Omega et al v. Wells Fargo & Co.,

Filing 63

NOTICE OF TENTATIVE RULING AND QUESTIONS FOR HEARING. Signed by Judge Jeffrey S. White on February 22, 2012. (jswlc3, COURT STAFF) (Filed on 2/22/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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FLORENCIO L. OMEGA, et al.,

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For the Northern District of California

United States District Court

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No. C 11-02621 JSW
NOTICE OF TENTATIVE
RULING AND QUESTIONS FOR
HEARING

Plaintiffs,
v.
WELLS FARGO & CO., et al.,
Defendants.
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE

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NOTICE OF THE FOLLOWING TENTATIVE RULING AND QUESTIONS FOR THE

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HEARING SCHEDULED ON FEBRUARY 24, 2012, AT 9:00 A.M.:

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The Court has reviewed the parties’ papers and, thus, does not wish to hear the parties

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reargue matters addressed in those pleadings. If the parties intend to rely on authorities not

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cited in their briefs, they are ORDERED to notify the Court and opposing counsel of these

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authorities reasonably in advance of the hearing and to make copies available at the hearing. If

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the parties submit such additional authorities, they are ORDERED to submit the citations to the

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authorities only, with reference to pin cites and without argument or additional briefing. Cf.

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N.D. Civil Local Rule 7-3(d). The parties will be given the opportunity at oral argument to

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explain their reliance on such authority. The Court suggests that associates or of counsel

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attorneys who are working on this case be permitted to address some or all of the Court’s

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questions contained herein. Apart from citations to authorities as permitted above, the parties

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shall not submit written responses in response to this Notice of Tentative Ruling.

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The Court tentatively denies Plaintiff’s motion to remand, because it tentatively finds

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that Wells Fargo Bank, N.A. was the intended defendant and, therefore, properly removed the

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action. However, because the Court has further questions regarding subject matter jurisdiction,

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it shall reserve issuing a tentative ruling on Plaintiffs’ motion for a temporary restraining order.

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The parties shall have twenty (20) minutes to address the following question:

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1.

Although the parties continue to dispute whether Wells Fargo & Company was
fraudulently joined, at this stage it appears that the proper analysis is whether the
Court should permit Plaintiffs to add Wells Fargo & Company as a defendant.
See 28 U.S.C. § 1447(e). Pursuant to Section 1447(e), the Court retains
discretion to determine whether or not to permit joinder. See, e.g., Newcombe v.
Adolf Coors Co., 157 F.3d 686, 691 (9th Cir. 1998).

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For the Northern District of California

United States District Court

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The Court may consider the following factors to determine whether it should
permit Plaintiffs to add Wells Fargo & Company: (1) whether Wells Fargo &
Company is required for just adjudication and would be joined under Fed. R.
Civ. P. 19(a); (2) whether the statute of limitations would bar an action against
Wells Fargo & Co in state court; (3) whether the joinder is untimely, or there has
been an unexplained delay in Plaintiffs’ request; (4) whether joinder is intended
solely to destroy diversity jurisdiction, (5) whether the claims against the Wells
Fargo & Company appear valid; and (6) whether Plaintiffs would be prejudiced
if the Court denies them leave to amend. See, e.g., IBC Aviation Servs., Inc. v.
Compania Mexicana de Aviacion, SA de CV, 125 F. Supp. 2d 1008, 1011 (N.D.
Cal. 2000).

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a.

What is Plaintiffs’ best argument that the Court should permit them to
join Wells Fargo & Company and remand this action to state court?

b.

Conversely, what is Defendants’ best argument that the Court should not
permit Plaintiff to add Wells Fargo & Company as a defendant and
should retain jurisdiction over this action?

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IT IS SO ORDERED.
Dated: February 22, 2012
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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