Patrice Ross v. Nissan North America, Inc.

• Court: District Court, E.D. California
• Decided: May 7, 2026
• Docket: 1:26-cv-00647
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PATRICE ROSS, Case No. 1:26-cv-00647-KES-CDB

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT PLAINTIFF’S UNOPPOSED 13 v. MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT AND TO REMAND 14 NISSAN NORTH AMERICA, INC., (Docs. 10, 11, 14) 15 Defendant. 14-Day Deadline 16

17 Plaintiff Patrice Ross initiated this action with the filing of a complaint in state court on 18 September 25, 2025, against Defendant Nissan North America, Inc. (“Nissan”). (Doc. 1-1). 19 Defendant Nissan removed the action on January 26, 2026. (Doc. 1). Pending before the Court is 20 Plaintiff’s motions for leave to file a first amended complaint and to remand this action to state 21 court. (Docs. 10, 11, 14). 22 Background 23 Plaintiff filed the motion to amend the complaint on February 26, 2026. (Doc. 10). The 24 accompanying declaration of counsel Christopher N. Danna purports to include certain exhibits, 25 which are not attached to the motion or declaration. See id. That same day, Plaintiff re-filed the 26 same motion and declaration with the exhibits attached, titled “motion to remand.” (Doc. 11). 27 Plaintiff then filed a third motion, also titled “motion to remand,” on April 21, 2026, with a hearing date set on the same day as the scheduling conference. (Doc. 14). This motion seeks relief identical 1 to the prior motions and attaches an identical proposed first amended complaint (“FAC”) and 2 accompanying redlines. Compare (Doc. 11, Exs. A, B) with (Doc. 14, Exs. A, B). Thus, the Court 3 will address the most recent filed such motion. 4 In the motion, Plaintiff asserts that the proposed first amended complaint (“FAC”) adds as 5 a defendant North Bakersfield Nissan, Inc. Plaintiff represents that North Bakersfield Nissan, Inc., 6 is an authorized repair facility of Defendant Nissan. (Doc. 14 at 3). Plaintiff states that she met 7 and conferred with Defendant Nissan’s counsel via telephone on February 25, 2026, regarding the 8 motion, but was “unable to reach Defendant’s counsel to discuss a stipulation to the filing of a 9 [FAC], or having the case remanded to state court, and thus, this motion is necessary.” Id. at 4. 10 Plaintiff asserts remand is appropriate upon granting of the motion to amend due to addition of a 11 non-diverse party. Id. at 4. 12 Accompanying the motion is the declaration of counsel for Plaintiff Christopher N. Danna. 13 Id. at 6. Mr. Danna represents that he called Defendant’s counsel on February 25, 2026, in an 14 attempt to meet and confer regarding the motion and was unable to reach Defendant’s counsel and 15 did not receive a call back. Id. at 6 ¶ 5. Plaintiff attaches to the declaration the proposed FAC 16 (Doc. 14, Ex. A) and a redline comparison with the original complaint (id., Ex. B). 17 On April 30, 2026, Defendant Nissan filed a notice of non-opposition to Plaintiff’s motion 18 to remand. (Doc. 15). 19 Governing Law 20 Rule 15 permits a plaintiff to amend the complaint once as a matter of course no later than 21 21 days after service of the complaint or 21 days after service of a responsive pleading or motion 22 to dismiss, whichever is earlier. See Fed. R. Civ. P. 15(a)(1). After such time has passed or plaintiff 23 has once amended their complaint, amendment may only be by leave of the court or by written 24 consent of the adverse parties. Fed. R. Civ. P. 15(a)(2). 25 Granting or denying leave to amend a complaint under Rule 15 is within the discretion of 26 the court. Swanson v. United States Forest Service, 87 F.3d 339, 343 (9th Cir. 1996). “In exercising 27 this discretion, a court must be guided by the underlying purpose of Rule 15 to facilitate decision 1 979 (9th Cir, 1981); Chudacoff v. Univ. Med. Ctr., 649 F.3d 1143, 1152 (9th Cir. 2011) (“refusing 2 Chudacoff leave to amend a technical pleading error, albeit one he should have noticed earlier, 3 would run contrary to Rule 15(a)’s intent.”). 4 A court ordinarily considers five factors in assessing whether to grant leave to amend: “(1) 5 bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) 6 whether the plaintiff has previously amended his complaint.” Nunes v. Ashcroft, 375 F.3d 805, 808 7 (9th Cir. 2004). However, where, as here, amendment would include adding a diversity-destroying 8 defendant, the standard for determining whether to allow post-removal joinder is set forth in 28 9 U.S.C. § 1447(e): “If after removal the plaintiff seeks to join additional defendants whose joinder 10 would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand 11 the action to the State court.” 28 U.S.C. § 1447(e). “Under § 1447, whether to permit joinder of a 12 party that will destroy diversity jurisdiction remains in the sound discretion of the court …” IBC 13 Aviation Servs., Inc. v. Compania Mexicana de Aviacion, S.A. de C.V., 125 F. Supp. 2d 1008, 1011 14 (N.D. Cal. 2000). 15 In assessing whether to grant leave to amend to add non-diverse defendants, courts 16 ordinarily consider six factors: “(1) whether the party sought to be joined is needed for just 17 adjudication and would be joined under Federal Rule of Civil Procedure 19(a); (2) whether the 18 statute of limitations would preclude an original action against the new defendants in state court; 19 (3) whether there has been unexplained delay in requesting joinder; (4) whether joinder is intended 20 solely to defeat federal jurisdiction; (5) whether the claims against the new defendant appear valid; 21 and (6) whether denial of joinder will prejudice the plaintiff.” Id. (citation omitted). The Nunes 22 factors are used by courts to determine allowance of amendment generally and, though there is 23 overlap between the Nunes factors and the IBC factors, courts use the latter factors to more closely 24 scrutinize amendment when the proposed amendment will defeat diversity jurisdiction. Id. 25 Discussion 26 In brief, Plaintiff asserts that, on or about December 18, 2023, she purchased a 2023 Nissan 27 Rogue vehicle (the “Subject Vehicle”) from Nissan of Bakersfield, Inc. (“NB Nissan”),1 in 1 Bakersfield, California. NB Nissan is an authorized agent, dealer, and repair facility of Defendant 2 Nissan. Shortly after her purchase, the Subject Vehicle began exhibiting numerous defects. The 3 Subject Vehicle was brought to the NB Nissan location on at least five occasions but the defects 4 were not fully remedied and, therefore, the Subject Vehicle is “subject to repurchase under 5 California’s Song-Beverly Consumer Warranty Act …” (Doc. 14 at 3). 6 The original complaint included one cause of action, for violation of the California Song- 7 Beverly Consumer Warranty Act (“the Song-Beverly Act”). See (Doc. 1-1). The proposed FAC 8 includes three causes of action: (1) breach of implied warranty under the Song-Beverly Act 9 regarding failure to make restitution or replace the Subject Vehicle, asserted against Defendant 10 Nissan only (see Doc. 14 at 17-19); (2) beach of implied warranty under the Act regarding 11 merchantability, asserted against all Defendants (id. at 20-21); and (3) negligence, asserted against 12 all Defendants (id. at 21-22). 13 Plaintiff does not address or acknowledge the IBC factors in the motion. See (Doc. 14). 14 The Court addresses the relevant IBC factors below. 15 A. Federal Rule of Civil Procedure 19(a) 16 “In determining whether to permit joinder of a non-diverse party after removal, the court 17 considers whether the added party would meet Rule 19’s standard for a necessary party.” Chavolla 18 v. Darling Ingredients Inc., No. 2:25-cv-01031-DAD-SCR, 2025 WL 3771349, at *4 (E.D. Cal. 19 Dec. 31, 2025). A necessary party has “an interest in the controversy, and who ought to be made 20 parties, in order that the court may act on that rule which requires it to decide on, and finally 21 determine the entire controversy … by adjusting all the rights involved in it.” CP Nat’l. Corp. v. 22 Bonneville Power Admin., 928 F.2d 905, 912 (9th Cir. 1991). “The standard is met when failure to 23 join will lead to separate and redundant actions,” but it is not met when “defendants are only 24 tangentially related to the cause of action or would not prevent complete relief.” Boon v. Allstate 25 Ins. Co., 229 F. Supp. 2d 1016, 1022 (C.D. Cal. 2002) (citing IBC, 125. F Supp. 2d at 1012). 26 Plaintiff argues that NB Nissan is the “proper corporate entity that owned and/or operated 27 the authorized dealership where the Subject Vehicle was bought and/or serviced,” having identified 1 NB Nissan after the filing and removal of this action. (Doc. 14 at 3). In the proposed FAC, Plaintiff 2 alleges that NB Nissan is a California corporation and an authorized dealer of Defendant Nissan. 3 (Doc. 14 at 8-9). NB Nissan is asserted to be Nissan’s “authorized and actual agent regarding 4 repairs and maintenance of the Subject Vehicle” and where Plaintiff purchased the Subject Vehicle 5 and took it for repairs. Id. at 3, 10. 6 In the proposed FAC, Plaintiff advances both the second and third causes of action against 7 Defendant Nissan and NB Nissan. In light of Plaintiff’s representations and Defendant Nissan’s 8 non-opposition, the Court finds that this factor weighs in favor of joinder. See Reyes v. FCA US 9 LLC, No. 1:20-cv-00833-DAD-SKO, 2020 WL 7224286, at *5 (E.D. Cal. Dec. 8, 2020) (“Here, 10 the court finds that plaintiff asserts a facially valid negligent repair claim against [auto service 11 center] in his proposed amended complaint. The court also agrees that if it denied joinder of [auto 12 service center] in this action, plaintiff’s pursuit of a separate action against [auto service center] in 13 state court would be redundant.”). 14 B. Statute of Limitations 15 The statute of limitations for claims brought under the Song-Beverly Act is four years. See 16 Sandhu v. Volvo Cars of N. Am., LLC, No. 16-cv-04987-BLF, 2017 WL 403495, at *3 (N.D. Cal. 17 Jan. 31, 2017); Cal. Com. Code § 2725. As Plaintiff purchased the Subject Vehicle on December 18 18, 2023, the statute of limitations would not bar a new action in state court. Thus, this factor 19 weighs against permitting joinder of NB Nissan. See Reyes, 2020 WL 7224286, at *10 (finding 20 that statute limitations under Song-Beverly Act would not bar new action in state court against auto 21 service center weighed against joinder). 22 C. Timeliness 23 “When determining whether to allow amendment to add a nondiverse party, courts consider 24 whether the amendment was attempted in a timely fashion.” Clinco v. Roberts, 41 F. Supp. 2d 25 1080, 1083 (C.D. Cal. 1999). “There are no well-developed guidelines for evaluating [] timeliness” 26 but courts generally “find delays of over six months after removal to be untimely.” However, “even 27 in cases of considerable delays, courts do not give this factor much weight if the case is in its early 1 02459-MCE-AC, 2013 WL 1155523, at *3 (E.D. Cal. Mar. 19, 2013) (citation and quotation 2 omitted). 3 Here, the case has not yet been scheduled and discovery has not opened. No other motions 4 have been filed. Plaintiff filed her original complaint in state court on September 25, 2025, naming 5 Defendant Nissan and “Doe” Defendants one through ten; Defendant Nissan filed an answer on 6 November 6, 2025. (Docs. 1-1, 1-2). On January 26, 2026, Defendant Nissan removed the action. 7 (Doc. 1). Plaintiff filed her initial motion to amend the complaint on February 26, 2026. (Docs. 8 10, 11). Thus, Plaintiff filed her motion 31 days after removal of the action, 112 days after 9 Defendant Nissan filed an answer, and 154 days after filing the original complaint. 10 Thus, as the case has not been scheduled and only a relatively short amount of time has 11 passed since the action was initiated, the Court finds this factor weighs in favor of amendment. See 12 Reyes, 2020 WL 7224286, at *6 (“Here, plaintiff filed his motion for leave to amend his complaint 13 on July 16, 2020, which was 77 days after he filed his original complaint, just 37 days after 14 defendant answered plaintiff's original complaint, 34 days after defendant removed this action, and 15 30 days after defendant served notice of removal.”). 16 D. Whether Joinder Is Intended to Defeat Federal Jurisdiction 17 “[T]he motive of a plaintiff in seeking the joinder of an additional defendant is relevant to 18 a trial court’s decision to grant the plaintiff leave to amend his original complaint.” Desert Empire 19 Bank v. Ins. Co. of N. Am., 623 F.2d 1371, 1376 (9th Cir. 1980). “[A] trial court should look with 20 particular care at such motive in removal cases, when the presence of a new defendant will defeat 21 the court’s diversity jurisdiction and will require a remand to the state court.” Id. However, 22 “[s]uspicion of diversity destroying amendments is not as important now that 1447(e) gives courts 23 more flexibility in dealing with the addition of such defendants.” IBC, 125 F. Supp. 2d at 1012. 24 Here, though “one could justifiably suspect that Plaintiffs’ [m]otion was caused by the 25 removal rather than evolution of the case,” the fact that Plaintiff seeks to add a non-diverse 26 defendant after removal does not, by itself, warrant impute of an improper motive to Plaintiff. 27 “Because the Court does not construe Plaintiffs’ preference for state court any more negatively than 1 Plaintiffs’ Motion.” Bandit Indus., Inc., 2013 WL 1155523, at *4; see Sandhu, 2017 WL 403495, 2 at *3 (“While the circumstances in this case suggest that one of Plaintiff’s motivations is to defeat 3 jurisdiction, it is not readily apparent that it is the sole motivation, particularly because there is a 4 seemingly valid claim against [auto dealer], as explained below.”). 5 E. Whether the Claims Against the New Defendant Appear Valid 6 “To state a facially viable claim for purposes of joinder under section 1447(e), a plaintiff 7 need not allege a claim with particularity or even plausibility.” Dordoni v. FCA US LLC, No. 8 EDCV 20-1475 JGB (SHKx), 2020 WL 6082132, at *5 (C.D. Cal. Oct. 15, 2020). A court “need 9 only determine whether the claim ‘seems’ valid.” Freeman v. Cardinal Health Pharmacy Servs., 10 LLC, No. 2:14-cv-01994-JAM, 2015 WL 2006183, at *3 (E.D. Cal. May 1, 2015) (citing IBC, 125 11 F. Supp. 2d at 1012-13). 12 In the FAC, Plaintiff alleges breach of an implied warranty of merchantability and 13 negligence against both Defendant Nissan and NB Nissan. “Under the Song–Beverly Act, every 14 retail sale of ‘consumer goods’ in California includes an implied warranty by the manufacturer and 15 the retail seller that the goods are ‘merchantable’ unless the goods are expressly sold ‘as is’ or ‘with 16 all faults.’ Merchantability, for purposes of the Song–Beverly Act, means that the consumer goods: 17 (1) Pass without objection in the trade under the contract description. (2) Are fit for the ordinary 18 purposes for which such goods are used. (3) Are adequately contained, packaged, and labeled. (4) 19 Conform to the promises or affirmations of fact made on the container or label. The core test of 20 merchantability is fitness for the ordinary purpose for which such goods are used.” Mexia v. Rinker 21 Boat Co., 174 Cal. App. 4th 1297, 1303 (2009) (citations and quotations omitted). Plaintiff alleges 22 in the FAC that the Subject Vehicle was “not fit for ordinary purposes for which such goods are 23 used and was not of the same quality as those generally acceptable in the trade,” and Defendant 24 Nissan and NB Nissan failed to repair the nonconformity or provide restitution. (Doc. 14 at 20). 25 In California, “[i]n order to establish liability on a negligence theory, a plaintiff must prove 26 duty, breach, causation, and damages.” Conroy v. Regents of Univ. of California, 45 Cal. 4th 1244, 27 1250 (2009). Plaintiff asserts that both Nissan and NB Nissan owed a duty of care to Plaintiff and 1 Here, that Plaintiff can recover against Defendant Nissan does not preclude joinder of NB 2 Nissan. As the claims operate on the same or substantially similar set of facts, both claims pled 3 against NB Nissan, for breach of merchantability and negligence, appear valid. See Reyes, 2020 4 WL 7224286, at *8 (collecting cases and finding that “Plaintiff’s possibility of recovery against 5 defendant FCA does not preclude joinder of [auto service center]. Several California district courts 6 have found that a dealership that sold or serviced the subject vehicle may be necessary for 7 adjudication of a dispute where claims against both the manufacturer and dealership arise from the 8 same transactions or occurrences.”). 9 F. Prejudice to Plaintiff 10 “Prejudice exists if the proposed defendant is ‘crucial’ to the case. Prejudice does not exist 11 if complete relief can be afforded without that defendant.” Sabag v. FCA US, LLC, No. 2:16-cv- 12 06639-CAS (RAOX), 2016 WL 6581154, at *6 (C.D. Cal. Nov. 7, 2016) (citation and quotation 13 omitted). 14 The Court finds that Plaintiff has facially legitimate claims against NB Nissan that arise out 15 of the same set of facts as the claims against Defendant Nissan. Plaintiff would be required to 16 pursue two separate and substantially similar actions in two different forums if joinder were denied. 17 Thus, the Court finds that precluding joinder of NB Nissan would prejudice Plaintiff. See Bandit 18 Indus., Inc., 2013 WL 1155523, at *4-5 (finding that preclusion of joinder would result in prejudice 19 from “duplicative and redundant litigation” that would “result in a waste of judicial and the 20 Plaintiffs’ resources, as well as risk inconsistent results,” and require plaintiff to either “abandon a 21 viable claim … or to initiate a duplicative litigation in state court. Thus, this factor favors granting 22 Plaintiffs’ Motion.”). 23 Because the IBC factors weigh in favor of amendment, the undersigned will recommend 24 Plaintiff’s motion be granted. As joinder would defeat diversity jurisdiction and remand is required 25 if “at any time before final judgment it appears that the district court lacks subject matter 26 jurisdiction” (28 U.S.C. 1447(c)), the undersigned will recommend that this action be remanded to 27 state court. 1 Conclusion and Recommendation 2 For the foregoing reasons, IT IS HEREBY RECOMMENDED: 3 1. Plaintiff's unopposed motion for leave to file a first amended complaint and to remand 4 (Docs. 10, 11, 14) be GRANTED. 5 2. Plaintiff □□ DIRECTED to file the proposed first amended complaint (Doc. 14, Ex. A) as a 6 standalone entry on the docket. 7 3. This action be REMANDED to state court following the filing of the proposed first 8 amended complaint given that inclusion of newly added Defendant North Bakersfield 9 Nissan, Inc., asserted to be a California citizen, deprives the Court of subject matter 10 jurisdiction under 28 U.S.C. § 1332. 11 These Findings and Recommendations will be submitted to the United States District Judge 12 | assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after 13 | being served with a copy of these Findings and Recommendations, a party may file written 14 | objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 15 | Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without leave 16 | of Court and good cause shown. The Court will not consider exhibits attached to the Objections, 17 | but a party may refer to exhibits in the record by CM/ECF document and page number. Any pages 18 | filed in excess of the 15-page limitation may be disregarded by the District Judge when reviewing 19 | these Findings and Recommendations under 28 U.S.C. § 636(b)(1)(C). 20 A party’s failure to file any objections within the specified time may result in the waiver of 21 | certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 22 | ITISSO ORDERED. *3 | Dated: _ May 7, 2026 | Wr bY 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28