United States District Court, D. Nevada
J. Dawson United States District Judge.
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).
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.
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.
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.
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).
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.
Standard for removal
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).
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.
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.
Just adjudication and joinder under Federal Rules of ...