Erlinda Belangue v. Costco Wholesale Corporation, et al.

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 ERLINDA BELANGUE, an individual, Case No.: 3:23-cv-01850-W-JLB Plaintiff, 9 ORDER GRANTING PLAINTIFF’S v. 10 MOTION FOR LEAVE TO AMEND COSTCO WHOLESALE THE COMPLAINT AND REMAND 11 CORPORATION, et al., [DOC. 15.] 12 Defendants. 13 14 Pending before the Court is plaintiff Erlinda Belangue’s (“Plaintiff”) motion for 15 leave to amend and for remand. ([Doc. 15], “Mot. to Amend”.) Plaintiff first filed this 16 action in the San Diego County Superior Court. Defendant Costco Wholesale 17 Corporation (“Costco”) subsequently removed this action to this Court on October 9, 18 2023. (See [Doc. 1], “Notice of Removal”.) Plaintiff now seeks leave to file a First 19 Amended Complaint substituting employee Darren Caltagirone (“Caltagirone”) for DOE 20 1. ([Doc. 15-1], “P. & A.”.) Because the new defendant destroys complete diversity, 21 Plaintiff also moves to remand for lack of subject matter jurisdiction. (Mot. to Amend at 22 2:11-13.) Costco opposes. ([Doc. 17], “Opposition”.) 23 The Court decides the matter on the papers submitted and without oral argument. 24 See Civ.L.R. 7.1.d. For the reasons discussed below, the Court GRANTS the Motion to 25 Amend [Doc. 15]. 26 I. BACKGROUND 27 This lawsuit arises out of personal injuries suffered by Plaintiff when she (a 28 customer) was allegedly hit by a Costco employee carrying a stack of boxes, causing her 1 to fall. ([Doc. 1-2], “Complaint” at ¶ 10.) Plaintiff’s Complaint against Costco and Does 2 1–100 asserts three claims for relief: (1) negligence, (2) premises liability, and (3) 3 negligent hiring, supervision, and retention. (Id. ¶¶ 12-30.) 4 On October 9, 2023, Costco timely removed the action on the basis of diversity 5 jurisdiction. (Notice of Removal at ¶¶ 1-19.) In support, Costco stated that it is a 6 Washington corporation with its headquarters and principal place of business in 7 Washington and Plaintiff is a citizen of California. (Id. at ¶¶ 3-4.) 8 Plaintiff now seeks to amend the Complaint to name one new defendant: employee 9 Darren Caltagirone, as a substitute for Doe 1 in the original Complaint. (P. & A. at 2:18- 10 19.) Mr. Caltagirone is allegedly the employee responsible for Plaintiff’s fall and a 11 citizen of California. (Id. at 2:16-17; see Opposition at 7:10.) Because Mr. Caltagirone 12 is a citizen of California, his addition to the action would divest this Court of diversity 13 jurisdiction. (See id. at 10:6-9.) 14 15 II. LEGAL STANDARD 16 28 U.S.C. Section 1447(e) states: “If after removal the plaintiff seeks to join 17 additional defendants whose joinder would destroy subject matter jurisdiction, the court 18 may deny joinder, or permit joinder and remand the action to state court.” 28 U.S.C. § 19 1447(e). Congress added subsection (e) to allow remand if a plaintiff pursues joinder of a 20 diversity-destroying defendant after removal. H.R. Rep. No. 100–889, at 72. Permitting 21 joinder under § 1447(e) is left to the discretion of the Court. Newcombe v. Adolf Coors 22 Co., 157 F.3d 686, 691 (9th Cir. 1998). In the Ninth Circuit, the following factors are 23 considered when weighing whether to permit joinder of a non-diverse defendant after 24 removal: (1) whether the new defendant is necessary for just adjudication of the 25 controversy pursuant to Federal Rule of Civil Procedure 19(a); (2) whether the statute of 26 limitations would bar an action against the new defendant in state court; (3) whether there 27 has been an unexplained delay in seeking joinder; (4) whether the plaintiff seeks joinder 28 solely to defeat diversity jurisdiction; (5) whether the claims against the prospective 1 defendant appear valid; and (6) whether denial of joinder will prejudice the plaintiff. IBC 2 Aviation Servs., Inc. v. Compania Mexicana de Aviacion, S.A. de C.V., 125 F. Supp. 2d 3 1008, 1011 (N.D. Cal. 2000) (citing Palestini v. Gen. Dynamics Corp., 193 F.R.D. 654, 4 658 (S.D. Cal. 2000)). Any of the factors might prove decisive, and none are a required 5 condition for joinder. Vasquez v. Wells Fargo Bank, Nat’l Ass’n, 77 F. Supp. 3d 911, 921 6 (N.D. Cal. 2015). The case should be remanded if the court permits joinder of a non- 7 diverse defendant. See 28 U.S.C. § 1447(e). 8 9 III. DISCUSSION 10 Plaintiff argues the six factors set forth above weigh in favor of allowing joinder. 11 (P. & A. at 5:1-9:23.) The Court agrees. 12 First, Rule 19(a) requires joinder of persons whose absence would preclude 13 complete relief, impede their ability to protect their interests, or subject a party to a 14 substantial risk of inconsistent obligations. Fed. R. Civ. P. 19(a). “This standard is met 15 when failure to join will lead to separate and redundant actions.” IBC, 125 F. Supp. 2d at 16 1012 (citing CP Nat’l Corp. v. Bonneville Power Admin., 928 F.2d 905, 912 (9th Cir. 17 1991)). Amendment under section 1447(e) “is a less restrictive standard than joinder 18 under [Rule] 19,” but the standard is not met where the defendant is only tangentially 19 related to the cause of action. Id. 20 Plaintiff contends Mr. Caltagirone is the employee who “injured Plaintiff by 21 colliding with her” and is individually liable for breaching a duty he had towards 22 Plaintiff. (P. & A. at 5:20-22.) Costco’s argument focuses on this first factor. Costco 23 contends that Mr. Caltagirone is not a necessary party because Costco would be 24 vicariously liable for his actions. (Opposition at 6:17-19.) Specifically, Costco maintains 25 that Caltagirone was acting within the course and scope of his employment, and so 26 Costco would be required to indemnify him under California Labor Code section 2802. 27 (Opposition at 10:12-19.) 28 1 However, contrary to Costco’s argument, this does not preclude Caltagirone from 2 also being a necessary party. Costco may potentially be directly liable to Caltagirone, as 3 well as separately liable to indemnify Caltagirone. Indeed, “[t]he fact that Costco may be 4 both directly liable for its negligence and vicariously liable for the negligence of [its 5 employee] supports Plaintiff’s argument that [the employee] is a necessary party to this 6 action, and not merely tangentially related.” Franco v. Costco Wholesale Corp., No. CV 7 18-7586-MWF (AFMx), 2018 WL 6333674, at *2 (C.D. Cal. Oct. 30, 2018). Plaintiff 8 sufficiently alleges that Mr. Caltagirone is the employee directly involved in the incident, 9 and therefore bears more than a tangential relationship to Plaintiff’s causes of action. 10 Accordingly, this factor weighs in favor of joinder. 11 Second, the statute of limitations for an injury to “an individual caused by the 12 wrongful act or neglect of another” is two years. Cal. Civ. Proc. Code § 335.1. 13 The two-year period for Plaintiff to pursue a claim against Caltagirone in state court 14 expired on September 23, 2023. (P. & A. at 6:13-15.) This factor also weighs in favor of 15 joinder. 16 Third, courts consider the delay between removal from state court and a motion to 17 amend when determining whether to allow joinder of a non-diverse party. See, e.g., 18 Lopez v. Gen. Motors Corp., 697 F.2d 1328, 1332 (9th Cir. 1983) (denying amendment to 19 add defendant that was filed more than six months after removal and only days before 20 consideration of a motion for summary judgment); IBC, 125 F. Supp. 2d at 1012. 21 Plaintiff alleges she only became aware of Mr. Caltagirone’s identity as the employee 22 who directly collided with her during the Initial Status Conference on December 6, 2023. 23 (P. & A. at 6:25-28.) Plaintiffs filed the instant motion to amend the Complaint on 24 February 5, 2024, only two months later. Costco does not dispute the timeliness of the 25 motion. (Opposition at 15:3-4.) The Court finds that the motion is timely, which weighs 26 in favor of joinder. 27 Fourth, the motive behind seeking joinder of a non-diverse defendant is relevant as 28 to whether to grant leave to amend. Desert Empire Bank v. Ins. Co. of N. Am., 623 F.2d 1 1371, 1376 (9th Cir. 1980). Costco argues Plaintiff seeks to add Caltagirone as a named 2 defendant solely to destroy the federal court’s diversity jurisdiction, requiring a remand 3 to state court. (See Opposition at 15:9-10.) However, as Plaintiff argues, Caltagirone is 4 the specific employee involved in the incident, and there is a possibility of direct 5 recovery against defendant employees under California law. (See P. & A. at 7:17-20). 6 This weighs against a finding of fraudulent joinder. Additionally, “[s]uspicion of 7 diversity destroying amendments is not as important now that § 1447(e) gives courts 8 more flexibility in dealing with the addition of such defendants.” IBC, 125 F.Supp.2d at 9 1012 (citation omitted). Because of this, courts often consider whether the plaintiff is 10 trying to delay proceedings unreasonably. See Righetti v. Shell Oil Co., 711 F. Supp. 11 531, 534 (N.D. Cal. 1989). The Court declines to impute a motive to unreasonably delay 12 proceedings here, as the case is still in the early stages and Plaintiffs have quickly moved 13 to remand. Considering Mr. Caltagirone’s alleged participation in the incident, Plaintiff’s 14 desire to add him as a defendant is reasonable. This factor weighs in favor of granting 15 joinder. 16 Fifth, “courts consider whether the claim sought to be added seems meritorious,” 17 which is not the same as the standard in either a motion to dismiss or a motion for 18 summary judgment. IBC, 125 F. Supp. 2d at 1012. As discussed above, Plaintiff’s 19 claims against Caltagirone appear facially valid. Furthermore, Costco does not dispute 20 that Plaintiff has stated a facially valid negligence claim against Caltagirone. (Opposition 21 at 15:4-6.) Accordingly, this factor weighs in favor of joinder. 22 Finally, courts consider whether denial of joinder will prejudice the Plaintiff. 23 Costco argues that Plaintiff is not prejudiced because she can obtain full relief from 24 Costco exclusively. (Opposition at 14:19-21.) However, as discussed above, Plaintiff 25 may possibly obtain relief from both Costco and Caltagirone. Costco’s potential 26 responsibility to indemnify Caltagirone does not subsume Plaintiff’s ability to pursue a 27 direct claim against Caltagirone, in addition to Costco. Denying the amendment would 28 force Plaintiff to either forego its potential claims against Caltagirone, or pursue 1 redundant litigation in another forum, if the statute of limitations was deemed tolled 2 through the Doe process. (See P. & A. at 9:13-16.) “[T]o litigate essentially the same 3 issues in two forums would be a waste of judicial resources and risk inconsistent results.” 4 || JBC, 125 F. Supp. 2d at 1012. Moreover, little prejudice to Costco would result from 5 || permitting joinder, as the case is still in the relatively early stages of litigation. 6 || Therefore, this final factor weighs in favor of granting joinder. 7 8 CONCLUSION & ORDER 9 Having considered the relevant factors above, the Court GRANTS Plaintiffs 10 || Motion for leave to amend [Doc. 15]. Because the amendment destroys diversity 11 ||jurisdiction by naming Mr. Caltagirone as a defendant, remand is warranted. 12 || Accordingly, this Court REMANDS the action to the Superior Court of California, 13 || County of San Diego. 14 15 IT IS SO ORDERED. 16 || Dated: July 16, 2024 17 \ 18 ihe Julon 19 Hen. omas J. Whelan 0 United States District Judge 21 22 23 24 25 26 27 28