Kosley v. Walgreen Company, et al
ORDER; 16 Plaintiff's Motion to Remand to State Court is GRANTED. Thiscase is REMANDED to the District Court, El Paso County, Colorado, where it was filed as Case No. 2015CV033748, by Magistrate Judge Kathleen M. Tafoya on 3/1/16.(morti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 16–cv–00260–KMT
HENRIETTA RUTH KOSLEY,
WALGREEN CO., and
WILLIAM ERVIN BUDNEY, a licensed pharmacist,
This matter is before the court on “Plaintiff’s Motion to Remand to State Court.” (Doc.
No. 16 [“Mot.”], filed February 26, 2016.)
On December 3, 2015, Plaintiff filed a Complaint and demand for jury trial in El Paso
County District Court. (Doc. No. 1-1 (“Comp.”) at 1.) Plaintiff’s complaint alleged that Plaintiff
was a resident of Colorado, Defendant Walgreen Co. was an Illinois corporation, and Defendant
John Doe was an unidentified, licensed pharmacist employed in Colorado Springs, Colorado by
Defendant Walgreen Co. (Id. at 1-2.) On February 3, 2016, Defendant Walgreen Co. filed a
Notice of Removal, claiming this Court has original jurisdiction over this matter pursuant to 28
U.S.C. § 1332. (Doc. No. 1 at 1.)
On February 16, 2016, Plaintiff sought and was granted leave to amend her Complaint in
order to substitute William Ervin Budney for the previously named John Doe Defendant. (Doc.
Nos. 10, 11) Defendant Budney is a citizen of Colorado. (Doc. No. 12 at 1-2.) As a result,
Plaintiff requests the court remand this case back to the El Paso County District Court based on
her contention that this court now lacks subject matter jurisdiction because there is not complete
diversity of citizenship. (Mot. at 1-2.) Defendant Walgreen Co. advised that it takes no position
on Plaintiff’s request. (Id. at 1.)
“Under 28 U.S.C. § 1332(a) the citizenship of all defendants must be different from the
citizenship of all plaintiffs.” McPhail v. Deere & Co., 529 F.3d 947, 951 (10th Cir. 2008).
Under the federal removal statutes, the presence of “John Doe” defendants at the commencement
of an action creates no impediment to removal. See 28 U.S.C. § 1441(a) (“[T]he citizenship of
defendants sued under fictitious names shall be disregarded.”); Australian Gold, Inc. v. Hatfield,
436 F.3d 1228, 1234–35 (10th Cir. 2006) (same). Thus, the diversity of citizenship between
Plaintiff and Defendant Walgreen Co. was sufficient to support the statutory diversity
requirement at the time of removal.
However, with the substitution of Defendant Budney for Defendant John Doe, complete
diversity no longer exists. “[I]f a non-diverse party is added to the complaint at any time prior to
final judgment, the case must be remanded to state court.” McPhail, 529 F.3d at 951. 28 U.S.C.
§ 1447(c) provides that “[i]f at any time before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be remanded.”
Accordingly, it is
ORDERED that “Plaintiff’s Motion to Remand to State Court” is GRANTED. This
case is REMANDED to the District Court, El Paso County, Colorado, where it was filed as Case
Dated this 1st day of March, 2016.
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