Clarence Collins v. Garfield Beach CVS, LLC et al

Filing 17

MINUTE (In Chambers) Order Remanding Action by Judge Fernando M. Olguin: IT IS ORDERED THAT: (1) The above-captioned action shall be remanded to the Superior Court of the State of California for the County of Los Angeles, 111 North Hill St., Los Angeles, CA 90012, for lack of subject matter jurisdiction pursuant to 28 USC section 1447(c). (2) The Clerk shall send a certified copy of this Order to the state court. (Made JS-6 Case Terminated.) (jp)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES - GENERAL
Case No.

CV 17-3375 FMO (GJSx)

Title

Clarence Collins v. Garfield Beach CVS, LLC, et al.

Present: The Honorable

Date

June 26, 2017

Fernando M. Olguin, United States District Judge

Cheryl Wynn

None

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorney Present for Plaintiff(s):

Attorney Present for Defendant(s):

None Present

None Present

Proceedings:

(In Chambers) Order Remanding Action

On March 29, 2017, plaintiff Clarence Collins (“plaintiff”) filed a complaint against Garfield
Beach CVS, L.L.C. (“Garfield Beach”1 or “defendant”) and “Does 1-75 inclusive” in Los Angeles
County Superior Court. (See Dkt. 1, Notice of Removal (“NOR”) at ¶ 1; Dkt 1-1, Complaint). On
May 4, 2017, defendant removed that action on diversity jurisdiction grounds pursuant to 28
U.S.C. § 1332(a) and §§ 1441(a) & (b). (See Dkt. 1, NOR at ¶ 6).
Plaintiff alleges that Defendant Doe 1 is “a pharmacist duly licensed to practice his/her
profession in the State of California.” (See Dkt. 1-1, Complaint at ¶ 4). According to the
Complaint, Defendant Doe 1 “was engaged in the filling of prescriptions for drugs for the general
public,” (see id. at ¶ 8), and “misfilled” plaintiff’s prescriptions. (See id. at ¶ 9). As a result, plaintiff
alleges that he was “hurt and injured in his health . . . sustaining injury to his nervous system and
person[.]” (See id. at ¶ 11).
On May 24, 2017, the court issued an Order to Show Cause Re: Remand requiring the
parties to “identify Defendant Doe 1 and set forth the relevant facts in each party’s possession
regarding the citizenship of Defendant Doe 1” no later than May 31, 2017. (See Dkt. 11, Court’s
Order of May 24, 2017, at 1-2). The parties failed to respond by the May 31, 2017, deadline, (see,
generally, Dkt.), and the court, noting that the defendant always has the burden of establishing
that removal is proper, issued another Order to Show Cause Re: Remand (“OSC”) on June 5,
2017, requiring defendant to address “whether this action should be remanded for lack of subject
matter jurisdiction.” (See, Dkt. 12, Court’s Order of June 5, 2017, at 1).
On June 9, 2017, defendant responded to the OSC and identified Defendant Doe 1 as Teny
Simonians, a California citizen. (See Dkt. 14, Response of Defendant Garfield Beach CVS, L.L.C.
to Further OSC Re Remand, (“Response”) at 2). Having reviewed the NOR and documents
attached thereto, defendant’s response to the OSC and the record before the court, the court

1

The complaint erroneously identified defendant as “CVS Pharmacy, Inc.”

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 17-3375 FMO (GJSx)

Date

Title

Clarence Collins v. Garfield Beach CVS, LLC, et al.

June 26, 2017

hereby remands this action to state court for lack of subject matter jurisdiction. See 28 U.S.C. §
1447(c).
LEGAL STANDARD
“Federal courts are courts of limited jurisdiction. They possess only that power authorized
by Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114
S.Ct. 1673, 1675 (1994). The courts are presumed to lack jurisdiction unless the contrary appears
affirmatively from the record. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n. 3, 126 S.Ct.
1854, 1861 (2006). Federal courts have a duty to examine jurisdiction sua sponte before
proceeding to the merits of a case, see Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119
S.Ct. 1563, 1569 (1999), “even in the absence of a challenge from any party.” Arbaugh v. Y&H
Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 1244 (2006). Indeed, “[i]f the court determines at any
time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P.
12(h)(3); see Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002) (“Federal Rule of Civil
Procedure 12(h)(3) provides that a court may raise the question of subject matter jurisdiction, sua
sponte, at any time during the pendency of the action, even on appeal.”) (footnote omitted).
A removing defendant bears the burden of establishing that removal is proper. See Abrego
Abrego v. The Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (per curiam) (noting the
“longstanding, near-canonical rule that the burden on removal rests with the removing defendant”);
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (“The strong presumption against removal
jurisdiction means that the defendant always has the burden of establishing that removal is
proper.”) (internal quotation marks omitted). Moreover, if there is any doubt regarding the
existence of subject matter jurisdiction, the court must resolve those doubts in favor of remanding
the action to state court. See Gaus, 980 F.2d at 566 (“Federal jurisdiction must be rejected if there
is any doubt as to the right of removal in the first instance.”).
DISCUSSION
Federal subject matter jurisdiction may be established on the basis of diversity jurisdiction
under 28 U.S.C. § 1332. A district court has diversity jurisdiction “where the matter in controversy
exceeds the sum or value of $75,000, . . . and is between citizens of different states[.]” 28 U.S.C.
§ 1332(a). Diversity of citizenship must exist both at the time the state-court complaint is filed and
the time removal is effected. See Strotek Corp. v. Air Transport Association of America, 300 F.3d
1129, 1131 (9th Cir. 2002) (noting “core principle of federal removal jurisdiction on the basis of
diversity – namely, that it is determined (and must exist) as of the time the complaint is filed and
removal is effected”); Gonzalez v. Starwood Hotels & Resorts Worldwide, Inc., 2016 WL 6094084,
*3 (C.D. Cal. 2016) (“For removal purposes, diversity must exist both at the time the action was
commenced in state court and at the time of removal.”) (internal quotation marks omitted).
A court should not generally consider the citizenship of fictitious defendants in assessing
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 17-3375 FMO (GJSx)

Date

Title

Clarence Collins v. Garfield Beach CVS, LLC, et al.

June 26, 2017

complete diversity for removal purposes. See 28 U.S.C. § 1441(b)(1). However, “when a
plaintiff's allegations give a definite clue about the identity of the fictitious defendant by specifically
referring to an individual who acted as a company's agent, the court should consider the
citizenship of the fictitious defendant.” Brown v. TranSouth Fin. Corp., 897 F.Supp. 1398, 1401
(M.D. Ala. 1995) (emphasis added). When a defendant “knew or should have known of the
fictitious defendant’s identity, because [that person] was employed by [defendant] and acted as
an agent” in the events giving rise to the suit, and that individual is not diverse from the plaintiff,
removal jurisdiction should be declined. See id. This is because “[i]t would be unfair to force []
plaintiffs from their state court forum into federal court by allowing [a defendant] to plead ignorance
about the defendant-employee's identity and citizenship when [a defendant] was in a position to
know that information.” Id. at 1401-02.
Here, plaintiff’s Complaint gave a “definite clue about the identity” of Ms. Simonians. See
Brown, 897 F.Supp. at 1401. The Complaint identified the specific store location where Ms.
Simonians was employed as a pharmacist, the CVS pharmacy at 2130 N. Bellflower Blvd. in Long
Beach, CA. (See Dkt. 1-1, Complaint at ¶ 1, 4-5 & 8). The Complaint also specified a particular
date, April 4, 2016, that Ms. Simonians was employed by defendant, (see id. at ¶ 9), making it
even more likely that defendant could identify Defendant Doe 1. Indeed, defendant stated in its
Response to the OSC that Defendant Doe 1 was “easily identifiable” as a California resident. (See
Dkt. 14, Response at 2). In fact, not only was defendant able to easily identify Ms. Simonians as
Defendant Doe 1, but defendant even provided the month and year Ms. Simonians began her
employment with defendant, November 2006, and the specific city of her residence, Fountain
Valley, California. (See id.). In short, there is no dispute that “plaintiff's complaint provide[d] a
description of a fictitious defendant in such a way that his or her identity cannot reasonably be
questioned[.]” Marshall v. CSX Transp. Co., 916 F.Supp. 1150, 1152 (M.D. Ala. 1995) (remanding
action to state court).
Moreover, defendant knew or should have known the identity of Defendant Doe 1 because
that person was employed by defendant. See Brown, 897 F.Supp. at 1401. Under the
circumstances, 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.”2 Id. at 1401-02; see
Tompkins v. Lowe's Home Ctr., Inc., 847 F.Supp. 462, 464 (E.D. La. 1994) (same); Marshall 916

2

Because the court finds that Defendant Doe 1, Teny Simonians, was “an actual person
known to both plaintiff[] and defendant[] and was known to be a resident of the same state as
plaintiff[]” at the time of removal and declines jurisdiction on that basis, see Brown, 897 F.Supp.
at 1401, the court need not address defendant’s argument that plaintiff has yet to formally join
Simonians as a named defendant. (See Dkt. 14, Response at 2); Arbaugh, 546 U.S. at 514, 126
S.Ct. at 1244 (courts “have an independent obligation to determine whether subject-matter
jurisdiction exists, even in the absence of a challenge from any party”).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 17-3375 FMO (GJSx)

Date

Title

Clarence Collins v. Garfield Beach CVS, LLC, et al.

June 26, 2017

F.Supp. at 1152. Accordingly, the matter shall be remanded for lack of subject matter jurisdiction.
Based on the foregoing, IT IS ORDERED THAT:
1. The above-captioned action shall be remanded to the Superior Court of the State of
California for the County of Los Angeles, 111 North Hill St., Los Angeles, CA 90012, for lack of
subject matter jurisdiction pursuant to 28 U.S.C. § 1447(c).
2. The Clerk shall send a certified copy of this Order to the state court.

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