Karen Barnes v. Costco Wholesale Corporation

UNITED STATES DISTRICT COURT JS-6 / REMAND

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV 19-7977-DMG (JPRx) Date December 4, 2019

Title Karen Barnes v. Costco Wholesale Corp., et al. Page 1 of 4

Present: The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

KANE TIEN NOT REPORTED

Deputy Clerk Court Reporter

Attorneys Present for Plaintiff(s) Attorneys Present for Defendant(s)

None Present None Present

Proceedings: IN CHAMBERS - ORDER RE PLAINTIFF’S MOTION TO REMAND [10]

I.

BACKGROUND

Plaintiff Karen Barnes parked her car at a gas station owned by Defendant Costco

Wholesale Corporation on April 18, 2017. Complaint [Doc. # 1-1] at ¶ 10. She alleges in her

Complaint that, as she got out of her car and walked towards her car’s fuel tank, she slipped on a

pool of gasoline “that could not be seen by the naked eye” and fell. Id. A man came to help

Plaintiff and “informed a Costco employee of the incident.” Id. The employee told Plaintiff that

“prior to the incident, [he] had been informed of the spilled gasoline but had no time to get it

cleaned up.” Id. Plaintiff claims that she “suffered serious injuries and damages” as a result of

her fall. Id.

She filed this suit on April 19, 2019 in Ventura County Superior Court against Costco and

the employee, whom she identified as a “Doe Employee.” See id. The Complaint alleges that,

while Costco is a corporate citizen of Washington, both she and the Doe Employee are “residents

of this judicial district.”1 Id. at ¶¶ 1-3.

Costco removed the action to this Court on September 13, 2019. Notice of Removal [Doc.

# 1]. The Notice of Removal claims that the Court has diversity jurisdiction over the action

because Plaintiff and Costco are diverse and Plaintiff’s statement of damages indicates that she

seeks over $575,000 in general damages, past medical expenses, and other costs. Notice of

Removal at ¶¶ 5-8. Plaintiff now moves to remand the action to Ventura County Superior Court.

Motion to Remand (“MTR”) [Doc. # 10.] The MTR is fully briefed. [Doc. ## 13 (“Opp.”), 15

(“Reply”).]

1 Given that Plaintiff filed this action in Ventura County Superior Court, the Court understands these

allegations to mean that both she and the employee reside in Ventura County, California.

UNITED STATES DISTRICT COURT JS-6 / REMAND

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV 19-7977-DMG (JPRx) Date December 4, 2019

Title Karen Barnes v. Costco Wholesale Corp., et al. Page 2 of 4

II.

LEGAL STANDARD

Defendants may remove a case filed in a state court to a federal court if the federal court

would have original jurisdiction over the case. 28 U.S.C. § 1441. Diversity jurisdiction under 28

U.S.C. section 1332 requires that all plaintiffs in a suit be of diverse citizenship from all

defendants. Diaz v. Davis (In re Digimarc Corp. Derivative Litig.), 549 F.3d 1223, 1234 (9th Cir.

2008) (citing Strawbridge v. Curtiss, 7 U.S. 267, 267 (1806)) (“Diversity jurisdiction requires

complete diversity between the parties—each defendant must be a citizen of a different state from

each plaintiff.”). There is a “strong presumption against removal jurisdiction,” and courts must

reject it “if there is any doubt as to the right of removal in the first instance.” Geographic

Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010) (quoting

Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)) (internal quotation marks

omitted); Luther v. Countrywide Home Loans Servicing LP, 533 F.3d 1031, 1034 (9th Cir. 2008)

(any “doubt is resolved against removability”). The party “seeking removal has the burden to

establish that removal is proper” and the “burden of establishing federal subject matter

jurisdiction.” Id.; Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 944 (9th

Cir. 2009) (citing Toumajian v. Frailey, 135 F.3d 648, 652 (9th Cir. 1998)).

III.

DISCUSSION

Plaintiff contends that the Court should remand this action because the Doe Employee’s

California citizenship destroys complete diversity and Plaintiff’s statement of damages is

insufficient, in and of itself, to establish that there is more than $75,000 in controversy. See MTR.

Costco argues against Plaintiff’s first contention primarily by relying on the text of section

1141, which states that “[i]n determining whether a civil action is removable on the basis of the

jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious

names shall be disregarded.” Opp. at 2-3 (citing 28 U.S.C. § 1441(b)(1)). According to Costco,

that language requires the Court to disregard the Doe Employee’s citizenship and determine that

Plaintiff and Costco are completely diverse. A review of the case law interpreting section 1441

reveals that Costco’s characterization of its import is overly simplistic.

As the court in Gardiner Family, LLC v. Crimson Resource Management Corporation

explained, the interplay of two seemingly incompatible Ninth Circuit decisions, a congressional

amendment of section 1441(b)(1), and the subsequent vacatur of another series of Ninth Circuit

decisions has made circuit authority governing whether courts may consider the citizenship of

UNITED STATES DISTRICT COURT JS-6 / REMAND

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV 19-7977-DMG (JPRx) Date December 4, 2019

Title Karen Barnes v. Costco Wholesale Corp., et al. Page 3 of 4

fictitious defendants for removal jurisdiction purposes “unworkable and ‘riddled with

exceptions.’” 147 F. Supp. 3d 1029, 1035 (E.D. Cal. 2015) (citing Bryant v. Ford Motor Co., 844

F.2d 602, 605 (9th Cir. 1987), vacated, 886 F.2d 1526 (9th Cir. 1989)). After an in-depth and

well-reasoned analysis, the Gardiner Family court synthesized several of those exceptions into the

following rule statement: “[t]he question . . . becomes whether the Plaintiffs’ description of Doe

defendants or their activities is specific enough as to suggest their identity, citizenship, or

relationship to the action.” Id. at 1035-36. Subsequent decisions within the circuit have applied

that rule in examining whether to remand cases involving non-diverse Doe Defendants. See, e.g.,

Sandoval v. Republic Servs., Inc., 2018 WL 1989528, at *3 (C.D. Cal. Apr. 24, 2018) (holding that

courts should consider Doe Defendants’ citizenship especially “when a named defendant knew or

should have known the fictitious defendant’s identity because that defendant employed the

fictitiously named defendant.”); Collins v. Garfield Beach CVS, LLC, 2017 WL 2734708, at *2

(C.D. Cal. June 26, 2017) (“[W]hen a plaintiff's allegations give a definite clue about the identity

of the fictitious defendant by specifically referring to an individual who acted as a company’s

agent, the court should consider the citizenship of the fictitious defendant.”) (citing Brown v.

TranSouth Fin. Corp., 897 F. Supp. 1398, 1401 (M.D. Ala. 1995)); c.f. Gardiner Family, 147 F.

Supp. 3d at 1036 (declining to consider Doe Defendant’s citizenship because “the charges against

the Does are so general that no clues exist as to their identity, citizenship, or relationship to the

action”).

Here, Plaintiff has plainly alleged a reasonable indication of the Doe Employee’s identity,

relationship to the action, and citizenship. See Compl. at ¶¶ 2-4, 10 (alleging that: (1) the Doe

Employee resides in Ventura County, California; (2) the Doe Employee worked at the Costco gas

station located at 2001 East Ventura Boulevard, Oxnard, California on April 18, 2017; (3) the Doe

Employee would have been in charge of cleaning up gas spills; (4) and the Doe Employee allegedly

contributed to Plaintiff’s injuries by failing to clean up the spill on which Plaintiff slipped). Given

that the Doe Employee is likely readily identifiable based on this information, the Court agrees

with Collins that it would be “unfair” to force Plaintiff from her chosen forum into federal court

by allowing Costco “to plead ignorance about the defendant-employee’s identity” when it “was in

a position to know that information.” Collins, 2017 WL 2734708, at *2.

Since persuasive authority indicates that the Court may consider the Doe Employee’s

citizenship for purposes of diversity jurisdiction, and Plaintiff’s allegations are sufficient to

demonstrate that she and the Doe Employee are both California citizens, complete diversity does

not exist and the Court lacks subject matter jurisdiction over this action.2

2 Given the Court’s determination that complete diversity does not exist, the Court need not address Plaintiff’s

argument that Defendant has not satisfied the amount in controversy requirement.

UNITED STATES DISTRICT COURT JS-6 / REMAND

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV 19-7977-DMG (JPRx) Date December 4, 2019

Title Karen Barnes v. Costco Wholesale Corp., et al. Page 4 of 4

IV.

CONCLUSION

In light of the foregoing, the Court GRANTS Plaintiff’s MTR. The action is hereby

REMANDED to the Ventura County Superior Court.

IT IS SO ORDERED.