Glenn v. Wells Fargo Bank NA et al

Filing 47

ORDER - Motion to Remand (Doc. 8 ) is GRANTED. This case is remanded to the Arizona Superior Court in Coconino County. FURTHER ORDERED that the Motion to Dismiss (Doc. 24 ) remains pending before the Superior Court. FURTHER ORDERED that the Motio n to Strike the Supplement to Motion to Remand (Doc. 45 ) is DENIED as moot because the Court did not consider the supplement. See document for complete details. Signed by Judge Michael T Liburdi on 10/10/2019. (Attachments: # 1 Remand Letter) (RMV)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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James Glenn, Jr.,

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Plaintiff,

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ORDER

v.

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No. CV-19-08080-PCT-MTL

Wells Fargo Bank NA, et al.,

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Defendants.

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Plaintiff James Glenn, Jr. moves for a remand of this action to the Arizona Superior

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Court. (Doc. 8.) The motion is fully briefed. For the reasons explained below, the Court

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grants Mr. Glenn’s motion.1

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I.

FACTUAL BACKGROUND

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Mr. Glenn’s Amended Complaint alleges that on September 6, 2018, he was injured

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in the parking lot of a Wells Fargo Bank branch in Flagstaff, Arizona. Mr. Glenn, an

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Arizona citizen, and his son arrived at Wells Fargo in his son’s vehicle. Mr. Glenn’s son

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was driving, and Mr. Glenn was the passenger.

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After his son parked, Mr. Glenn exited the vehicle and began walking toward the

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branch entrance when “he tripped on a piece of rebar sticking out of the parking lot

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asphalt.” (Amended Complaint ¶ 18 (Doc. 1-3).) The rebar was intended “to hold the

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concrete parking space bumper in place, however, the concrete parking space bumper was

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Oral argument is unnecessary because the issues are fully briefed and oral argument
would not have aided the Court’s decision. See Fed. R. Civ. P. 78(b); LRCiv 7.2(f).

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behind the rebar, leaving it exposed.” (Id. ¶ 19) (emphasis in original.) Mr. Glenn alleges

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that he “suffered serious injuries, including a fractured right hip.” (Id. ¶ 20.)

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The Amended Complaint further alleges that, while Mr. Glenn was waiting for

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medical care to arrive at the scene, Mr. Glenn’s son had a conversation with Roxanne

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Presmyk. She is the Wells Fargo branch’s services manager and an Arizona citizen. Ms.

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Presmyk allegedly told Mr. Glenn’s son that “she and other employees of the Wells Fargo

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branch located at the premises were aware of the exposed rebar and were aware [that] a

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dangerous condition existed.” (Id. ¶ 22.) Ms. Presmyk allegedly told Mr. Glenn’s son “that

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someone was to ‘take care of’ or ‘fix’ the concrete parking space bumper, namely, to place

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it back on the rebar, however, no one had done so.” (Id. ¶ 23.)

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II.

PROCEDURAL HISTORY

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Mr. Glenn initiated this litigation in the Arizona Superior Court in Coconino County

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on February 12, 2019. He filed an Amended Complaint on March 7, 2019. The Amended

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Complaint names as defendants Wells Fargo Bank, CBRE, Inc., and Ms. Presmyrk. 2 The

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Amended Complaint asserts various state law claims for relief against the defendants,

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including negligence, gross negligence, premises liability, and respondeat superior.

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Wells Fargo Bank filed a Notice of Removal in this Court on March 18, 2019. (Doc.

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1.) The jurisdictional basis asserted in the Notice of Removal (at ¶ 9) is diversity of

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citizenship under 28 U.S.C. § 1332. Mr. Glenn filed a Motion to Remand (Doc. 8) on

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March 26, 2019, and briefing is complete.

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III.

LEGAL ANALYSIS

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Under Article III of the United States Constitution, this Court’s exercise of judicial

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power is contingent upon the presence of subject-matter jurisdiction. One such form of

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jurisdiction is diversity of citizenship. U.S. Const. art. III § 2. Congress has established the

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standard for diversity of citizenship jurisdiction in 28 U.S.C. § 1332. Diversity of

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citizenship requires that the party seeking to invoke federal jurisdiction establish two

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elements: that the amount in controversy exceed $75,000 and that there be “complete

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The Amended Complaint also names Ms. Presmyrk’s husband for the purposes of
Arizona law’s community property regime.
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diversity” between each plaintiff and each defendant. Caterpillar Inc. v. Lewis, 519 U.S.

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61, 68 (1996). In litigation where a complaint is initially filed in state court, such as this

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one, a defendant may remove the case to federal court provided that federal subject-matter

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jurisdiction exists. 28 U.S.C. § 1441.

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Wells Fargo’s Notice of Removal acknowledges (Doc. 1 at ¶ 6) the lack of complete

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diversity by virtue of Ms. Presmyk’s Arizona citizenship. The Notice of Removal,

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however, raises (at ¶ 7) the so-called fraudulent joinder doctrine, asserting that “[Ms.]

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Presmyk is an improper defendant and should be ignored for diversity purposes.”

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The fraudulent joinder doctrine holds that a federal court may disregard the

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citizenship status of a defendant whose inclusion in the complaint is a subterfuge for

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defeating complete diversity. Grancare, LLC v. Thrower by & through Mills, 889 F.3d 543,

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548 (9th Cir. 2018) (citing Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 152

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(1914)). When presented with a potential fraudulent joinder, a court should apply a general

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presumption that the non-diverse defendant was properly joined. A party seeking to

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overcome that presumption bears a heavy burden of proof to establish either “(1) actual

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fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a

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cause of action against the non-diverse party in state court.” Id. (quoting Hunter v. Phillip

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Morris USA, 582 F.3d 1039, 1044 (9th Cir. 2009)). This test is not merely an application

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of the standard for Rule 12(b)(6) motion to dismiss. Id. at 549. “A claim against a defendant

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may fail under Rule 12(b)(6), but that defendant has not necessarily been fraudulently

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joined.” Id.

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In response to Mr. Glenn’s argument concerning Ms. Presmyrk’s status as a non-

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diverse defendant, Wells Fargo simply restates the rule. (Doc. 14.) The brief does not

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provide any explanation as to whether there was “actual fraud” concerning Ms. Presmyk’s

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joinder as a defendant. Nor does the brief explain why Mr. Glenn would be unable to

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establish a cause of action against Ms. Presmyk in state court. The only justification in the

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record provided by Wells Fargo for its fraudulent joinder claim is in the Notice of Removal

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in which Wells Fargo asserts (at ¶ 6) that Ms. Presmyk’s status as a citizen of Arizona

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should be disregarded because she “is merely an employee of Wells Fargo Bank N.A. and

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did not ‘create the condition’ nor did she maintain full management and control over the

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subject property.” This threadbare explanation falls far short of the “heavy burden”

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necessary to prevail on a fraudulent joinder argument.

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By way of analogy, in Grancare, LLC, the Ninth Circuit Court of Appeals affirmed

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a sanctions award against a removing defendant under 28 U.S.C. § 1447(c) where the

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district court concluded that a non-diverse employee was properly joined in an action for

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negligence against a nursing home. 889 F.3d at 551. The complaint in Grancare, LLC

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alleged specific instances of conduct where the employee failed to exercise due care, giving

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rise to potential liability for negligence and elder abuse against that individual non-diverse

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defendant. Id.

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Like the complaint that was remanded in Grancare, LLC, Mr. Glenn’s Amended

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Complaint recites allegations against Ms. Presmyk that, if true, set forth a “possibility that

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a state court would find that the [Amended] [C]omplaint states a cause of action against

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[her].” Id. at 549 (quoting Hunter, 582 F.3d at 1046) (emphasis in original). To that end,

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the Amended Complaint alleges (at ¶¶ 22-23) that Ms. Presmyk had knowledge of the

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exposed rebar in the parking lot and that she was also aware that the condition needed

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repair. The Amended Complaint further alleges (at ¶ 24) that Ms. Presmyk held a

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management position in the branch office and had a responsibility to warn its customers of

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the exposed rebar. Moreover, the Amended Complaint alleges (at ¶¶ 22-23) that she failed

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to take measures to warn customers of the exposed rebar.

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Taken together and with the other allegations therein, the Amended Complaint sets

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forth a theory of liability under Arizona law and against Ms. Presmyk based on her job

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responsibilities, her actions and omissions, and the injuries suffered by Mr. Glenn. Based

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on these, a court of the State of Arizona could conclude that Mr. Glenn has stated a cause

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of action against Ms. Presmyk.

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IV.

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CONCLUSION
Wells Fargo has failed to overcome the presumption against fraudulent joinder and

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it has also failed to show that Ms. Presmyk, an Arizona citizen, was joined as a defendant

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to defeat diversity of citizenship. This Court lacks subject matter jurisdiction and it is

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obligated to remand the case to the Arizona Superior Court in Coconino County. 3

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Based on the foregoing,

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IT IS ORDERED that Mr. Glenn’s Motion to Remand (Doc. 8) is GRANTED.

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This case is remanded to the Arizona Superior Court in Coconino County.
IT IS FURTHER ORDERED that Roxanne Presmyk’s Motion to Dismiss (Doc.

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24) remains pending before the Superior Court.

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IT IS FURTHER ORDERED that Wells Fargo and Ms. Presmyk’s Motion to

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Strike the Supplement to Motion to Remand (Doc. 45) is DENIED as moot because the

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Court did not consider the supplement.

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Dated this 10th day of October, 2019.

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Mr. Glenn also argues that remand is appropriate for another reason, that Wells Fargo
failed to obtain consent for removal from co-defendant CBRE, Inc. as required by 28
U.S.C. § 1446(b)(2)(A). (Doc. 8 at 7.) The Court need not resolve this issue because it
grants the remand motion on the independent basis that complete diversity does not exist.
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