Glenn Hitomi et al v. Ford Motor Company et al

Filing 22

MINUTES (IN CHAMBERS) ORDER RE: MOTION FOR JUDGMENT ON THE PLEADINGS #10 ; AND MOTION FOR REMAND TO SUPERIOR COURT OF CALIFORNIA AND AWARD OF COSTS AND EXPENSES RESULTING FROM REMOVAL #11 by Judge Michael W. Fitzgerald: For the reasons discussed above, the Remand Motion is GRANTED and the JOP Motion is DENIED as moot. The Court REMANDS this action to the Riverside County Superior Court. Because this Court lacks jurisdiction, nothing in this Order should be taken as a ruling on the merits of the action, or whether a demurrer should be sustained in Superior Court. IT IS SO ORDERED. denying #10 MOTION for Judgment on the Pleadings. MD JS-6. Case Terminated.; granting #11 MOTION to Remand Case to State Court Case Remanded to Riverside County Superior Court, RIC1824441. MD JS-6. Case Terminated. (yl)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES—GENERAL
Case No. EDCV 18-2622-MWF (SPx)
Date: March 19, 2019
Title:
Glenn Hitomi, et al. v. Ford Motor Company, et al.
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 FOR JUDGMENT ON THE
PLEADINGS [10]; AND MOTION FOR REMAND
TO SUPERIOR COURT OF CALIFORNIA AND
AWARD OF COSTS AND EXPENSES RESULTING
FROM REMOVAL [11]
Before the Court are two motions:
First, there is Defendant Ford Motor Company’s (“Ford”) Motion for Judgment
on the Pleadings (the “JOP Motion”), filed on February 13, 2019. (Docket No. 10).
Plaintiffs Glenn Hitomi and Debra Hitomi filed an Opposition on February 25, 2019.
(Docket No. 15). Ford filed a Reply on March 4, 2019. (Docket No. 16).
Second, there is Plaintiffs’ Motion for Remand to Superior Court of California
and Award of Costs and Expenses Resulting from Removal (the “Remand Motion”),
filed on February 15, 2019. (Docket No. 11). Ford filed an Opposition on February
25, 2019. (Docket No. 14). Plaintiffs filed their Reply on March 4, 2019. (Docket
No. 17).
The Court read and considered the papers submitted on the two motions and
held a hearing on March 18, 2019. For the reasons discussed below, the two motions
are ruled upon as follows:
 The Remand Motion is GRANTED. Ford has not established that Fritts Ford,
the dealership, was fraudulently joined, “fraudulent” being used here with its
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CIVIL MINUTES—GENERAL
1

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. EDCV 18-2622-MWF (SPx)
Date: March 19, 2019
Title:
Glenn Hitomi, et al. v. Ford Motor Company, et al.
technical jurisdictional meaning. Specifically, Ford has provided no evidentiary
showing that Plaintiffs were members of a settlement class in another action,
thereby releasing their claims against Fritts Ford. Moreover, Plaintiffs’ claims
are timely because there are sufficient allegations of delayed discovery. Finally,
the Court declines to exercise its discretion to drop Fritts Ford as a Defendant.
Because Plaintiffs are California residents and Fritts Ford is a California
corporation, this Court lacks diversity jurisdiction and the action must be
remanded.
 The JOP Motion is DENIED as moot.
I.

BACKGROUND

On November 19, 2018, Plaintiffs commenced this action in the Riverside
County Superior Court. (See Notice of Removal (“NoR”), Ex. A, Complaint (Docket
No. 1-1)). Plaintiff are individuals residing in Anaheim, California. (Id. ¶ 3). Ford is
a Delaware corporation whose principal place of business is in Michigan. (Id. ¶ 4; see
NoR ¶ 22). Defendant Warren-Anderson Ford Inc. d/b/a Fritts Ford (“Fritts Ford”) is a
California corporation conducting business in Riverside County. (Compl. ¶ 5).
The Complaint alleges as follows:
On January 8, 2005, Plaintiffs purchased from Fritts Ford a new 2005 Ford
Excursion. (Id. ¶ 9). The vehicle was equipped with a 6.0-liter PowerStroke diesel
engine and came with a warranty guaranteeing engine repair for five years or 100,000
miles. (Id. ¶ 10). After purchasing the vehicle, Plaintiffs “began experiencing
problems with [the vehicle’s] 6.0-liter engine.” (Id. ¶ 57). Plaintiffs “attempted to
have the engine issues fixed on many occasions” by Fritts Ford and other authorized
repair facilities and received repeated assurances that the “repairs ‘fixed’ the
problems.” (Id. at ¶¶ 61–62). The repairs were as follows:
 On February 28, 2006, Plaintiffs brought their vehicle to an authorized Ford
repair facility “because of a need for an exhaust pressure sensor replacement,”
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CIVIL MINUTES—GENERAL
2

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. EDCV 18-2622-MWF (SPx)
Date: March 19, 2019
Title:
Glenn Hitomi, et al. v. Ford Motor Company, et al.
and the service personnel “represented to Plaintiffs that their [v]ehicle was
fixed” (Id. ¶ 82);
 On September 2, 2008, Plaintiffs brought their vehicle to an authorized Ford
repair facility “because of an oil leak,” and the service personnel “represented to
Plaintiffs that their [v]ehicle was fixed” (Id. ¶ 84);
 On December 14, 2010, Plaintiffs brought their vehicle to an authorized Ford
repair facility “because of [another] oil leak and the [v]ehicle running rough,”
and the service personnel “represented to Plaintiffs that their [v]ehicle was
fixed” (Id. ¶ 83);
 On June 25, 2012, Plaintiffs brought their vehicle to a third-party repair facility
because the vehicle was leaking coolant (Id. ¶ 85); and
 On February 13, 2017, Plaintiffs brought their vehicle to a third-party repair
facility because the vehicle “would not go into drive mode.” (Id. ¶ 86).
Plaintiff alleges that Ford knew “of the 6.0-liter engine’s many flaws and quality
concerns” and “had authorized dealers implement a ‘Band-Aid’ strategy that allowed
the dealers to take only limited repair measures.” (Id. ¶¶ 33, 37).
Plaintiffs assert six claims for relief: (1) intentional misrepresentation;
(2) negligent misrepresentation; (3) fraud in the inducement (concealment); (4) fraud in
the performance of a warranty contract; (5) violation of the Song-Beverly Consumer
Warranty Act, Cal Civ. Code § 1790; and (6) violation of the Consumer Legal
Remedies Act (“CLRA”), Cal. Civ. Code. § 1770. (Id. ¶¶ 92–260). Plaintiffs assert
claims one, two, three, five, and six against Ford and Fritts Ford, and claim four
against Ford only.
On December 18, 2018, Ford timely removed the action, invoking the Court’s
diversity jurisdiction and asserting that Fritts Ford was fraudulently joined. (See NoR
¶¶ 21–23).
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CIVIL MINUTES—GENERAL
3

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. EDCV 18-2622-MWF (SPx)
Date: March 19, 2019
Title:
Glenn Hitomi, et al. v. Ford Motor Company, et al.
II.

DISCUSSION

As both parties acknowledge, the threshold requirement for removal under 28
U.S.C. § 1441 is a “finding that the complaint . . . is within the original jurisdiction of
the district court.” Ansley v. Ameriquest Mort. Co., 340 F.3d 858, 861 (9th Cir. 2003).
Federal question jurisdiction is not asserted and the jurisdictional amount is not
disputed. The issue, then, is whether Fritts Ford defeats complete diversity, or whether
the Court should disregard its presence on fraudulent joinder grounds.
“Because plaintiff’s motion to remand challenges the basis of the court’s subject
matter jurisdiction, the court may consider extrinsic evidence.” Prime Healthcare
Servs. – Shasta, LLC v. Sierra Pacific Indus., No. 15-cv-2007-CMK, 2016 WL
740529, at *2 (E.D. Cal. Feb. 25, 2016) (citing McCarthy v. U.S., 850 F.2d 558 (9th
Cir. 1988)). While, in the context of a motion to remand due to lack of diversity
jurisdiction, it is “well established that courts may pierce the pleadings . . . and
examine evidence,” it is “also well established that courts ought to construe facts in
favor of the plaintiff where there is disputed evidence.” Reynolds v. The Boeing Co.,
No. 15-2846-SVW (ASx), 2015 WL 4573009, at *3 (C.D. Cal. Jul. 28, 2015) (internal
quotation marks and citations omitted).
“The strong presumption against removal jurisdiction means that the defendant
always has the burden of establishing that removal is proper, and that the court resolves
all ambiguity in favor of remand to state court.” Hunter v. Philip Morris USA, 582
F.3d 1039, 1042 (9th Cir. 2009) (internal quotation marks and citation omitted).
A.

Fraudulent Joinder

An exception to the complete-diversity rule recognized by the Ninth Circuit “‘is
where a non-diverse defendant has been ‘fraudulently joined.’” Id. (quoting Morris v.
Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001)). The joinder is considered
fraudulent “[i]f the plaintiff fails to state a cause of action against a resident defendant,
and the failure is obvious according to the settled rules of the state . . . .” Id. (quoting
Hamilton Materials, Inc. v. Dow Chemical Co., 494 F.3d 1203, 1206 (9th Cir. 2007)).
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CIVIL MINUTES—GENERAL
4

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. EDCV 18-2622-MWF (SPx)
Date: March 19, 2019
Title:
Glenn Hitomi, et al. v. Ford Motor Company, et al.
A removing defendant must “prove that individuals joined in the action cannot be
liable on any theory.” Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir.
1998); accord Reynolds, 2015 WL 4573009, at *2 (“To prove fraudulent joinder, the
removing defendant must show that settled law obviously precludes the liability against
the nondiverse defendant.”) (emphasis added).
Because defendants face a heavy burden in establishing that removal is
appropriate, a court determining whether joinder is fraudulent “must resolve all
material ambiguities in state law in plaintiff’s favor.” Macey v. Allstate Property and
Cas. Ins. Co., 220 F. Supp. 2d 1116, 1117 (N.D. Cal. 2002) (citing Good v. Prudential
Ins. Co. of America, 5 F. Supp. 2d 804, 807 (N.D. Cal. 1998)). “If there is a nonfanciful possibility that plaintiff can state a claim under [state] law against the nondiverse defendant[,] the court must remand.” Id.; see also Good, 5 F. Supp. 2d at 807
(“[T]he defendant must demonstrate that there is no possibility that the plaintiff will be
able to establish a cause of action in State court against the alleged sham defendant.”).
Given this standard, “[t]here is a presumption against finding fraudulent joinder, and
defendants who assert that plaintiff has fraudulently joined a party carry a heavy
burden of persuasion.” Plute v. Roadway Package Sys., Inc., 141 F. Supp. 2d 1005,
1008 (N.D. Cal. 2001).
Here, Ford argues that Fritts Ford’s joinder is fraudulent because Plaintiffs’
claims against Fritts Ford are barred by the doctrine of res judicata and by various
statutes of limitation. (Remand Opp. at 4–12). Ford also argues that, alternatively, the
Court should exercise its discretion under Federal Rule of Civil Procedure 21 to drop
Fritts Ford as a party. (Id. at 12–15).
1.

Res Judicata

Ford first argues that Plaintiffs’ claims against Fritts Ford are barred by the
doctrine of res judicata because Plaintiffs “were class members in a prior class action
that contained similar claims and they did not opt out of a class settlement that
contained a broad release.” (Id. at 12). That prior class action is In re Navistar 6.0L
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CIVIL MINUTES—GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. EDCV 18-2622-MWF (SPx)
Date: March 19, 2019
Title:
Glenn Hitomi, et al. v. Ford Motor Company, et al.
Diesel Engine Products Liability Litigation, No. 11-cv-02496 (N.D. Ill.) (the “Navistar
Action”), a case against Ford that settled in 2013. (Id. at 4–5).
The settlement class in the Navistar Action is defined as follows:
All entities and natural persons in the United States (including its
Territories and the District of Columbia) who currently own or lease (or
who in the past owned or leased) a model year 2003–2007 nonambulance Ford vehicle sold or leased in the United States and equipped
with a 6.0-liter PowerStroke diesel engine that received one or more
repairs covered by Ford’s New Vehicle Limited Warranty during the
vehicle’s first five years in service or 100,000 miles, whichever comes
first, to: a fuel injector; the exhaust gas recirculation (“EGR”) valve; the
EGR cooler; the oil cooler; or the turbo charger (“Class Vehicle”).
(See Declaration of Robert C. Rodriguez (“Rodriguez Decl.) ¶ 8, Ex. E (Docket No.
14-4)).
While Fritts Ford was not a party in the Navistar Action, Ford argues that res
judicata applies because the settlement class in the Navistar Action, which includes
Plaintiffs, agreed to a broad release of claims relating to the defective 6.0-liter engine.
(Remand Opp. at 5–7).
The Court disagrees for the following two reasons:
First, Ford’s arguments in this action are identical to the arguments Ford raised
in Rodarte v. Ford Motor Company, et al., No. CV 18-10499-DMG (JEMx), 2019 WL
1100150, at *1–7 (C.D. Cal. Mar. 7, 2019). In Rodarte, the district court rejected
Ford’s argument that res judicata bars the plaintiff’s claims against Vista Ford Oxnard
Inc. (“Vista Ford”). Id. at *3. The court in Rodarte noted, and the Court agrees, that
the “Navistar settlement release may include claims similar to [p]laintiff’s . . . [b]ut
Ford has provided no evidence that [p]laintiff was a member of the settlement class.”
Id.
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CIVIL MINUTES—GENERAL
6

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. EDCV 18-2622-MWF (SPx)
Date: March 19, 2019
Title:
Glenn Hitomi, et al. v. Ford Motor Company, et al.
Although the ruling in Rodarte is not binding on this Court, its reasoning is
highly persuasive. As in Rodarte, Ford argues that Plaintiffs do not appear on the list
of individuals who opted out of the settlement class in the Navistar Action. (Remand
Opp. at 6; see Rodriguez Decl. ¶ 7, Ex. D). And as in Rodarte, the Court concludes
that the facts that Plaintiffs owned a vehicle equipped with a 6.0-liter PowerStroke
diesel engine and that their names do not appear on the list of individuals who opted
out of the settlement class in the Navistar Action are “not enough to show that
Plaintiff[s] were [] class members to begin with.” Rodarte, 2019 WL 1100150, at *3.
Indeed, Ford offers no factual support that Plaintiffs’ vehicle actually underwent
warranty repairs that were subject to the settlement class (i.e., within five years or
100,000 miles of the date of purchase and related to a fuel injector, EGR valve or
cooler, oil cooler, or turbo charger). Based on Plaintiffs’ allegations, the two repairs
that seemingly fall within the relevant timeframe were related to an exhaust pressure
sensor replacement and oil leak, issues that appear not to be covered by the settlement
agreement.
Second, the court in Rodarte also noted, and the Court again agrees, that even if
Plaintiffs were members of the Navistar Action settlement agreement, there are
sufficient facts to conclude that Fritts Ford—like Vista Ford—was not fraudulent
joined. See Rodarte, 2019 WL 1100150, at *3.
As discussed in Rodarte, this case mirrors the arguments raised in Hunter, 582
F.3d at 1044–45. In Hunter, the Ninth Circuit considered whether the federal
preemption of claims against a non-diverse defendant warranted removal and
concluded that, if federal preemption applied to the claims against the non-diverse
defendant, it applied to the claims of all defendants, “effectively decid[ing] the entire
case.” Id. at 1045 (citation omitted). Because “the preemption question require[d] an
inquiry into the merits of the plaintiff’s claims against all defendants,” the Ninth
Circuit determined that there was no fraudulent joinder and explained its reasoning as
follows:
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CIVIL MINUTES—GENERAL
7

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. EDCV 18-2622-MWF (SPx)
Date: March 19, 2019
Title:
Glenn Hitomi, et al. v. Ford Motor Company, et al.
[W]hen, on a motion to remand, a showing that compels a holding that
there is no reasonable basis for predicting that state law would allow the
plaintiff to recover against the in-state defendant necessarily compels the
same result for the nonresident defendant, there is no improper joinder;
there is only a lawsuit lacking in merit. In such cases, it makes little
sense to single out the in-state defendants as “sham” defendants and call
their joinder improper. In such circumstances, the allegation of improper
joinder is actually an attack on the merits of plaintiff’s case as such—an
allegation that . . . “the plaintiff’s case [is] ill[-]founded as to all the
defendants.”
Id. at 1044–45 (citation omitted and emphasis added).
Here, as in Rodarte, a decision that Plaintiffs released their claims against Fritts
Ford would “effectively decide[] the entire case” because Plaintiffs’ release would also
apply to their claims against Ford. See id. at 1045. And as in Rodarte, Ford should
have brought its settlement release argument “in the context of attacking the merits of
[Plaintiffs’] case, rather than as a basis for removing the case to federal court.” See
Rodarte, 2019 WL 1100150, at *4 (quoting Smallwood v. Ill. Cent. R.R., 385 F.3d 568,
571 (5th Cir. 2004)).
2.

Statute of Limitations

As a preliminary matter, the statute of limitations is two years for Plaintiffs’
negligent misrepresentation claim, three years for the fraud-based claims, three years
for a claim for violation of the CLRA, and four years for a claim for violation of the
Song-Beverly Act. Cal. Civ. Proc. Code §§ 338(d), 339(1); Cal. Civ. Code § 1783;
Uniform Commercial Code § 2725.
Ford argues that “Plaintiffs’ vehicle was purchased in 2005, over thirteen years
before [they] filed the present suit in November 2018,” and therefore, they “should
have discovered their causes of action many years ago.” (Remand Opp. at 7). Ford
also argues that Plaintiffs’ conclusory allegations of “delayed discovery” or “equitable
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CIVIL MINUTES—GENERAL
8

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. EDCV 18-2622-MWF (SPx)
Date: March 19, 2019
Title:
Glenn Hitomi, et al. v. Ford Motor Company, et al.
estoppel” do not excuse their noncompliance with applicable statutes of limitations.
(Id.). In response, Plaintiffs argue that they did not discover “the existence of [their]
claims [until] February 13, 2017, after the warranty had expired.” (Remand Reply at 5
(citing Compl. ¶¶ 74, 76, 86)).
As unlikely as these allegations appear—and unsupported as they may turn out
to be—as allegations they are sufficient. The discovery rule allows for tolling of the
statute of limitations in certain circumstances. A plaintiff may simply have no cause to
suspect that he or she has been injured at the exact moment the injury accrued. In such
instances, the plaintiff “must specifically plead facts to show (1) the time and manner
of discovery and (2) the inability to have made earlier discovery despite reasonable
diligence.” Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 808, 27 Cal. Rptr. 3d
661 (2005). “In assessing the sufficiency of the allegations of delayed discovery, the
court places the burden on the plaintiff to ‘show diligence’ . . . .” Id. (quoting
McKelvey v. Boeing N.A., Inc., 74 Cal. App. 4th 151, 160, 86 Cal. Rptr. 2d 645
(1999)).
Here, Plaintiffs have sufficiently alleged that their claims are not time-barred
because Plaintiffs have adequately alleged that they did not discovery defects until
February 13, 2017; the statute of limitations for each of Plaintiffs’ claims is two years
or longer; and Plaintiffs commenced this action on November 19, 2018.
More specifically, Plaintiffs allege that it was not until February 13, 2017, when
their vehicle “required another repair for similar problems after the express warranty
had expired and Plaintiffs incurred $200.79 in out-of-pocket expenses that Plaintiffs
first discovered, or reasonably could have discovered, that [Ford’s] previous repairs to
the engine during the express warranty period had failed to conform Plaintiffs’
[v]ehicle to the express warranty.” (Compl. ¶ 74). Indeed, in all three previous visits
to an authorized Ford repair facility—on February 28, 2006; September 2, 2008; and
December 14, 2010—Plaintiffs allege that they were reassured by service personnel
that their vehicle “was fixed.” (See id. ¶¶ 82–84). Because Ford’s “authorized repair
facility personnel continually represented that the repairs ‘fixed’ the problems with
Plaintiffs’ 6.0-liter engine,” Plaintiffs contend that they reasonably relied Ford’s
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CIVIL MINUTES—GENERAL
9

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. EDCV 18-2622-MWF (SPx)
Date: March 19, 2019
Title:
Glenn Hitomi, et al. v. Ford Motor Company, et al.
representations. (See id. ¶¶ 61–62). Plaintiffs finally contend that they “could not have
known” Ford’s inability to repair the defects because Ford allegedly “went through
great lengths to ensure that such information remained confidential.” (See id. ¶¶ 16–
56, 80).
As in Rodarte, Ford argues that Plaintiffs’ Complaint is “silent on their alleged
‘diligence’ or exactly how they were alleged unable ‘to have made earlier discovery
despite reasonable diligence.” (Remand Opp. at 11). And as in Rodarte, the Court
cannot identify any further actions that Plaintiffs could have taken to discover the
defects in their vehicle. Moreover, it is “unreasonable to argue that Plaintiff[s] should
have done more to explore the problems with [their] engine and should have known
that the problems could never be repaired, despite [Fritts Ford] and other authorized
repair facilities’ [alleged] assertions that each repair fixed the problems.” Rodarte,
2019 WL 1100150, at *6.
To the extent Ford argues that the “settlement of the Navistar class action put
Plaintiffs on notice of their fraud-based claims and their CLRA claim,” the Court
disagrees because, as noted above, Ford has failed to provide factual support that
Plaintiffs were members of the settlement class in the Navistar Action in the first place.
(See Remand Opp. at 7).
In sum, Plaintiffs have sufficiently alleged (1) diligence in investigating the
defects with their engine by continually taking their vehicle in for repairs, and (2) the
time and manner of discovery and the reasons why they were unable to discover their
claims prior to February 13, 2017. Therefore, for purposes of the strict doctrine of
fraudulent joinder, Plaintiffs’ claims are timely and not barred by the various statutes
of limitations.
3.

Dropping Fritts Ford as a Party

Ford finally argues that “[e]ven if fraudulent concealment has not been
established, the circumstances are sufficiently suspicious, and the prejudice to
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CIVIL MINUTES—GENERAL
10

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. EDCV 18-2622-MWF (SPx)
Date: March 19, 2019
Title:
Glenn Hitomi, et al. v. Ford Motor Company, et al.
Plaintiffs so lacking, that this Court should exercise its discretion under [Rule 21] to
drop Fritts Ford.” (Remand Opp. at 12).
“[T]he court may at any time, on just terms, add or drop a party.” Fed. R. Civ.
P. 21; accord Armstead v. City of Los Angeles, 66 F. Supp. 3d 1254, 1263 (C.D. Cal.
2014) (“If joinder is improper, Rule 21 provides that the court may, on its own or a
party’s motion, ‘at any time, on just terms, add or drop a party.’ (citations omitted)).
Therefore, if plaintiffs fail to meet the standard for permissive joinder, “the district
court may sever the misjoined plaintiffs, as long as no substantial right will be
prejudiced by the severance.” Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir.
1997) (citations omitted). In appropriate cases, courts can remedy misjoinder by
dismissing the claims of all but the first named plaintiff without prejudice to the filing
of individual actions. Id. at 1350–51.
Here, the Court concludes that the inclusion of Fritts Ford as a Defendant is
proper. Plaintiffs’ claims against Ford and Fritts Ford are inextricably linked and
involve significant overlapping questions of fact and law. Most of Plaintiffs’ asserted
claims against Ford and Fritts Ford relate to the same allegations that certain engine
defects were fraudulently and/or negligently concealed. Both Ford and its authorized
retailers (e.g., Fritts Ford) represented to Plaintiffs that their vehicle “did not have
inherent defects and that the truck could be repaired.” (Remand Reply at 16 (citing
Compl. ¶¶ 16–32, 35–80)). It would therefore make little sense for Plaintiffs to pursue
similar claims against Ford and Fritts Ford in two separate actions and courts.
Ford, acknowledging that there is “scant authority” that discusses the factors that
should be considered when applying Rule 21 under these circumstances, suggests that
the Court should apply “the same factors that courts consider in deciding whether to
permit joinder of a non-diverse defendant after removal under 28 U.S.C.
§ 1447(e) . . . .” (Remand Opp. at 14). The Court disagrees, since the key distinction
is that § 1447(e), which applies only to “additional defendants” that a plaintiff seeks to
join “after removal,” is inapplicable here because Plaintiffs named Fritts Ford in their
original Complaint. § 1447(e) (emphasis added). Ford’s argument is an attempt to get
around the very heavy burden that is established for fraudulent joinder.
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CIVIL MINUTES—GENERAL
11

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. EDCV 18-2622-MWF (SPx)
Date: March 19, 2019
Title:
Glenn Hitomi, et al. v. Ford Motor Company, et al.
Simply put, Ford has provided no reason why, on just terms, the Court should
drop Fritts Ford. Accordingly, the Remand Motion is GRANTED.
B.

Attorneys’ Fees and Costs

Plaintiffs also request an award of attorneys’ fees and costs incurred in
connection with Ford’s removal and this Motion. (Mot. at 11–12). Section 1447(c)
provides that “[a]n order remanding the case may require payment of just costs and any
actual expenses, including attorney fees, incurred as a result of the removal.” 28
U.S.C. § 1447(c). 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 . . . .”).
Given that removal in this action was at least colorable, Plaintiffs’ request for
attorneys’ fees and costs is DENIED.
III.

CONCLUSION

For the reasons discussed above, the Remand Motion is GRANTED and the
JOP Motion is DENIED as moot. The Court REMANDS this action to the Riverside
County Superior Court. Because this Court lacks jurisdiction, nothing in this Order
should be taken as a ruling on the merits of the action, or whether a demurrer should be
sustained in Superior Court.
IT IS SO ORDERED.
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CIVIL MINUTES—GENERAL
12