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Lopez v. The Kroger Co.

United States District Court, D. Nevada

July 24, 2017

SONIA LOPEZ, an Individual, Plaintiff,
v.
THE KROGER COMPANY d/b/a SMITH'S FOOD & DRUG CENTERS, INC., an Ohio Corporation; DOE EMPLOYEE I, an Individual; DOES I-X; and ROE BUSINESS ENTITIES XI-XX, inclusive, Defendants.

          ORDER

          Kent J. Dawson United States District Judge.

         Currently before the Court are Plaintiff, Sonia Lopez's, Motions to Amend and Remand (#15/19). Defendant, Smith's Food & Drug Centers, Inc. (“Smith's”), filed a response in opposition (#20), to which Plaintiff replied (#22). Additionally, before the Court, is Plaintiff's Motion for Leave to File a Sur-Reply (#28).

         I. Background

         Lopez was shopping in a grocery store owned by Smith's on or about February 18, 2015. While passing an ice machine, Lopez claims she slipped and fell in a puddle of water. According to Lopez, employees of Smith's knew of the puddle in front of the ice machine and neither cleaned it up nor placed warning signs in the vicinity.

         Lopez subsequently filed a negligence suit in Nevada state court against Smith's and several unidentified “Doe” defendants. Smith's filed a motion to remove the case to this Court based on diversity jurisdiction as Lopez is a citizen of Nevada and Smith's is an Ohio corporation with a principal place of business in Utah. Several of the Doe defendants were presumed by Lopez to be Nevada residents but, because they were initially unidentified, they were not considered for diversity purposes when removing the case.

         Lopez now seeks to amend her complaint to name a Doe defendant, store manager Uriel Venegas. Because Venegas is a Nevada resident, joining her to this action would destroy diversity jurisdiction. Thus, Lopez now seeks to remand the case back to Nevada state court. Smith's contends that joining local employees to this action has no purpose other than destroying diversity and that Venegas is not a necessary party to this litigation pursuant to Rule 19(a) of the Federal Rules of Civil Procedure.

         II. Discussion

         Judges have significant leeway in responding to attempted joinder of nondiverse defendants. Clinco v. Roberts, 41 F.Supp.2d 1080 (C.D. Cal. 1999). According to 28 U.S.C. Section 1447(e), “[i]f after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.” Naming Doe defendants counts as joinder for purposes of Section 1447(e). Casas Office Machines, Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 674 (1st Cir. 1994) (citing legislative history as supporting the conclusion). Courts disallow joinder of non-diverse defendants where those defendants are only tangentially related to the cause of action or would not prevent complete relief. IBC Aviation Servs., Inc. v. Compania Mexicana de Aviacion, S.A. de C.V., 125 F.Supp.2d 1008, 1011-12 (N.D. Cal. 2000) (citations omitted).

         After assessing the validity of the removal, the Court must address two factors when considering a Section 1447(e) amendment: (1) whether the joined party is necessary for just adjudication under Federal Rule of Civil Procedure 19(a); and (2) whether the claims against the joined party seem valid.[1]

         A. Standard for removal

         A defendant or defendants may remove a suit from a state court to federal court only if it could have been filed there originally. See 28 U.S.C. § 1441(a); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Federal district courts have original jurisdiction over cases where the amount in controversy exceeds $75, 000, and where complete diversity exists between the parties. 28 U.S.C. § 1332(a). The citizenship of defendants sued under fictitious names is disregarded for purposes of removal. 28 U.S.C. § 1441(a).

         Removal jurisdiction based on diversity is determined at the time the complaint is filed. See Strotek Corp. v. Air Transp. Ass'n of Am., 300 F.3d 1129, 1131-32 (9th Cir. 2002). Diversity must exist at the time of removal. See Newcombe v. Adolf Coors Co., 157 F.3d 686, 690 (9th Cir. 1998). Federal courts strictly construe the removal statute. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Doubts as to removability are usually resolved against the right of removal and in favor of remanding the case to state courts. See id.; Abada v. Charles Schwab & Co., 68 F.Supp.2d 1160, 1162 (S.D. Cal. 1999).

         At the time of removal, Lopez and Smith's were the only named parties. Lopez is a citizen of Nevada and Smith's is a citizen of Ohio and Utah. Although Doe parties were listed in the complaint, these parties are disregarded for the purposes of removal, pursuant to Section 1441(a). Further, Lopez acknowledged that her medical bills were greater than $97, 000, thus exceeding the $75, 000 threshold for diversity jurisdiction. (#8 at 1). Therefore, diversity jurisdiction existed at the time of removal and removal was proper.

         B. Just adjudication and joinder under Federal Rules of ...


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