1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 CHESTER MADISON and SARAH JO No. 2:19-cv-00853 WBS DB

MADISON,

13 Plaintiffs, 14 ORDER RE: PLAINTIFFS’ MOTION v. TO REMAND 15

FORD MOTOR COMPANY; ELK GROVE

16 FORD; and DOES 1 through 10, inclusive, 17 Defendants. 18

19 ----oo0oo---- 20 21 Plaintiffs Chester Madison and Sarah Jo Madison 22 initiated this lawsuit against Ford Motor Company, Elk Grove 23 Ford, and Does 1 through 10, asserting various state law claims 24 arising out of their purchase of a 2011 Ford Taurus. (Notice of 25 Removal, Ex. B (“Compl.”) (Docket No. 1-2).) Before the court is 26 plaintiffs’ Motion to Remand.1 (Docket No. 6.) 27 1 The court vacates the hearing set for August 12, 2019 28 and decides this motion without oral argument. See Local Rule 1 I. Background 2 Sometime around November 2012, plaintiffs purchased a 3 2011 Ford Taurus that included an express written warranty. 4 (Compl. ¶¶ 8-9.) Plaintiffs allege that during the warranty 5 period, the vehicle developed various defects that substantially 6 impaired the use the vehicle. (See id. ¶ 10.) Defendant Ford 7 and its in-state representatives, including Elk Grove Ford, were 8 allegedly unable to service or repair the vehicle after a 9 reasonable number of repair attempts. (Id. ¶¶ 11, 14 & 35-37.) 10 Defendants also did not replace the vehicle or make restitution 11 to plaintiffs in connection with these alleged defects. (Id.) 12 Plaintiffs contend that they have been injured by defendant 13 Ford’s failure to comply with applicable law and have suffered 14 more than $25,000 in damages. (See id. ¶¶ 12-13.) Plaintiffs 15 also maintain that they delivered their vehicle to defendant Elk 16 Grove Ford for repair at least once and that Elk Grove Ford acted 17 negligently when it stored, prepared, and repaired the vehicle. 18 (Id. ¶¶ 34-38.) 19 On April 9, 2019, plaintiffs filed an action in 20 Sacramento Superior Court against all defendants. Defendants 21 removed this action to this court on May 13, 2019. (Docket No. 22 1.) Plaintiffs now seek to remand this action back to state 23 court. 24 II. Discussion 25 A. Legal Standard 26 “[A]ny civil action brought in a State court of which 27

28 230(g). 1 the district courts of the United States have original 2 jurisdiction, may be removed by the defendant or the defendants, 3 to the district court of the United States for the district ... 4 where such action is pending.” 28 U.S.C. § 1441(a). However, if 5 “it appears that the district court lacks subject matter 6 jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). 7 On a motion to remand, defendants bear the burden of showing by a 8 preponderance of the evidence that federal jurisdiction is 9 appropriate. Geographic Expeditions, Inc. v. Estate of Lhotka, 10 599 F.3d 1102, 1107 (9th Cir. 2010) (citation omitted). 11 Federal courts have original jurisdiction over cases 12 where complete diversity exists between the parties and the 13 amount in controversy exceeds $75,000, exclusive of interest and 14 costs. 28 U.S.C. § 1332(a). For complete diversity to exist, 15 “each of the plaintiffs must be a citizen of a different state 16 than each of the defendants.” Morris v. Princess Cruises, Inc., 17 236 F.3d 1061, 1067 (9th Cir. 2001) (citing Caterpillar Inc. v. 18 Lewis, 519 U.S. 61, 68 (1996)). As to the amount in controversy 19 requirement, “[w]here, as here, it is unclear or ambiguous from 20 the face of a state-court complaint whether the requisite amount 21 in controversy is pled, the removing defendant[s] bear[] the 22 burden of establishing, by a preponderance of the evidence, that 23 the amount in controversy exceeds the jurisdictional threshold.” 24 Urbino v. Orkin Servs. of Cal., Inc., 726 F.3d 1118, 1121–22 (9th 25 Cir. 2013) (citations and quotations omitted). 26 B. Complete Diversity 27 Defendants ask this court to disregard the citizenship 28 of the non-diverse defendant Elk Grove Ford. Defendants argue 1 that Elk Grove Ford has been fraudulently joined2 or, 2 alternatively, should be dismissed as a dispensable party. 3 1. Fraudulent Joinder 4 A non-diverse defendant may be disregarded for purposes 5 of complete diversity if that defendant was fraudulently joined. 6 Hamilton Materials Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 7 (9th Cir. 2007). “There are two ways to establish fraudulent 8 joinder: (1) actual fraud in the pleading of jurisdictional 9 facts, or (2) inability of the plaintiff[s] to establish a cause 10 of action against the non-diverse party in state court.” 11 Grancare, LLC v. Thrower by & through Mills, 889 F.3d 543, 548 12 (9th Cir. 2018) (citations and quotations omitted). Fraudulent 13 joinder is established the second way, the only theory at issue 14 in this case, if the non-diverse defendant “cannot be liable on 15 any theory.” See Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 16 (9th Cir. 1998). There is a general presumption against a 17 finding of fraudulent joinder, and the removing parties must 18 prove by clear and convincing evidence that joinder was 19 fraudulent. Hamilton Materials Inc., 494 F.3d at 1206. If there 20 is a possibility that the state court would find that the 21 complaint states a claim against the non-diverse defendant, this 22 court must remand. See Hunter v. Philip Morris USA, 582 F.3d 23 1039, 1046 (9th Cir. 2009) (citation omitted). 24 25

26 2 The court notes that Ford has repeatedly attempted to remove similar cases to federal court on fraudulent joinder 27 grounds, with little success. See Levine v. Ford Motor Co., No. 2:18-cv-09995 SVW JEM, 2019 WL 990437, at *1 n.1 (C.D. Cal. Feb. 28 28, 2019) (collecting cases). 1 a. Economic Loss Rule 2 Defendants first argue that the economic loss rule bars 3 plaintiffs’ negligent repair claim against Elk Grove Ford. 4 Economic losses are “damages for inadequate value, costs of 5 repair and replacement of the defective product or consequent 6 loss of profits--without any claim of personal injury or damages 7 to other property.” Jimenez v. Superior Court, 29 Cal. 4th 473, 8 482 (2002) (citations and quotations omitted). Under the 9 economic loss rule, plaintiffs generally cannot recover in tort 10 for economic losses. See id. Defendants contend that 11 plaintiffs’ negligent repair claim fails because plaintiffs do 12 not claim any personal injury or damage to other property. 13 California law, however, recognizes an exception to the 14 economic loss rule that is applicable in this case. “The 15 economic loss rule does not necessarily bar recovery in tort for 16 damage that a defective product (e.g., a window) causes to other 17 portions of a larger product (e.g., a house) into which the 18 former has been incorporated.” Id. at 483. Here, plaintiffs 19 have alleged problems with components of the vehicle, such as the 20 transmission assembly, and problems affecting parts connected to 21 the transition assembly. (See Compl. ¶ 10.) Consistent with the 22 economic loss rule, it is possible that plaintiffs could show 23 that a defect in one component of the vehicle caused damage to 24 other parts of the vehicle. See Jimenez, 29 Cal. 4th at 483 25 (“[T]he economic loss rule allows a plaintiff to recover in 26 strict products liability in tort when a product defect causes 27 damage to ‘other property,’ that is, property other than the 28 product itself.” (emphasis in original)). 1 Moreover, the economic loss rule would not necessarily 2 bar recovery for damage that the components caused to the vehicle 3 in which it was incorporated. See Sabicer v. Ford Motor Co., 362 4 F. Supp. 3d 837, 841 (C.D. Cal. 2019).3 As this court previously 5 observed, “California law is not so settled that a plaintiff 6 could not possibly recover against a dealership for negligent 7 repair of a vehicle.” See Lytle v. Ford Motor Co., No. 2:18-cv- 8 1628 WBS EFB, 2018 WL 4793800, at *2 (E.D. Cal. Oct. 2, 2018). 9 Accordingly, defendants have not shown that the 10 economic loss rule renders recovery against Elk Grove Ford 11 impossible. 12 b. Statute of Limitations 13 Defendants next argue that the statute of limitations 14 bars plaintiffs’ negligent repair claim against Elk Grove Ford. 15 Under California law, the statute of limitations for a negligent 16 repair claim is three years. See Cal. Civ. Proc. Code § 17 338(c)(1) (setting forth a statute of limitations of three years 18 for “[a]n action for taking, detaining, or injuring goods or 19 chattels, including an action for the specific recovery of 20 personal property.”).4 Defendants argue that this action is

21 3 Defendants rely on Ruiz v. BMW of North America, LLC, 22 No. 2:16-cv-01177 ODW AGRX, 2017 WL 217746, at *2 (C.D. Cal. Jan. 18, 2017) in support of their argument. However, the court in 23 Ruiz “did not discuss the effect of Jimenez and the caselaw allowing for recovery when a defective component damages a larger 24 product in which the component is incorporated.” Krasner v. Ford Motor Co., No. 2:18-cv-01602 TLN KJN, 2019 WL 1428116, at *4 25 (E.D. Cal. Mar. 29, 2019).

26 4 Defendants cite California Code of Civil Procedure § 27 339 for the proposition that the statute of limitations is two years. “But section 339 deals with causes of action based on 28 contract, not tort.” Sabicer, 362 F. Supp. 3d at 842. 1 untimely because plaintiffs expressed concerns with their vehicle 2 starting in August 2012 and thus should have brought this action 3 earlier. Plaintiffs argue that the discovery rule tolled the 4 statute of limitations. (Compl. ¶ 7.) 5 Under the delayed discovery rule, the statute of 6 limitation begins to run only once plaintiffs discover or should 7 have discovered all facts essential to their cause of action. 8 See Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 808-09 9 (2005). Here, it is certainly possible that plaintiffs only 10 recently discovered that Elk Grove Ford failed to repair the 11 vehicle in accordance with industry standards. Defendants’ own 12 evidence shows that Elk Grove Ford last repaired plaintiffs’ 13 vehicle on April 14, 2016, which is within the three-year 14 limitations period. (See Decl. of Charles F. Harlow, Ex. 5 at 2 15 (documenting a repair related to the transmission) (Docket No. 8- 16 6).) 17 Although plaintiffs may have yet to allege enough facts 18 to support the application of the delayed discovery rule, the 19 only question is whether it possible for plaintiffs to do so. 20 See Grancare, 889 F.3d at 549 (“A claim against a defendant may 21 fail under Rule 12(b)(6), but that defendant has not necessarily 22 been fraudulently joined.”); see also Less v. Ford Motor Co., No. 23 18-cv-1992 MMA(AGS), 2018 WL 4444509, at *3 (S.D. Cal. Sept. 18, 24 2018) (“Even if the allegations concerning tolling are not 25 sufficiently pleaded, Ford has not shown that [plaintiffs] would 26 be unable to amend [their] complaint to allege a viable tolling 27 theory.”). “Defendants have cited no authority that the delayed 28 discovery rule cannot apply to negligent repair claims.” McAdams 1 v. Ford Motor Co., No. 18-cv-07485-LHK, 2019 WL 2378397, at *5 2 (N.D. Cal. June 5, 2019) (emphasis in original). And they have 3 not shown that it is impossible for plaintiffs to successfully 4 invoke the rule here. 5 Accordingly, under the applicable statute of 6 limitations, it is not impossible for plaintiffs to bring a claim 7 for negligent repair. The court therefore concludes that joinder 8 of resident defendant Elk Grove Ford was not fraudulent. 9 2. Severance Under Rule 21 10 The general rule is that jurisdiction is based on facts 11 that exist at the time of filing. Righthaven LLC v. Hoehn, 716 12 F.3d 1166, 1171 (9th Cir. 2013). One exception to this rule is 13 that federal courts may cure jurisdictional defects by dismissing 14 dispensable nondiverse parties under Federal Rule of Civil 15 Procedure 21. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 16 U.S. 826, 832-33 (1989). Dismissal of dispensable nondiverse 17 parties should be exercised sparingly after considering whether 18 such dismissal will prejudice any of the parties in the 19 litigation. See id. at 837–38. The circumstances of this case 20 strongly militate against dismissing defendant Elk Grove Ford as 21 a dispensable party.5 22 5 Under 28 U.S.C. § 1447(c), “[a] motion to remand the 23 case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the 24 notice of removal under section 1446(a).” Because plaintiffs filed this motion to remand almost two months after defendants 25 filed their notice of removal, defendants contend, without any supporting authority, that plaintiffs have waived all objections 26 to its Rule 21 severance argument. Defendants, however, never 27 made a separate motion to drop Elk Grove Ford. Indeed, defendants only raise the possibility of severance to otherwise 28 confer subject matter jurisdiction on this court. Consequently, 1 First, severing Elk Grove Ford would defeat the 2 purposes of permissive joinder. The primary purpose of joining 3 multiple parties is to promote trial convenience and to protect 4 against the inefficiency of multiple lawsuits. League to Save 5 Lake Tahoe v. Tahoe Reg’l Planning Agency, 558 F.2d 914, 917 (9th 6 Cir. 1977). Here, the claims against both defendants are 7 sufficiently intertwined, factually and legally, such that 8 severance would be inconvenient and inefficient. For instance, 9 to assert a claim under California Civil Code § 1793.2(d), 10 plaintiffs had “to allow defendants a reasonable number of 11 attempts to repair the [vehicle].” See Lytle, 2018 WL 4793800, 12 at *4 (citing Silvio v. Ford Motor Co., 109 Cal. App. 4th 1205, 13 1208 (2d Dist. 2003)). Because Elk Grove Ford performed those 14 repairs, Elk Grove Ford “is obviously a proper party in an action 15 dealing with alleged defects in that vehicle.” See id. It is 16 also more convenient to address any claims related to the repairs 17 in the same case dealing with claims related to the vehicle’s 18 warranties. See id. at *3. 19 Second, courts are especially reluctant to use Rule 21 20 “to contort the pleadings of a lawsuit merely to confer federal 21 jurisdiction.” See Zee Med. Distrib. Ass’n, Inc. v. Zee Med., 22 Inc., 23 F. Supp. 2d 1151, 1157 (N.D. Cal. 1998). Accepting this 23 alternative argument would be “an improper end-run around [the 24 court’s] rejection of the fraudulent misjoinder doctrine.” See 25 Hampton v. Insys Therapeutics, Inc., 319 F. Supp. 3d 1204, 1214 26 plaintiffs could address this argument in their motion to remand 27 outside the 30-day period specified in U.S.C. § 1447(c), since their entire argument is that the court lacks subject matter 28 jurisdiction. 1 (D. Nev. 2018). The court declines to use Rule 21 to merely 2 confer federal jurisdiction where there is no other reason to 3 conclude that Elk Grove Ford is a dispensable party. 4 Accordingly, the court will not dismiss Elk Grove Ford 5 from this lawsuit. 6 Because this court finds that Elk Grove Ford is a 7 proper defendant, defendants have not carried their burden of 8 showing a complete diversity of citizenship. The court therefore 9 finds that it lacks subject matter jurisdiction over this 10 | action.® See 28 U.S.C. § 1332 (a). 11 IT IS THEREFORE ORDERED that plaintiffs’ Motion to 12 Remand (Docket No. 6.) be, and the same hereby is, GRANTED. 13 Plaintiffs’ request to remand this case to the Superior Court of 14 the State of California, in and for the County of Sacramento, is 15 GRANTED. 16 | Dated: August 5, 2019 pete ak. Ld, KE 17 WILLIAM B. SHUBB 18 UNITED STATES DISTRICT JUDGE

19 20 21 22 23 24 25 26 6 Because defendants have not shown that there is a 27 complete diversity of citizenship, the court does not decide whether defendants have demonstrated that the amount of in 28 controversy exceeds $75,000. 10