Frank K. Osby v. KSM Healthcare, Inc. et al

Filing 16

MINUTES OF IN CHAMBERS - ORDER RE PLAINTIFF'S MOTION TO REMAND by Judge Dolly M. Gee: Plaintiff's Motion to Remand 11 is GRANTED. The Court REMANDS this action to the Los Angeles County Superior Court, Case No. 20STCV33920. Defendant KSM Healthcare, Inc., dba Dreier's Nursing Care's Motion to Dismiss 9 is DENIED as moot, without prejudice to refiling in state court. The 1/8/2021 hearing is VACATED. ( MD JS-6. Case Terminated ) Court Reporter: Not Reported. (gk)

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

CV 20-10125-DMG (JPRx)

JS-6 / REMAND

Date

January 6, 2021

Title Frank K. Osby v. KSM Healthcare, Inc.
Present: The Honorable

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 [11]
I.
BACKGROUND
On September 3, 2020, pro se Plaintiff commenced this action in Los Angeles County
Superior Court, bringing state-law claims for negligence, medical malpractice, and elder abuse
against Defendant KSM Healthcare, Inc., dba Dreier’s Nursing Care (“KSM”). Notice of
Removal (“NOR”) ¶¶ 2-3 [Doc. # 1]. Plaintiff’s Complaint listed his address as being in
Houston, Texas. Id. at ¶ 3. On November 4, 2020, KSM removed the action to this Court,
asserting diversity jurisdiction because Plaintiff is a citizen of Texas and it is a citizen of
California, and that the forum defendant rule does not apply because it removed the action before
it was properly served. Id. at ¶ 1. On November 16, 2020, Plaintiff signed the instant Motion to
Remand (“MTR”), which was filed by mail and entered onto the docket on November 30. [Doc.
# 11.]
On December 7, 2020, KSM alerted the Court that Plaintiff had passed away. [Doc. #
14]. KSM learned of Plaintiff’s death via an email from Plaintiff’s sister, Willia Osby, on
November 27, 2020, who wrote: “In light of Mr. Osby's death, decisions must be made as to
how to proceed with this litigation.” Id. at 4.1 KSM filed an Opposition to the MTR on
December 15, 2020. [Doc. # 15.] For the reasons set forth below, the MTR is GRANTED.
II.
LEGAL STANDARD
Pursuant to 28 U.S.C. section 1332, a district court shall have jurisdiction over a civil
action where the matter in controversy exceeds the sum or value of $75,000 and there is
complete diversity of citizenship between the parties. 28 U.S.C. § 1332. A civil action brought
1

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All page references herein are to page numbers inserted by the CM/ECF system.
CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

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

CV 20-10125-DMG (JPRx)

Title Frank K. Osby v. KSM Healthcare, Inc.

JS-6 / REMAND

Date

January 6, 2021
Page

2 of 3

in a state court over which a federal district court has original jurisdiction may be removed by
the defendants to a district court where such an action could have been brought. 28 U.S.C. §
1441.
Diversity jurisdiction under 28 U.S.C. section 1332 requires that the parties to a suit be of
diverse citizenship. Diaz v. Davis (In re Digimarc Corp. Derivative Litig.), 549 F.3d 1223, 1234
(9th Cir. 2008) (citing Strawbridge v. Curtiss, 7 U.S. 267, 267 (1806)) (“Diversity jurisdiction
requires complete diversity between the parties—each defendant must be a citizen of a different
state from each plaintiff.”). There is a “strong presumption against removal jurisdiction,” and
courts must reject it “if there is any doubt as to the right of removal in the first instance.”
Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1107 (9th Cir.
2010) (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)) (internal
quotation marks omitted); Luther v. Countrywide Home Loans Servicing LP, 533 F.3d 1031,
1034 (9th Cir. 2008) (any “doubt is resolved against removability”). The party “seeking removal
has the burden to establish that removal is proper” and the “burden of establishing federal subject
matter jurisdiction.” Id.; Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941,
944 (9th Cir. 2009) (citing Toumajian v. Frailey, 135 F.3d 648, 652 (9th Cir. 1998)).
III.
DISCUSSION
As a preliminary matter, KSM argues that because Plaintiff is deceased, he is no longer
the real party in interest and so does not have standing to bring the motion. Opp. at 9-10. But
Plaintiff was the real party in interest when he signed and filed the MTR. In any event, it is
KSM’s burden to establish removal jurisdiction, not Plaintiff’s. Federal courts also have “an
independent obligation to assure ourselves of our own jurisdiction.” Rosson v. Fitzgerald (In re
Rosson), 545 F.3d 764, 769 n.5 (9th Cir. 2008). KSM also claims that Willia Osby is acting on
Plaintiff’s behalf, but as KSM itself observes, Willia “is not bringing this motion or representing
this action as his successor in interest.” Opp. at 10. Under Federal Rule of Civil Procedure 25, a
representative of a deceased party has 90 days to file a motion for substitution. No such motion
has been filed, and the time for doing so has not passed. The Court will therefore evaluate
diversity jurisdiction based on Plaintiff’s citizenship at the time of removal, when he was alive.
See Strotek Corp. v. Air Transp. Ass'n. of Am., 300 F.3d 1129, 1131 (9th Cir. 2002) (removal
based on diversity jurisdiction “is determined (and must exist) as of the time the complaint is
filed and removal is effected.”).
“To demonstrate citizenship for diversity purposes a party must (a) be a citizen of the
United States, and (b) be domiciled in a state of the United States.” Lew v. Moss, 797 F.2d 747,
CV-90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

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

CV 20-10125-DMG (JPRx)

Title Frank K. Osby v. KSM Healthcare, Inc.

JS-6 / REMAND

Date

January 6, 2021
Page

3 of 3

749 (9th Cir. 1986) (citations omitted). For jurisdictional purposes, domicile is determined as of
the time the lawsuit is filed. Id. It is well established that domicile is determined by “fixed
habitation of abode in a particular place, and an intention to remain there permanently or
indefinitely.” Owens v. Huntling, 115 F.2d 160, 162 (9th Cir. 1940). Tangible factors which
reflect this intent include “current residence, voting registration and voting practices, location of
personal and real property, location of brokerage and bank accounts, location of spouse and
family, membership in unions and other organizations, place of employment or business, driver's
license and automobile registration, and payment of taxes.” Lew, 797 F.2d at 750.
In his MTR, Plaintiff claims that he used the Texas address listed on his Complaint,
which is a relative’s address, only to receive correspondence. According to Plaintiff, for the past
year he has lacked a reliable permanent mailing address, having stayed unpredictably in various
skilled nursing facilities and hospitals in Southern California. He purports to have continuously
resided in Los Angeles County since 1959, including at the time the lawsuit was filed. MTR at
2-3.
KSM does not sufficiently rebut these statements.2 Indeed, KSM’s own records indicate
that when Plaintiff was admitted to its nursing home, he listed his address as a homeless shelter
in Los Angeles, and designated the shelter as the place he wished to be discharged to. Lorant
Decl. ¶¶ 3-4 [Doc. # 15-1]. This evidence, combined with Plaintiff’s history of residence,
outweigh his choice of mailing address in determining where he actually resided and where he
intended to remain indefinitely. Accordingly, the Court finds that Plaintiff was a citizen of
California. Because KSM is also a citizen of California, see NOR ¶ 7, the parties are not diverse
and removal was improper.
V.
CONCLUSION
In light of the foregoing, Plaintiff’s MTR is GRANTED. The Court REMANDS this
action to the Los Angeles County Superior Court. KSM’s motion to dismiss [Doc. # 9], is
DENIED as moot, without prejudice to refiling in state court. The January 8, 2021 hearing is
VACATED.
IT IS SO ORDERED.
2

KSM objects to Plaintiff’s statements as not coming in the form of declarations or affidavits. Plaintiff
made these assertions about his own residential history in a brief that he signed himself. The Court will not fault a
pro se Plaintiff for not strictly adhering to the proper technical form of presenting otherwise admissible evidence,
which is corroborated by KSM’s own records.
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