with “notice of removability until [they have] received a paper that gives them enough information to remove.” Kenny v. Wal-Mart Stores, Inc., 881 F.3d 786, 791 (9th Cir. 2018). Courts “rely on the face of the initial pleading and on the documents exchanged in the case by the parties to determine when the defendant had notice of the grounds for removal, requiring that those grounds be apparent within the four corners of the initial pleading or subsequent paper.” Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 695 (9th Cir. 2005). Defendants are not required to conduct any inquiries with respect to an indeterminate paper, and a defendant's subjective knowledge is not determinative. See Dietrich, 14 F.4th at 1091, 1094; Kenny, 881 F.3d at 791; Harris, 425 F.3d at 694, 697. For purposes of the second 30-day deadline, “an amended pleading, motion, order, or other paper must make a ground for removal unequivocally clear and...
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