1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DANIEL GONZALES, Case No. 21-cv-08570-JCS

8 Plaintiff,

ORDER REGARDING ASSERTION OF

9 v. FRAUDULENT JOINDER

10 COSTCO WHOLESALE CORPORATION, et al., 11 Defendants.

12 13 Defendant Costco Wholesale Corporation removed this action from the California Superior 14 Court for Alameda County on November 3, 2021 asserting diversity jurisdiction under 28 U.S.C. 15 § 1332(a). Although another defendant, Elizabeth Brambila, shares California citizenship with 16 Plaintiff Daniel Gonzales and has not joined in removal, Costco asserts that Brambila was not 17 properly served, was not working at the store in question on the day of the accident giving rise to 18 Gonzales’s claims, and is fraudulently joined as a defendant. 19 “[F]raudulently joined defendants will not defeat removal on diversity grounds.” Ritchey 20 v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998). “The term ‘fraudulent joinder’ is a 21 term of art, used for removal purposes, and does not connote any intent to deceive on the part of 22 plaintiff or his counsel.” Plute v. Roadway Package Sys., Inc., 141 F. Supp. 2d 1005, 1008 n.2 23 (N.D. Cal. 2001). 24 “Joinder of a non-diverse defendant is deemed fraudulent, and the defendant’s presence in 25 the lawsuit is ignored for purposes of determining diversity, if the plaintiff fails to state a cause of 26 action against a resident defendant, and the failure is obvious according to the settled rules of the 27 state.” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). Just as there is a 1 v. Philip Morris USA, 582 F.3d 1039, 1046 (9th Cir. 2009). When analyzing the issue of 2 fraudulent joinder, “[a]ll doubts concerning the sufficiency of a cause of action because of inartful, 3 ambiguous or technically defective pleading must be resolved in favor of remand, and a lack of 4 || clear precedent does not render the joinder fraudulent.” Krivanek v. Huntsworth Grp. LLC, No. 5 15-cv-02466-HSG, 2015 WL 5258788, at *2 (N.D. Cal. Sept. 9, 2015) (citation and internal 6 || quotation marks omitted). Accordingly, the Court must remand “unless the defendant shows that 7 the plaintiff would not be afforded leave to amend [the] complaint to cure the purported 8 deficiency.” Rieger v. Wells Fargo Bank, Nat’! Ass’n, No. 3:13-0749-JSC, 2013 WL 1748045, at 9 *3 (N.D. Cal. Apr. 23, 2013) (cleaned up); see also Macey v. Allstate Prop. & Cas. Ins. Co., 220 10 || F. Supp. 2d 1116, 1117 (N.D. Cal. 2002) (stating that remand is proper where “there is a non- 11 fanciful possibility that plaintiff can state a claim’’). 12 No basis for subject matter jurisdiction is apparent besides diversity of citizenship. It is 5 13 not clear whether Gonzales intends to pursue a claim against Brambila. So long as she remains 14 || named as a party, this Court’s jurisdiction under § 1332 is in doubt. Gonzales is therefore 3 15 ORDERED to file, no later than December 22, 2021, either: (1) a notice of dismissal of his claims a 16 against Brambila; or (2) a motion to remand to state court, arguing that Brambila is not 3 17 fraudulently joined.

S 18 IT IS SO ORDERED.

19 Dated: December 8, 2021 20 6 Ze CZ

J PH C. SPERO

21 ief Magistrate Judge 22 23 24 25 26 27 28