Ramirez v. Home Depot U.S.A., Inc. et al

Filing 12

ORDER Granting 6 Motion to Remand to State Court (Certified copy sent to State Court via US Mail Service.) Signed by Judge Cathy Ann Bencivengo on 2/26/2018. (All non-registered users served via U.S. Mail Service)(jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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REGULO RAMIREZ,

Case No.: 3:17-CV-2341 CAB MDD
Plaintiff,

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v.

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ORDER GRANTING MOTION TO
REMAND

HOME DEPOT U.S.A., INC. and ALMA
ALVARADO,

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Defendants.

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Plaintiff claims that he was injured by a forklift being operated negligently by a

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Home Depot employee in the parking lot of Home Depot store located in Encinitas,

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California. He initially filed this lawsuit in San Diego County Superior Court, naming only

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Home Depot as a defendant. Before serving Home Depot, Plaintiff amended his complaint

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to add defendant Alma Alvarado, whom he believes was a Home Depot manager

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responsible for the supervision and training of the forklift driver.

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After being served with the state court complaint, Home Depot timely filed a notice

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of removal, arguing that this Court has diversity jurisdiction because Plaintiff and Home

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Depot are diverse, and that Alvarado is a “sham defendant” whose citizenship should be

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disregarded because Home Depot’s records do not show anyone named Alma Alvarado

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3:17-CV-2341 CAB MDD

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who worked at the Encinitas store on the date of the incident. Plaintiff now moves to

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remand, arguing that Alvarado is not a sham defendant.

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“Joinder of a non-diverse defendant is deemed fraudulent, and the defendant's

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presence in the lawsuit is ignored for purposes of determining diversity, ‘[i]f the plaintiff

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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.’” Morris v. Princess Cruises, Inc., 236 F.3d 1061,

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1067 (9th Cir. 2001) (quoting McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th

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Cir. 1987)). “If there is any possibility that the state law might impose liability on a resident

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defendant under the circumstances alleged in the complaint, or in a future amended

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complaint, the federal court cannot find that joinder of the resident defendant was

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fraudulent, and remand is necessary.” Revay v. Home Depot U.S.A., Inc., No. 2:14-CV-

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03391-RSWL, 2015 WL 1285287, at *3 (C.D. Cal. Mar. 19, 2015) (internal quotation

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marks omitted). “There is a presumption against finding fraudulent joinder, and defendants

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who assert that plaintiff has fraudulently joined a party carry a heavy burden of

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persuasion.” Plute v. Roadway Package Sys., Inc., 141 F. Supp. 2d 1005, 1008 (N.D. Cal.

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2001). “Fraudulent joinder must be proven by clear and convincing evidence.” Hamilton

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Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007).

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Here, Home Depot’s argument and evidence that Alvarado did not work for Home

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Depot on the date of the incident does not satisfy its heavy burden. The Court is not

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convinced that there is no possibility that Alvarado was a Home Depot manager or that

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Plaintiff will be able to establish a cause of action in state court against Alvarado if she

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was in fact a manager at Home Depot on the date of the incident. See Revay, 2015 WL

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1285287 (rejecting Home Depot’s argument that manager of store where injury occurred

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was a sham defendant). Moreover, even if Plaintiff mis-identified the store manager, it is

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likely that he would be able to amend the complaint to add the actual manager, not to

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mention the fork-lift driver, as defendants, both of whom would likely defeat diversity.

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Accordingly, considering that removal jurisdiction is strictly construed in favor of remand,

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Home Depot has not met its burden of demonstrating that Alvarado is a sham defendant.
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3:17-CV-2341 CAB MDD

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See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (“Federal jurisdiction must be

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rejected if there is any doubt as to the right of removal in the first instance.”).

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Because Alvarado is not diverse from Plaintiff, Plaintiff’s motion to remand is

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GRANTED, and this case is REMANDED to San Diego County Superior Court. Because

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Home Depot’s arguments for removal were not objectively unreasonable, the Court

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declines to award fees to Plaintiff. The Clerk of Court shall CLOSE this case.

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It is SO ORDERED.
Dated: February 26, 2018

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3:17-CV-2341 CAB MDD