Govinda Multani v. Century Theatres, Inc.

C.D. California

Govinda Multani v. Century Theatres, Inc.

DecidedJuly 9, 2024

Docket2:24-cv-00905

StatusUnknown

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6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA

8 GOVINDA MULTANI, ) NO. 2:24-cv-00905-KS 9 ) 10 Plaintiff, ) MEMORANDUM AND ORDER 11 v. ) GRANTING PLAINTIFF’S MOTION ) TO REMAND [DKT NO. 21]

12 ) CENTURY THEATRES, INC. et al., ) 13 ) 14 Defendants. ) ) 15 _________________________________

16 17 INTRODUCTION 18 19 This premises liability case arises out of injuries Govinda Multani (“Plaintiff”) suffered 20 when he slipped and fell at a movie theater owned by Century Theatres, Inc. (“Defendant”) in 21 California. (Dkt. No. 1-2 at 6-7.) At all times relevant to this case, Plaintiff is a resident of 22 California (Dkt. No. 15 at 1), and Defendant is a resident of Texas (Dkt. No. 1 at 3). 23 24 On or around October 2, 2021, Plaintiff fell while walking through the concession lobby 25 of Defendant’s movie theater located at 12746 West Jefferson Boulevard in Playa Vista, 26 California. (Dkt. No. 15 at 2-3.) Plaintiff alleges that he stepped in liquid at the theater 27 premises which caused him to slip and fall, and he asserts that the liquid posed a dangerous 28 condition that created an unreasonable risk of harm. (Dkt. No. 21 at 6.) 1 On August 14, 2023, Plaintiff filed a Complaint in the Superior Court of the State of 2 California for the County of Los Angeles (“Los Angeles Superior Court”) against Defendant 3 (initially erroneously sued as Cinemark). (See Dkt. No. 1-2.) The Complaint alleged two 4 causes of action: general negligence and premises liability. (Dkt. No. 1-2 at 6-7.) On October 5 17, 2023, Defendant filed and served its Answer to the Complaint in the Los Angeles Superior 6 Court. (See Dkt. No. 1-4.) 7 8 On February 2, 2024, Defendant removed the case to this Court pursuant to 28 U.S.C. § 9 1332 and 28 U.S.C. § 1441(a). (See Dkt. No. 1.) On March 8, 2024, Plaintiff filed a First 10 Amended Complaint (“FAC”) in this Court. (See Dkt. No. 15.) Plaintiff’s FAC named Atta 11 Aregat (“Aregat”) and Adali Lopez (“Lopez”) as additional defendants. (Dkt. No. 15 at 1.) 12 Plaintiff’s FAC alleges that Aregat was Defendant’s general manager at the movie theater 13 where Plaintiff fell, that Aregat was acting within the course and scope of such agency at the 14 time of the incident, and that Aregat was “the highest-ranking employee of [Defendant] 15 responsible for customer safety at the [movie theater].” (Dkt. No. 15 at 3.) The FAC alleges 16 that Lopez was Defendant’s shift manager at the movie theater, that Lopez was acting within 17 the course and scope of such agency at the time of the incident, and that Lopez was responsible 18 for customer safety at the movie theater. (Id.) The FAC alleges the same causes of action as 19 the initial Complaint—general negligence and premises liability. (Dkt. No. 15 at 3-5.) 20 21 On April 30, 2024, Defendant’s counsel confirmed that Lopez resides in California, 22 while Aregat resides in Texas. (Dkt. No. 21 at 7.) On May 27, 2024, Plaintiff filed a Motion 23 to Remand Case to Los Angeles Superior Court (“Motion”) pursuant to 28 U.S.C. § 1447(e), 24 arguing that “good cause exists to remand this action to State Court because Defendants’ 25 conduct caused Plaintiff’s injuries and Plaintiff and Defendant Adali Lopez are both citizens 26 of California,” therefore, “diversity jurisdiction does not exist.” (Dkt. No. 21 at 1-2.) 27 28 1 On June 5, 2024, Defendant filed an Opposition to Plaintiff’s Motion. (See Dkt. No. 2 22.) On June 26, 2024, Plaintiff filed a Reply in Support of the Motion. (See Dkt. No. 23.) 3 The Court, deeming the matter suitable for decision without oral argument, has taken the matter 4 under submission. 5 6 THE MOTION 7 8 I. Plaintiff’s Arguments 9 10 Plaintiff argues that this Court no longer has jurisdiction to hear the case because Lopez 11 and Plaintiff are both citizens of California and therefore complete diversity is destroyed. 12 (Dkt. No. 21 at 7-11.) Plaintiff argues that this case should be remanded back to state court 13 because the inclusion of Lopez as a defendant destroys diversity jurisdiction since it is 14 uncontested that both Plaintiff and Lopez are residents of California. (See id. at 7-11.) 15 Specifically, Plaintiff argues that California law allows for Lopez to be held personally liable 16 for Plaintiff’s general negligence and premises liability claims. (Id. at 8.) 17 18 Plaintiff cites numerous cases in support of his proposition that “naming a store manager 19 or supervisor as a defendant in a premises liability or negligence is not uncommon” and notes 20 that in these similarly situated cases, “courts [have] ruled in favor of permitting joinder of the 21 store manager and remanding the action to state court.” (Id. at 8-11.) Plaintiff argues that 22 these cases demonstrate that Plaintiff’s intention in joining the non-diverse defendant does not 23 factor into the fraudulent joinder analysis (id. at 9-10) and that a valid claim is made against a 24 store manager by “alleging that [the store manager] breached the duty to keep the premises 25 safe and caused Plaintiff’s injuries” (id. at 10). 26 27 \\ 28 \\ 1 II. Defendant’s Arguments 2 3 Defendant responds by arguing that Lopez is a “sham” defendant added for the sole 4 purpose of defeating diversity jurisdiction. (Dkt. No. 22 at 5.) First, Defendant argues that 5 Lopez is not a necessary party under Federal Rule of Civil Procedure 19(a) because Lopez 6 acted within the scope of his employment and therefore complete relief to Plaintiff could be 7 accorded under a respondeat superior theory. (Id. at 5-6.) Additionally, Defendant argues 8 that “personal liability to a third party cannot arise as to the employee for the failure to perform 9 [duties of his or her employment].” (Id. at 6.) Accordingly, because Plaintiff is suing Lopez 10 for negligence in “carrying out his assigned tasks in the course and scope of his employment, 11 which were carried out in his official capacity as employee and shift manager,” Defendant 12 contends that Lopez cannot be personally liable to Plaintiff and thus Plaintiff has not stated a 13 valid claim against Lopez. (Id. (emphasis in original).) 14 15 Having argued that Lopez was fraudulently joined as a defendant, Defendant argues that 16 Plaintiff cannot amend his complaint in any way to state a cause of action against Lopez 17 because “under California law neither Aregat nor Lopez can be held personally liable under 18 the facts of this case because they were acting within the course and scope of their employment 19 at the time of the incident.” (Id. at 7.) 20 21 III. Plaintiff’s Reply 22 23 Plaintiff responds by denying that Lopez is a “sham” defendant. (See Dkt. No. 23 at 2- 24 3.) Plaintiff notes that “many cases in this District support the notion that a store manager is a 25 proper defendant in a premises liability case, and the inclusion of the manager is grounds for 26 remand.” (Id. at 3.) Plaintiff also contends that Plaintiff may allege a claim against Lopez in 27 an individual capacity because California law permits for an employee to be sued in an 28 individual capacity, and Lopez, as an assistant manager responsible for customer safety, owed 1 a duty to exercise reasonable care to Plaintiff in “maintaining the premises in a reasonably safe 2 condition.” (Id. at 3-5.) 3 4 LEGAL STANDARD 5 6 A defendant may remove a state court case to federal court if the federal court has 7 original jurisdiction over the case. 28 U.S.C. § 1441(a).

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6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA

8 GOVINDA MULTANI, ) NO. 2:24-cv-00905-KS 9 ) 10 Plaintiff, ) MEMORANDUM AND ORDER 11 v. ) GRANTING PLAINTIFF’S MOTION ) TO REMAND [DKT NO. 21]

12 ) CENTURY THEATRES, INC. et al., ) 13 ) 14 Defendants. ) ) 15 _________________________________

16 17 INTRODUCTION 18 19 This premises liability case arises out of injuries Govinda Multani (“Plaintiff”) suffered 20 when he slipped and fell at a movie theater owned by Century Theatres, Inc. (“Defendant”) in 21 California. (Dkt. No. 1-2 at 6-7.) At all times relevant to this case, Plaintiff is a resident of 22 California (Dkt. No. 15 at 1), and Defendant is a resident of Texas (Dkt. No. 1 at 3). 23 24 On or around October 2, 2021, Plaintiff fell while walking through the concession lobby 25 of Defendant’s movie theater located at 12746 West Jefferson Boulevard in Playa Vista, 26 California. (Dkt. No. 15 at 2-3.) Plaintiff alleges that he stepped in liquid at the theater 27 premises which caused him to slip and fall, and he asserts that the liquid posed a dangerous 28 condition that created an unreasonable risk of harm. (Dkt. No. 21 at 6.) 1 On August 14, 2023, Plaintiff filed a Complaint in the Superior Court of the State of 2 California for the County of Los Angeles (“Los Angeles Superior Court”) against Defendant 3 (initially erroneously sued as Cinemark). (See Dkt. No. 1-2.) The Complaint alleged two 4 causes of action: general negligence and premises liability. (Dkt. No. 1-2 at 6-7.) On October 5 17, 2023, Defendant filed and served its Answer to the Complaint in the Los Angeles Superior 6 Court. (See Dkt. No. 1-4.) 7 8 On February 2, 2024, Defendant removed the case to this Court pursuant to 28 U.S.C. § 9 1332 and 28 U.S.C. § 1441(a). (See Dkt. No. 1.) On March 8, 2024, Plaintiff filed a First 10 Amended Complaint (“FAC”) in this Court. (See Dkt. No. 15.) Plaintiff’s FAC named Atta 11 Aregat (“Aregat”) and Adali Lopez (“Lopez”) as additional defendants. (Dkt. No. 15 at 1.) 12 Plaintiff’s FAC alleges that Aregat was Defendant’s general manager at the movie theater 13 where Plaintiff fell, that Aregat was acting within the course and scope of such agency at the 14 time of the incident, and that Aregat was “the highest-ranking employee of [Defendant] 15 responsible for customer safety at the [movie theater].” (Dkt. No. 15 at 3.) The FAC alleges 16 that Lopez was Defendant’s shift manager at the movie theater, that Lopez was acting within 17 the course and scope of such agency at the time of the incident, and that Lopez was responsible 18 for customer safety at the movie theater. (Id.) The FAC alleges the same causes of action as 19 the initial Complaint—general negligence and premises liability. (Dkt. No. 15 at 3-5.) 20 21 On April 30, 2024, Defendant’s counsel confirmed that Lopez resides in California, 22 while Aregat resides in Texas. (Dkt. No. 21 at 7.) On May 27, 2024, Plaintiff filed a Motion 23 to Remand Case to Los Angeles Superior Court (“Motion”) pursuant to 28 U.S.C. § 1447(e), 24 arguing that “good cause exists to remand this action to State Court because Defendants’ 25 conduct caused Plaintiff’s injuries and Plaintiff and Defendant Adali Lopez are both citizens 26 of California,” therefore, “diversity jurisdiction does not exist.” (Dkt. No. 21 at 1-2.) 27 28 1 On June 5, 2024, Defendant filed an Opposition to Plaintiff’s Motion. (See Dkt. No. 2 22.) On June 26, 2024, Plaintiff filed a Reply in Support of the Motion. (See Dkt. No. 23.) 3 The Court, deeming the matter suitable for decision without oral argument, has taken the matter 4 under submission. 5 6 THE MOTION 7 8 I. Plaintiff’s Arguments 9 10 Plaintiff argues that this Court no longer has jurisdiction to hear the case because Lopez 11 and Plaintiff are both citizens of California and therefore complete diversity is destroyed. 12 (Dkt. No. 21 at 7-11.) Plaintiff argues that this case should be remanded back to state court 13 because the inclusion of Lopez as a defendant destroys diversity jurisdiction since it is 14 uncontested that both Plaintiff and Lopez are residents of California. (See id. at 7-11.) 15 Specifically, Plaintiff argues that California law allows for Lopez to be held personally liable 16 for Plaintiff’s general negligence and premises liability claims. (Id. at 8.) 17 18 Plaintiff cites numerous cases in support of his proposition that “naming a store manager 19 or supervisor as a defendant in a premises liability or negligence is not uncommon” and notes 20 that in these similarly situated cases, “courts [have] ruled in favor of permitting joinder of the 21 store manager and remanding the action to state court.” (Id. at 8-11.) Plaintiff argues that 22 these cases demonstrate that Plaintiff’s intention in joining the non-diverse defendant does not 23 factor into the fraudulent joinder analysis (id. at 9-10) and that a valid claim is made against a 24 store manager by “alleging that [the store manager] breached the duty to keep the premises 25 safe and caused Plaintiff’s injuries” (id. at 10). 26 27 \\ 28 \\ 1 II. Defendant’s Arguments 2 3 Defendant responds by arguing that Lopez is a “sham” defendant added for the sole 4 purpose of defeating diversity jurisdiction. (Dkt. No. 22 at 5.) First, Defendant argues that 5 Lopez is not a necessary party under Federal Rule of Civil Procedure 19(a) because Lopez 6 acted within the scope of his employment and therefore complete relief to Plaintiff could be 7 accorded under a respondeat superior theory. (Id. at 5-6.) Additionally, Defendant argues 8 that “personal liability to a third party cannot arise as to the employee for the failure to perform 9 [duties of his or her employment].” (Id. at 6.) Accordingly, because Plaintiff is suing Lopez 10 for negligence in “carrying out his assigned tasks in the course and scope of his employment, 11 which were carried out in his official capacity as employee and shift manager,” Defendant 12 contends that Lopez cannot be personally liable to Plaintiff and thus Plaintiff has not stated a 13 valid claim against Lopez. (Id. (emphasis in original).) 14 15 Having argued that Lopez was fraudulently joined as a defendant, Defendant argues that 16 Plaintiff cannot amend his complaint in any way to state a cause of action against Lopez 17 because “under California law neither Aregat nor Lopez can be held personally liable under 18 the facts of this case because they were acting within the course and scope of their employment 19 at the time of the incident.” (Id. at 7.) 20 21 III. Plaintiff’s Reply 22 23 Plaintiff responds by denying that Lopez is a “sham” defendant. (See Dkt. No. 23 at 2- 24 3.) Plaintiff notes that “many cases in this District support the notion that a store manager is a 25 proper defendant in a premises liability case, and the inclusion of the manager is grounds for 26 remand.” (Id. at 3.) Plaintiff also contends that Plaintiff may allege a claim against Lopez in 27 an individual capacity because California law permits for an employee to be sued in an 28 individual capacity, and Lopez, as an assistant manager responsible for customer safety, owed 1 a duty to exercise reasonable care to Plaintiff in “maintaining the premises in a reasonably safe 2 condition.” (Id. at 3-5.) 3 4 LEGAL STANDARD 5 6 A defendant may remove a state court case to federal court if the federal court has 7 original jurisdiction over the case. 28 U.S.C. § 1441(a). A plaintiff may move to remand a 8 case back to state court if the federal court lacks subject-matter jurisdiction to hear the case. 9 28 U.S.C. § 1447(c). Federal courts are courts of limited jurisdiction, having original subject- 10 matter jurisdiction only where a federal question issue or diversity of citizenship exists. 28 11 U.S.C. §§ 1331, 1332. Diversity of citizenship exists where the matter in controversy exceeds 12 $75,000 and there is complete diversity between the opposing parties. 28 U.S.C. § 1332; see 13 Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). 14 15 Diversity of citizenship is measured as of the time the complaint is filed. Co-Efficient 16 Sys. v. CSL Indus., Inc., 812 F.2d 556, 557 (9th Cir. 1987). If a complaint is amended to join 17 new parties, “diversity must exist at the time the amended complaint is filed.” Rockwell Int’l 18 Corp. v. United States, 549 U.S. 457, 473-74 (2007). “[R]emoval statutes should be construed 19 narrowly in favor of remand to protect the jurisdiction of state courts.” Harris v. Bankers Life 20 & Cas. Co., 425 F.3d 689, 698 (9th Cir. 2005). 21 22 Removal may be proper even with a non-diverse defendant when a federal court 23 determines that the non-diverse defendant is fraudulently joined or is a “sham defendant.” 24 Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996). The Ninth Circuit has held that a non-diverse 25 defendant may be deemed a “sham defendant” when, after construing all questions of fact and 26 ambiguities of controlling state law in the plaintiff’s favor, the plaintiff could not possibly 27 recover against the party whose joinder is questioned. Kruso v. Int’l Tel. & Tel. Corp., 872 28 F.2d 1416, 1426 (9th Cir. 1989). If a federal court determines that a non-diverse party has been 1 fraudulently joined, the court may disregard the citizenship of the fraudulently joined party 2 when determining whether complete diversity exists. Id. 3 4 “The burden of proving a fraudulent joinder is a heavy one.” Gastelo v. Portables 5 Choice Grp., No. 2:23-CV-07335-CAS (AJRx), 2023 U.S. Dist. LEXIS 200042, at *3 (C.D. 6 Cal Nov. 6, 2023) (quoting Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983)). 7 In addition to the presumption against removal in all cases under 28 U.S.C. § 1332, there is an 8 additional “general presumption against [finding] fraudulent joinder,” imposing a heavy burden 9 for the defendant to prove. Nieves v. Costco Wholesale Corp., No. 3:22-cv-00977-JD, 2022 10 U.S. Dist. LEXIS 182616, at *3 (N.D. Cal Oct 5, 2022). 11 12 A defendant may establish fraudulent joinder in two ways: (1) by showing actual fraud 13 in pleading jurisdictional facts; or (2) by showing that the plaintiff failed to state a claim against 14 the non-diverse defendant. Nieves, 2022 U.S. Dist. LEXIS 182616, at *3-4. “Under the claim 15 test, the action must be remanded if there is any possibility that a state court would find that 16 the plaintiff stated a cause of action against any non-diverse defendant.” Id. at *4. Further, the 17 Ninth Circuit has held that the “possibility” standard is less stringent than even the Rule 18 12(b)(6) standard for failure to state a claim. See GranCare, LLC v. Thrower, 889 F.3d 543, 19 549 (9th Cir. 2018) (noting that the standard is “similar to the ‘wholly insubstantial and 20 frivolous’ standard for dismissing claims under Rule 12(b)(1) for lack of federal question 21 jurisdiction”). Accordingly, “fraudulent joinder must be proven by clear and convincing 22 evidence.” Hamilton Materials Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007) 23 (citing Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 461 (5th Cir. 1998)). 24 25 The principles outlined above are applied straightforwardly when a non-diverse party is 26 added before removal. However, when a Plaintiff seeks to join a defendant who would destroy 27 diversity jurisdiction after removal, the appropriate standard is the analysis under 28 U.S.C. § 28 1447(e). See Krantz v. Bloomberg L.P., No. 2:21-CV-06275-AB (RAOx), 2022 U.S. Dist. 1 LEXIS 33989, at *6 (C.D. Cal. Feb. 3, 2022) (stating that Rule 15(a) “does not apply when a 2 plaintiff amends her complaint after removal to add a diversity destroying defendant”); Nand 3 v. FedEx Ground Package Sys., Inc., No. 2:23-cv-01142 DJC AC, 2024 U.S. Dist. LEXIS 4 54015, at *6 (E.D. Cal. March 25, 2024) (stating that “the permissive language of Section 5 1447(e)” applies in cases “where after removal a plaintiff seeks to join additional defendants 6 whose joinder would destroy subject matter jurisdiction”); Gastelo, 2023 U.S. Dist. LEXIS 7 200042, at *5 (employing the Section 1447(e) analysis where the plaintiff added a non-diverse 8 defendant in his first amended complaint following removal). 9 10 Under Section 1447(e), “[i]f after removal the plaintiff seeks to join additional 11 defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, 12 or permit joinder and remand the action to the State court.” 28 U.S.C. § 1447(e). “The 13 language of § 1447(e) is couched in permissive terms and clearly gives the district court the 14 discretion to deny joinder.” Newcombe v. Adolf Coors Co., 157 F.3d 686, 691 (9th Cir. 1998). 15 When applying Section 1447(e), courts consider the following factors: 16 17 (1) [W]hether the new defendants should be joined under [Federal Rule of Civil 18 Procedure 19(a)] as needed for just adjudication; (2) whether the statute of 19 limitations would preclude an original action against the new defendants in state 20 court; (3) whether there has been unexplained delay in requesting joinder; (4) 21 whether joinder is intended solely to defeat federal jurisdiction; (5) whether the 22 claims against the new defendant appear valid; and (6) whether denial of joinder 23 will prejudice the plaintiff. 24 25 Calderon v. Lowe’s Home Ctrs., LLC, No. 2:15-CV-01140-ODW-AGR, 2015 U.S. Dist. 26 LEXIS 82278, at *7-8 (C.D. Cal June 24, 2015) (quotations omitted) (citing Palestini v. 27 General Dynamics Corp., 193 F.R.D. 652, 658 (S.D. Cal. 2000)). “Any of the factors might 28 prove decisive, and none is an absolutely necessary condition for joinder.” Lin-Chung Yang v. 1 Swissport USA, Inc., No. C 09-03823 SI, 2010 U.S. Dist. LEXIS 76789, at *9 (N.D. Cal. July 2 6, 2010). 3 4 DISCUSSION 5 6 I. Joinder of Lopez 7 8 Plaintiff filed the operative FAC that includes Lopez as an individual defendant after 9 Defendant removed this action to this Court. (See Dkt. No. 15.) Plaintiff then filed a motion 10 to remand, alleging that because he and Lopez are both residents of California, there is no 11 diversity jurisdiction. (See Dkt. No. 21.) Therefore, in resolving the motion for remand, the 12 Court must determine whether Plaintiff’s joinder of Lopez is proper. 13 14 Further, although both Plaintiff and Defendant frame their arguments in the context of 15 the fraudulent joinder doctrine, as noted above, the fraudulent joinder doctrine does not apply 16 to the joinder of non-diverse parties after removal. Accordingly, this Court analyzes the 17 propriety of Plaintiff’s joinder of Lopez using the six-factor Section 1447(e) analysis. 18 19 A. The Extent to Which Lopez is Necessary for Just Adjudication 20 21 “Federal Rule of Civil Procedure 19[a] requires joinder of persons whose absence would 22 preclude the grant of complete relief, or whose absence would impede their ability to protect 23 their interests or would subject any of the parties to the danger of inconsistent obligations.” 24 Clinco v. Roberts, 41 F.Supp.2d 1080, 1082 (C.D. Cal. 1999); Fed. R. Civ. P. 19(a). However, 25 “amendment under § 1447(e) is a less restrictive standard than for joinder under [Rule 19].” 26 IBC Aviation Servs. v. Compania Mexicana De Aviacion, S.A. de C.V., 125 F.Supp.2d 1008, 27 1011-12 (N.D. Cal. 2000). Under Section 1447(e), “[c]ourts disallow joinder of non-diverse 28 1 defendants where those defendants are only tangentially related to the cause of action or would 2 not prevent complete relief.” Id. at 1012. 3 4 Here, although Defendant contends that Lopez is not a necessary party under Rule 19(a), 5 under Section 1447(e), Lopez is more than “tangentially related to the cause of action.” Id. 6 Plaintiff alleges Lopez was Defendant’s shift manager at the movie theater, “was acting within 7 the course and scope of such agency at the time of the incident,” and was “responsible for 8 customer safety.” (Dkt. No. 15 at 3.) Plaintiff further alleges that Lopez “failed to exercise 9 due care for the safety of patrons of the [movie theater] by negligently failing to maintain a 10 clean walkway by removing the liquid from the floor of the concession lobby, or, at a minimum, 11 posting a sign to warn patrons of the dangerous condition,” and that Plaintiff was harmed as a 12 result of Lopez’s negligence. (Id. at 3-4.) 13 14 Based on these allegations, Lopez is substantially involved in the causes of action. See 15 Fortenberry v. Walmart Inc., No. EDCV 23-2601-KK-SHKx, 2024 U.S. Dist. LEXIS 58174, 16 at *9-10 (holding that a store manager was substantially involved in the plaintiff’s negligence 17 and premises liability claims involving a slip and fall suffered by the plaintiff where the plaintiff 18 alleged that the store manager failed to comply with safety procedures and policies with respect 19 to his or her management of the premises that led to the plaintiff’s harm). Moreover, 20 Defendant’s arguments regarding respondeat superior liability do not negate Lopez’s 21 substantial involvement in the causes of action. See Franco v. Costco Wholesale Corp., No. 22 CV 18-7586-MWF (AFMx), 2018 U.S. Dist. LEXIS 224311, at *5-6 (C.D. Cal. Oct. 30, 2018) 23 (rejecting Costco’s argument that a manager is not an indispensable party since Costco will be 24 vicariously liable for any alleged acts of negligence and holding that “the fact that Costco may 25 be both directly liable for its negligence and vicariously liable for the negligence of [the store 26 manager] supports Plaintiff’s argument that [the store manager] is a necessary party to this 27 action, and not merely tangentially related). Accordingly, this factor weighs in favor of 28 permitting joinder. 1 B. Statute of Limitations 2 3 “When a claim is timely filed in state court and then removed, a finding that the statute 4 of limitations would preclude the filing of a new, separate action against a party whose joinder 5 has been denied in the federal proceeding, may warrant remand.” Murphy v. Am. Gen. Life Ins. 6 Co., 74 F. Supp. 3d 1267, 1284 (C.D. Cal. 2015). “Generally, if a statute of limitations does 7 not bar a plaintiff from filing suit in state court, a federal court may be less inclined to permit 8 joinder of a non-diverse defendant because the plaintiff could still theoretically seek relief from 9 state court.” Lin-Chung Yang, 2010 US. Dist. LEXIS 76789, at *11. 10 11 Here, the alleged slip and fall occurred on or around October 2, 2021. (Dkt. No. 15 at 12 2-3.) Under California law, an action for injury to an individual caused by the wrongful act or 13 neglect of another must be filed within two years from the date of injury. Cal. Civ. Proc. Code 14 § 335.1. As such, the statute of limitations, absent any tolling, bars any claim as of October 2, 15 2023. See id. Assuming the statute of limitations on Plaintiff’s negligence claim expired on 16 October 2, 2023, Plaintiff would be precluded from filing a new, separate action against Lopez 17 in state court. McCleney v. Wyndham Vacation Ownership, Inc., No. 2:22-cv-01927-FLA 18 (SKx), 2023 U.S. Dist. LEXIS 128215, at *11 (C.D. Cal. July 25, 2023). Accordingly, this 19 factor weighs in favor of permitting joinder. Murphy, 74 F. Supp. 3d at 1284. 20 21 C. Unexplained Delay 22 23 “When determining whether to allow amendment to add a nondiverse party, courts 24 consider whether the amendment was attempted in a timely fashion.” Clinco, 41 F.Supp.2d at 25 1083. “While there is no bright line rule as to what qualifies as timely, courts consider the 26 amount of time that has lapsed since removal, the progress of the case, and how much time has 27 passed since opposing counsel refused to stipulate to any proposed amendment.” Khachunts 28 v. Gen. Ins. Co. of Am., 682 F.Supp.3d 827, 834-35 (C.D. Cal. 2023). 1 Here, Plaintiff filed his FAC on March 8, 2024, approximately five-and-a-half months 2 after filing the initial complaint, and one month and six days after removal. (Dkt. No. 21 at 6.) 3 Plaintiff provides no reasons as to why Lopez could not have been named as a defendant in the 4 initial complaint. Accordingly, this factor weighs against permitting joinder. See Fortenberry, 5 2024 U.S. Dist. LEXIS 58174, at *11-12 (finding the timeliness factor to weigh against joinder 6 where Plaintiff did not provide any explanation for the delay in seeking to amend almost one 7 month after Defendant removed to federal court and approximately six months after the service 8 of the initial complaint). 9 10 D. Motive for Joinder 11 12 Under this factor, courts examine “the motive of a plaintiff in seeking the joinder of an 13 additional defendant” and “should look with particular care at such motive in removal cases, 14 when the presence of a new defendant will defeat the court’s diversity jurisdiction and will 15 require a remand to the state court.” Desert Empire Bank v. Ins. Co. of N. Am., 623 F.2d 1371, 16 1376 (9th Cir. 1980). When determining the Plaintiff’s motive, courts examine the following 17 additional factors: 18 19 (1) Whether the plaintiff was aware of removal when the plaintiff amended her 20 complaint; (2) whether the proposed amended complaint contains only minor or 21 insignificant changes to the original complaint; (3) whether a plaintiff has 22 provided an explanation for why the plaintiff waited to assert claims against the 23 non-diverse defendant; and (4) whether the plaintiff has asserted a facially valid 24 claim against a proposed defendant. 25 26 Khachunts, 682 F.Supp.3d at 835 (quoting Quesada v. Atrium Hosp. LP, No. 2:22-CV-06143- 27 SVW-MA, 2023 U.S. Dist. LEXIS 22651, at *16-17 (C.D. Cal. Feb. 9, 2023)). However, 28 “[s]uspicion of diversity destroying amendments is not as important now that § 1447(e) gives 1 courts more flexibility in dealing with the addition of such defendants.” IBC, 125 F.Supp.2d 2 at 1012. 3 4 In this case, Plaintiff did not amend his complaint until after Defendant removed the 5 matter to federal court, and Plaintiff’s FAC is nearly identical to his initial complaint except 6 for the addition of Lopez and Aregat as defendants. (Compare Dkt. No. 15, with Dkt. No. 1- 7 2.) Plaintiff has neither presented evidence indicating that he intended to assert these claims 8 against Lopez since the start of the case nor explained why he waited to assert claims against 9 Lopez. Further, there is nothing before the Court to suggest that Plaintiff cannot obtain 10 complete relief from Defendant if Lopez is not joined in the case. Accordingly, this factor 11 weighs against permitting joinder. 12 13 E. Apparent Validity of Claims Against Lopez 14 15 “The existence of a facially legitimate claim against the putative defendant weighs in 16 favor of permitting joinder under section 1447(e).” Gastelo, 2023 U.S. Dist. LEXIS 200042, 17 at *11 (quoting Taylor v. Honeywell Corp., No. 09-cv-4947-SBA, 2010 U.S. Dist. LEXIS 18 56001, at *9 (N.D. Cal. May 10, 2010)). “In considering the validity of plaintiff’s claims, ‘the 19 [c]ourt need only determine whether the claims seem valid’ which is not the same as the 20 standard in either a motion to dismiss or a motion for summary judgment.” Id. (quoting 21 Freeman v. Cardinal Health Pharm. Servs., LLC, No. 2:14-cv-01994-JAM-KJN, 2015 U.S. 22 Dist. LEXIS 57683, at *8 (E.D. Cal. Apr. 30, 2015)). 23 24 Here, the elements for Plaintiff’s negligence and premises liability claim consist of (1) 25 a legal duty of care, (2) breach of that duty, and (3) proximate cause resulting in injury. Kesner 26 v. Superior Court, 1 Cal.5th 1132, 1158 (Cal. Sup. Ct. 2016). Plaintiff has alleged all three of 27 these elements against Lopez in his FAC. (Dkt. No. 15 at 3-5.) Although Defendant contends 28 California law precludes Lopez from being held personally liable because he was “acting within 1 the course and scope of their employment at the time of the incident” (Dkt. No. 22 at 6), courts 2 in this district have routinely held that similarly situated plaintiffs asserting the same claims of 3 general negligence and premise liability against managers of premises state facially valid 4 claims. See Fortenberry, 2024 U.S. Dist. LEXIS 58174, at *14 (finding that a plaintiff’s claims 5 of negligence and premises liability against a defendant store manager are valid where the 6 plaintiff alleges that the defendant store manager and defendant company “breached the duty 7 to keep the Premises in a reasonably safe condition, thereby causing Plaintiff’s injury”); 8 Thomas v. WalMart Stores, Inc., No. CV 18-03422-RSWL-SK, 2018 U.S. Dist. LEXIS 9 102575, at *10-11 (C.D. Cal. June 19, 2018) (stating courts have specifically allowed a plaintiff 10 to bring negligence and premises liability claims against store managers in actions involving a 11 slip and fall suffered by the plaintiff, and where the plaintiff alleges that the store manager was 12 responsible for the training and education of the store’s employees); Gamboa v. Wal-Mart 13 Stores, Inc., No. CV 18-2552-KS, 2018 U.S. Dist. LEXIS 105121, at *10-11 (C.D. Cal. June 14 21, 2018) (holding that negligence and premises liability claims against a manager on duty of 15 a Wal-Mart where the plaintiff suffered a slip and fall weighed in favor of granting leave to 16 amend). Thus, this factor weighs in favor of permitting joinder. 17 18 F. Prejudice to the Plaintiff 19 20 “Prejudice to a plaintiff is shown where denying amendment would force the plaintiff 21 to choose between: (1) engaging in redundant litigation in state court arising out of the same 22 facts and involving the same legal issues; or (2) foregoing its potential claims against the to- 23 be-added party.” Serrano v. Garfield Beach CVS, LLC, No. ED CV 17-00506 BRO (DTBx), 24 2017 U.S. Dist. LEXIS 222141, at *12 (C.D. Cal. July 6, 2017) (citing IBC, 125 F.Supp.2d at 25 1013). 26 27 Here, the Court finds that Plaintiff has facially legitimate claims against Lopez 28 individually that arise out of the same facts and involve the same legal issues as those alleged 1 || against Defendant. However, as noted above, if the Court denies joinder, the California statute 2 limitations would bar a new action against Lopez in state court absent any tolling. 3 || Accordingly, this factor weighs in favor of permitting joinder. 4 5 || I. The Motion to Remand is Granted 6 7 Here, four of the six factors in the Section 1447(e) analysis weigh in favor of permitting 8 || the joinder of Lopez. Therefore, the Court finds that joinder is proper. 9 10 Nevertheless, the inclusion of Lopez as a defendant destroys diversity and this Court’s 11 || sole basis for jurisdiction over the matter. See 28 U.S.C. § 1447(c) (“If at any time before final 12 || judgment it appears that the district court lacks subject matter jurisdiction, the case shall be 13 ||remanded.”); 28 U.S.C. § 1447(e) (“If after removal the plaintiff seeks to join additional 14 || defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, 15 || or permit jomder and remand the action to the State court.”). Accordingly, the Court grants 16 || Plaintiff's Motion and remands this matter to the Los Angeles Superior Court. 17 18 CONCLUSION 19 20 For the reasons discussed above, Plaintiff's Motion to Remand to Los Angeles Superior 21 || Court is GRANTED. 22 23 24 || DATE: July 9, 2024 25 7 □ win £: Ratinsrn 6 HON. KAREN L. STEVENSON CHIEF U.S. MAGISTRATE JUDGE 27 28 14

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