Carr v. Crown Equipment Corporation

Filing 13

ORDER by Judge Thelton E. Henderson denying 10 Motion to Remand without prejudice. (tehlc3, COURT STAFF) (Filed on 5/25/2010)

1 2 3 4 5 6 7 8 9 10 v. CROWN EQUIPMENT CORP., et al., Defendants. KIRKLAND CARR, Plaintiff, NO. C10-1607 TEH ORDER DENYING MOTION TO REMAND WITHOUT PREJUDICE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

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For the Northern District of California

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This matter comes before the Court on a motion to remand filed by Plaintiff Kirkland

13 Carr and noticed for hearing on June 21, 2010. Because it is clear from Carr's moving 14 papers that the motion must be denied, the Court hereby VACATES the briefing and hearing 15 schedule and now DENIES Carr's motion to remand without prejudice. 16 Defendant Crown Equipment Corporation ("Crown") removed this case on the basis

17 of diversity. Carr does not dispute that he is diverse from Crown, nor does he contend that 18 the removal was otherwise improper. Instead, Carr seeks remand because he intends to name 19 a California citizen as one of the sued Doe Defendants as soon as he learns the relevant 20 individual's name. See Carr Decl. ¶¶ 3-5 (discussing role of an unnamed Crown employee in 21 allegedly causing Carr's injuries). However, as Carr acknowledges, 28 U.S.C. § 1441 22 provides that, "[f]or purposes of removal . . ., the citizenship of defendants sued under 23 fictitious names shall be disregarded." Thus, until a non-diverse defendant is named, the 24 Court has no basis to remand this case. 25 Once Carr learns the identity of the Crown employee he seeks to sue in this case,

26 either through formal discovery or otherwise, he may file a motion seeking joinder of that 27 individual. This Court has discretion to deny joinder of a diversity-destroying defendant or 28 to grant joinder and remand this action. Newcombe v. Adolf Coors Co., 157 F.3d 686,

1 690-91 (9th Cir. 1998); 28 U.S.C. § 1447(e). The Court encourages the parties to meet and 2 confer, prior to the initial case management conference on July 26, 2010, to see if they can 3 reach agreement on whether joinder should be permitted and this case remanded. 4 5 IT IS SO ORDERED. 6 7 Dated: 05/25/10 8 9 10 THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

United States District Court

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For the Northern District of California

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