1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT JS-6 9 CENTRAL DISTRICT OF CALIFORNIA

10 Case No. 2:24-cv-06328-HDV-PD

11 DONNA KELLEY,

ORDER GRANTING PLAINTIFF’S

12 Plaintiff,

MOTION TO AMEND AND REMAND

13 v. [DKT. NO. 12]

14 TARGET CORPORATION, a Minnesota 15 Corporation; and DOES 1 TO 50, inclusive,

16 Defendants. 17 18 19

20 21 22 23 24 25 26 27 28 1 I. INTRODUCTION 2 Plaintiff Donna Kelley brings this action against Defendant Target Corporation for an injury 3 she sustained in March 2024 when she tripped over a parking block in the parking lot of a Target 4 store in Pasadena, California. Plaintiff now moves to amend her Complaint to add the Target store 5 manager (Michele Perkins) as a defendant, and to remand the action to state court for the lack of 6 diversity that would necessarily result from the amendment. 7 For the reasons discussed below, the motion to amend and remand is granted. 8 II. RELEVANT BACKGROUND 9 Plaintiff tripped over a parking lot block when she was walking in the parking lot of the 10 Target store at 3121 East Colorado Blvd. in Pasadena, California on or around March 21, 2024. 11 Complaint ¶¶ 4, 7 [Dkt. No. 1]. She asserts that the parking lot had improper lighting, which caused 12 the parking block to blend in with the surrounding concrete. Id. ¶ 7. Plaintiff purportedly sustained 13 physical and emotional damages as a result of the incident. Id. ¶¶ 7–8. 14 Plaintiff brought this action in Los Angeles Superior Court on June 26, 2024, asserting 15 causes of action for negligence and premises liability. See id. On July 26, 2024, Defendant removed 16 the action to this Court on the basis of diversity jurisdiction given that Plaintiff is a California 17 resident and Target is a Minnesota corporation. See Removal Notice [Dkt. No. 1]. 18 On August 26, 2024, Plaintiff filed this Motion to Amend and Remand (“Motion”). The 19 Motion is fully briefed. See Opp’n [Dkt. No. 18]; Reply [Dkt. No. 19]. The Court heard oral 20 argument on October 24, 2024, and took the matter under submission. 21 III. LEGAL STANDARD 22 Federal courts have original jurisdiction over civil actions between citizens of different states 23 where the matter in controversy exceeds $75,000. 28 U.S.C. § 1332. Section 1332 requires 24 complete diversity, meaning that each plaintiff must be diverse from each defendant. Exxon Mobil 25 Corp. v. Allapattah Services, Inc., 545 U.S. 546, 553 (2005) (citing Strawbridge v. Curtiss, 7 U.S. 26 267 (1806)). Any doubts about removal are resolved in favor of remand. Gaus v. Miles, Inc., 980 27 F.2d 564, 566 (9th Cir. 1992) (citing Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th 28 Cir. 1979)). “Th[is] ‘strong presumption’ against removal jurisdiction means that the defendant 1 always has the burden of establishing that removal is proper.” Id. Pursuant to 28 U.S.C. § 1447(c), 2 an improperly removed case must be remanded to state court. 3 IV. DISCUSSION 4 As a preliminary matter, the parties do not dispute that the amount in controversy exceeds 5 $75,000 nor that complete diversity existed at the time of the filing of the Complaint. Instead, 6 Defendants contend that Perkins is a sham defendant added solely for the purpose of defeating 7 diversity. The Court must first determine if Perkins is a properly joined defendant, which would 8 destroy diversity jurisdiction and deplete the Court of its subject matter jurisdiction over the action. 9 A. Motion to Amend and Permit Joinder 10 When deciding whether to permit joinder, a court should consider the following factors: “(1) 11 whether the party sought to be joined is needed for just adjudication and would be joined under 12 Federal Rule of Civil Procedure 19(a); (2) whether the statute of limitations would prevent the filing 13 of a new action against the new defendant in state court; (3) whether there has been an unexplained 14 delay in seeking to join the new defendant; (4) whether the plaintiff seeks to join the new party 15 solely to defeat federal jurisdiction; (5) whether denial of the joinder would prejudice the plaintiff; 16 and (6) the strength of the claims against the new defendant.” Dirkes v. Sam’s West, Inc., No. 2:22- 17 cv-03466-JLS-MAR, 2022 WL 17098672, at *2 (C.D. Cal. Sep. 7, 2022) (citing Boon v. Allstate Ins. 18 Co., 229 F. Supp. 2d 1016, 1020 (C.D. Cal. 2002); Khachunts v. General Ins. Co. of Am., 682 F. 19 Supp. 3d 827, 832–33 (C.D. Cal. 2023). 20 Removal is proper when a non-diverse defendant is fraudulently joined or a sham defendant. 21 Padilla v. AT & T Corp., 697 F. Supp. 2d 1156, 1158 (C.D. Cal. 2009). But “fraudulent joinder 22 must be proven by clear and convincing evidence.” Hamilton Materials, Inc. v. Dow Chem. Corp., 23 494 F.3d 1203, 1206 (9th Cir. 2007). “Fraudulent joinder is established . . . if a defendant shows that 24 an individual joined in the action cannot be liable on any theory.” Grancare, LLC v. Thrower by & 25 through Mills, 889 F.3d 543, 548 (9th Cir. 2018) (citation omitted). Indeed, “if there is a possibility 26 that a state court would find that the complaint states a cause of action against any of the resident 27 defendants, the federal court must find that the joinder was proper and remand the case to the state 28 court.” Grancare, 889 F.3d at 548 (citation omitted). The Court need only find a “glimmer of hope 1 that plaintiff can establish [a] claim” to remand the action. Gonzalez v. J.S. Paluch Co., No. CV-12- 2 08696-DDP-FMOx, 2013 WL 100210, at *4 (C.D. Cal. Jan. 7, 2013). 3 Applying this standard, the Court finds that joinder of the Target manager is proper. 4 1. Factor 1 – Necessary Party Under Rule 19(a) 5 Federal Rule of Civil Procedure Rule 19 requires joinder of a person whose absence would 6 preclude complete relief among existing parties, or who claims an interest in the action and, if the 7 case is disposed without that person, the result either may impair or impede the absent person’s 8 ability to protect their interest, or it may leave an existing party subject to inconsistent obligations. 9 See Fed. R. Civ. P. 19(a). The standard under Rule 19 is met when failure to join will lead to 10 separate and redundant actions. Dirkes, 2022 WL 17098672, at *2. 11 A similar fact pattern was presented in this district in Trujillo v. Target Corp., No. 17–cv– 12 06429 VAP (GJSx), 2017 WL 4864490 (C.D. Cal. Oct. 26, 2017). In Trujillo, the plaintiff who 13 slipped and fell at a Target store sought to join the Target manager who was alleged to be 14 responsible for the condition of the premises. The court applied the first Rule 19 factor and found 15 that it weighed in favor of allowing joinder of the manager. Id. at *2. The same analysis applies 16 here. Plaintiff tripped in the parking lot of a Target store. Complaint ¶ 7. Plaintiff alleges that 17 Perkins was responsible for managing and maintaining the premises, knew or should have known of 18 the condition of the parking lot, but failed to correct (or warn of) these conditions. Motion at 4. 19 Plaintiff’s claims against Perkins are not just tangentially related, but overlap completely 20 with her claims for negligence and premises liability against Defendant. To that end, a failure to join 21 Perkins in this action may result in a subsequent Superior Court action based on the same factual and 22 legal issues. See Fortenberry v. Walmart Inc., No. EDCV 23-2601-KK-SHKx, 2024 WL 1343166, 23 at *4 (C.D. Cal. Mar. 29, 2024) (finding that failure to join the store manager could result in a 24 subsequent state action based on the same or similar factual and legal issues because plaintiff’s 25 claims against the manager “overlap entirely” with the claims against defendant); Leroy W. v. Costco 26 Wholesale Corp., No. LA CV20-04265 JAK (FFMx), 2020 WL 7023777, at *5 (C.D. Cal. Nov. 30, 27 2020) (same). This factor weighs strongly in favor of granting the joinder. 28 1 2. Factor 2 – Statute of Limitations 2 Courts also consider “whether the statute of limitations would prevent the filing of a new 3 action against the new defendants should the Court deny joinder.” Sagrero v. Bergen Shippers 4 Corp., No. 2:22-cv-04535-SPG-RAO, 2022 WL 4397527, at *5 (C.D. Cal. Nov. 30, 2020). The 5 statute of limitations in California for slip and fall actions is two years. Cal. Civ. Proc. Code § 6 335.1. Because Plaintiff was injured on March 21, 2024, Plaintiff is still well within the statute of 7 limitations. This factor weighs against joinder. 8 3. Factor 3 – Timeliness 9 When determining whether to allow an amended complaint to add a non-diverse party, courts 10 consider whether the amendment was sought in a timely fashion. Fortenberry, 2024 WL 1343166, 11 at *5 (citing Clinco v. Roberts, 41 F. Supp. 2d 1080, 1083 (C.D. Cal. Feb. 25, 1999)). And though 12 “there is no bright line rule as to what qualifies as timely, courts consider the amount of time that has 13 lapsed since removal, the progress of the case, and how much time has passed since opposing 14 counsel refused to stipulate to any proposed amendment.” Id. (citing Khachunts, 2023 WL 4554103, 15 at *3). 16 Here, Plaintiff filed this motion less than three months after the Complaint was filed and less 17 than one month after Defendant removed the case to this Court. There has been no unreasonable 18 delay. See Fayek v. Costco Wholesale Corp., No. 8:22-cv-01621-JVS (ADSx), 2023 WL 2431999, 19 at *3 (finding no unexplained delay even though plaintiff did not add the store manager as a named 20 party until six months after defendant removed the matter). 21 4. Factor 4 – Plaintiff’s Motive for Joinder 22 A plaintiff’s motive in seeking to join an additional defendant is relevant to a court’s decision 23 on whether to allow plaintiff to amend his original complaint. Leroy W., 2020 WL 7023777, at *5 24 (citing Desert Empire Bank v. Ins. Co. of N. Am., 623 F.2d 1371, 1376 (9th Cir. 1980)). “However, 25 there is a presumption that a plaintiff’s sole purpose is not to defeat federal jurisdiction.” Fayek, 26 2023 WL 2431999, at *3 (citing Hamilton Materials, Inc. v. Dow Chemical Corp., 494 F.3d 1203, 27 1206 (9th Cir. 2007)). The burden is on defendants “to show fraudulent joinder by clear and 28 convincing evidence.” Dirkes, 2022 WL 17098672, at *4. 1 Defendant contends that Perkins was a fraudulently joined defendant added solely for the 2 purpose of defeating diversity. Opp’n at 3. But Defendant has not proffered any evidence to show 3 that Perkins is a fictitious Doe defendant or that she was not a Target employee at the time of the 4 incident. Moreover, Plaintiff has taken steps to reserve the right to amend the Complaint to add 5 additional parties. Plaintiff’s Complaint explicitly alleges causes of action for negligence and 6 premises liability against Doe Defendants 1 through 50. And the Complaint indicated that Plaintiff 7 would seek leave to amend to add these Defendants’ real names once they could be ascertained.1 8 5. Factor 5 – Prejudice to Plaintiff 9 Courts have found prejudice “where denying amendment would force the plaintiff to choose 10 between: (1) engaging in redundant litigation in state court arising out of the same facts and 11 involving the same legal issues; or (2) foregoing its potential claims against the to-be-added party.” 12 Serrano v. Garfield Beach CVS, LLC, No. EDCV-17-00506-BRO-DTBx, 2017 WL 8220439, at *5 13 (C.D. Cal. July 6, 2017). 14 Plaintiff contends that denying the amendment would be burdensome because a duplicate 15 action would significantly increase costs, resources, and time. The Court agrees. And Defendant 16 cannot identify any reason it would be prejudiced by remanding the action to state court. 17 6. Factor 6 – Validity of Claims Against Defendant Perkins 18 As long as a “facially valid claim” exists, this factor weighs in favor of joinder. Fortenberry, 19 2024 WL 1343166, at *6 (citing Khachunts, 2023 WL 4554103, at *4). A claim is facially valid as 20 long as it “seems valid, which is a lower standard than what is required to survive a motion to 21 dismiss or motion for summary judgment.” Id. (citing Prudenciano Flores v. Nissan N. Am., Inc., 22 No. CV 21-09411-RSWL-PDx, 2022 WL 1469424, at *4 (C.D. Cal. May 9, 2022)). 23 The elements of negligence under California law are “a legal duty of care, breach of that 24 duty, and proximate cause resulting in injury.” Kesner v. Superior Court, 1 Cal.5th 1132, 1158 25

26 1 See Gamboa v. Wal-Mart Stores, Inc., No. CV 18-2553-KS, 2018 WL 3129776, at *3 (C.D. Cal. 27 June 21, 2018) (citing an insufficient record that plaintiff had an improper motive for joining store manager); Fortenberry, 2024 WL 1343166, at *5 (finding this factor to be neutral because plaintiff 28 demonstrated intent to bring these claims but failed to provide any explanation for the delay). 1 || (2016). Here, Plaintiff has alleged that both Defendants and Perkins (via Doe allegations) owed her 2 || a duty of care as the store manager/supervisor as they were responsible for the safety and 3 || maintenance of the store and the parking lot. Complaint § 13-14. And, the alleged breach of this 4 | duty purportedly caused Plaintiff’s injuries. /d. 19-21. Plaintiff has therefore alleged a facially 5 | valid claim against Perkins at this stage. 6 B. Motion to Remand 7 Although this case was properly removed, joining Perkins as a defendant will destroy 8 || complete diversity and thus eliminate the Court’s subject matter jurisdiction over this action. 9 || Remand is mandatory. 10 | V. CONCLUSION 1] For the reasons discussed, Plaintiff's Motion to Amend is granted. This case will be 12 || remanded to Los Angeles Superior Court forthwith. 13 Ye “ 14 15 Dated: November 20, 2024 Hernan D. Vera 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 |, See Fortenberry, 2024 WL 1343166, at *6 (finding plaintiffs claims of negligence and premises 27 | liability facially valid under California law); Gallegos v. Costco Wholesale Corp., No. CV-20-3250- DMG-GJSx, 2020 WL 2945514, at *3 (C.D. Cal. June 2, 2020); Leroy W., 2020 WL 7023777, at *5 28 | (same); Trujillo, 2017 WL 4864490, at *2 (same).