2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 FOUZIA EL BAKKAL, an individual, Case No. 2:22-cv-01615-ART-BNW 5 Plaintiff, ORDER 6 v.
7 COSTCO WHOLESALE CORPORATION, a foreign corporation, doing businesses 8 as COSTCO; DOE STORE MANAGERS I through X; DOE STORE EMPLOYEES I 9 through X; DOE OWNERS I through X; DOE PROPERTY MANAGERS I through 10 X; DOE MAINTENANCE EMPLOYEES I through X; DOE JANITORIAL 11 EMPLOYEES I through X; ROE PROPERTY MANAGERS XI through XX; 12 ROE MAINTENANCE COMPANIES XI through XX; ROE OWNERS XI through 13 XX; ROE EMPLOYERS XI through XX DOES XXI through XXV; ROE 14 CORPORATIONS XXV through XXX; inclusive jointly severally, 15 Defendants. 16
17 18 This is a personal injury slip and fall case which was removed from the 19 Eighth Judicial District Court of the State of Nevada to this Court on September 20 23, 2022. Before the Court are: (1) Plaintiff Fouzia El Bakkal’s motion to remand 21 (ECF No. 9); (2) Plaintiff’s amended motion to remand (ECF No. 18); (3) Plaintiff’s 22 amended motion to file an amended complaint (ECF No. 20); (4) Defendant Costco 23 Wholesale Corporation’s motion to strike Plaintiff’s amended motion to remand 24 (ECF No. 22); and (5) Plaintiff’s first motion for leave to file an additional amended 25 motion to amend complaint and remand (ECF No. 32). For the reasons set forth 26 in this order, Plaintiff’s motion to file an amended complaint (ECF No. 20) is 27 granted in part and Plaintiff’s motion to remand (ECF No. 18) is granted. Plaintiff’s 28 first motion to remand (ECF No. 9) is denied as moot, and the Court declines to 1 decide Plaintiff’s motion for leave to file an additional motion to amend complaint 2 and remand (ECF No. 32). Also outstanding are Defendant Costco Wholesale 3 Corporation’s motions to compel (ECF Nos. 36, 46) and Plaintiff’s motion for 4 protective order (ECF No. 37), which the Court declines to decide. 5 I. BACKGROUND 6 Plaintiff, a Nevada resident, filed a complaint in the Eighth Judicial District 7 Court of the State of Nevada on December 14, 2021. (ECF No. 1-2 at 16.) Initially, 8 Plaintiff named Melisa Landa in the complaint, who Plaintiff believed to be the 9 store manager at the time of Plaintiff’s alleged injury, then during the Eighth 10 Judicial District Court proceedings Plaintiff agreed to dismiss Melisa Landa after 11 learning that she was not actually working as the manager at that time. (ECF No. 12 1-9.) Following the dismissal of Melisa Landa, Defendant Costco Wholesale 13 Corporation (“Costco”) removed the case to this Court. (ECF No. 1.) 14 Plaintiff filed a motion to remand on October 21, 2022, which argues that 15 remand is appropriate since Plaintiff names Doe Store Managers as defendants 16 and Defendant Costco has not shown that the Doe Store Manager is not a Nevada 17 resident. (ECF No. 9.) At that time, Plaintiff did not know the identity of the store 18 manager. On January 12, 2023, Plaintiff filed an amended motion to remand 19 which included the identity of the store manager working at the time of the alleged 20 injury, Eric De La Cruz, a Nevada resident. (ECF No. 18.) That same document 21 also served as Plaintiff’s motion to amend complaint to substitute Eric De La Cruz 22 and to add a claim of negligence per se and was filed in a parallel filing the same 23 day (ECF No. 17), but that filing was denied due to failure to include a meet-and- 24 confer certification (ECF No. 19), which led Plaintiff to file an amended motion to 25 amend complaint on January 17, 2022 which also sought addition of assistant 26 store manager Lisa Gehres (ECF No. 20). On January 27, 2023, Defendant Costco 27 filed a motion to strike Plaintiff’s amended motion to remand, arguing that 28 Plaintiff’s amended motion constitutes a supplemental filing filed without leave 1 of Court and that Plaintiff improperly joined two motions into one. (ECF No. 22.) 2 On March 28, 2023, Plaintiff filed a motion for leave to file an additional 3 amended motion to amend complaint and remand. (ECF No. 32.) In Plaintiff’s 4 proposed amended motion to amend complaint and remand, Plaintiff seeks to 5 substitute for Doe and Roe defendants Club Demonstration Services, Inc., and 6 Cynthia Hanna. Plaintiff explains that Club Demonstration Services, Inc. was the 7 company serving food samples in the Costco location where Plaintiff was allegedly 8 injured and that Cynthia Hanna was the employee who may have been jointly 9 responsible, along with Defendant Costco, for the area in which Plaintiff was 10 allegedly injured. Addition of these parties would destroy diversity jurisdiction. 11 II. DISCUSSION 12 A plaintiff can challenge removal with a motion to remand. The removal 13 statute is strictly construed against removal jurisdiction. Hansen v. Group Health 14 Coop., 902 F.3d 1051, 1056 (9th Cir. 2018). “The removing defendant bears the 15 burden of overcoming the ‘strong presumption against removal jurisdiction.’” Id. 16 at 1057 (citing Geographic Expeditions, Inc. v. Est. of Lhotka ex rel. Lhotka, 599 17 F.3d 1102, 1107 (9th Cir. 2010)). 18 “If after removal the plaintiff seeks to join additional defendants whose 19 joinder would destroy subject matter jurisdiction, the court may deny joinder, or 20 permit joinder and remand the action to the State court.” 28 U.S.C. § 1447(e). 21 “Legislative history confirms that Congress intended 28 U.S.C. § 1447(e) as a 22 solution to allow joinder of a non-diverse Doe defendant.” Valdez v. Home Depot 23 U.S.A., Inc., 2022 WL 4137691 at *3 (N.D. Cal. Aug. 25, 2022) (citing H.R. Rep. 24 No. 100-889 at 71); see also Bartfeld v. AMCO Ins. Co., 2022 WL 16698687 (N.D. 25 Cal. Nov. 3, 2022) (citing same). District courts have discretion to permit an 26 amendment destroying diversity. Factors considered by district courts in 27 exercising this discretion include: (1) whether the party sought to be joined is 28 needed for just adjudication and would be joined under Fed. R. Civ. P. 19(a); (2) 1 whether the statute of limitations would prevent the filing of a new action against 2 the new defendant in state court; (3) whether there has been an unexplained 3 delay in seeking to join the new defendant; (4) whether plaintiff seeks to join the 4 new party solely to defeat federal jurisdiction; (5) whether denial of the joinder 5 would prejudice the plaintiff; (6) the strength of the claims against the new 6 defendant. Henley v. Smiths Food & Drug Ctrs., Inc., 2014 U.S. Dist. LEXIS 63087, 7 *3-4 (D. Nev May 6, 2014). In the Doe defendant context, district court decisions 8 “favor[] remand where the plaintiff's descriptions of the Doe defendants provide a 9 reasonable indication of their identity, the relationship to the action, and their 10 diversity-destroying citizenship.” Valdez v. Home Depot U.S.A., Inc., 2022 WL 11 4137691, at *3 (N.D. Cal. Aug. 25, 2022) (internal quotations omitted). 12 Here, Defendant Costco challenges Plaintiff’s motion to amend to add Eric 13 De La Cruz on both procedural (ECF No. 22) and substantive (ECF No. 24) 14 grounds. On the former, Defendant Costco argues that Plaintiff’s amended motion 15 to remand is a “fugitive document” since it is effectively a supplement to Plaintiff’s 16 earlier motion to remand and supplementation requires leave of Court under 17 Local Rule LR 7-2(g). As Plaintiff’s counsel acknowledges, the proper proceeding 18 under LR 7-2(g) is to seek leave of Court to provide supplementary information.
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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 FOUZIA EL BAKKAL, an individual, Case No. 2:22-cv-01615-ART-BNW 5 Plaintiff, ORDER 6 v.
7 COSTCO WHOLESALE CORPORATION, a foreign corporation, doing businesses 8 as COSTCO; DOE STORE MANAGERS I through X; DOE STORE EMPLOYEES I 9 through X; DOE OWNERS I through X; DOE PROPERTY MANAGERS I through 10 X; DOE MAINTENANCE EMPLOYEES I through X; DOE JANITORIAL 11 EMPLOYEES I through X; ROE PROPERTY MANAGERS XI through XX; 12 ROE MAINTENANCE COMPANIES XI through XX; ROE OWNERS XI through 13 XX; ROE EMPLOYERS XI through XX DOES XXI through XXV; ROE 14 CORPORATIONS XXV through XXX; inclusive jointly severally, 15 Defendants. 16
17 18 This is a personal injury slip and fall case which was removed from the 19 Eighth Judicial District Court of the State of Nevada to this Court on September 20 23, 2022. Before the Court are: (1) Plaintiff Fouzia El Bakkal’s motion to remand 21 (ECF No. 9); (2) Plaintiff’s amended motion to remand (ECF No. 18); (3) Plaintiff’s 22 amended motion to file an amended complaint (ECF No. 20); (4) Defendant Costco 23 Wholesale Corporation’s motion to strike Plaintiff’s amended motion to remand 24 (ECF No. 22); and (5) Plaintiff’s first motion for leave to file an additional amended 25 motion to amend complaint and remand (ECF No. 32). For the reasons set forth 26 in this order, Plaintiff’s motion to file an amended complaint (ECF No. 20) is 27 granted in part and Plaintiff’s motion to remand (ECF No. 18) is granted. Plaintiff’s 28 first motion to remand (ECF No. 9) is denied as moot, and the Court declines to 1 decide Plaintiff’s motion for leave to file an additional motion to amend complaint 2 and remand (ECF No. 32). Also outstanding are Defendant Costco Wholesale 3 Corporation’s motions to compel (ECF Nos. 36, 46) and Plaintiff’s motion for 4 protective order (ECF No. 37), which the Court declines to decide. 5 I. BACKGROUND 6 Plaintiff, a Nevada resident, filed a complaint in the Eighth Judicial District 7 Court of the State of Nevada on December 14, 2021. (ECF No. 1-2 at 16.) Initially, 8 Plaintiff named Melisa Landa in the complaint, who Plaintiff believed to be the 9 store manager at the time of Plaintiff’s alleged injury, then during the Eighth 10 Judicial District Court proceedings Plaintiff agreed to dismiss Melisa Landa after 11 learning that she was not actually working as the manager at that time. (ECF No. 12 1-9.) Following the dismissal of Melisa Landa, Defendant Costco Wholesale 13 Corporation (“Costco”) removed the case to this Court. (ECF No. 1.) 14 Plaintiff filed a motion to remand on October 21, 2022, which argues that 15 remand is appropriate since Plaintiff names Doe Store Managers as defendants 16 and Defendant Costco has not shown that the Doe Store Manager is not a Nevada 17 resident. (ECF No. 9.) At that time, Plaintiff did not know the identity of the store 18 manager. On January 12, 2023, Plaintiff filed an amended motion to remand 19 which included the identity of the store manager working at the time of the alleged 20 injury, Eric De La Cruz, a Nevada resident. (ECF No. 18.) That same document 21 also served as Plaintiff’s motion to amend complaint to substitute Eric De La Cruz 22 and to add a claim of negligence per se and was filed in a parallel filing the same 23 day (ECF No. 17), but that filing was denied due to failure to include a meet-and- 24 confer certification (ECF No. 19), which led Plaintiff to file an amended motion to 25 amend complaint on January 17, 2022 which also sought addition of assistant 26 store manager Lisa Gehres (ECF No. 20). On January 27, 2023, Defendant Costco 27 filed a motion to strike Plaintiff’s amended motion to remand, arguing that 28 Plaintiff’s amended motion constitutes a supplemental filing filed without leave 1 of Court and that Plaintiff improperly joined two motions into one. (ECF No. 22.) 2 On March 28, 2023, Plaintiff filed a motion for leave to file an additional 3 amended motion to amend complaint and remand. (ECF No. 32.) In Plaintiff’s 4 proposed amended motion to amend complaint and remand, Plaintiff seeks to 5 substitute for Doe and Roe defendants Club Demonstration Services, Inc., and 6 Cynthia Hanna. Plaintiff explains that Club Demonstration Services, Inc. was the 7 company serving food samples in the Costco location where Plaintiff was allegedly 8 injured and that Cynthia Hanna was the employee who may have been jointly 9 responsible, along with Defendant Costco, for the area in which Plaintiff was 10 allegedly injured. Addition of these parties would destroy diversity jurisdiction. 11 II. DISCUSSION 12 A plaintiff can challenge removal with a motion to remand. The removal 13 statute is strictly construed against removal jurisdiction. Hansen v. Group Health 14 Coop., 902 F.3d 1051, 1056 (9th Cir. 2018). “The removing defendant bears the 15 burden of overcoming the ‘strong presumption against removal jurisdiction.’” Id. 16 at 1057 (citing Geographic Expeditions, Inc. v. Est. of Lhotka ex rel. Lhotka, 599 17 F.3d 1102, 1107 (9th Cir. 2010)). 18 “If after removal the plaintiff seeks to join additional defendants whose 19 joinder would destroy subject matter jurisdiction, the court may deny joinder, or 20 permit joinder and remand the action to the State court.” 28 U.S.C. § 1447(e). 21 “Legislative history confirms that Congress intended 28 U.S.C. § 1447(e) as a 22 solution to allow joinder of a non-diverse Doe defendant.” Valdez v. Home Depot 23 U.S.A., Inc., 2022 WL 4137691 at *3 (N.D. Cal. Aug. 25, 2022) (citing H.R. Rep. 24 No. 100-889 at 71); see also Bartfeld v. AMCO Ins. Co., 2022 WL 16698687 (N.D. 25 Cal. Nov. 3, 2022) (citing same). District courts have discretion to permit an 26 amendment destroying diversity. Factors considered by district courts in 27 exercising this discretion include: (1) whether the party sought to be joined is 28 needed for just adjudication and would be joined under Fed. R. Civ. P. 19(a); (2) 1 whether the statute of limitations would prevent the filing of a new action against 2 the new defendant in state court; (3) whether there has been an unexplained 3 delay in seeking to join the new defendant; (4) whether plaintiff seeks to join the 4 new party solely to defeat federal jurisdiction; (5) whether denial of the joinder 5 would prejudice the plaintiff; (6) the strength of the claims against the new 6 defendant. Henley v. Smiths Food & Drug Ctrs., Inc., 2014 U.S. Dist. LEXIS 63087, 7 *3-4 (D. Nev May 6, 2014). In the Doe defendant context, district court decisions 8 “favor[] remand where the plaintiff's descriptions of the Doe defendants provide a 9 reasonable indication of their identity, the relationship to the action, and their 10 diversity-destroying citizenship.” Valdez v. Home Depot U.S.A., Inc., 2022 WL 11 4137691, at *3 (N.D. Cal. Aug. 25, 2022) (internal quotations omitted). 12 Here, Defendant Costco challenges Plaintiff’s motion to amend to add Eric 13 De La Cruz on both procedural (ECF No. 22) and substantive (ECF No. 24) 14 grounds. On the former, Defendant Costco argues that Plaintiff’s amended motion 15 to remand is a “fugitive document” since it is effectively a supplement to Plaintiff’s 16 earlier motion to remand and supplementation requires leave of Court under 17 Local Rule LR 7-2(g). As Plaintiff’s counsel acknowledges, the proper proceeding 18 under LR 7-2(g) is to seek leave of Court to provide supplementary information. 19 Nonetheless, the Court agrees with Plaintiff that supplementation is warranted 20 and was timely pursued following Defendant Costco’s disclosure of the identity of 21 the store manager. Defendant Costco also argues that Plaintiff violated Local Rule 22 IC 2-2(b) for containing multiple types of relief within one motion. This rule 23 concerns procedures for electronically filing in CM/ECF and requires that a 24 separate event be selected for each type of relief requested. Plaintiff complied with 25 this requirement by filing the document as a motion to amend complaint and as 26 a motion to remand. (ECF Nos. 17, 18, 20.) Defendant Costco’s motion to strike 27 (ECF No. 22) is denied. 28 Substantively, Defendant Costco argues that Plaintiff should not be 1 permitted to amend to substitute Eric De La Cruz and Lisa Gehres as Doe Store 2 Managers because the claims against them are duplicative of the respondeat 3 superior claim against Defendant Costco, making substitution of these individual 4 unnecessary for just adjudication of Plaintiff’s claims. Defendants also argue that 5 substitution is inappropriate because Plaintiff’s original complaint does not 6 sufficiently describe the actions of the Doe Store Managers for the purposes of 7 Nevada’s state law test for relation back of a substituted defendant for statute of 8 limitations purposes. Defendant Costco points out that the statute of limitations 9 would prevent the filing of a new action against these individuals in state court. 10 The Court finds that substitution of Eric De La Cruz and Lisa Gehres is 11 appropriate in this case, necessitating remand. Although Plaintiff may have a 12 viable claim against Defendant Costco and this claim may be based on vicarious 13 liability, it is also axiomatic that an employer’s vicarious liability does not 14 preclude individual tort liability on behalf of the employees. Furthermore, the 15 Court is not aware of any stipulation from the parties indicating that Defendant 16 Costco concedes that Eric De La Cruz and Lisa Gehres were acting within the 17 scope of their employment. See Henley, 2014 U.S. Dist. LEXIS 63087 at *5-6. The 18 remaining factors favor substitution or are neutral. Plaintiff promptly sought 19 substitution after learning the identities of the store managers. Plaintiff does not 20 seek to join the store managers solely to defeat diversity: Plaintiff originally named 21 Melisa Landa as the store manager, showing that Plaintiff intended to proceed 22 against the store manager before the case was removed. Although the exact 23 strength of Plaintiff’s claims against the store managers is not apparent, they are 24 not related to the case “only tangentially” since the store managers allegedly had 25 control of the area where Plaintiff was allegedly injured. Hardin v. Wal-Mart 26 Stores, Inc., 813 F. Supp. 2d 1167, 1174 (E.D. Cal. 2011), aff'd in part, 604 F. 27 App'x 545 (9th Cir. 2015) (“Courts disallow joinder of non-diverse defendants 28 where those defendants are only tangentially related to the cause of action or 1 would not prevent complete relief.”) (internal quotations omitted). 2 Regarding the statute of limitations, Fed. R. Civ. P. 15(c)(1)(A) provides that 3 an amendment to a pleading relates back to the date of the original pleading when 4 the law that provides the applicable statute of limitations allows relation back. 5 As the parties both point out, the Supreme Court of Nevada has set forth a three- 6 part test for relation back of a Doe defendant. Relation back is appropriate when 7 the plaintiff has: (1) pled fictitious or Doe defendants in the caption of the 8 complaint; (2) pled the basis for naming defendants by other than their true 9 identity and clearly specified the connection between the intended defendants 10 and the conduct, activity, or omission upon which the cause of action is based; 11 and (3) exercised reasonable diligence in ascertaining the true identity of the 12 intended defendants and promptly moved to amend the complaint in order to 13 substitute the actual for the fictional. Nurenberger Hercules-Werke GMBH v. 14 Virostek, 107 Nev. 873, 881, 822 P.2d 1100, 1106 (1991), abrogated on other 15 grounds by Costello v. Casler, 127 Nev. 436, 254 P.3d 631 (2011). Here, Plaintiff 16 pled that the Doe Store Managers “negligently and carelessly […] maintained, 17 operated, occupied, and controlled the said premises […] so as to cause and allow 18 an unreasonably hazardous and dangerous premises and such negligence 19 caused injury to [Plaintiff].” (ECF No. 1-2 at ¶ 13.) This is sufficient to allow 20 relation back. 21 III. CONCLUSION 22 Since the Court lacks subject matter jurisdiction due to the substitution of 23 Eric De La Cruz and Lisa Gehres, the Court declines to decide: (1) whether 24 Plaintiff should be permitted to add a claim of negligence per se; (2) whether to 25 permit substitution of Club Demonstration Services, Inc. and Cynthia Hanna for 26 Doe and Roe defendants (ECF No. 32); (3) Defendant Costco’s motions to compel 27 (ECF Nos. 36, 46); and (4) Plaintiff’s motion for protective order (ECF No. 37). 28 Plaintiff’s first motion to remand (ECF No. 9) is denied as moot. 1 Plaintiffs amended motion to file an amended complaint (ECF No. 20) is 2 || granted with respect to the substitution of Eric De La Cruz and Lisa Gehres for 3 || Doe Store Managers. 4 Plaintiffs amended motion to remand (ECF No. 18) is granted. 5 The Clerk of Court is directed to administratively close this case. 6 7 DATED THIS day of July 2023. 8 9 j jon UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28