Gabriela Najera v. Costco Wholesale Corporation et al

Filing 18

MINUTES (In Chambers): ORDER Re Motion to Remand 9 by Judge Michael W. Fitzgerald: The Motion is GRANTED. The action is REMANDED to the Los Angeles Superior Court. The request for attorneys fees and costs is DENIED. (MD JS-6. Case Terminated.) (jp)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES—GENERAL
Case No. CV 17-7585-MWF (MRWx)
Title:
Gabriela Najera -v.- Costco Wholesale Corp.

Date: December 6, 2017

Present: The Honorable MICHAEL W. FITZGERALD, U.S. District Judge
Deputy Clerk:
Rita Sanchez

Court Reporter:
Not Reported

Attorneys Present for Plaintiff:
None Present

Attorneys Present for Defendant:
None Present

Proceedings (In Chambers): ORDER RE MOTION TO REMAND [9]
Before the Court is Plaintiff Gabriela Najera’s Motion to Remand Entire Action
to Los Angeles Superior Court (the “Motion”), filed on November 2, 2017. (Docket
No. 9). On November 13, 2017, Defendant Costco Wholesale Corporation filed an
Opposition. (Docket No. 12). Plaintiff replied on November 20, 2017. (Docket No.
13). The Court has read and considered the papers filed on the Motion and held a
hearing on December 4, 2017.
For the reasons set forth below, the Motion is GRANTED. Defendant failed to
remove the case to federal court within the 30-day time period provided by 28 U.S.C. §
1446(b)(3). Plaintiff’s request for attorneys’ fees and costs pursuant to 28 U.S.C. §
1447(c) is DENIED.
I.

BACKGROUND

Plaintiff initiated this premises liability action on July 13, 2017, in Los Angeles
Superior Court. (See Complaint (Docket No. 1-1)). Defendant removed the case on
October 17, 2017. (Notice of Removal (Docket No. 1)).
Defendant was served with a copy of the Complaint, Summons, and Statement
of Damages on July 19, 2017. (Proof of Service (Declaration of Joseph C. Dayball
(“Dayball Declaration”) ¶ 4, Ex. 1)). The Statement of Damages set forth Plaintiff’s
general damages in the amount of $150,000 and medical expenses in the amount of
$45,000. (Statement of Damages (Dayball Decl. ¶ 5, Ex. 2)).
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CIVIL MINUTES—GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 17-7585-MWF (MRWx)
Title:
Gabriela Najera -v.- Costco Wholesale Corp.

Date: December 6, 2017

On September 11, 2017, Defendant served verified responses to Plaintiff’s
Demand for Identification and Production of Documents, Set One. Among those
responses, Defendant produced a document called “Member First Report of Incident”
(the “Incident Report”). The Incident Report is signed and dated July 18, 2015 by
Plaintiff, and lists her home address as located in North Hills, California, and her work
address as located in Van Nuys, California. (Dayball Decl. ¶¶ 6–8).
Also on September 11, 2017, Defendant’s counsel contacted Plaintiff’s counsel
and requested that Plaintiff’s discovery responses be provided to Defendant’s counsel
by email as well as mail on the due date of September 13, 2017 so that Defendant’s
counsel would have the opportunity to review the responses before Plaintiff’s
deposition on September 18, 2017. (Dayball Decl. ¶ 9). Plaintiff’s counsel agreed, and
on September 13, sent PDFs of Plaintiff’s discovery responses to Defendant’s counsel.
(Id. ¶¶ 9, 11). Defendant’s counsel confirmed receipt on September 14, 2017. (Id. ¶¶
12–14). In response to a September 14 inquiry from Defendant’s counsel, Plaintiff’s
counsel confirmed that the mailed versions of the responses contained verifications,
and that the emailed versions did not contain verifications, although they were
otherwise identical. (Id. ¶¶ 15–16).
Defendant received Plaintiff’s verified responses in the mail on September 18,
2017. Those responses indicated that Plaintiff was born in Mexico, moved to the
United States, graduated from high school in California, and has lived at an address in
Southern California for at least five years. The responses also provided medical
documentation of Plaintiff’s medical expenses. (Declaration of Michael Miretsky
(“Miretsky Declaration”) ¶ 8, Exs. F, G, H).
On September 18, 2017, Plaintiff testified at deposition that she is a permanent
United States resident with a green card, and has lived at her current address in North
Hill, California, for nine years. (Miretsky Decl. ¶ 9, Ex. I).
II.

DISCUSSION

In general, “any civil action brought in a State court of which the district courts
of the United States have original jurisdiction, may be removed by the defendant or the
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CIVIL MINUTES—GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 17-7585-MWF (MRWx)
Title:
Gabriela Najera -v.- Costco Wholesale Corp.

Date: December 6, 2017

defendants, to the district court[.]” 28 U.S.C. § 1441(a). 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”). 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 v. Miles,
Inc., 980 F.2d 564, 566 (9th Cir. 1992) (“Federal jurisdiction must be rejected if there
is any doubt as to the right of removal in the first instance.”). Here, the parties do not
dispute that the underlying facts show removal was proper. The parties contest only
the timing of Defendant’s removal.
Under 28 U.S.C. § 1446(b)(1), a defendant must file a notice of removal “within
30 days after the receipt by the defendant, through service or otherwise, of a copy of
the initial pleading setting forth the claim for relief upon which such action or
proceeding is based[.]” If the initial pleadings do not state a removable case, 28 U.S.C.
§ 1446(b)(3) additionally permits removal “within 30 days after receipt by the
defendant . . . of a copy of an amended pleading, motion, order or other paper from
which it may first be ascertained that the case is one which is or has become
removable.” Although the time limit is procedural rather than jurisdictional, it “is
mandatory and a timely objection to a late petition will defeat removal . . . .” Smith v.
Mylan Inc., 761 F.3d 1042, 1045 (9th Cir. 2014) (quoting Fristoe v. Reynolds Metals
Co., 615 F.2d 1209, 1212 (9th Cir. 1980)).
In Plaintiff’s view, Defendant was in receipt of “other papers” from which
removability could be ascertained by as early as July 19, 2017, when Defendant was
served with the Statement of Damages indicating damages above the jurisdictional
minimum, and presumably possessed the Incident Report indicating Plaintiff’s work
and home address in California, which Defendant produced to Plaintiff on September
11, 2017. (Mot. at 5–6). Together, Plaintiff argues, the Statement of Damages and the
Incident Report would have provided Defendant with sufficient information from
which to ascertain removability. (Id. at 6).

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CIVIL MINUTES—GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 17-7585-MWF (MRWx)
Title:
Gabriela Najera -v.- Costco Wholesale Corp.

Date: December 6, 2017

Regardless of whether Defendant possessed the Incident Report on September
11 or as early as July 19, possession of that report would not trigger the 30-day time
limit. See Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005)
(“notice of removability under § 1446(b) is determined through examination of the
four corners of the applicable pleadings, not through subjective knowledge or a duty to
make further inquiry”); Roth v. CHA Hollywood Med. Ctr., L.P., 720 F.3d 1121 (9th
Cir. 2013) (“‘defendant’s subjective knowledge cannot convert a non-removable action
into a removable one’ such that the thirty-day time limit of § 1446(b)(1) or (b)(3)
begins to run against the defendant”).
Alternatively, Plaintiff argues that Defendant was in receipt of such “other
papers” by, at the very latest, September 14, 2017, which is the date Defendant
confirmed receipt of Plaintiff’s emailed discovery responses. (Mot. at 5). At that
point, Defendant was in possession of information regarding Plaintiff’s citizenship and
residency, and documentation of Plaintiff’s medical expenses, which formed the bases
for Defendant’s Notice of Removal. (Id.; Notice of Removal ¶ 6). Defendant contests
whether Plaintiff’s discovery responses, sent via email and without verifications,
qualify as “other paper” referenced by § 1446(b)(3). (Opp. at 8).
The primary issue is whether the unverified discovery responses qualify as
“other papers” under § 1446(b)(3). The Court concludes that they do. The 30-day
time limit therefore began to run as of September 14, 2017, which means that any
Notice of Removal filed after October 16, 2017 was untimely. Defendant’s Notice of
Removal was filed on October 17, 2017.
In Babasa v. LensCrafters, Inc., the Ninth Circuit held that a letter sent in
preparation for mediation constituted a valid basis for removal even though the letter
was privileged under California law. 498 F.3d 972, 974–75 (9th Cir. 2007) (holding
that because letter constituted notice of removability, notice of removal filed over 30
days after receipt of letter was untimely). In so holding, the Ninth Circuit explained
that the letter put LensCrafters on notice regarding the amount in controversy. Id.
District courts since Babasa have applied the Ninth Circuit’s reasoning to hold
that unverified discovery responses constitute “other paper” under § 1446(b). For
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CIVIL MINUTES—GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 17-7585-MWF (MRWx)
Title:
Gabriela Najera -v.- Costco Wholesale Corp.

Date: December 6, 2017

example, in Santos v. SMX, LLC, the district court rejected the defendant’s argument
that an unverified discovery response admitting the amount in controversy was not an
“other paper” that could trigger the 30-day time limit, and accordingly held that the
defendant’s removal was untimely. No. CV 17-866-PSG (DTBx), 2017 WL 2825924,
at *3 (C.D. Cal. June 29, 2017).
Likewise, in Torres v. Utility Tree Serv., Inc., the district court acknowledged
that civil procedural rules required discovery responses to be verified, but cited Babasa
to hold that “such rules do not preclude finding that an unverified discovery response
can serve as a proper section 1446(b) notice for purposes of removal.” No. CV 163424-BLF, 2017 WL 30561, at *3 (N.D. Cal. Jan. 3, 2017). In Torres, as here, the
defendant filed its notice of removal within 30 days of receipt of the verified discovery
responses, though not within 30 days of receipt of the unverified discovery responses.
Id. at *1. The district court found the 30-day time limit started upon the defendant’s
receipt of the unverified responses, and that removal was therefore untimely. Id. at *4.
Here, on September 14, 2017, Defendant acknowledged receipt of unverified
discovery responses, the verified versions of which it would later claim provided
sufficient information to ascertain removability. (Notice of Removal ¶ 6). The Court
therefore finds that the Notice of Removal, filed on October 17, 2017, was untimely.
To the extent Defendant appears to argue now that the discovery responses did
not actually provide sufficient information to ascertain diversity of citizenship, and that
such diversity could not actually be ascertained until Plaintiff’s deposition on
September 18, 2017, this argument directly contradicts Defendant’s statements in the
Notice of Removal. (Opp. at 11; Notice of Removal ¶ 6). Moreover, such an
argument is unsupported by Ninth Circuit law, which provides that citizenship for
diversity purposes depends on where the individual is domiciled. See Kantor v.
Wellesley Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir. 1983). A person’s domicile is
that person’s permanent home. Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986). The
discovery responses establish Plaintiff’s permanent home as located in California.
At the hearing, Defendant noted the high degree of confidence in the basis for
removal that is necessary before a defendant removes an action to federal court, and
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CIVIL MINUTES—GENERAL
5

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 17-7585-MWF (MRWx)
Title:
Gabriela Najera -v.- Costco Wholesale Corp.

Date: December 6, 2017

explains that, until Plaintiff’s deposition on September 18, 2017, Defendant did not
have that high degree of confidence in the amount in controversy or Plaintiff’s
citizenship. The Court appreciates and understands Defendant’s attempt to confirm
removability, and takes that into consideration in denying Plaintiff’s request for
attorneys’ fees, as discussed below. However, the fact remains that as of September
14, 2017, Defendant had access to a Statement of Damages setting forth an amount in
controversy, as well as discovery responses and documents provided by Plaintiff
confirming Plaintiff’s citizenship and her medical expenses.
The Court concludes that Defendant was in receipt of “other papers” from which
it could determine removability as of September 14, 2017, and the removal on October
17, 2017 was therefore untimely.
III.

ATTORNEYS’ FEES AND COSTS

Plaintiff requests attorneys’ fees and costs pursuant to 28 U.S.C. § 1447(c),
which provides that remand orders “may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of removal.” The Court may
award attorneys’ fees where “the removing party lacked an objectively reasonable
basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141
(2005).
Whether or not to award fees and costs under § 1447(c) is within the Court’s
discretion. See 28 U.S.C. § 1447(c) (“order remanding the case may require payment
of just costs and any actual expenses, including attorney fees, incurred as a result of the
removal”) (emphasis added); Dall v. Albertson’s Inc., 349 F. App’x 158, 159 (9th Cir.
2009) (“Following remand of a case upon unsuccessful removal, the district court may,
in its discretion, award attorney’s fees . . . .”).
Plaintiff argues that Defendant lacked an objectively reasonable basis for its
untimely removal because Defendant was in receipt of the discovery responses that
Defendant admitted provided the grounds for removal on September 13, 2017, and
acknowledged receipt of those responses on September 14, 2017. (Mot. at 9). Despite
the strength of Plaintiff’s argument, the Court declines to award attorneys’ fees and
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CIVIL MINUTES—GENERAL
6

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 17-7585-MWF (MRWx)
Title:
Gabriela Najera -v.- Costco Wholesale Corp.

Date: December 6, 2017

costs. As noted at the hearing, in the absence of any Ninth Circuit authority clearly
stating that unverified discovery responses constitute “other papers” for purposes of §
1446(b), the Court does not conclude that Defendant had no colorable basis for
removing the action on October 17, 2017.
III.

CONCLUSION

For the foregoing reasons, the Motion is GRANTED. The action is
REMANDED to the Los Angeles Superior Court.
The request for attorneys’ fees and costs is DENIED.
IT IS SO ORDERED.

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CIVIL MINUTES—GENERAL
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