ORDER GRANTING PLAINTIFFS MOTION TO REMAND [DOC. 19]
JENNIFER A. DORSEY, UNITED STATES DISTRICT JUDGE.
Plaintiff Gabriela Resendez moves to remand this twice-removed personal-injury case to Nevada state court, arguing that complete diversity of citizenship does not exist because Nevada residents are present on both sides of the litigation. Doc. 19. Although defendant Smith's Food & Drug Centers, Inc., complains that Nevada resident Ryan Overbey was fraudulently joined as a defendant to this suit, I find the allegations levied against him sufficient to demonstrate that he could be held directly liable for Resendez's alleged accident, making him a proper defendant in this case. But while I will remand this case to Nevada's Eighth Judicial District Court, I decline to award Resendez the sanctions she requests against Smith's because Smith's correctly observes that it had no opportunity to present its fraudulent joinder arguments to the trial court before the initial remand of this case, and its petition for removal was not entirely frivolous.
On January 13, 2014, Resendez, a Nevada resident, sued, inter alia, Smith's and a Doe defendant whom Smith's employed. Doc. 1-1. She claimed that on or about July 14, 2012, while shopping in a Las Vegas based Smith's, she slipped and fell "on a slippery foreign substance, " sustaining personal injuries. Doc. 1-1 at 3. She alleged that the Doe employee "failed to act reasonably and to follow known safety procedures and failed to inspect, maintain, clean and/or warn of the dangerous slippery substance and is independently liable to [her] for proximately causing the injuries alleged herein, " and that Smith's is liable for the actions of its agents under a respondeat superior theory. Id. at 4-5. She also alleged that Smith's is liable for negligent training, hiring, and supervision. Id. at 5-6.
On February 6, 2014, Smith's removed this action, claiming federal jurisdiction existed based upon diversity of citizenship. Doc. 1 in No. 14-cv-201-APG-NJK. Resendez moved both to remand (Doc. 7) and to amend her complaint (Doc. 17). Resendez argued, in connection with her motion for leave to amend, that discovery revealed the Doe defendant named in her negligence count was Ryan Overbey, a Nevada resident. Doc. 17 at 1-2. On April 4, 2014, U.S. District Judge Andrew Gordon granted Resendez's motion to amend her complaint, which added Overbey as a party and consequently destroyed federal jurisdiction. Doc. 20 at 2-3. Judge Gordon then remanded the case. Smith's request for reconsideration-arguing that Overbey was fraudulently joined-was denied. Doc. 22.
On January 12, 2015, Smith's removed the case once again and argues that Overbey had been fraudulently joined. 15-cv-61-JAD-PAL, Doc. 1. Resendez has now moved to remand the matter to Nevada state court, and for attorney's fees for having to revisit the remand issue. Doc. 19.
A. Motion to Remand
U.S.C. § 1441(b) allows removal to federal court based on diversity of citizenship. Under 28 U.S.C. § 1332(a)(1), "[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between citizens of different states." If the court finds that the parties to the suit are not diverse, it should remand the case to state court under 28 U.S.C. § 1447(c).
"Federal courts are courts of limited jurisdiction." There is a strong presumption against removal jurisdiction and "federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Therefore the defendant always has the burden of establishing that removal is proper. A fraudulent joinder does not defeat diversity. "Joinder of a non-diverse defendant is deemed fraudulent, and the defendant's presence in the lawsuit is ignored for purposes of determining diversity, if the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state." The party asserting fraudulent joinder must overcome "both the strong presumption against removal and the general presumption against fraudulent joinder."
Smith's argues that, under Nevada negligence law, Overbey was fraudulently joined because he does not owe a legal duty to Resendez. Doc. 1 at 9. Resendez argues that Overbey was undisputably an employee of Smith's, and that discovery has revealed that he "was the employee designated by Smith's and directly responsible for cleaning and inspecting the area of the premises where Plaintiff slipped and fell immediately prior to the fall, " thus making him directly negligent. Doc. 19 at 4.
"To recover under a negligence theory, the complainant must prove four elements: (1) that defendant owed him a duty of care; (2) that defendant breached this duty of care; (3) that the breach was the legal cause of plaintiff s injury; and (4) that the complainant suffered damages." In Nevada, business proprietors owe their invitees a duty to keep premises safe for their patrons. "The law is clear that if a legal duty exists, reasonable care under the circumstances must be exercised.""Respondeat superior liability attaches only when the employee is under the control of the employer and when the act is within the scope of employment." The issue of whether an employee has acted within the scope of employment is a jury question, regardless of whether the tortious acts are intentional or negligent.
Resendez alleges that Overbey "failed to act reasonably and to follow known safety procedures and failed to inspect, maintain, clean and/or warn of the dangerous slippery substance and is independently liable to Plaintiff for proximately causing the injuries alleged herein." Doc. 1-2 at 6. It is entirely possible that discovery will reveal that Overbey was, himself, negligent, which makes him personally liable to the plaintiff for his own conduct, or it may reveal that Overbey was acting outside the course and scope of his employment such that he, and not Smith's, may be held liable to Resendez. Smith's has failed to overcome the "strong presumption" against removal, and the "general ...