Giles v. National Express Transit Corporation

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 TELEIA GILES, Case No. 1:22-cv-00257-JLT-BAM

12 Plaintiff,

13 v. ORDER DENYING MOTION TO REMAND

14 NATIONAL EXPRESS TRANSIT (Doc. 9)

CORPORATION, et al.,

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Defendants.

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18 I. INTRODUCTION

19 This state law employment/disability discrimination case was removed to this Court on

20 March 2, 2022 based upon an allegation of diversity jurisdiction. (See Doc. 1.) Before the Court

21 for decision is Plaintiff’s motion to remand, which is premised upon the argument that individual

22 Defendant Janice Curre is a citizen of California and therefore that complete diversity does not

23 exist. (Doc. 9.) Defendant opposes remand and argues, alternatively, that Defendant Curre was

24 fraudulently joined. (Doc. 11.) The Plaintiff replied. (Doc. 13.) For the reasons set forth below,

25 the motion to remand is DENIED.

26 II. DISCUSSION

27 A. General Removal Standards and Burdens

28 A defendant may remove a civil action from state to federal court so long as jurisdiction

1 originally would lie in federal court. 28 U.S.C. § 1441(a). A case is removable on diversity

2 grounds if diversity of citizenship can be ascertained from the face of plaintiff’s complaint, or this

3 fact is disclosed in other pleadings, motions, or papers “from which it may . . . be ascertained that

4 the case is one which is or has become removable.” 28 U.S.C. § 1446(b). For removal purposes,

5 diversity must exist both at the time the action was commenced and at the time of removal. See

6 Strotek Corp. v. Air Transport Ass’n of America, 300 F.3d 1129, 1131 (9th Cir. 2002). The

7 removing party bears the burden of proof. Abrego v. The Dow Chem. Co., 443 F.3d 676, 684 (9th

8 Cir. 2006) (noting the “near-canonical rule that the burden on removal rests with the removing

9 defendant”). The removal statutes are to be strictly construed, and any doubts as to the right of

10 removal must be resolved in favor of remanding to state court. See Shamrock Oil & Gas Corp. v.

11 Sheets, 313 U.S. 100, 108-09 (1941); Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252

12 (9th Cir. 2006).

13 While the initial notice of removal “need not contain evidentiary submissions,” Dart

14 Cherokee Basin Operating Co., LLC v. Owens (Dart Cherokee), 574 U.S. 81, 84 (2014), removal

15 allegations only remain undisturbed until “contested by the plaintiff or questioned by the court.”

16 Id. at 87–88. Once the plaintiff has challenged removal, as here, by moving to remand, “both

17 sides submit proof and the court decides” whether jurisdiction has been met by a preponderance

18 of the evidence. Id. at 88. The type of evidence to be submitted by the parties “includ[es]

19 affidavits or declarations, or other summary-judgment-type evidence,” which prevents the

20 establishment of “removal jurisdiction by mere speculation and conjecture.” Ibarra v. Manheim

21 Inv., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015) (internal citations and quotations omitted).

22 However, the Ninth Circuit has observed, “the Supreme Court [in Dart Cherokee] did not decide

23 the procedure for each side to submit proof on remand,” and indicated that determination of “a

24 reasonable procedure” in which “each side has a fair opportunity to submit proof” remains within

25 the province of the district courts. Id. at 1200.

26 The Ninth Circuit has also carefully distinguished a plaintiff’s challenge to removal

27 jurisdiction based on a “facial” versus “factual” attack. See Salter v. Quality Carriers, Inc., 974

28 F.3d 959, 964–65 (9th Cir. 2020). A “facial” attack accepts the truth of the defendant’s

1 allegations but asserts that they are “insufficient on their face to invoke federal jurisdiction.” Id. at

2 964 (citations and internal quotations omitted). A factual attack “contests the truth of the . . .

3 allegations” themselves. Id. It is possible for a plaintiff to assert a factual challenge to removal

4 jurisdiction without submitting rebuttal evidence, where the challenge successfully shows the

5 defendant has not met its preponderance burden. Harris v. KM Industries, Inc., 980 F.3d 694, 700

6 (9th Cir. 2020). This approach is akin to the procedure in the summary judgment context

7 whereby, if the party with the initial burden of production fails to carry its burden, the other party

8 “has no obligation to produce anything.” See Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos.,

9 Inc., 210 F.3d 1099, 1102–03 (9th Cir. 2000); see also Celotex Corp. v. Catrett, 477 U.S. 317,

10 324 (1986) (where the nonmoving party bears the burden of proof on a dispositive issue, motion

11 for summary judgment may be made “with or without supporting affidavits”). Thus, a plaintiff is

12 not required to submit rebuttal evidence to factually challenge defendant’s removal assumptions.

13 See Harris, 980 F.3d at 700; Ibarra, 775 F.3d at 1199. Rather, the defendant bears “the burden of

14 establishing removal,” Abrego, 443 F.3d at 685, 692, and this preponderance burden does not

15 shift to the plaintiff at any time. Id.; Harris, 980 F.3d at 701. Therefore, while the plaintiff may

16 rebut defense evidence with his own evidence under Dart Cherokee, doing so is not necessary to

17 prevail on a motion for remand. Harris, 980 F.3d at 700. Nevertheless, if the plaintiff declines to

18 submit any evidence when moving to remand and elects to rest solely on the facial or factual

19 arguments that defendant has not met its preponderance burden, he does so at his own risk. This is

20 because a court’s determination of whether the removal burden is met is based on a

21 preponderance of all the evidence. See Arias v. Residence Inn by Marriott, 936 F.3d 920, 925 (9th

22 Cir. 2019) (quoting Dart Cherokee, 574 U.S. at 88) (when removal is challenged, “both sides

23 submit proof and the court decides, by a preponderance of the evidence” whether the elements of

24 removal have been satisfied).

25 B. Diversity of Citizenship

26 Section 1332 requires complete diversity of citizenship. 28 U.S.C. § 1332(a). The

27 presence “of a single plaintiff from the same State as a single defendant deprives the district court

28 of original diversity jurisdiction over the entire action.” Abrego, 443 F.3d at 679 (citations

1 omitted). A “natural person’s state citizenship is [ ] determined by her state of domicile, not her

2 state of residence.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (a person’s

3 residency, alone, does not establish domicile and cannot establish citizenship for diversity

4 jurisdiction purposes). “A person’s domicile is her permanent home, where she resides with the

5 intention to remain or to which she intends to return.” Id.

6 In its notice of removal, Defendant alleges “[u]pon information and belief, Defendant

7 Janice Curre is not a citizen of California.” (Doc. 1, ¶ 14.) Plaintiff challenges this allegation

8 factually, asserting that “it is evident” on the available facts that Defendant Curre is domiciled in

9 California. (Doc. 9 at 12.)1 Specifically, Plaintiff points to the following pieces of evidence.

10 • A June 2, 2021 termination letter sent to Plaintiff, in which Defendant Curre

11 represented herself as the General Manager of Defendant in Modesto. (See Decl.

12 of Lior Barkodar, Ex. G, Doc. 9-8.)

13 • A local news article from the Modesto Bee dated January 17, 2021, which refers to

14 Defendant Curre as the general manager for “Modesto Area Express” National

15 Express Transit in Modesto. (Id. Exh. F, Doc. 9-7.)

16 • Defendant Curre’s LinkedIn profile, which as of March 31, 2022 (the date of the

17 filing of Plaintiff’s motion to Remand) still listed her location as Modesto,

18 California, and her occupation as General Manager of National Express Transit in

19 Modesto, California. (Id., Exh. C, Doc. 9-4.)

20 In response, Defendant presents a declaration from Defendant Curre indicating that she

21 moved to Illinois in November 2021. (Doc. 11-1, ¶ 2.) Ms. Curre states under penalty of perjury

22 that she “work[s] in Illinois and currently has a long-term lease on an apartment in Illinois.” (Id.,

23 ¶ 3.) She further indicates that she does not own real property in California, has not worked or

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1 To the extent Plaintiff suggests that the case should be remanded simply because the notice of removal alleges only

25 that Ms. Curre was “not a citizen of California” as opposed to alleging she was a citizen of a particular state other

than California, the Court declines to remand on this basis because Defendant can cure this deficiency by asserting

26 Ms. Curre’s asserted state of citizenship—Illinois. See, e.g., Kanter v. Warner-Lambert Co., 265 F.3d 853, 857–58

(9th Cir. 2001) (Though “a party seeking to invoke diversity jurisdiction should be able to allege affirmatively the

27 actual citizenship of the relevant parties,” a defendant should be allowed to cure such defects in an amended notice of

removal.); see also Barbosa v. Transp. Drivers, Inc., No. ED CV 15-1834-DMG(DTBx), 2015 WL 9272828, at *3

28 (C.D. Cal. Dec. 18, 2015)(“Because Transport Drivers can cure the deficiency in its Notice of Removal by asserting

1 otherwise earned income in California since 2021, and intends to continue residing in Illinois.

2 (Id., ¶¶ 3–5.)

3 In reply, Plaintiff does not contest the veracity of these assertions but instead claims they

4 are insufficient because the declaration “does not provide any further details, such as where

5 Defendant Curre votes, holds a driver’s license, maintains financial accounts, where she works,

6 where her vehicle is registered, or where she pays taxes.” (Doc. 13 at 13.) Plaintiff maintains it is

7 unclear, therefore, whether Defendant Curre merely resides in Illinois transiently, or whether she

8 is domiciled there. (Id.)

9 Plaintiff is correct that certain objective facts are used by courts to determine a stated

10 intent to remain in a particular place for purposes of domicile, including “current residence,

11 voting registration and voting practices, location of personal and real property, location of

12 brokerage and bank accounts, location of spouse and family, membership in unions and other

13 organizations, place of employment or business, driver’s license and automobile registration, and

14 payment of taxes.” Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986). When in conflict with the

15 facts, “mere statements of intent are entitled to little weight.” Pagecom, Inc. v. Sprint Sols., Inc.,

16 No. C18-5495 BHS, 2018 WL 4026361, at *1 (W.D. Wash. Aug. 23, 2018) (citing Lew, 797 F.2d

17 at 750) (noting that multiple Lew factors were in conflict with one another and therefore applying

18 the presumption in favor of a previously established domicile). A case cited by Plaintiff,

19 Mardikian v. Golden Eagle Ins. Corp., No. C 13-02981 WHA, 2013 WL 4532454, at *2 (N.D.

20 Cal. Aug. 26, 2013), provides an example of how the relevant analysis might proceed in practice.

21 In Mardikian, the defendant corporation submitted a declaration through an officer indicating that

22 it did business in more than one state; that its “principal place of business” was Boston; that

23 Boston was the primary location of its books and records; and that all nine of its principal officers

24 were located in the Boston office, where they conducted their board meetings. Id. Though the

25 court found this declaration “self-serving,” it accepted it as “some evidence” of the company’s

26 domicile. Id. However, other evidence suggested the company still conducted its business

27 exclusively in California. Id. at *3. Given that doubts are to be resolved against the exercise of

28 federal jurisdiction, the court found that the company was a citizen of California. Id.

1 Here, however, the Court sees no clear conflict in the objective Lew factors. As Ms.

2 | Curre’s Declaration indicates, she currently resides in Illinois, has a long-term lease on property

3 | there, works there, and intends to remain in Illinois. Most of the contrary evidence suggesting

4 | California domicile presented by Plaintiff dates to early-to-mide 2021, which is before the

5 | Complaint in this case was filed on January 22, 2022 (see Doc. 4-1) and well before the March

6 | 2022 notice of removal. (Doc. 1.) The sole exception is Ms. Curre’s Linked In profile, which, at

7 | least as of the date of the filing of the motion to remand, still listed California as Ms. Curre’s

8 || place of employment. However, there is no indication as to when that profile information was last

9 | updated. Even assuming Ms. Curre’s declaration could be labeled as “self-serving,” it 1s not

10 | contradicted by competent evidence reflective of her California domicile during the relevant

11 | timeframe. As mentioned, for removal purposes, diversity must exist both at the time the action

12 || was commenced and at the time of removal. Strotek, 300 F.3d at 1131. The Court finds that the

13 || evidence preponderates in favor of a finding that Ms. Curre’s domicile at the relevant times was

14 |} Illinois. As a result, complete diversity exists and subject matter jurisdiction in this forum is

15 | proper.” The Court therefore finds it unnecessary to address the alternative Defense argument that

16 | Ms. Curre has been fraudulently joined.

17 Hil. CONCLUSION AND ORDER

18 For the reasons set forth above, the motion to remand (Doc. 9) is DENIED.

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20 IT IS SO ORDERED.

| Dated: _Mareh 29, 2023 Charis [Tourn

TED STATES DISTRICT JUDGE

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28 > There is no dispute that the $75 000 amount in controversy requirement has been met. (See Doc.

4-1, | 194 (requesting $7 million in damages).)