1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 BEVERLY MILEHAM, an individual. Case No. ED CV19-02408-AB (SPx)
11 Plaintiff, Order GRANTING Plaintiff’s Motion to Remand (Dkt. No. 9) 12 v.
13 WAL-MART STORES, INC., an Arkansas corporation; SHARAY 14 FANIO, an individual; DOES 1 through 100, inclusive, 15
Defendant. 16 17 Before the Court is Plaintiff’s Motion to Remand (“Motion,” Dkt. No. 9). Wal- 18 Mart Stores, Inc. (“Defendant”) filed an opposition and Plaintiff filed a reply. Having 19 considered the materials submitted by the parties, and for the reasons indicated below, 20 the Court GRANTS Plaintiff’s Motion. 21 I. FACTUAL AND PROCEDURAL BACKGROUND 22 A. Plaintiff’s Complaint 23 On September 10, 2019, Beverly Mileham (“Plaintiff”) filed her Complaint 24 against Defendant and defendant Sharay Fanio alleging that Plaintiff was injured 25 while on Defendants’ premises. See generally Complaint (Dkt. No. 1-4). Plaintiff 26 alleges that she was walking in a cross walk on the premises and was struck by a car 27 due to “dangerous conditions” such as the lack of proper traffic signs and other 28 1 unobvious dangerous conditions. 2 Plaintiff alleges two cause of action: premises liability and general negligence. 3 Plaintiff alleges that her injuries were caused by Defendants’ negligent control and 4 maintenance of the premises, and that her injuries would not have occurred but for the 5 negligence of Defendants. 6 On January 14, 2020, Defendants removed the action under 28 U.S.C. § 1332 7 on the ground that the district court has diversity jurisdiction. 8 B. Defendant’s Notice of Removal and Plaintiff’s Motion for 9 Remand 10 On December 16, 2019, defendant Wal-Mart Stores, Inc. (“Walmart”) removed 11 the action to this Court. In the Notice of Removal (“NOR,” Dkt. No. 1), Walmart 12 alleges that defendant Sharay Fanio is a “sham” defendant whose citizenship must be 13 disregarded for the purposes of determining complete diversity. (NOR ¶ 3). 14 Plaintiff now moves to remand the action back to the San Bernardino Superior 15 Court. Plaintiff contends that the Court lacks diversity jurisdiction because there is 16 not complete diversity among the parties. Defendants oppose. 17 II. LEGAL STANDARD 18 A. Removal 19 Under 28 U.S.C. § 1441(a), a civil action may be removed to the district court 20 where the action is pending if the district court has original jurisdiction over the 21 action. Under 28 U.S.C. § 1332, a district court has original jurisdiction of a civil 22 action where the matter in controversy exceeds the sum or value of $75,000, exclusive 23 of interest and costs, and the dispute is between “citizens of different states.” Section 24 1332 requires complete diversity, i.e., that “the citizenship of each plaintiff is diverse 25 from the citizenship of each defendant.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 67–68 26 (1996). Section 1441 limits removal to cases where no defendant “properly joined 27 and served . . . is a citizen of the State in which such action is brought.” 28 U.S.C. 28 § 1441(a)(b)(2). Removal statutes are “strictly construe[d] against removal.” Gaus v. 1 Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Federal jurisdiction must be rejected if 2 there is any doubt as to the right of removal in the first instance. Id. Accordingly, the 3 removing party bears a heavy burden of establishing original jurisdiction in the district 4 court. Id. 5 B. Fraudulent Joinder 6 A non-diverse party may be disregarded for purposes of determining whether 7 jurisdiction exists if the court determines that the party’s joinder was “fraudulent” or a 8 “sham.” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001); 9 Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998); McCabe v. General 10 Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). The term “fraudulent joinder” is a 11 term of art and does not connote any intent to deceive on the part of plaintiffs or their 12 counsel. Lewis v. Time Inc., 83 F.R.D. 455, 460 (E.D. Cal. 1979), aff’d., 710 F.2d 549 13 (9th Cir. 1983). The relevant inquiry is whether plaintiff has failed to state a cause of 14 action against the non-diverse defendant, and the failure is obvious under settled state 15 law. Morris, 236 F.3d at 1067; McCabe, 811 F.2d at 1339. 16 The burden of proving fraudulent joinder is a heavy one. Gaus, 980 F.2d at 566. 17 The removing party must prove there is “no possibility that plaintiff will be able to 18 establish a cause of action in State court against the alleged sham defendant.” Good v. 19 Prudential Ins. Co. of America, 5 F. Supp. 2d 804, 807 (N.D. Cal. 1998). In this 20 regard, “[r]emand must be granted unless the defendant shows that the plaintiff 21 ‘would not be afforded leave to amend his complaint to cure [the] purported 22 deficiency.’” Padilla v. AT & T Corp., 697 F.Supp.2d 1156, 1159 (C.D. Cal. 2009); 23 Macey v. Allstate Prop. & Cas. Ins. Co., 220 F.Supp.2d 1116, 1117 (N.D. Cal. 2002) 24 (“If there is a non-fanciful possibility that plaintiff can state a claim under California 25 law against the non-diverse defendants the court must remand.”). “Merely a ‘glimmer 26 of hope’ that plaintiff can establish [a] claim is sufficient to preclude application of 27 [the] fraudulent joinder doctrine.” Gonzalez v. J.S. Paluch Co., 2013 WL 100210, at 28 *4 (C.D. Cal. Jan.7, 2013) (internal quotations omitted); accord Ballesteros v. 1 American Standard Ins. Co. of Wisconsin, 436 F.Supp.2d 1070, 1072 (D. Ariz. 2006) 2 (same) (citing Mayes v. Rapoport, 198 F.3d 457, 463-64 (4th Cir. 1999). 3 III. DISCUSSION 4 A. The Court Lacks Diversity Jurisdiction Over This Action 5 There is no dispute that the $75,000 amount in controversy requirement is met. 6 In fact, in a discovery response, Plaintiff stated that the amount of damages she seeks 7 exceeds $75,000. (NOR Ex. 4, 4:3-15). 8 The issue here is whether there is complete diversity between the parties. 9 Plaintiff is a citizen of California and Walmart is a citizen of Delaware and Arkansas, 10 so they are diverse. (NOR at 3) The question is whether individual defendant Sharay 11 Fanio destroys complete diversity. Plaintiff claims she is suing Sharay Fanio because 12 Plaintiff conducted a LexisNexis People Search to identify the owner of the property 13 and Sharay Fanio’s name came up in conjunction with that search. See Opp’n (Dkt. 14 No. 14) p. 3, Ex. A. 15 First, Walmart’s position is that Sharay Fanio is a sham defendant whose 16 citizenship should be disregarded. Walmart argues Sharay Fanio is not connected to 17 Walmart, that Plaintiff did not provide evidence demonstrating Sharay Fanio is a 18 California citizen, and that Sharay Fanio was not properly served.
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1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 BEVERLY MILEHAM, an individual. Case No. ED CV19-02408-AB (SPx)
11 Plaintiff, Order GRANTING Plaintiff’s Motion to Remand (Dkt. No. 9) 12 v.
13 WAL-MART STORES, INC., an Arkansas corporation; SHARAY 14 FANIO, an individual; DOES 1 through 100, inclusive, 15
Defendant. 16 17 Before the Court is Plaintiff’s Motion to Remand (“Motion,” Dkt. No. 9). Wal- 18 Mart Stores, Inc. (“Defendant”) filed an opposition and Plaintiff filed a reply. Having 19 considered the materials submitted by the parties, and for the reasons indicated below, 20 the Court GRANTS Plaintiff’s Motion. 21 I. FACTUAL AND PROCEDURAL BACKGROUND 22 A. Plaintiff’s Complaint 23 On September 10, 2019, Beverly Mileham (“Plaintiff”) filed her Complaint 24 against Defendant and defendant Sharay Fanio alleging that Plaintiff was injured 25 while on Defendants’ premises. See generally Complaint (Dkt. No. 1-4). Plaintiff 26 alleges that she was walking in a cross walk on the premises and was struck by a car 27 due to “dangerous conditions” such as the lack of proper traffic signs and other 28 1 unobvious dangerous conditions. 2 Plaintiff alleges two cause of action: premises liability and general negligence. 3 Plaintiff alleges that her injuries were caused by Defendants’ negligent control and 4 maintenance of the premises, and that her injuries would not have occurred but for the 5 negligence of Defendants. 6 On January 14, 2020, Defendants removed the action under 28 U.S.C. § 1332 7 on the ground that the district court has diversity jurisdiction. 8 B. Defendant’s Notice of Removal and Plaintiff’s Motion for 9 Remand 10 On December 16, 2019, defendant Wal-Mart Stores, Inc. (“Walmart”) removed 11 the action to this Court. In the Notice of Removal (“NOR,” Dkt. No. 1), Walmart 12 alleges that defendant Sharay Fanio is a “sham” defendant whose citizenship must be 13 disregarded for the purposes of determining complete diversity. (NOR ¶ 3). 14 Plaintiff now moves to remand the action back to the San Bernardino Superior 15 Court. Plaintiff contends that the Court lacks diversity jurisdiction because there is 16 not complete diversity among the parties. Defendants oppose. 17 II. LEGAL STANDARD 18 A. Removal 19 Under 28 U.S.C. § 1441(a), a civil action may be removed to the district court 20 where the action is pending if the district court has original jurisdiction over the 21 action. Under 28 U.S.C. § 1332, a district court has original jurisdiction of a civil 22 action where the matter in controversy exceeds the sum or value of $75,000, exclusive 23 of interest and costs, and the dispute is between “citizens of different states.” Section 24 1332 requires complete diversity, i.e., that “the citizenship of each plaintiff is diverse 25 from the citizenship of each defendant.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 67–68 26 (1996). Section 1441 limits removal to cases where no defendant “properly joined 27 and served . . . is a citizen of the State in which such action is brought.” 28 U.S.C. 28 § 1441(a)(b)(2). Removal statutes are “strictly construe[d] against removal.” Gaus v. 1 Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Federal jurisdiction must be rejected if 2 there is any doubt as to the right of removal in the first instance. Id. Accordingly, the 3 removing party bears a heavy burden of establishing original jurisdiction in the district 4 court. Id. 5 B. Fraudulent Joinder 6 A non-diverse party may be disregarded for purposes of determining whether 7 jurisdiction exists if the court determines that the party’s joinder was “fraudulent” or a 8 “sham.” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001); 9 Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998); McCabe v. General 10 Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). The term “fraudulent joinder” is a 11 term of art and does not connote any intent to deceive on the part of plaintiffs or their 12 counsel. Lewis v. Time Inc., 83 F.R.D. 455, 460 (E.D. Cal. 1979), aff’d., 710 F.2d 549 13 (9th Cir. 1983). The relevant inquiry is whether plaintiff has failed to state a cause of 14 action against the non-diverse defendant, and the failure is obvious under settled state 15 law. Morris, 236 F.3d at 1067; McCabe, 811 F.2d at 1339. 16 The burden of proving fraudulent joinder is a heavy one. Gaus, 980 F.2d at 566. 17 The removing party must prove there is “no possibility that plaintiff will be able to 18 establish a cause of action in State court against the alleged sham defendant.” Good v. 19 Prudential Ins. Co. of America, 5 F. Supp. 2d 804, 807 (N.D. Cal. 1998). In this 20 regard, “[r]emand must be granted unless the defendant shows that the plaintiff 21 ‘would not be afforded leave to amend his complaint to cure [the] purported 22 deficiency.’” Padilla v. AT & T Corp., 697 F.Supp.2d 1156, 1159 (C.D. Cal. 2009); 23 Macey v. Allstate Prop. & Cas. Ins. Co., 220 F.Supp.2d 1116, 1117 (N.D. Cal. 2002) 24 (“If there is a non-fanciful possibility that plaintiff can state a claim under California 25 law against the non-diverse defendants the court must remand.”). “Merely a ‘glimmer 26 of hope’ that plaintiff can establish [a] claim is sufficient to preclude application of 27 [the] fraudulent joinder doctrine.” Gonzalez v. J.S. Paluch Co., 2013 WL 100210, at 28 *4 (C.D. Cal. Jan.7, 2013) (internal quotations omitted); accord Ballesteros v. 1 American Standard Ins. Co. of Wisconsin, 436 F.Supp.2d 1070, 1072 (D. Ariz. 2006) 2 (same) (citing Mayes v. Rapoport, 198 F.3d 457, 463-64 (4th Cir. 1999). 3 III. DISCUSSION 4 A. The Court Lacks Diversity Jurisdiction Over This Action 5 There is no dispute that the $75,000 amount in controversy requirement is met. 6 In fact, in a discovery response, Plaintiff stated that the amount of damages she seeks 7 exceeds $75,000. (NOR Ex. 4, 4:3-15). 8 The issue here is whether there is complete diversity between the parties. 9 Plaintiff is a citizen of California and Walmart is a citizen of Delaware and Arkansas, 10 so they are diverse. (NOR at 3) The question is whether individual defendant Sharay 11 Fanio destroys complete diversity. Plaintiff claims she is suing Sharay Fanio because 12 Plaintiff conducted a LexisNexis People Search to identify the owner of the property 13 and Sharay Fanio’s name came up in conjunction with that search. See Opp’n (Dkt. 14 No. 14) p. 3, Ex. A. 15 First, Walmart’s position is that Sharay Fanio is a sham defendant whose 16 citizenship should be disregarded. Walmart argues Sharay Fanio is not connected to 17 Walmart, that Plaintiff did not provide evidence demonstrating Sharay Fanio is a 18 California citizen, and that Sharay Fanio was not properly served. Therefore, she is 19 not a proper defendant in this case. Regarding Sharay Fanio’s connection to Walmart, 20 Walmart argues she is not an employee of the Walmart store where the accident 21 occurred, and provided a declaration of its store manager Graham Clark to that effect. 22 See generally Clark Decl. (Opp’n Ex. 1 ).Walmart asserts they are unaware of any 23 connection between Sharay Fanio and its store. Walmart argues that Plaintiff has 24 failed to prove that Sharay Fanio is connected to Walmart’s store because the address 25 that Plaintiff found through a Lexis Nexis search showed that Sharay Fanio owned the 26 property at 20251 US Highway 18 Apt. 18 Apple Valley, CA 92307 and the parking 27 lot the accident occurred in is 20251 Hwy 18, Apple Valley CA, 92307. The address 28 looks to be the same except, the address associated with Fanio mentions Apt. 18, 1 where Walmart’s does not. Walmart argues that Sharay Fanio is not a citizen because 2 Plaintiff has not shown any evidence that correlates with them being a citizen of 3 California. Citing Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir. 4 1983), Walmart argues even if Sharay Fanio lives in California, it does not mean she 5 is domiciled in or a citizen of the state. Walmart argues Sharay Fanio was not properly 6 served. With all this taken into consideration, Walmart argues Sharay Fanio is not a 7 proper party to the lawsuit and is therefore a sham defendant whose citizenship should 8 be disregarded. 9 However, Plaintiff argues Sharay Fanio is a valid defendant because of their 10 research and Walmart has not done enough to refute this. Plaintiff found Sharay 11 Fanio’s name after conducting a LexisNexis People Search on the property where the 12 accident occurred to identify the property owner. Plaintiff argues she did not allege 13 that Sharay Fanio is employed by Walmart. She alleged that Sharay Fanio may have 14 an ownership right in the property. Plaintiff argues that Walmart has not proven it is 15 the sole owner of the property because it has not provided any evidence that defeats 16 Plaintiff’s LexisNexis search. As to the argument of whether Sharay Fanio is a 17 California citizen, Plaintiff asserts she does not carry the burden of proving Sharay 18 Fanio’s citizenship, Walmart does. See Lewis v. Verizon Commc’ns Inc., 627 F.3d 19 395, 399 (9th Cir. 2010) (the removing party bears the burden of proving diversity of 20 citizenship). In connection with Walmart’s last point of whether Sharay Fanio was 21 properly served, Plaintiff argues that Sharay Fanio was sub-served at the Walmart 22 location. With all this taken into consideration Plaintiff argues that Sharay Fanio is a 23 proper party to the litigation. 24 The Court concludes that Walmart has not proven that Sharay Fanio is a sham 25 defendant. As outlined above, the burden for proving that a defendant is a sham is a 26 heavy one. Gaus, 980 F.2d at 566. Walmart must show there is no plausible way for 27 Plaintiff to pursue a cause of action against Sharay Fanio. Good v. Prudential Ins. Co. 28 of America, 5 F.Supp.2d 804, 807 (N.D. Cal. 1998). Plaintiff needs only “a glimmer 1 of hope” that she can pursue an action against Sharay Fanio to prove that Sharay 2 Fanio is not a sham defendant. Id. Plaintiff has filed competent evidence ostensibly 3 linking Sharay Fanio to the property, raising at least the possibility that they could be 4 liable for accidents that occur thereon. See Mot. Ex. A. By contrast, Walmart did not 5 demonstrate that it is or was the sole owner of the property where the accident 6 occurred at the time of the accident. In its opposition, Walmart provided a parcel 7 number that is meant to be used to identify a lot using the San Bernardino County 8 property tax public record page and a link to said page. See Opp’n at 5. However, the 9 link provided does not bring up any information and the parcel number provided does 10 not identify any property and seems to be missing a number. Furthermore, Walmart 11 did not attempt to present this information as competent evidence, such as by 12 submitting it with a declaration and asking the Court to take judicial notice of it. 13 Therefore, Walmart has presented no evidence—competent or otherwise—that it is 14 the sole owner of the property sufficient to rebut Plaintiff’s showing. 15 Furthermore, as Plaintiff points out, Walmart carries the burden of proving 16 complete diversity and Walmart has not presented anything on Sharay Fanio’s 17 citizenship to meet that burden. 18 Walmart has not met its heavy burden to show that there is no possibility 19 Plaintiff could assert a claim against Sharay Fanio, so it has not shown that she is a 20 sham defendant whose citizenship should be disregarded. Chavez v. Amerigas 21 Propane, Inc., 2013 WL 25882, at *8 (C.D. Cal. Jan. 2, 2013) (citation omitted). Nor 22 has Defendant shown that Sharay Fario is a citizen of a state other can California. 23 Because it is possible Plaintiff may state a claim against Sharay Fanio, and because 24 complete diversity of the parties has not been established, the Court lacks subject 25 matter jurisdiction over this action. The Court need not address the parties’ alternative 26 arguments.
27 28 ] B. Attorneys’ Fees 2 The Court can award attorneys’ fees when there is no objectively reasonable 3 || basis for removal. 28 USC §1447(c). The Court has the discretion to award fees when 4 | the party moving for remand can show that removal was frivolous. Martin v. Franklin 5 | Capital Corp., 546 U.S. 132, 139 (2005). 6 Here, the Court does not find that Walmart’s removal was frivolous. Although 7 | Walmart not establish that Sharay Fanio was a sham defendant or a California citizen, 8 | the removal was objectively reasonable. Therefore, the Court denies Plaintiff’ □ 9 | request for attorneys’ fees. 10 IV. CONCLUSION 1] The Court lacks jurisdiction over this case and therefore it must be remanded to 12 | state court. Accordingly, the Court GRANTS Plaintiff's Motion to Remand. (Dkt. No. 13 | 9.) Plaintiff’s request for attorneys’ fees and costs is DENIED. 14 The Court hereby REMANDS this case to the Superior Court of California 15 | from which it was removed. 16 IT IS SO ORDERED. 17 (sh Dated: March 24, 2020 19 HONORABLE ANDRE BIROTTE JR. 20 UNITED STATES DISTRICT COURT JUDGE 21 22 23 24 25 26 27 28 7.