Case 2:21-cv-09411-RSWL-PD Document 20 Filed 05/09/22 Page 1 of 12 Page ID #:169 'O' 1

JS-6

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 CV 21-09411-RSWL-PD x 11 PRUDENCIANO FLORES, ORDER re: Motion to Remand 12 Plaintiff, [14] 13 v. 14

NISSAN NORTH AMERICA,

15 INC.; DOWNEY IMPORT CARS, INC.; and DOES 1-10, 16 Defendants. 17 18 19 Plaintiff Prudenciano Flores (“Plaintiff”) brings 20 this Action against Defendant Nissan North America, Inc. 21 (“Nissan”) for violation of the Song-Beverly Consumer 22 Warranty Act and against Defendant Downey Import Cars, 23 Inc. (“Downey”) for negligent repair. Currently before 24 the Court is Plaintiff’s Motion to Remand to Los Angeles 25 County Superior Court (“Motion”) [14]. Having reviewed 26 all papers submitted pertaining to this Motion, the 27 Court NOW FINDS AND RULES AS FOLLOWS: the Court GRANTS 28 Plaintiff’s Motion. 1 Case 2:21-cv-09411-RSWL-PD Document 20 Filed 05/09/22 Page 2 of 12 Page ID #:170

1 I. BACKGROUND

2 A. Factual Background

3 Plaintiff is a resident of Los Angeles, California. 4 First Am. Compl. (“FAC”) ¶ 2, ECF No. 11. Nissan is a 5 corporation authorized to conduct business in 6 California. Id. ¶ 3. Downey is a corporation organized 7 under the laws of California and authorized to conduct 8 business in California. Id. ¶ 4. 9 On May 24, 2020, Plaintiff purchased a 2020 Nissan 10 Sentra (“Vehicle”), which was manufactured and 11 distributed by Nissan. Id. ¶ 6. Plaintiff received an 12 express written warranty in which Nissan undertook to 13 preserve or maintain the utility and performance of the 14 Vehicle and to provide compensation if there was a 15 failure in the Vehicle’s utility or performance for a 16 specified period of time. Id. ¶ 10. The warranty 17 provided that in the event a defect developed with the 18 Vehicle during the warranty period, Plaintiff could 19 deliver the Vehicle for repair services to a repair shop 20 and the Vehicle would be repaired. Id. 21 During the warranty period, the Vehicle contained 22 or developed defects that substantially impaired the 23 use, safety, and value of the Vehicle. Id. ¶ 11. 24 Plaintiff provided Nissan with sufficient opportunity to 25 repair the Vehicle, but Nissan failed to repair the 26 Vehicle within a reasonable number of attempts. Id. 27 ¶¶ 14-15. Plaintiff also delivered the Vehicle to 28 Downey for repair on numerous occasions, but Downey 2 Case 2:21-cv-09411-RSWL-PD Document 20 Filed 05/09/22 Page 3 of 12 Page ID #:171

1 breached its duty to properly store and repair the

2 Vehicle in accordance with industry standards. Id.

3 ¶¶ 43-45. Because of Nissan’s breach of warranty and 4 Downey’s negligence in failing to repair the Vehicle, 5 Plaintiff was financially damaged. Id. ¶¶ 18, 47. 6 B. Procedural Background 7 On October 29, 2021, Plaintiff filed her Complaint 8 [1-2] against Nissan in the Superior Court of 9 California, County of Los Angeles. On December 3, 2021, 10 Nissan removed [1] the case to this Court. Nissan 11 stated that this Court had diversity jurisdiction over 12 the case because Plaintiff is domiciled in California, 13 while Defendant is a Delaware corporation with a 14 principal place of business in Tennessee. See Notice of 15 Removal ¶¶ 13-14, ECF No. 1. 16 Plaintiff filed a First Amended Complaint (“FAC”) 17 [11] on December 22, 2021, which added a new cause of 18 action for negligent repair against Downey. Plaintiff 19 then filed the instant Motion to Remand [14] on January 20 24, 2022, arguing that the case must be remanded because 21 the addition of Downey destroys diversity. Defendant 22 has not opposed the Motion. 23 II. DISCUSSION 24 A. Legal Standard 25 Civil actions may be removed from state court if 26 the federal court has original jurisdiction. See 27 Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 33 28 (2002). Diversity jurisdiction exists in all civil 3 Case 2:21-cv-09411-RSWL-PD Document 20 Filed 05/09/22 Page 4 of 12 Page ID #:172

1 actions between citizens of different states where the

2 amount in controversy exceeds $75,000, exclusive of

3 interest and costs. 28 U.S.C. § 1332. There must be 4 complete diversity of citizenship, meaning “each of the 5 plaintiffs must be a citizen of a different state than 6 each of the defendants.” Morris v. Princess Cruises, 7 Inc., 236 F.3d 1061, 1067 (9th Cir. 2001) (citing 8 Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996)). 9 “The burden of establishing jurisdiction falls on 10 the party invoking the removal statute, which is 11 strictly construed against removal.” Sullivan v. First 12 Affiliated Sec., Inc., 813 F.2d 1368, 1371 (9th Cir. 13 1987) (internal citations omitted). Courts resolve all 14 ambiguities “in favor of remand to state court.” Hunter 15 v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 16 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 17 (9th Cir. 1992)). A removed case must be remanded “[i]f 18 at any time before final judgment it appears that the 19 district court lacks subject matter jurisdiction.” 28 20 U.S.C. § 1447(c). 21 B. Discussion 22 The Court begins by noting that Defendants failed 23 to oppose this Motion and offer no excuse for their 24 failure to oppose. The Motion is therefore GRANTED for 25 this reason. See C.D. Cal. L.R. 7-12 (“The failure to 26 file any required document, or the failure to file it 27 within the deadline, may be deemed consent to the 28 granting or denial of the motion.”); Flores v. FCA US 4 Case 2:21-cv-09411-RSWL-PD Document 20 Filed 05/09/22 Page 5 of 12 Page ID #:173

1 LLC, No. 2:20-cv-6278-ODW (KSx), 2020 WL 5549140 (C.D.

2 Cal. Sept. 15, 2020). Nonetheless, the Court finds that

3 remand is warranted on the merits as well. 4 In its Notice of Removal, Defendant asserts that 5 this Court has diversity jurisdiction over this Action 6 because Plaintiff is a citizen of California and 7 Defendant is a citizen of both Delaware and Tennessee. 8 See Notice of Removal ¶¶ 13-14. Plaintiff argues that 9 remand is necessary because the addition of Downey to 10 this Action destroys diversity. Pl.’s Mem. P. & A. in 11 Supp. of Mot. to Remand 1:14-18, ECF No. 14-1. The 12 Court agrees that the addition of Downey would destroy 13 this Court’s diversity jurisdiction. Downey does not 14 appear to be diverse from Plaintiff because both are 15 alleged to be California citizens, and neither Defendant 16 has stated otherwise. See FAC ¶¶ 2, 4; see also 17 Sullivan, 813 F.2d at 1371 (stating that the burden is 18 on the removing defendant to establish that subject 19 matter jurisdiction is proper). Therefore, the Court 20 must analyze whether Downey was properly joined to this 21 Action to determine whether the case must be remanded 22 for lack of jurisdiction. 23 1. Joinder 24 Where a case has been removed from state court and 25 the plaintiff attempts to amend its complaint to join 26 nondiverse defendants that would destroy the federal 27 court’s subject matter jurisdiction, the amendment must 28 be scrutinized under 28 U.S.C. § 1447(e). Clinco v. 5 Case 2:21-cv-09411-RSWL-PD Document 20 Filed 05/09/22 Page 6 of 12 Page ID #:174

1 Roberts, 41 F. Supp. 2d 1080, 1088 (C.D. Cal. 1999).

2 Section 1447(e) affords courts discretion to either deny

3 joinder of the nondiverse defendant or to permit joinder 4 and remand the action to state court. 18 U.S.C. 5 § 1447(e). 6 In deciding whether to permit joinder, “a court 7 should consider: (1) whether the party sought to be 8 joined is needed for just adjudication and would be 9 joined under Federal Rule of Civil Procedure 19(a); (2) 10 whether the statute of limitations would prevent the 11 filing of a new action against the new defendant should 12 the court deny joinder; (3) whether there has been 13 unexplained delay in seeking the joinder; (4) whether 14 the joinder is solely for the purpose of defeating 15 federal jurisdiction; and (5) whether the claim against 16 the new party seems valid.” Clinco, 41 F. Supp. at 17 1082. The Court will address each factor in turn. 18 a. Rule 19 19 “Federal Rule of Civil Procedure 19 requires 20 joinder of persons whose absence would preclude the 21 grant of complete relief, or whose absence would impede 22 their ability to protect their interests or would 23 subject any of the parties to the danger of inconsistent 24 obligations.” Clinco, 41 F. Supp. 2d at 1082; Fed. R. 25 Civ. P. 19(a). Courts consider whether a non-diverse 26 defendant is a necessary party under Rule 19 when 27 determining whether to allow a diversity-destroying 28 amendment, but amendment under § 1447(e) is less 6 Case 2:21-cv-09411-RSWL-PD Document 20 Filed 05/09/22 Page 7 of 12 Page ID #:175

1 restrictive than joinder under Rule 19. IBC Aviation

2 Servs., Inc. v. Compiana Mexicana de Aviacion, S.A. de

3 C.V., 125 F. Supp. 2d 1008, 1011-12 (N.D. Cal. 2000). 4 Under § 1447(e), joinder is proper when “failure to join 5 will lead to separate and redundant actions.” Id. at 6 1012. Moreover, “a court may find that joinder [under 7 § 1447(e)] is appropriate for the just adjudication of 8 the controversy if there is a high degree of involvement 9 by the defendant in the occurrences that gave rise to 10 the plaintiff’s cause of action.” Yenokian v. BMW of N. 11 Am., LLC, No. CV 18-4897JFW(RAOx), 2018 WL 6177230, at 12 *2 (C.D. Cal. Oct. 19, 2018) (quoting McGrath v. Home 13 Depot USA, Inc., 298 F.R.D. 601, 608 (S.D. Cal. 2014)). 14 Here, Plaintiff’s claims against Nissan and Downey 15 involve the same Vehicle, the same alleged defects in 16 the Vehicle, and the same attempted repairs. See FAC 17 ¶¶ 10-18, 43-47. Nissan’s warranty ensured that 18 Plaintiff could deliver the Vehicle to a repair shop to 19 be repaired, and Downey is the repair shop Plaintiff 20 sought services from. Id. ¶¶ 10, 43. Thus, Downey had 21 a high degree of involvement in the occurrences giving 22 rise to Plaintiff’s breach of warranty claims against 23 Nissan. See Harris v. Ford Motor Co., No. CV 17-04964 24 SJO (MRWx), 2017 WL 10433673, at *2 (C.D. Cal. Aug. 9, 25 2017) (finding repair facility necessary for just 26 adjudication of claims against defendant because it was 27 “a direct participant in the events and transactions 28 giving rise to the case”); Forward-Rossi v. Jaguar Land 7 Case 2:21-cv-09411-RSWL-PD Document 20 Filed 05/09/22 Page 8 of 12 Page ID #:176

1 Rover N. Am., LLC, No. 2:16-cv-00949-CAS(KSx), 2016 WL

2 3396925, at *3 (C.D. Cal. June 13, 2016) (same).

3 Moreover, resolution of Plaintiff’s claims against 4 Nissan and Downey will likely require review of many of 5 the same documents and witnesses. See Yenokian, 2018 WL 6 6177230, at *2. Denying joinder of Downey here would 7 lead to separate and redundant actions, and this factor 8 therefore weighs in favor of joinder. 9 b. Statute of Limitations 10 If a plaintiff could file an action against the 11 joined defendant in state court, then there is less 12 reason to permit joinder under § 1447(e). See Clinco, 13 41 F. Supp. 2d at 1083. Under California law, the 14 statute of limitations for a negligent repair claim is 15 three years. Cal. Civ. Proc. Code § 338(c)(1); Sabicer 16 v. Ford Motor Co., 362 F. Supp. 3d 837, 841 (C.D. Cal. 17 2019). Plaintiff does not specify the date on which the 18 attempted repairs took place, but the statute of 19 limitations could not have run because Plaintiff 20 purchased the Vehicle on May 24, 2020. See FAC ¶ 6. 21 Because Plaintiff would not be time-barred from filing a 22 new action against Downey in state court, this factor 23 weighs against joinder. 24 c. Unexplained Delay 25 “When determining whether to allow amendment to add 26 a nondiverse party, courts consider whether the 27 amendment was attempted in a timely fashion.” Clinco, 28 41 F. Supp. 2d at 1083. “District courts generally 8 Case 2:21-cv-09411-RSWL-PD Document 20 Filed 05/09/22 Page 9 of 12 Page ID #:177

1 measure delay from the date of removal to determine

2 whether an unreasonable delay has occurred.” Yenokian,

3 2018 WL 6177230, at *3. Here, Plaintiff filed the FAC 4 to include a claim against Downey less than three weeks 5 after the case was removed to federal court. 6 Plaintiff’s amendment was therefore timely. See Harris, 7 2017 WL 10433673, at *2 (finding amendment timely 8 because it was sought less than three weeks after 9 removal); Yenokian, 2018 WL 6177230, at *3 (finding 10 amendment timely when sought almost three months after 11 removal). This factor therefore favors permitting 12 joinder. 13 d. Motive for Joinder 14 A court must look with particular care at a 15 plaintiff’s motive for joining a nondiverse defendant to 16 a removed case “when the presence of a new defendant 17 will defeat the court’s diversity jurisdiction and will 18 require a remand to state court.” Clinco, 41 F. Supp. 19 at 1083. The question of whether joinder is solely 20 intended to defeat jurisdiction is intertwined with an 21 assessment of the strength of the claims against the 22 proposed new defendant. McGrath, 298 F.R.D. at 608. 23 While it is possible that Plaintiff is motivated to 24 defeat jurisdiction and have the case remanded, it is 25 unlikely that this is Plaintiff’s sole motivation. As 26 explained below, the Court finds that Plaintiff’s 27 negligent repair claim against Downey is at least 28 facially valid. Moreover, the FAC is substantively 9 Case 2:21-cv-09411-RSWL-PD Document 20 Filed 05/09/22 Page 10 of 12 Page ID #:178

1 different from Plaintiff’s original complaint because

2 the negligent repair claim is distinct from Plaintiff’s

3 claims against Nissan. Compare Clinco, 41 F. Supp. at 4 1083 n.2 (finding improper motive where the original and 5 first amended complaints were “substantially similar”), 6 with Forward-Rossi, 2016 WL 3396925, at *4 (declining to 7 impute an improper motive to plaintiff where she sought 8 “to add two additional claims that, while relying on 9 many of the same facts, [were] conceptually distinct 10 from her two existing claims under the Song-Beverly 11 Act”). Accordingly, the Court cannot say that 12 Plaintiff’s sole motivation in alleging a claim against 13 Downey is to defeat diversity jurisdiction, particularly 14 where Plaintiff is simply exercising the right to amend 15 the complaint “once as a matter of course.” See Sabag 16 v. FCA US, LLC, No. 2:16-cv-06639-CAS(RAOx), 2016 WL 17 6581154, at *6 (C.D. Cal. Nov. 7, 2016); Fed. R. Civ. P. 18 15(a)(1). Therefore, the Court finds this factor weighs 19 slightly in favor of permitting joinder. 20 e. Validity of Claim against Downey 21 “The existence of a facially legitimate claim 22 against the putative defendant weighs in favor of 23 permitting joinder under § 1447(e).” Forward-Rossi, 24 2016 WL 3396925, at *4 (internal quotation marks and 25 citation omitted). A claim is facially legitimate if it 26 “seems valid,” which is a lower standard than what is 27 required to survive a motion to dismiss or motion for 28 summary judgment. Sabag, 2016 WL 6581154, at *6. 10 Case 2:21-cv-09411-RSWL-PD Document 20 Filed 05/09/22 Page 11 of 12 Page ID #:179

1 Plaintiff alleges that the Vehicle was delivered to

2 Downey on numerous occasions and that Downey breached

3 its duty to use ordinary skill and care in the storage, 4 preparation, diagnosis, and repair of the Vehicle in 5 accordance with industry standards. FAC ¶¶ 43-45. 6 These allegations establish, at minimum, a facially 7 legitimate claim for negligent repair. See Southwest 8 Forest Indus., Inc. v. Westinghouse Elec. Corp., 422 9 F.2d 1013, 1018 (9th Cir. 1970) (noting that, generally, 10 “[o]ne who undertakes repairs has a duty arising in tort 11 to do them without negligence”); see also Yenokian, 2018 12 WL 6177230, at *4; Forward-Rossi, 2016 WL 3396925, at 13 *4. 14 2. Remand 15 On balance, the Clinco factors weigh in favor of 16 permitting joinder under § 1447(e). Because the 17 addition of Downey destroys complete diversity between 18 the parties, this Court no longer has subject matter 19 jurisdiction over this Action. The Court therefore 20 GRANTS Plaintiff’s Motion to Remand. See 28 U.S.C. 21 § 1447(c) (“If at any time before final judgment it 22 appears that the district court lacks subject matter 23 jurisdiction, the case shall be remanded.”). 24 /// 25 /// 26 /// 27 /// 28 /// 11 Case 2:21-cv-09411-RSWL-PD Document 20 Filed 05/09/22 Page 12 of 12 Page ID #:180

1 III. CONCLUSION 2 Based on the foregoing, the Court GRANTS 3 Plaintiff’s Motion. This Action is hereby REMANDED to

4 the Superior Court of California, County of Los Angeles. 5 IT IS SO ORDERED. 6 DATED: May 9, 2022 ______/s_/_ R_o_n_a_ld_ S_._W_._ L_e_w_______

HONORABLE RONALD S.W. LEW

7 Senior U.S. District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12