Opinion
2:22-cv-00371-SVW-MRW
03-16-2022
Juan Carlos Galindo Garcia v. Walmart, Inc. et al.
PROCEEDINGS: ORDER DENYING MOTION TO REMAND [8]
Honorable STEPHEN V. WILSON, U.S. DISTRICT JUDGE
CIVIL MINUTES - GENERAL
Before the Court is Plaintiff Juan Carlos Galindo Garcia's ("Plaintiff) motion to remand. See ECF No. 8. Plaintiff brings this slip and fall action against Defendant Walmart, Inc. ("Walmart"), Doe 1 Manager, Doe 2 Employee and Does 3 through 50. See Compl. ¶¶1-7, Ex. 1 to Not. Removal, ECF No. 1-1.
Walmart removed the action to this Court on the basis of diversity jurisdiction. See Not. Removal ¶ 7, ECF No. 1; see 28 U.S.C. § 1332, § 1441(b). Plaintiff is a citizen of the state of California, and Walmart is a Delaware corporation with its principal place of business in Bentonville, Arkansas. Id. At ¶¶ 10, 14. It is uncontroverted that there is complete diversity between Plaintiff and Walmart.
Nevertheless, Plaintiff contends that the Court must remand this action because Plaintiffs allegations as to the Doe Defendants destroy complete diversity. See Mot. at 1. Specifically, Plaintiff avers that "Doe 1 Manager" and "Doe 2 Employee" are residents of California-rendering the parties non-diverse. Compl. ¶¶ 3-1.
Separately. Plaintiff argues that Walmart's notice of removal fails to satisfy the $75,000 amount in controversy threshold necessary for diversity jurisdiction. However. Walmart included with its notice of removal a Request for Admission it served upon Plaintiff and Plaintiffs subsequent response-in which Plaintiff explicitly admitted that he seeks damages in excess of $75,000. See Plaintiffs Response to Defendant's Request for Admission at p. 92. No. 36. ECF No. 1-7. Thus. the jurisdictional threshold is satisfied, and Plaintiffs argument is unavailing.
Whether such allegations are sufficient to destroy complete diversity-requiring remand-is a question other courts have deemed "convoluted and unsettled." Johnson v. Starbucks Corp., 475 F.Supp.3d 1080, 1083 (CD. Cal. 2020); Goldsmith v. CVS Pharmacy, Inc., No. CV 20-00750-AB (JCX), 2020 WL 1650750, at *4 (CD. Cal. Apr. 3, 2020); Robinson v. Lowe's Home Centers, LLC, No. 1:15-cv-1321-LJO-SMS, 2015 WL 13236883, at *3 (E.D. Cal. Nov. 13, 2015).
The issue arises from two divergent lines of authority. The first is based on the Judicial Improvements and Access to Justice Act, which Congress passed in 1998. See Goldsmith, 2020 WL 160750, at *3. This Act amended the removal statute, 28 U.S.C § 1441, to address "the issue of Doe defendants for purposes of diversity jurisdiction and remand." Id.; see also Gardiner Family, LLC v. Crimson Res. Mgmt. Corp., 147 F.Supp.3d 1029, 1034, 1036 (E.D. Cal. 2015) (discussing the amendment and its consequences in the context of a diversity case originally filed in federal comt).
Today, 28 U.S.C. § 1441(b)(1) states that, when jurisdiction is based solely on diversity, "the citizenship of defendants sued under fictitious names shall be disregarded." See 28 U.S.C. § 1441(b)(1); Johnson, 475 F.Supp.3d at 1083. The Ninth Circuit has explicitly held that "[t]he citizenship of fictitious defendants is disregarded for removal purposes and becomes relevant only if and when the plaintiff seeks leave to substinite a named defendant." Soliman v. Philip Morris Inc. , 311 F.3d 966, 971 (9th Cir. 2002).
Pursuant to the plain language of the statute and relevant case law, this Court cannot consider the citizenship of Doe Manager and Doe Employee until Plaintiff seeks leave to substitute a named defendant. See id.; Goldsmith, 2020 WL 160750, at *3; Rajas by & through Rojas v. Sea World Parks & Ent., Inc., 538 F.Supp.3d 1008, 1023 (S.D. Cal. 2021) ("[N]ot only is the plain language of Section 1441(b) clear hi mandating that courts should disregard the citizenship of fictious defendants when evaluating whether diversity jurisdiction exists on a motion to remand, but the legislative history corroborates and confirms this conclusion."). On this basis, the Court denies Plaintiffs motion.
Nevertheless, other courts look beyond the language of 28 U.S.C. § 1441(b)(1) by distinguishing between "fictitious" and "real" Does. These courts assess whether the "[plaintiffs' description of Doe defendants or then activities is specific enough as to suggest then identity, citizenship, or relationship to the action." Johnson, 475 F.Supp.3d at 1083 (citing Gardiner Family, 147 F.Supp.3d at 1036; Sandoval v. Republic Servs., Inc., No. 18-cv-01224-ODW (KSx), 2018 WL 1989528, at *3-4 (CD. Cal. Apr. 24, 2018) ("[W]hen a plaintiffs allegations give a definite cine about the identity of the fictitious defendant.. .the court should consider the citizenship of the fictitious defendant.")).
As a preliminary matter, this Court is skeptical of the need to conduct this further inquiry. Many of the courts that do so rely on the reasoning hi Gardiner, 147 F.Supp.3d at 1030, but fail to consider Gardiner's distinct procedural posture. See, e.g., Johnson, 475 F.Supp.3d at 1083-84; Barnes v. Costco Wlwlesale Corp., No. CV197977DMGJPRX, 2019 WL 6608735, at *2 (CD. Cal. Dec. 4, 2019); Rodas v. Costco Wlwlesale Corp., No. CV217183DMGGJSX, 2021 WL 5233526, at *1 (CD. Cal. Nov. 10, 2021); Sandoval, 2018 WL 1989528, at *3.
Specifically, hi Gardiner, however, the court discussed whether the presence of Doe defendants in a diversity case originally filed in federal court destroys diversity. See Id. Because Gardiner was not a removal case, the court did not evaluate the preclusive effect of the language hi 28 U.S.C § 1441(b)(1). See Id. Thus, because the various cases that extend Gardiner to the removal context gloss over the clear language in § 1441(b)(1) and subsequent case law like Solhnon, 311 F.3d at 971, the Court does not find them persuasive.
Moreover, the courts that conduct this further inquiry appear to focus on a policy concern-that it "would be unfair to force.. .plaintiff[] from [his] state court forum into federal court by allowing [defendant] to plead ignorance about the defendant-employee's identity and citizenship when [defendant] was in a position to know that information." Collins v. Garfield Beach CVS, LLC, No. CV173375FMOGJSX, 2017 WL 2734708, at *3 (CD. Cal. June 26, 2017).
At tins stage, the record before the Court does not indicate that Walmart is simply choosing to "plead ignorance." See Id. Rather, Plaintiffs complaint is ambiguous and falls short of giving a "definite clue" as to the identity of the fictitious defendants. See Sandoval, 2018 WL 1989528, at *3-4; see Johnson, 475 F.Supp.3d at 1083.
For example. Plaintiff only states that Doe Manager and Doe Employee were each an employee "of Defendant Walmart.. .acting in the course and scope of that employment" when the incident occurred. Compl. ¶¶ 5-6. As a practical matter, there is little certainty about who these employees are: any given Walmart could have dozens, if not hundreds, of employees working at a given moment.
Similarly, Plaintiff states that he "was shopping at Walmart. Store [sic] located at 11729 Imperial Hwy, Norwalk, CA 90650. As he was walking away from the front cashier towards the exit, he slipped on a grease solution on the floor. As a result, he lost his balance and fell forward on the floor, forcefully landing on his knees and used his hands to break the fall. As a result of the fall Plaintiff suffered serious injuries." Compl. ¶ 24. Plaintiff does not assert that the "front cashier" was either of the Doe Defendants. Indeed, the Doe Manager and Doe Employee might include any employee working at Walmart on that day.
Further, as Walmart points out, a person's place of employment does not certainly implicate then citizenship status, "especially in a state as diverse as California comprised of out-of-state college students, immigrants from different countries and many other multinationals." Opp'n at 7. With little more than an allegation that the Doe Defendants were citizens of the state of California, Plaintiffs complaint is insufficient. See Compl. ¶¶| 4-5.
Finally, though Plaintiff accuses Walmart of engaging in "gamesmanship" by failing to reveal its employees. Plaintiff served upon Walmart 131 Special Interrogatories and 103 Requests for Production in this simple slip and fall case. See Ex. C to Mot. Though Plaintiff claims that Walmart failed to provide the full name and identity of Doe Manager and Doe Employee, Plaintiffs Interrogatories were patently unreasonable in scope: they requested that Walmart identify all persons who managed and maintained the premises for the last 10 years. See Id. at Interrogatory Nos. 28 and 29; see also Fed. R. Civ. P. 26(b). hi response to a separate interrogatory, Walmart identified two employees with personal knowledge of the incident, Assistant Manager Paula Auguirre and Associate Joseph Sanchez. Nevertheless, Plaintiff has not sought leave to amend his complaint to assert claims against these employees.
Accordingly, only when Plaintiff "seeks leave to substitute a named defendant" will the citizenship question become relevant. See Soliman, 311 F.3d at 971; see Goldsmith, 2020 WL 1650750, at *3 ("Here, Plaintiff has not moved to substitute Doe 1, or any Doe for that matter, for a named defendant, and thus, the Court must disregard the citizenship of the Doe Defendants for removal purposes"). For these reasons. Plaintiffs motion to remand is DENIED.
Plaintiff also seeks an award of attorney's fees. Courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal." Martin v. Franklin Capital Corp., 546 U.S. 132, 138 (2005). Here, the Court finds Defendant's removal reasonable and proper based on diversity jurisdiction, and accordingly DENIES Plaintiffs request for attorney's fees.
IT IS SO ORDERED.