Edica Paz v. Wal-Mart Stores, Inc et al

Filing 15

MINUTES OF IN CHAMBERS - ORDER RE PLAINTIFF'S MOTION TO REMAND by Judge Dolly M. Gee: The Court DENIES Plaintiff's motion to remand 9 . See document for further details. Court Reporter: Not Reported. (gk)

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

Date

CV 17-7695 DMG (Ex)

Title Edica Paz v. Wal-Mart Stores, Inc., et al.
Present: The Honorable

March 8, 2018
Page

1 of 3

DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

KANE TIEN
Deputy Clerk

NOT REPORTED
Court Reporter

Attorneys Present for Plaintiff(s)
None Present

Attorneys Present for Defendant(s)
None Present

Proceedings: IN CHAMBERS - ORDER RE PLAINTIFF’S MOTION TO REMAND [9]

On October 30, 2017, Plaintiff Edica Paz moved to remand the action to state court
(“Motion”) in light of Defendant Wal-Mart Stores, Inc.’s (“Wal-Mart”) alleged untimely notice
of removal. [Doc. # 9.]
“[S]ection 1446(b) [of Title 28 of the U.S. Code] identifies two [30]-day periods for
removing a case.” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 885 (9th Cir. 2010).
Where the complaint’s removability is clear from the face of the “initial pleading,” the first 30day removal period is triggered. Id.; Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136,
1139 (9th Cir. 2013) (“To avoid saddling defendants with the burden of investigating
jurisdictional facts, we have held that ‘the ground for removal must be revealed affirmatively in
the initial pleading in order for the first [30]-day clock under § 1446(b) to begin.” (quoting
Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 695 (9th Cir. 2005))). Where the initial
pleading does not reveal a basis for removal, a defendant has 30 days from the date he receives a
document “from which it can be ascertained . . . that removal is proper” to remove the action to
federal court. Harris, 425 F.3d at 693 (9th Cir. 2005) (citing 28 U.S.C. § 1446(b) (“[I]f the case
stated by the initial pleading is not removable, a notice of removal may be filed within 30 days
after receipt by the defendant, through service or otherwise, 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.”)).
Here, Plaintiff filed suit in Ventura County Superior Court on June 7, 2017, alleging
premises liability in connection with a slip-and-fall that occurred in August 2015 while Plaintiff
was shopping at one of Defendant’s stores in Oxnard, California. Ex. 1 (“Complaint”) to Notice
of Removal (“NOR”) [Doc. #1]. The Complaint does not allege Plaintiff’s residence, domicile,
citizenship, or any other facts that indicate her California citizenship. See id.; Motion at 3. Thus,
the first 30-day period was not triggered upon the filing and service of the Complaint.

CV-90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

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

CV 17-7695 DMG (Ex)

Title Edica Paz v. Wal-Mart Stores, Inc., et al.

Date

March 8, 2018
Page

2 of 3

On September 21, 2017, Plaintiff responded to Defendant’s written discovery requests.
Ex. 4 to Complaint [Doc. # 1]. In her responses to requests for admission (“RFA”), Plaintiff
admitted that, at the time of the incident and at the time of the response, was a California citizen.
Id. at RFA Nos. 19–20. Defendant, a citizen of Delaware and Arkansas, learned at that time, for
the first time, that there was complete diversity of citizenship between the parties. Suba Decl. at
¶¶ 8–10 [Doc. # 1-1]. Plaintiff’s RFA responses thus triggered the second 30-day removal
period. Defendant removed the action to this Court on October 20, 2017. [Doc. # 1.] The
October removal was therefore timely.
Plaintiff contends that the removal was untimely despite the Complaint’s lack of
information about her citizenship. She points to two facts in the Complaint that should have
triggered the first 30-day removal period: (1) the Complaint’s allegation that Plaintiff was
physically in California when the incident giving rise to the action occurred; and (2) Plaintiff’s
California counsel filed suit nearly two years after the incident. Neither of these facts make
Plaintiff’s California citizenship, and therefore the Complaint’s removability, ascertainable so as
to trigger the first 30-day removal period.
Plaintiff also points to three cases in support, but none support remand. In Kuhn v.
Brunswick Corp., the District Court for the Northern District of Georgia explained that “[w]hen
the initial pleading provides at least a clue as to the plaintiff’s citizenship, the burden is on the
defendant to file the petition for removal within [30] days of th[at] initial pleading.” 871 F.
Supp. 1444, 1446 (N.D. Ga. 1994). Because the defendant was aware of its Pennsylvania and
Delaware citizenship, the plaintiffs filed suit in Georgia, and the incident giving rise to the suit
occurred in Michigan, the District Court concluded that defendant “could have intelligently
ascertained removability from the face of the initial pleading.” Id. First, Kuhn, a decision
coming out of the Eleventh Circuit, is not binding on this Court. Second, the facts are
distinguishable. Because the underlying incident here occurred in California, Plaintiff’s filing
suit in California against an out-of-state defendant is not a “clue” as to her California citizenship.
Plaintiff also cites the Sixth Circuit’s recitation of the law’s rebuttable presumption that a
person’s residence is his domicile. See Mason v. Lockwood, Andrews & Newman PC, 842 F.3d
383, 390 (6th Cir. 2016). The law of domicile has no bearing here because the Complaint does
not contain any facts, express or implied, to indicate that Plaintiff lives, and therefore is
domiciled, in California. See id. Moreover, the issue in Mason was whether the district court
properly found that, more likely than not, two-thirds of the proposed class of “residents and
property owners in the City of Flint” were citizens of Michigan for purposes of the local
controversy exception to federal jurisdiction under the Class Action Fairness Act (“CAFA”). Id.

CV-90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

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

CV 17-7695 DMG (Ex)

Title Edica Paz v. Wal-Mart Stores, Inc., et al.

Date

March 8, 2018
Page

3 of 3

at 386, 389–90. These facts are distinguishable from those alleged here. Further, the Sixth
Circuit decision, even if relevant to the circumstances here, is not binding on this Court.
Finally, Mondragon v. Capital One Auto Finance, 736 F.3d 880 (9th Cir. 2013), does not
support Plaintiff’s position. In Mondragon, the Ninth Circuit “observe[d]” the presumption of
continuing domicile (“once established, a person’s state of domicile continues unless rebutted
with sufficient evidence of change”), but because the propriety of that presumption was not an
issue before the Court, the Court declined to reach the issue. Id. at 885–86. Instead, the issue
before the Court was whether the District Court properly granted the plaintiff’s motion to
remand, pursuant to the local controversy exception to CAFA, when the plaintiff presented no
evidence in support of his local-citizenship-related argument. Id. at 883. Notably, the Ninth
Circuit ruled that the District Court erred even though it was “likely” that most of the prospective
class members were California citizens in light of the class definition (persons who “purchased a
vehicle in California for personal use to be registered in the State of California”). Id. at 883–84.
Here, as explained above, the Complaint lacks any clues about Plaintiff’s California citizenship
or domicile. Accordingly, Mondragon is inapposite.
The Court DENIES Plaintiff’s motion to remand.
IT IS SO ORDERED.

CV-90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT