Miller v. FedEx Office and Print Services, Inc.

Filing 36

ORDER - For the reasons herein, Miller's Motion to Remand to State Court (ECF No. 13 ), and Motion to Amend/Correct Petition for Removal (ECF No. 16 ) are GRANTED. This action is hereby remanded to the Eighth Judicial District C ourt for the State of Nevada. This Court declines to adjudicate Miller's Motions for Sanctions (ECF No. 24 and 34 ) in the interest of comity. The Clerk of Court is directed to close this case. Signed by District Judge Anne R. Traum on 11/18/2022. (Copies have been distributed pursuant to the NEF - CJS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
BREAUNA MILLER,
v.

Case No. 2:21-cv-01917-APG-BNW
PLAINTIFF,

ORDER

FEDEX
OFFICE
AND
PRINT
SERVICES,
INC.;
A
FOREIGN
CORPORATION, DOE EMPLOYEES;
ROE
DISTRIBUTORS
I-V;
ROE
MANUFACTURERS
I-V;
ROE
DESIGNERS I-V; DOES I THROUGH X;
AND
ROE
CORPORATIONS
I
THROUGH X, INCSLUSIVE
DEFENDANTS.

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I. SUMMARY

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Before the Court are Plaintiff Breauna Miller’s (“Miller”) Motion to Remand to

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State Court (ECF No. 13), Motion to Amend/Correct Petition for Removal (ECF

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No. 16), Motion for Sanctions (ECF No. 24), and Supplemental Motion for

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Sanctions (ECF No. 34). For reasons explained below, this Court GRANTS Miller’s

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Motion to Amend (ECF No. 16) and Motion to Remand (ECF No. 13) and, in the

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interest of comity, declines to decide Miller’s Motion for Sanctions (ECF No. 24)

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and Supplemental Motion for Sanctions (ECF No. 34).

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II. BACKGROUND

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On October 4, 2021, Miller sued Defendant FedEx Office and Print Services,

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Inc. (“FedEx”) in Nevada state court after a shelving rack tipped over onto her at

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a FedEx Express on October 16, 2019, and allegedly injured Miller. (ECF No. 1-2

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at ¶ 12-16). Miller also named Doe employees and Roe manufacturers,

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distributors, and designers. (Id. at ¶ 3). Miller alleged that “Employees Doe”

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included those “Doe/Roe Defendants . . . that caused the shelf to fall over, and

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are residents of Clark County, State of Nevada.” (Id.).

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On October 18, 2021, FedEx filed a petition of removal to remove this action

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to federal court based on diversity jurisdiction. (ECF No. 1 at 1). In her state court

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complaint, Miller alleged she had already incurred expenses “in excess of

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$425,000” and prayed for compensatory damages “in an amount in excess of the

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minimum required amount for access to this court. . . .” in accordance with

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Nevada Rule of Civil Procedure 8. (ECF No. 1-2 at 6, 18). Miller is a citizen of the

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State of Nevada. (ECF No. 1-2 at ¶ 1). FedEx is incorporated in Texas and has its

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principal place of business in Texas. (ECF No. 1 at 1).

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On February 8, 2022, Miller filed a motion to amend her complaint to join as

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named defendants two FedEx employees who were working in the store on the

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day Miller was allegedly injured—Dustin Dupper and Edmund DeJesus. (ECF No.

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12). Miller filed a motion to remand on the same day, arguing that joining Dupper

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and/or DeJesus would defeat diversity jurisdiction as they, like Miller, are

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allegedly residents of the State of Nevada. (ECF No. 13 at 4).

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On February 9, 2022, Magistrate Judge Weksler denied Miller’s motion to

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amend without prejudice and ordered the parties to meet and confer regarding

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Miler’s proposed amended complaint. (ECF No. 14).

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On February 10, 2022, Miller filed a second motion to amend her complaint

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again attempting to join Dupper and DeJesus as named defendants. (ECF No.

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16).

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On February 22, 2022, FedEx responded to Miller’s motion to remand and

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second motion to amend. (ECF No. 18). FedEx argues that Miller “seeks to add a

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non-diverse defendants [sic] to this case to defeat diversity so the case will be

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remanded to state court.” (Id. at 1). FedEx further argues that—although the

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statute of limitations against individual FedEx employees has expired in state

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court—remand is not necessary because the employees were admittedly acting in

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the course of their employment and FedEx would be vicariously liable for their

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actions. (Id. at 4).

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On February 24, 2022, Miller filed her reply—arguing that FedEx’s arguments

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are inapposite as Miller seeks to substitute known defendants for Doe

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defendants, rather than adding new named defendants. (ECF No. 19 at 2-3).

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III.

LEGAL STANDARD

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Under 28 U.S.C. § 1441(a), a defendant may remove a civil action from state

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to federal court if original jurisdiction would lie in the court to which the action

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is removed. City of Chicago v. Int’l College of Surgeons, 522 U.S. 156, 163 (1997).

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Here, the parties agree that this action’s basis for federal jurisdiction—if it exists

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at all—is diversity jurisdiction. Diversity jurisdiction exists where more than

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$75,000 is in controversy and the action is between citizens of different states.

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28 U.S.C. § 1332.

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A plaintiff can challenge removal with a motion to remand. “If after removal

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the plaintiff seeks to join additional defendants whose joinder would destroy

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subject matter jurisdiction, the court may deny joinder, or permit joinder and

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remand the action to the State court.” 28 U.S.C. § 1447(e). “[T]he citizenship of

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fictitious defendants is disregarded for removal purposes and becomes relevant

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only if and when the plaintiff seeks leave to substitute a named defendant.”

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Soliman v. Philip Morris Inc., 311 F.3d 966, 971 (9th Cir. 2002). Allowance of

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substitution and remand is favored “where the plaintiff’s descriptions of the Doe

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defendants ‘provide a reasonable indication of their identity, the relationship to

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the action, and their diversity-destroying citizenship.” Valdez v. Home Depot

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U.S.A., Inc., No. 22-CV-01491-DMR, 2022 WL 4137691 at *3 (N.D. Cal. Aug. 25,

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2022) (quoting Robinson v. Lowe’s Home Centers, LLC, No. 1:15-CV-1321-LJO-

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SMS, 2015 WL 13236883 (E.D. Cal. Nov. 13, 2015)). “Legislative history confirms

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that Congress intended 28 U.S.C. § 1447(e) as a solution to allow joinder of a

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non-diverse Doe defendant.” Id. (citing H.R. Rep. No. 100-889 at 71); see also

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Bartfeld v. AMCO Ins. Co., No. 22-cv-05075-TSH, 2022 WL 16698687 (N.D. Cal.

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Nov. 3, 2022) (citing same).

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The removal statute is strictly construed against removal jurisdiction. Hansen

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v. Group Health Coop., 902 F.3d 1051, 1056 (9th Cir. 2018). “The removing

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defendant bears the burden of overcoming the ‘strong presumption against

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removal jurisdiction.’” Id. at 1057 (citing Geographic Expeditions, Inc. v. Est. of

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Lhotka ex rel. Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010).

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IV. DISCUSSION

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The parties do not dispute that Miller is a citizen of Nevada and Defendant is

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incorporated in Texas and has its principal place of business in Texas. (ECF No.

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1 at 1). Nor is the amount in controversy reasonably in question. Miller’s

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Complaint avers damages in excess of $400,000. (ECF No. 1-2 at 6). Rather, the

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parties dispute whether now-known FedEx employees DeJesus and Dupper can

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be substituted for the Doe Employees identified in Miller’s Complaint.

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Miller’s Complaint identifies then-Does DeJesus and Dupper as “Defendants,

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that caused the shelf to fall over, and are residents of Clark County, State of

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Nevada.” (ECF No. 1-2 at ¶ 3). Citizenship is determined by domicile, which is a

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person’s permanent home—where he resides with the intention to remain or

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where he intends to return. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th

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Cir. 2001). While an allegation of residence alone does not establish citizenship,

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see Rainero v. Archon Corp., 844 F.3d 832, 839 (9th Cir. 2016), here Miller’s

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Complaint at least points to Nevada citizenship for the FedEx employees later

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determined to be DeJesus and Dupper.

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This is not a case where Miller knew of the identities of the Doe defendants,

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neglected to include them in the suit, and only attempted to join them after

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significant delay. See, e.g., 3WL, LLC v. Master Prot., LP, 851 F. Appx. 4, 7 (9th

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Cir. 2021) (“The timing of the motion also raised serious questions about

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ProPortion’s intent to destroy diversity, as ProPortion knew of Fenner’s existence

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when it commenced this suit yet did not seek to join him until FireMaster moved

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to dismiss.”). Rather, here Miller specifically named fictitious defendants who,

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upon information and belief, were residents of the State of Nevada and who

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allegedly caused the shelf to tip over. (ECF No. 1-2 at ¶ 3). Miller only learned of

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the identities of the FedEx employees during discovery and promptly sought

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remand. (ECF No. 16 at 7). Miller’s description of the FedEx Doe employees

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described their identity (FedEx employees), their relation to the action (Miller

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alleges they caused the shelving unit to fall), and their diversity-destroying

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citizenship (as residents of Clark County, Nevada). This is sufficient to allow

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joinder given this Court’s broad discretion to do so. See Valdez, 2022 WL

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4137691 at *3.

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Moreover, surveillance video allegedly shows DeJesus or Dupper on the other

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side of the shelf arranging packages just before it fell. (ECF No. 16 at 8). Other

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judges in this district have found substitution of Doe employees appropriate when

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the Doe defendant Plaintiff sought to substitute had a “direct relationship to the

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injury. . . .” McClendon v. Walmart, Inc., No. 2:20-CV-00474-JAD-DJA, 2020 WL

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3268734 at *3 (D. Nev. June 17, 2020) (citing Patton v. Wal-Mart Stores, Inc., No.

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2:16-CV-244-JCM-VCF, 2016 WL 7378989 (D. Nev. Dec. 19, 2016); Lieberman v.

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Wal-Mart Stores, Inc., No. 2:12-CV-1650 JCM PAL, 2013 WL 596098 (D. Nev. Feb.

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15, 2013)).

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Given that the statute of limitations in state court have expired (ECF No. 18

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at 4:20) such that Miller could not sue DeJesus and Dupper in state court,

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Miller’s lack of delay in filing her motions to remand and amend, Miller’s specific

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inclusion of the Doe FedEx Employee defendants in her complaint, and the

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proximity of Dupper and DeJesus to the incident that allegedly caused Miller’s

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injuries, FedEx has not overcome its burden given the “strong presumption

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against removal jurisdiction.” Geographic Expeditions, Inc., 599 F.3d at 1107.

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Therefore, this Court GRANTS Miller’s Motion to Amend (ECF No. 16). Given

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that joining Dupper and DeJesus defeats diversity jurisdiction, this Court must

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also GRANT Miller’s Motion to Remand (ECF No. 13).

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As this Court lacks subject matter jurisdiction and is granting Miller’s motion

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to remand, principles of comity require this Court to allow the Nevada state court

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to address Miller’s motions for sanctions (ECF Nos. 24, 34).

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V. CONCLUSION

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For the foregoing reasons, Miller’s Motion to Remand to State Court (ECF No.

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13), and Motion to Amend/Correct Petition for Removal (ECF No. 16) are

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GRANTED.

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This action is hereby remanded to the Eighth Judicial District Court for the

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State of Nevada. This Court declines to adjudicate Miller’s Motions for Sanctions

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(ECF No. 24 and 34) in the interest of comity.

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The Clerk of Court is directed to close this case.

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IT IS SO ORDERED.

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DATED THIS 18th day of November 2022.

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ANNE R. TRAUM
UNITED STATES DISTRICT JUDGE

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