Lopez v. Costco Wholesale Corporation ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 YOLANDA LOPEZ, No. 1:20-cv-01654-DAD-HBK 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION TO REMAND 14 COSTCO WHOLESALE CORPORATION, (Doc. No. 5) 15 Defendant. 16 17 This matter is before the court on plaintiff Yolanda Lopez’s motion to remand this action 18 to the Stanislaus County Superior Court. (Doc. No. 5.) Pursuant to General Order No. 617 19 addressing the public health emergency posed by the coronavirus pandemic, on May 29, 2020, the 20 court took this matter under submission to be decided on the papers, without holding a hearing. 21 The court has considered the parties’ briefs and, for the reasons explained below, will deny 22 plaintiff’s motion to remand. 23 BACKGROUND 24 On June 18, 2020, plaintiff filed the complaint against defendant in Stanislaus County 25 Superior Court asserting claims of premises liability and negligence following her slip and fall 26 while patronizing at defendant’s store. (Doc. No. 1 at 8–11.) The complaint alleges that 27 defendant is a corporation with its principal place of business in California, but the complaint 28 does not allege plaintiff’s residence or domicile. (Id. at 9 (noting only that Stanislaus County 1 Superior Court is the proper court because “the principal place of business of a defendant 2 corporation . . . is in its jurisdictional area.”).) 3 Defendant removed the case to this federal court on November 11, 2020 on the basis of 4 diversity jurisdiction. (Id. at 2.) Defendant asserts that it is a Washington corporation with its 5 principal place of business in Issaquah, Washington, and that plaintiff is a citizen of California at 6 the time of filing. (Id.) In its notice of removal, defendant asserts that the removal is timely 7 because defendant did not learn of plaintiff’s domicile in California until plaintiff served her 8 responses to form interrogatories on October 26, 2020. (Id. at 5.) 9 On December 16, 2020, plaintiff filed a motion to remand, arguing that defendant’s notice 10 of removal was untimely. (Doc. No. 5-2 at 2.) Plaintiff states that although defendant’s claims 11 adjuster received a copy of the complaint via email on June 23, 2020, the complaint was not 12 served on defendant until September 3, 2020 due to an error by the process server. (Id.) On 13 September 2, 2020, the day before service was effectuated, plaintiff emailed defendant a copy of 14 a demand letter dated February 4, 2020 with a copy of plaintiff’s medical records. (Id. at 3.) 15 Plaintiff contends that the medical records “repeatedly contained Plaintiff’s address in Stanislaus 16 County, California” such that defendant was aware of plaintiff’s residence no later than 17 September 2, 2020. (Id.) Thus, according to plaintiff, defendant’s notice of removal needed to 18 be filed within thirty days of September 2, 2020, rendering its filing on November 11, 2020 19 untimely. 20 On December 24, 2020, defendant filed its opposition to the pending motion, and plaintiff 21 filed her reply thereto on January 6, 2021. (Doc. Nos. 7, 8.) 22 LEGAL STANDARD 23 A. Removal Jurisdiction 24 A suit filed in state court may be removed to federal court if the federal court would have 25 had original jurisdiction over the suit. 28 U.S.C. § 1441(a). Removal is proper when a case 26 originally filed in state court presents a federal question or where there is diversity of citizenship 27 among the parties and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 28 1332(a). An action may be removed to federal court on the basis of diversity jurisdiction only 1 where there is complete diversity of citizenship. Hunter v. Phillip Morris USA, 582 F.3d 1039, 2 1043 (9th Cir. 2009). For diversity purposes, a person is a citizen of a state if they are: (1) a 3 citizen of the United States and (2) domiciled in that state. Kantor v. Wellesley Galleries, Ltd., 4 704 F.2d 1088, 1090 (9th Cir. 1983). However, “[a] person residing in a given state is not 5 necessarily domiciled there, and thus is not necessarily a citizen of that state.” Kanter v. Warner- 6 Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). The domicile of a party “for purposes of 7 diversity is determined as of the time the lawsuit is filed.” Lew v. Moss, 797 F.2d 747, 750 (9th 8 Cir. 1986) (internal citation omitted). 9 “If at any time before final judgment it appears that the district court lacks subject matter 10 jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). Section 1447(c) “is strictly 11 construed against removal jurisdiction, and the burden of establishing federal jurisdiction falls to 12 the party invoking the statute.” Cal. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 13 2004) (citation omitted); see also Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 14 1083, 1087 (9th Cir. 2009) (“The defendant bears the burden of establishing that removal is 15 proper.”). As such, a federal court must reject jurisdiction and remand the case to state court if 16 there is any doubt as to the right of removal. Matheson v. Progressive Specialty Ins. Co., 319 17 F.3d 1089, 1090 (9th Cir. 2003); see also Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1118 (9th 18 Cir. 2004). 19 28 U.S.C. § 1446(b) sets forth two separate thirty-day provisions that govern the time to 20 remove a case from state court to federal court. First, a notice of removal must be filed within 21 thirty days of defendant receiving “a copy of the initial pleading setting forth the claim for relief 22 upon which such action or proceeding is based.” 28 U.S.C. § 1446(b)(1). Second, if the pleading 23 does not indicate the case is removable, the thirty-day deadline for removal does not begin to run 24 until defendant receives “a copy of an amended pleading, motion, order or other paper from 25 which it may first be ascertained that the case is one which is or has become removable.” 28 26 U.S.C. § 1446(b)(3). 27 Defendants “need not make extrapolations or engage in guesswork; yet the statute 28 ‘requires a defendant to apply a reasonable amount of intelligence in ascertaining removability.’” 1 Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136, 1140 (9th Cir. 2013) (quoting Whitaker 2 v. Am. Telecasting, Inc., 261 F.3d 196, 206 (2d Cir. 2001)). “The type of document that 3 constitutes an ‘other paper’ for the purposes of the statute is broad, reflecting courts’ ‘embracive 4 construction’ of the term.” Thomas v. CVS Health Corp., No. 2:19-cv-04283-R-FFM, 2019 WL 5 3526344, at *2 (C.D. Cal. Aug. 1, 2019) (quoting Rynearson v. Motricity, Inc., 626 F. Supp. 2d 6 1093, 1097 (W.D. Wash. 2009)). Federal courts have held a variety of documents, including 7 responses to request for admissions, settlement offers, interrogatory responses, deposition 8 testimony, demand letters, and emails estimating damages, to qualify as an “other paper.” Osorio 9 v. Hol-Mac Corp., No. 3:20-cv-00236-JCS, 2020 WL 1240165, at *2 (N.D. Cal. Mar. 15, 2020) 10 (internal citations omitted) (compiling cases). However, binding circuit precedent specifically 11 instructs both that a pre-suit demand letter cannot constitute “other paper” within the meaning of 12 28 U.S.C. § 1446(b) and that such a document cannot be read in context with an indeterminate 13 complaint to create a hybrid removal period. See Carvalho v. Equifax Information Services, LLC, 14 629 F.3d 876, 885–86 (9th Cir. 2010); see also Godoy v. Family Dollar, Inc., No. 1:16-cv-00969- 15 DAD-JLT, 2016 WL 4925826, at *4 (E.D. Cal. Sep. 15, 2016). 16 B. Determination of Domicile 17 A person’s domicile is their permanent home where they reside with the intention to 18 remain or to which they intend to return. See Lew, 797 F.2d at 749. A person who resides in a 19 particular state is not necessarily domiciled there, and thus is not necessarily a citizen of that 20 state. See, e.g., Weible v. United States, 244 F.2d 158, 163 (9th Cir. 1957) (“Residence is 21 physical, whereas domicile is generally a compound of physical presence plus an intention to 22 make a certain definite place one’s permanent abode, though, to be sure, domicile often hangs on 23 the slender thread of intent alone, as for instance where one is a wanderer over the earth. 24 Residence is not an immutable condition of domicile.”). The Ninth Circuit has not adopted the 25 presumption that a person’s residence is prima facie evidence of the person’s domicile. 26 Mondragon v. Capital One Auto Fin., 736 F.3d 880, 885–86 (9th Cir. 2013) (citations omitted). 27 Courts in the Ninth Circuit must consider a variety of factors, including: “current residence, 28 voting registration and voting practices, location of personal and real property, location of 1 brokerage and bank accounts, location of spouse and family, membership in unions and other 2 organizations, place of employment or business, driver’s license and automobile registration, and 3 payment of taxes.” Lew, 797 F.2d at 750 (citing authorities). Domicile is determined based on 4 “objective facts,” with no single controlling factor, and “statements of intent are entitled to little 5 weight when in conflict with facts.” Id. 6 ANALYSIS 7 Here, it is disputed whether defendant’s removal of this action to this federal court was 8 timely. Plaintiff asserts that defendant knew plaintiff’s residence was in California based on 9 medical records attached to a copy of the February demand letter sent to defendant on September 10 2, 2020, and that defendant therefore was required to remove this action to federal court within 11 thirty days of the receipt of those medical records. (Doc. No. 5-2 at 3–4.) Defendant argues that 12 the complaint was not removable because the medical records were initially provided on February 13 4, 2020, prior to the filing of the complaint on June 18, 2020, and therefore is not an “other 14 paper” contemplated by 28 U.S.C. § 1446(b) that would trigger the 30-day removal period. (Doc. 15 No. 7 at 5.) Defendant also asserts that even if the medical records attached to plaintiff’s demand 16 letter constitute “other papers,” they merely provide jurisdictional clues as to plaintiff’s possible 17 domicile, which is insufficient to trigger the time limit contemplated by 28 U.S.C. § 1446(b). (Id. 18 at 6.) 19 It is undisputed that the original demand letter and plaintiff’s medical records were sent to 20 defendant on February 4, 2020; the complaint was filed on June 18, 2020; a copy of the complaint 21 was forwarded to defendant’s counsel on June 23, 2020; a copy of the February 4, 2020 demand 22 letter and attached medical records were sent to defendant on September 2, 2020; the complaint 23 was served on defendant on September 3, 2020; and plaintiff returned her responses to 24 defendant’s form interrogatories on October 26, 2020. (Doc. Nos. 5-2 at 2–3; 7 at 2, 5.) 25 Here, the face of plaintiff’s pleading did not affirmatively reveal information that 26 triggered the thirty-day removal period based on diversity jurisdiction because the pleading (Doc. 27 No. 1) did not state plaintiff’s residency nor her citizenship. See Harris v. Bankers Life & Cas. 28 Co., 425 F.3d 689, 695–96 (9th Cir. 2005). Diversity jurisdiction is based on the citizenship of 1 the parties at the time the complaint is filed. See Kanter, 265 F.3d at 857 (parties’ actual 2 citizenship, not residency, determines diversity); Smith v. Sperling, 354 U.S. 91, 93, n. 1 (1957) 3 (diversity of citizenship is determined at the filing of the complaint). Thus, this action was not 4 removable to federal court on the basis of plaintiff’s initial pleading. 5 In the Ninth Circuit, “any document received prior to receipt of the initial pleading cannot 6 trigger the second thirty-day removal period” contemplated by 28 U.S.C. § 1446(b) upon the 7 receipt of “other papers.” Carvalho, 629 F.3d at 885–86. Here, plaintiff initially provided her 8 medical records to defendant on February 4, 2020 as an attachment to a pre-litigation demand 9 letter. (Doc. Nos. 5-2 at 3; 7 at 5.) The pre-litigation demand letter and attached medical records 10 received February 4, 2020 are not “other papers” pursuant to 28 U.S.C. § 1446(b) because they 11 were received prior to the filing of the complaint. See Carvalho, 629 F.3d at 885–86. Defendant 12 emphasizes that the September 2, 2020 copy of plaintiff’s prelitigation demand letter and medical 13 records were sent prior to defendant being served the complaint on September 3, 2020. (Doc. No. 14 7 at 5.) However, and most importantly, plaintiff’s complaint was filed on June 18, 2020 and 15 defendant’s counsel received a copy of that complaint via email on June 23, 2020. (Doc. No. 5-7 16 at 2.) The thirty-day removal period begins to run upon “receipt by the defendant, through 17 service or otherwise, of a copy of an amended pleading, motion, order or other paper” that 18 provides the grounds for removal. 28 U.S.C. § 1446(b) (emphasis added). Unlike in Carvalho, 19 where the pre-litigation demand was sent “months before receipt of the initial pleading,” here, 20 defendant received a copy of the complaint by way of email (see Doc. Nos. 5-1 at 2, 15; 5-2 at 2) 21 five days after plaintiff’s complaint was filed. See Carvalho, 629 F.3d at 885–86. Defendant 22 subsequently received the copy of plaintiff’s February demand letter and the attached medical 23 records on September 2, 2020, nearly three months after having already received a copy of 24 plaintiff’s initial pleading. (Doc. No. 7 at 5.) 25 Defendant urges the court to find that a copy of a prelitigation demand letter and its 26 attached documents, sent and received informally after the filing of the complaint without 27 indication that the demand was being renewed, can never qualify as an “other paper” under 28 28 U.S.C. § 1446(b). (Id. at 6.) Although federal courts have not specifically addressed whether 1 such documents constitute “other paper,” they have also not applied a narrow interpretation of the 2 statute, instead finding that a variety of documents exchanged between the parties in the same 3 case may constitute an “other paper.” See Ritchie v. Williams, 395 F.3d 283, 287 (6th Cir. 2005) 4 (finding that the thirty-day removal period was triggered by production of a contract showing that 5 state law claims were preempted by federal law); Lovern v. Gen. Motors Corp., 121 F.3d 160, 6 162 (4th Cir. 1997) (implying that both a police report and interrogatory responses produced by 7 the plaintiff were “other papers” that triggered the beginning of the removal period); Lee v. 8 Altamil Corp., 457 F. Supp. 979, 980 (M.D. Fla. 1978) (finding that discovery documents, 9 including a letter from a doctor establishing plaintiff’s disability, were sufficient to start the 10 thirty-day clock because they established the amount in controversy). The court need not resolve 11 this issue in disposing of the pending motion. That is because, even if the copy of plaintiff’s 12 medical records and demand letter sent to defendant on September 2, 2020 constituted “other 13 paper” under 28 U.S.C. § 1446(b), the thirty-day removal period did not commence upon 14 defendant’s receipt of those documents. 15 Plaintiff did not serve or otherwise provide defendant with documents from which 16 removability was clear. Plaintiff argues that because the medical records sent on September 2, 17 2020 “repeatedly contained Plaintiff’s address in Stanislaus County, California,” the documents 18 were sufficient to notify defendant of her domicile, and thus grounds for removability. (Doc. No. 19 5-2 at 2.) However, even if the fewer than five mentions of plaintiff’s address in the medical 20 records spanning 80 pages notified defendant of plaintiff’s residence in California, residency 21 alone does not provide a sufficient basis to establish a party’s citizenship for the purposes of 22 diversity jurisdiction in the Ninth Circuit. See Kantor, 704 F.2d at 1090 (citizenship, not 23 residency, determines diversity); Kanter, 265 F.3d at 857 (“A person residing in a given state is 24 not necessarily domiciled there, and thus is not necessarily a citizen of that state.”). Based on the 25 record before the court, plaintiff provided no other jurisdictional clues in her complaint or in other 26 documents that, taken into consideration with the medical records, could have established that she 27 was domiciled in California at the time the complaint was filed until she served her responses to 28 defendant’s form interrogatories on October 26, 2020. (Doc. No. 1 at 5). As such, the thirty-day 1 | time limit for removal under 28 U.S.C. § 1446(b) did not commence until October 26, 2020. 2 | Accordingly, the court will deny plaintiff's motion to remand because defendant’s notice of 3 | removal was timely. 4 CONCLUSION 5 For the reasons set forth above, plaintiff's motion to remand (Doc. No. 5) is denied. 6 | IT IS SO ORDERED. a " 7 ji je Ff; Dated: _ February 10, 2021 Sea 1" S098 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28