Gail Rubio v. CVS Pharmacy, Inc.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. EDCV 25-106-KK-DTBx Date: March 7, 2025

Title:

Present: The Honorable KENLY KIYA KATO, UNITED STATES DISTRICT JUDGE

Noe Ponce Not Reported

Deputy Clerk Court Reporter

Attorney(s) Present for Plaintiff(s): Attorney(s) Present for Defendant(s):

None Present None Present

Proceedings: (In Chambers) Order DENYING Plaintiff’s Motion to Remand [Dkt. 14]

I.

INTRODUCTION

On June 12, 2024, plaintiff Gail Rubio (“Plaintiff”) filed a First Amended Complaint

(“FAC”) against defendants CVS Pharmacy, Inc. and Garfield Beach CVS, LLC (collectively,

“Defendants”) in San Bernardino County Superior Court, arising from allegations Plaintiff sustained

injuries while shopping at Defendants’ store. ECF Docket No. (“Dkt.”) 1-2, Ex. A, FAC. On

January 15, 2025, Defendants filed a Notice of Removal pursuant to 28 U.S.C. §§ 1332, 1441, and

1446. Dkt. 1. On February 14, 2025, Plaintiff filed the instant Motion to Remand (“Motion”). Dkt.

14, Mot.

The Court finds this matter appropriate for resolution without oral argument. See Fed. R.

Civ. P. 78(b); L.R. 7-15. For the reasons set forth below, the Court DENIES Plaintiff’s Motion.

II.

BACKGROUND

On June 12, 2024, Plaintiff filed a FAC against Defendants raising a cause of action for

negligence. FAC. The claim arises from allegations Plaintiff sustained injuries after “a large falling

box” hit Plaintiff while shopping at Defendants’ store. FAC ¶ 7.

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On October 10, 2024, Defendants were served with the summons and FAC. Mot. at 2. On

November 12, 2024, Defendants filed an Answer to the FAC. Dkt. 1-3, Ex. B.

On January 15, 2025, Defendants filed a Notice of Removal. Dkt. 1. Defendants argue

removal is proper because Plaintiff and Defendants are citizens of different states, and the amount

in controversy exceeds $75,000. Id.

On February 14, 2025, Plaintiff filed the instant Motion. Mot. Plaintiff argues the matter

should be remanded because Defendants failed to file the Notice of Removal within the requisite

30-day period. Id. at 4-10.

On February 27, 2025, Defendants filed an Opposition to the Motion. Dkt. 17. In support

of the Opposition, Defendants filed a declaration by Mathew H. Conley (“Conley Decl.”), attaching

four exhibits. Id.

On March 6, 2025, Plaintiff filed a Reply in support of the Motion. Dkt. 21.

This matter, thus, stands submitted.

III.

LEGAL STANDARD

Under 28 U.S.C. § 1441(a), a civil action may be removed from state to federal court if the

action is one over which federal courts could exercise original jurisdiction. When removing a case

under diversity jurisdiction, the defendant must establish (1) complete diversity among the parties

and (2) an amount in controversy over $75,000. 28 U.S.C. § 1332; see also Chavez v. JPMorgan

Chase & Co., 888 F.3d 413, 415 (9th Cir. 2018). “A defendant seeking removal has the burden to

establish that removal is proper and any doubt is resolved against removability.” Luther v.

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

980 F.2d 564, 566 (9th Cir. 1992) (holding the removal statute is “strictly construe[d] . . . against

removal jurisdiction”).

IV.

DEFENDANTS HAVE COMPLIED WITH THE PROCEDURAL REQUIREMENTS

FOR REMOVAL UNDER 28 U.S.C. § 1446

A. APPLICABLE LAW

Pursuant to 28 U.S.C. § 1446(b)(1), a defendant must file the notice of removal within 30

days after being served with a complaint alleging a basis for removal. Alternatively, if the basis for

removal is not clear on the face of the complaint, “a notice of removal may be filed within 30 days

after receipt by the defendant, through service or otherwise, of a copy of an amended pleading,

motion, order or other paper from which it may first be ascertained that the case is one which is or

has become removable.” 28 U.S.C. § 1446(b)(3). “[A]n amended pleading, motion, order, or other

paper must make a ground for removal unequivocally clear and certain” to trigger § 1446(b)(3)’s 30-

day deadline. Dietrich v. Boeing Co., 14 F.4th 1089, 1095 (9th Cir. 2021). “[N]otice of removability

under § 1446(b) is determined through examination of the four corners of the applicable pleadings,

not through subjective knowledge or a duty to make further inquiry.” Harris v. Bankers Life & Cas.

Co., 425 F.3d 689, 694 (9th Cir. 2005).

B. ANALYSIS

As a preliminary matter, the parties are not contesting whether diversity jurisdiction exists,

but rather whether Defendants filed their Notice of Removal within 30 days of learning the case was

removable pursuant to 28 U.S.C. § 1446.

Plaintiff argues Defendants’ Notice of Removal is untimely because by October 2024,

Defendants were notified of Plaintiff’s citizenship1 through various sources, including Plaintiff’s

FAC, Defendants’ rewards program, and a settlement demand consisting of Plaintiff’s medical

records identifying her residence address. Mot. at 2. However, contrary to Plaintiff’s argument,

based on the FAC and settlement demand, Defendants only knew Plaintiff was a resident of

California. See Harris, 425 F.3d at 695 (“The face of Harris’ initial pleading did not affirmatively

reveal information to trigger removal based on diversity jurisdiction because the initial pleading only

stated Brown’s 1972 residency, not his citizenship, and certainly not his citizenship as of the filing of

the complaint.”). Moreover, Defendants were not obligated to make “further inquiry” to investigate

or otherwise determine Plaintiff’s citizenship. Harris, 425 F.3d at 694. Thus, as of October 2024, it

was not “unequivocally clear and certain” Defendants had grounds for removal; therefore, the

removal clock did not start.

Rather, it was not until Defendants received Plaintiff’s responses to defendant Garfield

Beach CVS, LLC’s first set of Form Interrogatories on December 16, 2024, indicating, among other

things, Plaintiff resided in Rancho Cucamonga, California since 2005, that it became “unequivocally

clear and certain” Plaintiff’s citizenship was in California and Defendants had grounds for removal

based on diversity jurisdiction. See Conley Decl. ¶4, Ex. C. At that point, the removal clock

commenced, and Defendants had 30 days from December 16, 2024, which was Wednesday, January

15, 2025, to file their Notice of Removal. Dietrich, 14 F.4th at 1095. Defendants filed the Notice of

Removal on January 15, 2025, within the 30-day window. Dkt. 1. Thus, removal was timely under

28 U.S.C. § 1446. See Vasquez v. McLane Foodservice, Inc., No. CV 21-9952-MWF-KSx, 2022 WL

705336, at *2 (C.D. Cal. Mar. 8, 2022) (finding removal was timely after defendant received

plaintiff’s interrogatory responses verifying removal was proper).

Accordingly, Defendants have complied with the procedural requirements for removal

pursuant to 28 U.S.C. § 1446 and have met their burden for removal.

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1 Based on the Motion, Plaintiff seems to conflate residence address and citizenship, which is

not the same for removal purposes. See Kanter v. Warner-Lambert Co., 265 F.3d 853, 857-58 (9th

Cir. 2001) (“[A] natural person’s state citizenship is [] determined by her state of domicile, not her

state of residence.”).

V.

CONCLUSION

For the foregoing reasons, the Court finds Defendants have met their burden for removal.

Accordingly, Plaintiff’s Motion to Remand is DENIED.

IT IS SO ORDERED.