1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 FATIMA EPES, No. 2:25-cv-02982-JAM-JDP 11 Plaintiff, 12 v. ORDER DENYING MOTION TO REMAND 13 WALMART, a business organization of unknown 14 status; DORISMAR CERVANTES; and DOES 1–500, inclusive, 15 Defendants. 16 17 18 Plaintiff Fatima Epes, who alleges she slipped and fell at a 19 Walmart store in 2023, initially brought this personal injury 20 action in the Solano County Superior Court on June 25, 2025. 21 Defendant Walmart Inc. (“Walmart”) removed this action under 22 diversity jurisdiction on October 15, 2025, arguing that the 23 $75,000 amount in controversy was satisfied and that the Parties 24 were diverse as Plaintiff had fraudulently joined Defendant 25 Dorismar Cervantes, the sole California defendant. Plaintiff now 26 moves to remand this case, arguing that she has a viable 27 negligence claim against Cervantes such that her joinder is not 28 fraudulent. 1 For the reasons discussed below, the Court finds that 2 Plaintiff cannot plausibly allege any negligence claim against 3 Cervantes. Thus, the Court finds that Cervantes is a sham 4 defendant and denies Plaintiff’s Motion to Remand. 5 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND 6 Plaintiff alleges that she slipped and fell due to a 7 “dangerous and unsafe condition” in a Walmart store located in 8 Suisun City, California, on November 24, 2023, sustaining 9 “serious injuries.” Compl. ¶¶ 1–10, ECF No. 1-1. Plaintiff 10 brought a sole claim for negligence against Defendants Walmart, 11 the alleged business owner; Cervantes, the alleged store 12 “manager[] or person[] responsible for the [store’s] maintenance, 13 design, and safety protocols”; and Does 1–500 in the Solano 14 County Superior Court on June 25, 2025. Id. Walmart removed 15 this action to federal court on October 15, 2025, based on 16 diversity jurisdiction, arguing the amount in controversy exceeds 17 $75,000 as Plaintiff seeks $600,000 in damages, and the Parties 18 are diverse because Cervantes, the sole resident of California, 19 is a sham defendant. Notice Removal ¶¶ 1, 9–31, ECF No. 1. 20 Plaintiff filed a Motion to Remand (ECF No. 5) on November 21 4, 2025, contesting Walmart’s assertion that the Parties are 22 diverse, and seeking attorney’s fees under 28 U.S.C. § 1447(c). 23 Walmart filed an Opposition (ECF No. 14), and Plaintiff filed a 24 Reply (ECF No. 17). The matter was submitted without oral 25 argument pursuant to Local Rule 230(g). ECF No. 15. 26 II. LEGAL STANDARD 27 “A motion to remand is the proper procedure for challenging 28 removal.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1 1244 (9th Cir. 2009) (citing 28 U.S.C. § 1447(c)). Generally, 2 courts “strictly construe the removal statute against removal 3 jurisdiction.” Acad. of Country Music v. Cont’l Cas. Co., 991 4 F.3d 1059, 1068 (9th Cir. 2021). The party asserting federal 5 subject matter jurisdiction bears the burden of establishing its 6 existence. Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 7 1115, 1122 (9th Cir. 2010). 8 A case may be removed to federal court if that court would 9 have jurisdiction over the matter. See 28 U.S.C. § 1441; Hunter 10 v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009). 11 Subject matter jurisdiction exists in civil cases involving a 12 federal question or diversity of citizenship. 28 U.S.C. §§ 1331, 13 1332. To support diversity jurisdiction, the amount in 14 controversy in the case must exceed $75,000, 28 U.S.C. § 1332(a), 15 and there must be complete diversity between the parties, meaning 16 that “each plaintiff must be diverse from each defendant.” Lee 17 v. Am. Nat. Ins. Co., 260 F.3d 997, 1004 (9th Cir. 2001). 18 However, “[i]n determining whether there is complete diversity, 19 district courts may disregard the citizenship of a non-diverse 20 defendant who has been fraudulently joined.” GranCare, LLC v. 21 Thrower ex rel. Mills, 889 F.3d 543, 548 (9th Cir. 2018). 22 III. OPINION 23 Plaintiff does not dispute that the amount in controversy 24 exceeds $75,000. See generally Mot. Remand, ECF No. 5. Thus, 25 the sole issue before the Court is whether the Parties are 26 diverse. 27 Walmart argues that the diversity requirement is met here 28 because Plaintiff is a citizen of California; Walmart is a 1 citizen of Delaware and Arkansas; the citizenship of Does 1–500 2 is disregarded for removal purposes; and Cervantes, the sole 3 Defendant domiciled in California, is a sham defendant. Notice 4 Removal ¶¶ 9–23. Walmart argues that Cervantes was employed at 5 the Suisun City store on the date of the alleged incident as an 6 Asset Protection Associate charged with preventing Walmart’s 7 merchandise from being stolen. Id. ¶ 18; see also Opp’n at 2, 8 ECF No. 14. Thus, Walmart argues Cervantes was not a management- 9 level employee who controlled, operated, or owned the store 10 premises. Notice Removal ¶ 18. Walmart also argues Cervantes 11 was not alleged to have personally caused, created, or 12 contributed to the alleged dangerous condition on the date of the 13 incident. Id. Based on these facts, Walmart argues Cervantes 14 cannot be liable to Plaintiff for negligence, making her a sham 15 defendant. Id. ¶¶ 18–19. 16 The Court agrees. Under the doctrine of “fraudulent 17 joinder” or “sham defendant,” a federal court may ignore a non- 18 diverse defendant’s citizenship if either of two standards are 19 met: “(1) actual fraud in the pleading of jurisdictional facts, 20 or (2) inability of the plaintiff to establish a cause of action 21 against the non-diverse party in state court.” See Grancare, 889 22 F.3d at 548 (quoting Hunter, 582 F.3d at 1044). 23 Walmart challenges the joinder of Cervantes on the second 24 basis. See Notice Removal ¶¶ 14–19; Opp’n at 4–8. Under this 25 standard, Walmart must show that Cervantes cannot be liable under 26 any theory. Grancare, 889 F.3d at 548. This is a heavy burden, 27 as there is a general presumption against finding fraudulent 28 joinder. Id. “[I]f there is a possibility that a state court 1 would find that the complaint states a cause of action against 2 any of the resident defendants, the federal court must find that 3 the joinder was proper and remand the case to the state court.” 4 Id. (quoting Hunter, 582 F.3d at 1046). In making this inquiry, 5 courts may consider summary judgment-type evidence such as 6 affidavits and deposition testimony. See Morris v. Princess 7 Cruises, Inc., 236 F.3d 1061, 1068 (9th Cir. 2001) (citation 8 omitted); see also Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 9 1318 (9th Cir. 1998) (explaining that where fraudulent joinder is 10 at issue, a district court may look beyond the pleadings because 11 a defendant must have the opportunity to show that the 12 individuals joined in the action cannot be liable on any theory). 13 The Court finds that Walmart has met the heavy burden to 14 show fraudulent joinder here.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 FATIMA EPES, No. 2:25-cv-02982-JAM-JDP 11 Plaintiff, 12 v. ORDER DENYING MOTION TO REMAND 13 WALMART, a business organization of unknown 14 status; DORISMAR CERVANTES; and DOES 1–500, inclusive, 15 Defendants. 16 17 18 Plaintiff Fatima Epes, who alleges she slipped and fell at a 19 Walmart store in 2023, initially brought this personal injury 20 action in the Solano County Superior Court on June 25, 2025. 21 Defendant Walmart Inc. (“Walmart”) removed this action under 22 diversity jurisdiction on October 15, 2025, arguing that the 23 $75,000 amount in controversy was satisfied and that the Parties 24 were diverse as Plaintiff had fraudulently joined Defendant 25 Dorismar Cervantes, the sole California defendant. Plaintiff now 26 moves to remand this case, arguing that she has a viable 27 negligence claim against Cervantes such that her joinder is not 28 fraudulent. 1 For the reasons discussed below, the Court finds that 2 Plaintiff cannot plausibly allege any negligence claim against 3 Cervantes. Thus, the Court finds that Cervantes is a sham 4 defendant and denies Plaintiff’s Motion to Remand. 5 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND 6 Plaintiff alleges that she slipped and fell due to a 7 “dangerous and unsafe condition” in a Walmart store located in 8 Suisun City, California, on November 24, 2023, sustaining 9 “serious injuries.” Compl. ¶¶ 1–10, ECF No. 1-1. Plaintiff 10 brought a sole claim for negligence against Defendants Walmart, 11 the alleged business owner; Cervantes, the alleged store 12 “manager[] or person[] responsible for the [store’s] maintenance, 13 design, and safety protocols”; and Does 1–500 in the Solano 14 County Superior Court on June 25, 2025. Id. Walmart removed 15 this action to federal court on October 15, 2025, based on 16 diversity jurisdiction, arguing the amount in controversy exceeds 17 $75,000 as Plaintiff seeks $600,000 in damages, and the Parties 18 are diverse because Cervantes, the sole resident of California, 19 is a sham defendant. Notice Removal ¶¶ 1, 9–31, ECF No. 1. 20 Plaintiff filed a Motion to Remand (ECF No. 5) on November 21 4, 2025, contesting Walmart’s assertion that the Parties are 22 diverse, and seeking attorney’s fees under 28 U.S.C. § 1447(c). 23 Walmart filed an Opposition (ECF No. 14), and Plaintiff filed a 24 Reply (ECF No. 17). The matter was submitted without oral 25 argument pursuant to Local Rule 230(g). ECF No. 15. 26 II. LEGAL STANDARD 27 “A motion to remand is the proper procedure for challenging 28 removal.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1 1244 (9th Cir. 2009) (citing 28 U.S.C. § 1447(c)). Generally, 2 courts “strictly construe the removal statute against removal 3 jurisdiction.” Acad. of Country Music v. Cont’l Cas. Co., 991 4 F.3d 1059, 1068 (9th Cir. 2021). The party asserting federal 5 subject matter jurisdiction bears the burden of establishing its 6 existence. Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 7 1115, 1122 (9th Cir. 2010). 8 A case may be removed to federal court if that court would 9 have jurisdiction over the matter. See 28 U.S.C. § 1441; Hunter 10 v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009). 11 Subject matter jurisdiction exists in civil cases involving a 12 federal question or diversity of citizenship. 28 U.S.C. §§ 1331, 13 1332. To support diversity jurisdiction, the amount in 14 controversy in the case must exceed $75,000, 28 U.S.C. § 1332(a), 15 and there must be complete diversity between the parties, meaning 16 that “each plaintiff must be diverse from each defendant.” Lee 17 v. Am. Nat. Ins. Co., 260 F.3d 997, 1004 (9th Cir. 2001). 18 However, “[i]n determining whether there is complete diversity, 19 district courts may disregard the citizenship of a non-diverse 20 defendant who has been fraudulently joined.” GranCare, LLC v. 21 Thrower ex rel. Mills, 889 F.3d 543, 548 (9th Cir. 2018). 22 III. OPINION 23 Plaintiff does not dispute that the amount in controversy 24 exceeds $75,000. See generally Mot. Remand, ECF No. 5. Thus, 25 the sole issue before the Court is whether the Parties are 26 diverse. 27 Walmart argues that the diversity requirement is met here 28 because Plaintiff is a citizen of California; Walmart is a 1 citizen of Delaware and Arkansas; the citizenship of Does 1–500 2 is disregarded for removal purposes; and Cervantes, the sole 3 Defendant domiciled in California, is a sham defendant. Notice 4 Removal ¶¶ 9–23. Walmart argues that Cervantes was employed at 5 the Suisun City store on the date of the alleged incident as an 6 Asset Protection Associate charged with preventing Walmart’s 7 merchandise from being stolen. Id. ¶ 18; see also Opp’n at 2, 8 ECF No. 14. Thus, Walmart argues Cervantes was not a management- 9 level employee who controlled, operated, or owned the store 10 premises. Notice Removal ¶ 18. Walmart also argues Cervantes 11 was not alleged to have personally caused, created, or 12 contributed to the alleged dangerous condition on the date of the 13 incident. Id. Based on these facts, Walmart argues Cervantes 14 cannot be liable to Plaintiff for negligence, making her a sham 15 defendant. Id. ¶¶ 18–19. 16 The Court agrees. Under the doctrine of “fraudulent 17 joinder” or “sham defendant,” a federal court may ignore a non- 18 diverse defendant’s citizenship if either of two standards are 19 met: “(1) actual fraud in the pleading of jurisdictional facts, 20 or (2) inability of the plaintiff to establish a cause of action 21 against the non-diverse party in state court.” See Grancare, 889 22 F.3d at 548 (quoting Hunter, 582 F.3d at 1044). 23 Walmart challenges the joinder of Cervantes on the second 24 basis. See Notice Removal ¶¶ 14–19; Opp’n at 4–8. Under this 25 standard, Walmart must show that Cervantes cannot be liable under 26 any theory. Grancare, 889 F.3d at 548. This is a heavy burden, 27 as there is a general presumption against finding fraudulent 28 joinder. Id. “[I]f there is a possibility that a state court 1 would find that the complaint states a cause of action against 2 any of the resident defendants, the federal court must find that 3 the joinder was proper and remand the case to the state court.” 4 Id. (quoting Hunter, 582 F.3d at 1046). In making this inquiry, 5 courts may consider summary judgment-type evidence such as 6 affidavits and deposition testimony. See Morris v. Princess 7 Cruises, Inc., 236 F.3d 1061, 1068 (9th Cir. 2001) (citation 8 omitted); see also Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 9 1318 (9th Cir. 1998) (explaining that where fraudulent joinder is 10 at issue, a district court may look beyond the pleadings because 11 a defendant must have the opportunity to show that the 12 individuals joined in the action cannot be liable on any theory). 13 The Court finds that Walmart has met the heavy burden to 14 show fraudulent joinder here. Plaintiff alleges Cervantes was 15 negligent because Cervantes was the store manager or person 16 responsible for the “maintenance, design, and safety protocols” 17 of the Walmart store where Plaintiff slipped and fell. Compl. 18 ¶¶ 2, 5. To state this negligence claim, Plaintiff must allege: 19 (1) Cervantes owed Plaintiff a duty of care; (2) Cervantes 20 breached that duty; and (3) the breach proximately caused 21 Plaintiff’s damages or injuries. Lueras v. BAC Home Loans 22 Servicing, LP, 221 Cal. App. 4th 49, 62 (2013). The existence of 23 a duty of care is a prerequisite to establish a claim for 24 negligence. Nymark v. Heart Fed. Sav. & Loan Ass’n, 231 Cal. 25 App. 3d 1089, 1096 (1991). 26 In general, “a defendant owes a duty of care to all persons 27 who are foreseeably endangered by his [or her] conduct, with 28 respect to all risks which make the conduct unreasonable.” 1 Rotolo v. San Jose Sports & Entm’t, LLC, 151 Cal. App. 4th 307, 2 325 (2007) (alteration in original) (quoting Tarasoff v. Regents 3 of Univ. of Cal., 17 Cal. 3d 425, 434–35 (1976))). However, a 4 person who has not created a peril cannot be held liable merely 5 for failing to assist or protect another. Id. While “the 6 general rule of nonliability is that no one is required to save 7 another from a danger which is not of his making, courts have 8 recognized exceptions to this rule where there is a special 9 relationship between the parties, giving rise to a duty to act.” 10 Id. (internal citation and quotation marks omitted). “A defendant 11 who is found to have a ‘special relationship’ with another may 12 owe an affirmative duty to protect the other person from 13 foreseeable harm, or to come to the aid of another in the face of 14 ongoing harm or medical emergency.” Id. 15 Plaintiff does not allege or offer any evidence that 16 Cervantes created the dangerous condition that caused her fall. 17 See Compl. ¶¶ 1–10; Mot. Remand at 3–6; Reply at 1–6, ECF No. 17. 18 Rather, Plaintiff appears to argue that Cervantes, as a Walmart 19 employee, may have owed a duty to Plaintiff, as a customer, to 20 detect, report, and/or correct the dangerous condition in the 21 store which caused Plaintiff’s fall. See Reply at 1–6. 22 In California, courts have recognized that a store owner 23 owes a duty to its patrons to “exercise reasonable care in 24 keeping the premises reasonably safe.” Ortega v. Kmart Corp., 26 25 Cal. 4th 1200, 1205 (2001). California courts have similarly 26 recognized that a store manager may owe a duty of care to protect 27 the store’s customers from harm. See Dillon v. Wallace, 148 Cal. 28 App. 2d 447, 455 (1957). Here, however, Cervantes was neither 1 the store owner nor the store manager at the time of Plaintiff’s 2 alleged slip-and-fall. Notice Removal ¶ 18; Ramos Decl. ¶¶ 2–5, 3 ECF No. 14-1. Rather, she was an Asset Protection Associate 4 tasked with detecting and preventing theft. Ramos Decl. ¶ 5. 5 Plaintiff does not point to, nor has the Court found, any 6 recognized special relationship between a non-managerial store 7 employee and a store’s customers giving rise to a duty to protect 8 them from harm. Given that Plaintiff has failed to plausibly 9 allege Cervantes either created the dangerous condition which 10 caused Plaintiff harm or occupied a managerial position which 11 required protecting Plaintiff from harm, the Court finds that 12 Cervantes did not owe Plaintiff a duty of care. Thus, the Court 13 holds that Cervantes is a sham defendant as Plaintiff is unable 14 to state a viable negligence claim against her. 15 In the alternative, Plaintiff argues that the Court should 16 grant remand because “even if Ms. Cervantes is eventually 17 dismissed from this action, once plaintiff discovers the names of 18 the store manager and/or assistant manager, they will be added to 19 the action and again, there will not be ‘complete diversity.’” 20 Reply at 2. The Court disagrees. There is no guarantee that, if 21 Plaintiff joins the store manager to this action, that individual 22 will be a California resident. Further, the law is clear that 23 courts must disregard the citizenship of Doe defendants when 24 contemplating diversity. See Rojas v. Sea World Parks & Entm’t, 25 Inc., 538 F. Supp. 3d 1008, 1023 (S.D. Cal. 2021) (“[T]he 26 citizenship of doe defendants, regardless of the detail or 27 specificity with which it is alleged, must be disregarded when 28 determining whether complete diversity exists on a motion to eee ee ee III ne I ED OE
1 remand.”). Thus, the possibility that Plaintiff may join the 2 store manger in future does nothing to change this Court’s remand 3 analysis. 4 Finally, the Court denies Plaintiff’s request for attorney’s 5 fees. While 28 U.S.C. § 1447(c) permits a Court to award 6 attorney’s fees when remanding a case, for the reasons discussed 7 above, the Court finds that remand is not warranted here. 8 Iv. ORDER 9 For the reasons set forth above, Plaintiff’s Motion to 10 Remand (ECF No. 5) is DENIED. 11 IT IS SO ORDERED. 12 Dated: December 23, 2025
HN A. MENDEZ, 14 SENIOR UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28