“[T]he presence in the action of a single plaintiff from the same State 13 as a single defendant deprives the district court of original diversity jurisdiction over the 14 entire action.” (citations omitted)
How later courts described this case
- “[T]he presence in the action of a single plaintiff from the same State 13 as a single defendant deprives the district court of original diversity jurisdiction over the 14 entire action.” (citations omitted)
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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FELICIA ANN BENDER, an individual, Case No. 5:25-cv-01571-SPG-BFM
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Plaintiff, ORDER GRANTING MOTION TO
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v. REMAND [ECF NO. 13]
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14 SUNBEAM PRODUCTS, INC.; NEWELL
BRANDS INC.; BEST BUY CO. INC.;
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BEST BUY MURIETTA STORE 115; and
16 DOES 1 through 10, inclusive,
17 Defendants.
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19 Before the Court is the Motion to Remand (ECF No. 13 (“Motion” or “Mot.”)) filed
20 by Plaintiff Felicia Ann Bender (“Plaintiff”). The Court has read and considered the
21 matters raised with respect to the Motion and concluded that this matter is suitable for
22 decision without oral argument. See Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. Having
23 considered the parties’ submissions, the relevant law, and the record in this case, the Court
24 GRANTS the Motion.
25 I. BACKGROUND
26 The following facts are taken from the Complaint. (ECF No. 1-1 (“Compl.”)). On
27 or about December 13, Plaintiff suffered serious injuries due to an exploding crock-pot
28 designed and developed by Defendant Sunbeam Products, Inc. (“Defendant Sunbeam”)
1 and sold by Defendants Best Buy Co., Inc. (“Defendant Best Buy”) and Best Buy Murrieta
2 (Store 115) (“Defendant Store 115”). (Id. ¶¶ 1–6). According to Plaintiff, the lid for the
3 crock-pot was defectively designed and could not be secured properly, resulting in a
4 buildup of internal pressure that could ultimately explode. (Id. ¶¶ 15–17). Plaintiff asserts
5 that she bought one such defective crock-pot, which exploded onto her body when she used
6 it, causing severe burns and damage to property. (Id. ¶¶ 2, 16, 17, 20).
7 On May 9, 2025, Plaintiff filed this lawsuit in Riverside County Superior Court
8 alleging the six following claims against all Defendants: (1) negligence (id. ¶¶ 21–28);
9 (2) gross negligence (id. ¶¶ 29–37); (3) products liability (id. ¶¶ 38–55); (4) breach of
10 implied warranty of merchantability (id. ¶¶ 56–62); (5) breach of implied warranty of
11 fitness (id. ¶¶ 63–67); and (6) strict liability (id. ¶¶ 68–71). On May 9, 2025, Plaintiff filed
12 a Doe Amendment naming Defendant Newell Brands, Inc. (“Defendant Newell,”
13 collectively with Defendants Sunbeam, Best Buy, and Store 115, “Defendants”) as a
14 defendant in the case. (Id. at 2–3). Plaintiff served the Complaint on Defendant Sunbeam
15 on May 23, 2025 (ECF No. 19 (“Opp.”) at 2), on Defendant Best Buy on May 27, 2025
16 (ECF No. 13-1 (“Decl. Bakh.”) ¶¶ 7, 8), on Defendant Store 115 on May 28, 2025,
17 (Decl. Bakh. ¶¶ 9–10), and on Defendant Newell on June 16, 2025. (Compl. at 2).
18 On June 20, 2025, Defendants Sunbeam and Newell removed the action to this
19 Court, asserting diversity jurisdiction, pursuant to 28 U.S.C. §§ 1332(a), 1441(a), and 1446.
20 (ECF No. 1 (“Notice of Removal”) at 5). Thereafter, on July 17, 2025, Plaintiff filed the
21 instant Motion to remand the action to state court. (Mot.). On July 28, 2025, Defendant
22 Best Buy filed a Consent to Joinder in Removal of Civil Action. (ECF No. 18 (“Best Buy
23 Consent to Joinder”). Defendants Sunbeam and Newell filed the Opposition on August 6,
24 2025. (Opp.). Plaintiff filed the Reply on August 13, 2025. (ECF No. 20 (“Reply”)).
25 II. LEGAL STANDARD
26 Federal courts are courts of limited jurisdiction, having subject-matter jurisdiction
27 only over matters authorized by the Constitution and Congress. Kokkonen v. Guardian
28 Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). A defendant
1 may remove a civil action filed in state court to federal court if the federal court would
2 have had original jurisdiction over the suit. 28 U.S.C. § 1441(a). Federal courts have
3 original jurisdiction where an action arises under federal law, 28 U.S.C. § 1331, or where
4 each plaintiff’s citizenship is diverse from each defendant’s citizenship and the amount in
5 controversy exceeds $75,000, exclusive of interest and costs, 28 U.S.C. § 1332(a). An
6 individual is a citizen of the state where he is domiciled, meaning the state where the person
7 resides in his “permanent home” with the intent to remain or the place to which he intends
8 to return. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). Diversity of
9 citizenship exists among the parties when no defendant ‘is a citizen of the State in which
10 such action is brought.’” Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) (quoting
11 28 U.S.C. § 1441(b)); see also Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676,
12 679 (9th Cir. 2006) (“[T]he presence in the action of a single plaintiff from the same State
13 as a single defendant deprives the district court of original diversity jurisdiction over the
14 entire action.” (citations omitted)).
15 To remove an action to federal court, a defendant must file the notice of removal
16 within thirty days after service of summons. 28 U.S.C. § 1446(b)(1). The “thirty-day
17 period for [removal] . . . starts to run from defendant’s receipt of the initial pleading only
18 when that pleading affirmatively reveals on its face the facts necessary for federal court
19 jurisdiction.” Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 690–91 (9th Cir. 2005).
20 “When a civil action is removed solely under section 1441(a), all defendants who have
21 been properly joined and served must join in or consent to the removal of the action.”
22 28 U.S.C. § 1446(b)(2)(A). “Promptly after the filing of such notice of removal of a civil
23 action the defendant or defendants shall give written notice thereof to all adverse parties
24 and shall file a copy of the notice with the clerk of such State court.” Id. § 1446(d).
25 A plaintiff may then challenge removal of an action for lack of subject matter
26 jurisdiction or for procedural deficiencies in the removal process. Id. § 1447(c); see Canty
27 v. Providence Health Sys. – S. California, No. 20-cv-03347-JAK-JPR, 2020 WL 5701761,
28 at *2 (C.D. Cal. Sept. 23, 2020). “The removal statute is strictly construed against removal
1 jurisdiction.” California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir.),
2 opinion amended on denial of reh’g, 387 F.3d 966 (9th Cir. 2004). “The presumption
3 against removal means that ‘the defendant always has the burden of establishing that
4 removal is proper.’” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir.
5 2009) (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). Courts resolve any
6 doubt about the right of removal in favor of remand. See Grancare, LLC v. Thrower by &
7 through Mills, 889 F.3d 543, 550 (9th Cir. 2018).
8 III. DISCUSSION
9 Plaintiff moves to remand this action to state court, arguing that (1) the Court does
10 not have diversity jurisdiction; and (2) Defendants Sunbeam and Newell’s Notice of
11 Removal was procedurally improper. (Mot. at 12, 13).
12 A. Diversity Jurisdiction
13 Plaintiff argues that the Court lacks subject matter jurisdiction because the
14 citizenship of Defendant Store 115, located in Marietta, California, is unclear. See (Mot.
15 at 12–13). Defendants Sunbeam and Newell do not present evidence on the citizenship of
16 Defendant Store 115, but instead assert that the parties stipulated to dismiss Defendant
17 Store 115 in Riverside Superior Court or, in the alternative, that Defendant Store 115 was
18 fraudulently joined. See (Opp. at 4); (ECF No. 19-1 (“Coriaty Decl.”) ¶ 12). Because
19 Defendants Sunbeam and Newell have not provided evidence documenting this stipulation,
20 and because Plaintiff maintains that Defendant Store 115 is a party to the case, see (Reply
21 at 4), the Court turns to the fraudulent joinder argument.
22 “Fraudulently joined defendants do not defeat diversity jurisdiction.” Courtney v.
23 USI Ins. Servs., LLC, No. 21-cv-01522-CJC-KES, 2021 WL 5356635, at *2 (C.D. Cal.
24 Nov. 16, 2021) (citing Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998)).
25 A defendant is fraudulently joined when a “plaintiff fails to state a cause of action against
26 a resident defendant, and the failure is obvious according to the rules of the state.” Hunter
27 v. Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009). This is a “high” standard. “[I]f
28 there is even a possibility that a state court would find that the complaint states a cause of
1 action against any of the resident defendants, the federal court must find that joinder was
2 proper and remand to the state court.” Id. at 1044. This standard is akin to the “wholly
3 insubstantial and frivolous standard for dismissing claims under Rule 12(b)(1) for lack of
4 federal question jurisdiction,” and the defendant invoking diversity jurisdiction has the
5 burden to establish by “clear and convincing evidence” that there is “no colorable claim”
6 against the defendant claimed to be fraudulently joined. Grancare, 889 F.3d at 549–50;
7 Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). For
8 example, the Ninth Circuit has upheld rulings of fraudulent joinder in instances where a
9 defendant shows that a plaintiff is barred by the statute of limitations from bringing claims
10 against that defendant, Ritchey, 139 F.3d at 1320, or when a plaintiff’s claims are
11 predicated on a contract to which a defendant is not a party, United Computer Sys., Inc. v.
12 AT&T Corp., 298 F.3d 756, 761 (9th Cir. 2002). “[A]ll disputed questions of fact and all
13 ambiguities in the controlling state law must be resolved in favor of remand to state
14 court.” Courtney, 2021 WL 5356636, at *2 (quoting Hunter, 582 F.3d at 1042).
15 The Court finds that Defendants Sunbeam and Newell have not met their “heavy
16 burden” to show that Defendant Store 115 was fraudulently joined. In the Notice of
17 Removal, Defendants Sunbeam and Newell assert that “there is no possibility that Plaintiff
18 can prove a cause of action against [Defendant Store 115]” because Defendant Store 115
19 is “a franchise wholly owned and operated by [Defendant Best Buy].” (Notice of Removal
20 at 2–3). According to Defendants Sunbeam and Newell, Defendant Store 115 is “not its
21 own distinct legal entity, and therefore does not have the capacity to be a party to this
22 action.” (Id.). Yet the basis for this assertion is unclear—Defendants Sunbeam and Newell
23 do not provide evidence of Defendant Best Buy’s franchisee structure, nor has Defendant
24 Best Buy participated in the briefing of this Motion to assert that Defendant Store 115 is
25 not its own distinct legal entity. E.g. Amado v. Home Depot U.S.A., Inc., No. 1:24-cv-606-
26 JLT-HBK, 2025 WL 309632, at *6 (E.D. Cal. Jan. 27, 2025) (remanding a case for lack of
27 diversity jurisdiction in part because a defendant was not fraudulently joined). And
28 Defendant Best Buy had the opportunity to provide such evidence: Defendant Best Buy
1 filed both a Notice of Interested Parties and a Consent to Joinder in Removal of Civil
2 Action on July 28, 2025, before Defendants Sunbeam and Newell filed the Opposition on
3 August 6, 2025. See (Opp.); (ECF No. 17); (Best Buy Consent to Joinder).
4 Moreover, Plaintiff has alleged a factual basis for the claims against Defendant Store
5 115 as the retailer of the crock-pot under California law. See (Compl. ¶¶ 56–67 (alleging
6 claims under Cal. Civ. Code §§ 1791, 1792, 1795)). Specifically, Cal. Civ. Code
7 § 1792.2(a) provides that “[e]very sale of consumer goods that are sold at retail in this state
8 by a retailer or distributor . . . shall be accompanied by such retailer’s or distributor's
9 implied warranty that the goods are fit for that purpose.” Based on Plaintiff’s allegation
10 that Defendant Store 115 sold the crock-pot at issue here, Plaintiff has asserted a “colorable
11 claim” against Defendant Store 115. (Compl. ¶ 6); see Grancare, 889 F.3d at 549.
12 Based on the absence of evidence regarding Defendant Store 115’s citizenship or
13 legal status, Defendants have not shown that there is “no colorable claim” against
14 Defendant Store 115 to make its joinder fraudulent. See Grancare, 889 F.3d at 549.
15 Defendants Sunbeam and Newell consequently have not established complete diversity of
16 citizenship to invoke this Court subject matter jurisdiction. Dynegy, Inc., 375 F.3d at 838.
17 B. Sufficiency of Removal Procedures
18 Assuming for the sake of argument that Defendant Store 115 is not a distinct entity
19 from Defendant Best Buy, the Court finds that the removal was procedurally defective, and
20 thus remand is still proper.
21 Plaintiff argues that removal was procedurally defective for two reasons. First,
22 Defendants Sunbeam and Newell did not timely obtain consent for remand from
23 Defendants Best Buy or Store 115 under 28 U.S.C. § 1446, as Defendants Best Buy and
24 Store 115 did not consent to removal within 30 days of being served on May 27, 2025, and
25 May 28, respectively. (Mot. at 13–14); (Reply at 4). Second, Plaintiff asserts that
26 Defendants Sunbeam and Newell failed to promptly serve the notice of removal upon all
27 properly served Defendants under Fed. R. Civ. P. 5(b)(1), and that a late-served notice does
28 not cure the defect. (Mot. at 8–12); (Reply at 4).
1 “[A] defendant must file their notice of removal within 30 days of being served with
2 the complaint,” and all defendants who have been properly served and joined must consent
3 to the removal of the action. Mcavoy v. Lowe’s Home Centers LLC, No. 2:22-cv-02417-
4 SVW-RAO, 2022 WL 2072672, *1 (C.D. Cal. June 9, 2022); see Pearson v. Sprouts
5 Farmers Mkt., LLC, No. 2:22-cv-09048-JAK-E, 2023 WL 8188481, at *4 (C.D. Cal. Sept.
6 29, 2023). “Where fewer than all the defendants have joined in a removal action, the
7 removing party has the burden under section 1446(a) to explain affirmatively the absence
8 of any co-defendants in the notice for removal.” Prize Frize, Inc. v. Matrix (U.S.) Inc., 167
9 F.3d 1261, 1266 (9th Cir. 1999), superseded by statute, on other grounds, as recognized in
10 Abrego v. Dow Chem. Co., 443 F.3d 676, 681 (9th Cir. 2006).
11 The parties dispute whether Defendants Sunbeam and Newell properly explained
12 Defendants Best Buy and Store 115’s absence in the notice for removal. Defendant
13 Sunbeam and Newell, for their part, submit that (1) Defendant Store 115 was “improperly
14 and fraudulently joined in the action,” as it is a “franchise wholly owned and operated by
15 [Defendant Best Buy]” and “not its own distinct legal entity . . . to be a party to this action”
16 (Notice of Removal ¶ 3); and (2) despite reasonable diligence, they could not ascertain
17 whether Defendant Best Buy was properly served at the time removal was filed. (Id. ¶ 9);
18 (Opp. at 5–6). Examples of Defendants Sunbeam and Newell’s diligence include a review
19 of the Riverside Superior Court electronic docket prior to filing the Notice of Removal,
20 (Opp. at 5–6), and communications with counsel who previously represented Defendant
21 Best Buy in a separate action, but had no knowledge of this instant action (Notice of
22 Removal ¶ 9). As the Court addressed the fraudulent joinder issue as to Defendant Store
23 115 above, the Court turns to the arguments surrounding Defendants Sunbeam and
24 Newell’s diligence.
25 Courts in this district are split regarding the diligence required by a removing
26 defendant to determine whether co-defendants have been served at the time of filing the
27 notice of removal. See Lewis v. HSBC Bank USA, N.A., No. 17-cv-00234-DKW-KSC,
28 2017 WL 3671279, at *3–*4 (D. Haw. Aug. 25, 2017), report and recommendation
1 adopted, No. 17-cv-00234-DKW-KSC, 2017 WL 4019416 (D. Haw. Sept. 12, 2017)
2 (collecting cases). While some courts allow a removing defendant to rely on the state court
3 docket for filed proofs of service, e.g. Lopez v. BNSF Ry. Co., 614 F. Supp. 2d 1084, 1089
4 (E.D. Cal. 2007), others find that “simply checking if a proof of service has been filed with
5 the court is insufficient,” Orozco v. EquiFirst Corp., No. 08-cv-8064-PA-CW, 2008 WL
6 5412364, at *1 (C.D. Cal. Dec. 22, 2008). Under nearly identical circumstances to this
7 instant action, the Court in Lewis found that the defendants’ limited review of a state court
8 docket and communications with a co-defendant’s counsel on a separate matter to
9 determine if that co-defendant was properly served did not amount to reasonable diligence
10 sufficient to explain the absence of that co-defendant in the notice of removal. 2017 WL
11 3671279, at *5. The Court reasoned that the defendants needed to make more than two
12 inquiries in the span of two weeks to be “reasonably diligent in ascertaining whether [a co-
13 defendant] was served prior to [] removal.” Id. at *6.
14 Like the defendants in Lewis, the Court finds Defendants Sunbeam and Newell’s
15 efforts to determine whether Defendant Best Buy had been served in the state court action
16 were not reasonably diligent. Plaintiff has submitted evidence that Defendants Best Buy
17 and Store 115 were properly served on May 27, 2025 and May 28, 2025, respectively.
18 (Decl. Bakh. ¶¶ 7–10, Ex. 3, Ex. 4). However, Defendants Sunbeam and Newell assert
19 that, “as of June 18, 2025, Riverside Superior Court’s electronic docket did not yet have
20 available the proofs of service filed there by Plaintiff, including the proof of service on
21 Best Buy.” (Opp. at 5). Taking Defendants Sunbeam and Newell’s assertion as true,
22 Defendants have not shown that absence of a proof of service for Defendant Best Buy on
23 the electronic docket “relieves [Defendants] of their obligation to obtain [Defendant Best
24 Buy’s consent in the removal,” particularly when Defendant Best Buy filed a Demurrer in
25 the state court action, on June 18, 2025, two days before the filing of the Notice of
26 Removal. (Decl. Bakh. Ex. 13); Lewis, 2017 WL 3671279, at *5.
27 Defendants Sunbeam and Newell counter that any procedural defect in the removal
28 proceedings was cured with Defendant Best Buy filed its joinder to the removal on July
1 28, 2025. (Opp. at 6–7); see (Best Buy Consent to Joinder). Citing to Destfino v. Reiswig,
2 where the Ninth Circuit permitted removing defendants to cure an untimely consent to
3 removal, Defendants Sunbeam and Newell argue that so too here, “failure to consent to
4 removal can be cured prior to entry of judgment.” (Opp. at 6–7) (citing 630 F.3d 952, 957
5 (9th Cir. 2011)).
6 The Court disagrees that Destfino is an apt comparison to the instant motion. Unlike
7 Defendant Best Buy, who was properly served on May 27, 2025, but did not join or consent
8 to the removal notice within the 30-day period set forth under 28 U.S.C. § 1446, the non-
9 joining defendants in Destfino were not properly served. Destfino, 630 F.3d at 957. In
10 addition, the plaintiff in Destfino challenged the procedural defect on appeal, after the
11 district court entered final judgment. Id. at 955. To reverse judgment and remand the case
12 to state court “would impose an exorbitant cost on our dual court system, a cost
13 incompatible with the fair and unprotracted administration of justice.” Parrino v. FHP,
14 Inc., 146 F.3d 699, 703 (9th Cir. 1998), as amended (July 28, 1998) (quoting Caterpillar
15 Inc. v. Lewis, 519 U.S. 61, 77 (1996)). Whereas here, when the “case is in its earliest stages
16 at the trial level and remand will have a limited impact on the case, if at all,” the Court
17 should strictly enforce the procedural requirements associated with removal. Sotelo v.
18 Browning-Ferris Indus. of California, Inc., No. 2:20-cv-06927-SB-PVC, 2020 WL
19 7042816, *3–*4 (C.D. Cal. Nov. 30, 2020) (analyzing Destfino and finding that an
20 untimely consent to join removal did not cure the procedural defect); see also Gaus, 980
21 F.2d at 567 (Courts “strictly construe the removal statute against removal jurisdiction.
22 Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the
23 first instance.”) (citations omitted). The Court declines to find that Defendant Best Buy’s
24 untimely consent to joinder, filed nearly a month after Defendants Sunbeam and Newell’s
25 Notice of Removal and two months after service of the complaint, cures the procedural
26 defect. See Gurrola v. Howard, No. 2:22-CV-01825-SB-JEM, 2022 WL 1617991, at *1
27 (C.D. Cal. May 21, 2022) (“The 30-day time limit [under 28 U.S.C. § 1441(a)] is
28 mandatory and a failure to comply with this requirement renders the removal procedurally
1 || defective.”); see also A. N. v. Target Corp., No. 20-cv-11380-PAR-AO, 2021 WL 53169,
2 |{at *2 (C.D. Cal. Jan. 5, 2021) (“Requiring a later-served defendant to obtain consent within
3 ||30 days is not an unfair burden” when invoking federal jurisdiction).
4 ||IV. CONCLUSION
5 For the foregoing reasons, the Court GRANTS Plaintiff's motion.
6 IT IS SO ORDERED.
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8 |/DATED: September 4, 2025 --——.
9 — HON. SHERILYN PEACE GARNETT
10 UNITED STATES DISTRICT JUDGE
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