1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 ----oo0oo---- 9 10 MICHAEL WEBBER, No. 2:24-cv-01886 WBS CSK 11 Plaintiff, 12 v. MEMORANDUM AND ORDER RE:

PLAINTIFF’S MOTION TO REMAND

13 HOME DEPOT U.S.A., INC.; SABRINA AND FOR ATTORNEYS’ FEES SZLACHCIUK; and DOES 1 through 14 20, inclusive, 15 Defendants. 16 17 ----oo0oo---- 18 Plaintiff Michael Webber initiated this premises 19 liability action against defendants Home Depot U.S.A., Inc., and 20 Sabrina Szlachciuk (a Home Depot store manager) for injuries 21 resulting from an incident during which a heavy cart allegedly 22 rolled over his foot at a Home Depot store. (Docket No. 1 at 8- 23 13.) Defendants removed the action to this court from the 24 Sacramento County Superior Court based on diversity. (Notice of 25 Removal (Docket No. 1).) 26 Plaintiff now moves to remand, arguing that removal is 27 improper because complete diversity does not exist. Plaintiff 28 also seeks attorneys’ fees incurred in filing the motion. 1 (Docket No. 10.) Defendants contend that defendant Szlachciuk 2 was fraudulently joined to defeat diversity. (Docket No. 11.) 3 I. Fraudulent Joinder 4 “Under 28 U.S.C. § 1441, a defendant may remove an 5 action filed in state court to federal court if the federal court 6 would have original subject matter jurisdiction over the action.” 7 Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1243 (9th 8 Cir. 2009). There is a “strong presumption” against exercising 9 removal jurisdiction, and “[f]ederal jurisdiction must be 10 rejected if there is any doubt as to the right of removal in the 11 first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th 12 Cir. 1992) (internal citations omitted). 13 Federal courts have original jurisdiction over cases 14 where complete diversity exists between the parties and the 15 amount in controversy exceeds $75,000, exclusive of interest and 16 costs. 28 U.S.C. § 1332(a). Complete diversity exists where 17 each plaintiff is a citizen of a different state than each 18 defendant. Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 19 (9th Cir. 2001). 20 “In determining whether there is complete diversity, 21 district courts may disregard the citizenship of a non-diverse 22 defendant who has been fraudulently joined.” Grancare, LLC v. 23 Thrower, 889 F.3d 543, 548 (9th Cir. 2018). “A defendant 24 invoking federal court diversity jurisdiction on the basis of 25 fraudulent joinder bears a ‘heavy burden’ since there is a 26 ‘general presumption against finding fraudulent joinder.’” Id. 27 at 548 (quoting Hunter v. Philip Morris USA, 582 F.3d 1039, 1046 28 (9th Cir. 2009)). 1 “There are two ways to establish fraudulent joinder: 2 (1) actual fraud in the pleading of jurisdictional facts, or (2) 3 inability of the plaintiff to establish a cause of action against 4 the non-diverse party in state court.” Id. (internal quotation 5 marks omitted). “Fraudulent joinder is established the second 6 way if a defendant shows that an ‘individual joined in the action 7 cannot be liable on any theory.’” Id. (quoting Ritchey v. Upjohn 8 Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998)) (alteration 9 adopted). This requires “extraordinarily strong evidence or 10 arguments that a plaintiff could not possibly prevail on her 11 claims against the allegedly fraudulently joined defendant.” Id. 12 “[T]he test for fraudulent joinder and for failure to 13 state a claim under Rule 12(b)(6) are not equivalent. A claim 14 against a defendant may fail under Rule 12(b)(6), but that 15 defendant has not necessarily been fraudulently joined.” Id. at 16 549. Rather, the standard for fraudulent joinder is akin to the 17 “wholly insubstantial and frivolous” standard for dismissing 18 claims under Rule 12(b)(1) for lack of federal question 19 jurisdiction. Id. “[I]f there is a possibility that a state 20 court would find that the complaint states a cause of action 21 against any of the resident defendants, the federal court must 22 find that the joinder was proper and remand the case to the state 23 court.” Id. (citing Hunter, 582 F.3d at 1046) (emphasis in 24 original). Put another way, “[r]emand must be granted unless the 25 defendant shows that the plaintiff ‘would not be afforded leave 26 to amend his complaint to cure the purported deficiency.’” 27 Nasrawi v. Buck Consultants, LLC, 776 F. Supp. 2d 1166, 1170 28 (E.D. Cal. 2011) (Wanger, J.) (quoting Burris v. AT & T Wireless, 1 Inc., No. 06-02904 JSW, 2006 WL 2038040, at *2 (N.D. Cal. 2006)). 2 In analyzing fraudulent joinder, a court may look 3 beyond the pleadings and conduct a “summary inquiry . . . to 4 identify the presence of discrete and undisputed facts that would 5 preclude plaintiff’s recovery against the in-state defendant.” 6 Allen v. Boeing Co., 784 F.3d 625, 634 (9th Cir. 2015) (citing 7 Hunter, 582 F.3d at 1044) (internal quotation marks omitted). 8 It is undisputed that both plaintiff and defendant 9 Szlachciuk are citizens of California and thus lack diversity. 10 Defendant Home Depot is a Delaware corporation with its principal 11 place of business in Georgia. (See Notice of Removal ¶ 6(b).) 12 Accordingly, removal is appropriate only if defendant Szlachciuk 13 was fraudulently joined. 14 Plaintiff alleges that Szlachciuk is responsible for 15 his injuries under a theory of premises liability. The elements 16 of a premises liability claim are “a legal duty of care, breach 17 of that duty, and proximate cause resulting in injury.” Kesner 18 v. Super. Ct., 1 Cal. 5th 1132, 1158 (2016). “Premises liability 19 is grounded in the possession of the premises and the attendant 20 right to control and manage the premises; accordingly, mere 21 possession with its attendant right to control conditions on the 22 premises is a sufficient basis for the imposition of an 23 affirmative duty to act.” Id. (internal quotation marks 24 omitted). “[C]ontrol is defined as the power to prevent, remedy 25 or guard against the dangerous condition.” Colonial Van & 26 Storage, Inc. v. Super. Ct., 76 Cal. App. 5th 487, 497 (2d Dist. 27 2022) (internal quotations and citations omitted). The defendant 28 must also have actual or constructive knowledge of the dangerous 1 condition. Ortega v. Kmart Corp., 26 Cal. 4th 1200, 1206 (2001). 2 In arguing that Szlachciuk was fraudulently joined, 3 defendants make various factual contentions pertaining to the 4 incident, including that Szlachciuk “typically did not work on 5 Sundays,” the day of the week when the incident occurred; that 6 she “was not the person operating the flatbed cart” that injured 7 plaintiff; and that she has “no memory of this incident.” 8 (Docket No. 11-2 ¶¶ 4-6.) 9 Defendants’ factual arguments fail for several reasons. 10 First, a self-serving declaration written by the defendant in 11 question hardly qualifies as the “extraordinarily strong 12 evidence” required to prove fraudulent joinder. See Grancare, 13 889 F.3d at 548. This declaration does not provide sufficient 14 evidence to conduct a “summary inquiry” that resolves in 15 defendants’ favor, which “itself points to an inability of the 16 removing party to carry its burden.” See Allen, 784 F.3d at 634 17 (citing Hunter, 582 F.3d at 1044). Second, defendants’ arguments 18 would require a “searching inquiry into the merits of the 19 plaintiff’s case,” which is inappropriate when considering 20 fraudulent joinder. See Grancare, 889 F.3d at 548–49. 21 Defendants next argue that California Labor Code § 2802 22 “requires an employer to defend or indemnify an employee who is 23 sued by third persons for conduct in the course and scope of his 24 employment,” and therefore Szlachciuk was named as a defendant in 25 order to destroy diversity. See Rojas v. Sea World Parks & Ent., 26 Inc., 538 F. Supp. 3d 1008, 1026 (S.D. Cal. 2021). 27 This argument fails. “Home Depot’s duty to defend and 28 indemnify defendant [Szlachciuk] is not a bar on litigation 1 against her individually.” See Alexander v. Home Depot U.S.A., 2 Inc., No. 2:24-cv-01754 DAD CSK, 2024 WL 4212749, at *3 (E.D. 3 Cal. Sept. 17, 2024); see also Thomas v. WalMart Stores, Inc., 4 No. 18-cv-03422 RSW LSK, 2018 WL 3046967, at *4 (C.D. Cal. June 5 19, 2018) (“Section 2802 requires an employer to indemnify an 6 employee for liability incurred by the employee in the scope of 7 the employee’s employment; it does not render the employee immune 8 from liability altogether.”). Further, the cases cited by 9 defendants in support of this argument are either inapposite or 10 unpersuasive. See, e.g., Rojas, 538 F. Supp. 3d at 1026 11 (discussing indemnification under Lab. Code § 2802 as indicative 12 of fraudulent joinder of Doe defendants and defendants added 13 following removal); Linnin v. Michielsens, 372 F. Supp. 2d 811, 14 820–21 (E.D. Va. 2005) (stating in dicta, without citation to any 15 Circuit authority, that including employee defendant who would be 16 indemnified by employer was an act of “procedural gamesmanship” 17 indicative of fraudulent joinder). 18 Defendants have not presented any legal argument or 19 evidence establishing that there is no possibility that defendant 20 Szlachciuk may be liable on a theory of premises liability. To 21 the contrary, “‘courts have specifically allowed a plaintiff to 22 bring . . . premises liability claims against store managers in 23 situations similar to the instant action.’” See Berryhill v. 24 Costco Wholesale Corp., No. 2:23-cv-00315 WBS AC, 2023 WL 25 3302869, at *2–3 (E.D. Cal. May 8, 2023) (quoting Thomas v. 26 WalMart Stores, Inc., No. 18-cv-03422 RSWL SK, 2018 WL 3046967, 27 at *4 (C.D. Cal. June 19, 2018)) (rejecting fraudulent joinder 28 argument and remanding premises liability case brought against eee nee EIEIO I OE OS OSU EE

1 store manager who allegedly was not present in the store on the 2 day of the injury) (collecting cases). 3 For the foregoing reasons, defendant Szlachciuk was not 4 fraudulently joined and therefore complete diversity is lacking. 5 Defendant has thus failed to overcome “both the strong 6 | presumption against removal jurisdiction and the general 7 | presumption against fraudulent joinder.” See Hunter, 582 F.3d at 8 1046 (internal quotation marks omitted). 9 II. Attorneys’ Fees 10 Plaintiff requests an award of attorneys’ fees and 11 costs incurred in filing this motion pursuant to 28 U.S.C. § 12 1447 (c). “Absent unusual circumstances, courts may award 13 attorney’s fees under § 1447(c) only where the removing party 14 lacked an objectively reasonable basis for seeking removal.” 15 Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). 16 Though defendants’ arguments fail, they did cite some 17 authority (discussed above) finding fraudulent joinder of store 18 | managers in premises liability actions under different factual 19 circumstances. Accordingly, plaintiff’s request for attorneys’ 20 fees will be denied. 21 IT IS THEREFORE ORDERED that plaintiff’s motion to 22 remand (Docket No. 10) be, and the same hereby is, GRANTED. 23 Plaintiff’s request for attorney’s fees is hereby DENIED. This 24 case is hereby REMANDED to the Superior Court of the State of 25 California, in and for the County of Sacramento. 26 | Dated: November 12, 2024 bette 2d. □□ 27 WILLIAM B. SHUBB

UNITED STATES DISTRICT JUDGE

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