Robert Sherfey v. Lowe's HIW, Inc. et al

Filing 28

ORDER DENYING PLAINTIFF ROBERT SHERFEYS MOTION TO REMAND ACTION TO STATE COURT by Judge Manuel L. Real: 15 . IT IS HEREBY ORDERED that Plaintiff Sherfeys Motion to Remand Action to State Court is DENIED. (Dkt. No. 15.) (pj)

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NO JS-6

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ROBERT SHERFEY, an individual,
Plaintiff,

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v.
LOWE’S HIW, INC. a Corporation;
DAVE JENKINS, Individual; DOES 1-10,
business entit(ies), forms unknown;
DOES 11-20, individual(s); and Does 21-30,
inclusive

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Defendants.

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CASE NO. 2:14-cv-2006-R

ORDER DENYING PLAINTIFF ROBERT
SHERFEY’S MOTION TO REMAND
ACTION TO STATE COURT

Before the Court is Plaintiff Robert Sherfey’s Motion to Remand Action to State Court.

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Finding the matter suitable for decision on the papers, the Court took it under submission on

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November 24, 2014.

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Generally, the presence of a non-diverse party automatically destroys subject-matter

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jurisdiction. Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 389 (1998). However, if

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the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious

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according to the settled rules of the state, the joinder of the resident defendant is fraudulent and

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should be disregarded for purposes of subject-matter jurisdiction. McCabe v. General Foods

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Corp., 811 F.2d 1336, 1339 (9th Cir. 1987).

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Here, the claims against the non-diverse defendant, Dave Jenkins, have been dismissed

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with prejudice. Accordingly, Plaintiff has obviously failed to state a claim against Defendant

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Jenkins according to the settled rules of California, and the citizenship of Defendant Jenkins is

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disregarded. Because the remaining parties are diverse, the Court has subject-matter jurisdiction

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over the present case.

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IT IS HEREBY ORDERED that Plaintiff Sherfey’s Motion to Remand Action to State
Court is DENIED. (Dkt. No. 15.)
Dated: December 4, 2014.

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___________________________________
MANUEL L. REAL
UNITED STATES DISTRICT JUDGE

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