Gutierrez v. Helena Agri-Enterprises, LLC ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SANTOS GUTIERREZ and BLANCA Case No. 1:23-cv-01369-JLT-HBK MARTINEZ, 12 FINDINGS AND RECOMMENDATIONS TO Plaintiffs, GRANT PLAINTIFFS’ MOTION FOR 13 LEAVE TO FILE FIRST AMENDED v. COMPLAINT AND REMAND CASE DUE 14 TO LACK OF SUBJECT MATTER HELENA AGRI-ENTERPRISES, LLC JURISDICTION1 15 and DOES 1-50, (Doc. No. 15) 16 Defendants. 14-DAY OBJECTION PERIOD 17 18 Pending before the Court is Plaintiffs’ Motion for Leave to file a First Amended 19 Complaint. (Doc. No. 15, “Motion to Amend”). Plaintiffs accompany the Motion with a copy of 20 their proposed unsigned First Amended Complaint identified as “Exhibit 2” to counsel’s 21 Declaration. (Doc. No. 15-1 at 14-21). Defendant Helena Agri-Enterprises, LLC filed an 22 Opposition (Doc. No. 17), and Plaintiffs filed a Reply (Doc. No. 19). For the reasons discussed 23 below, the Court recommends the District Court grant Plaintiffs’ Motion to Amend, adding 24 Tomas Rodriguez Nieto as a Defendant, and remand the case to state court pursuant to 28 U.S.C. 25 26 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2023). While the granting of a motion to amend a complaint is a pretrial procedural matter, 27 given that the granting of the First Amended Complaint in the instant action results in destruction of diversity and ipso facto remand, the undersigned has elected to address the Motion by way of a Findings 28 and Recommendation. 1 § 1447(c). 2 BACKGROUND 3 Plaintiff initiated this action in Fresno County Superior Court on April 20, 2023, alleging 4 claims against Defendant Helena Agri-Enterprises, LLC (“Helena”) and Does 1-50. (Doc. No. 2 5 at 4 ¶ 12, 10). Helena filed an Answer in state court on September 18, 2023, and removed the 6 action to this Court on the same day on diversity grounds. (Id. ¶ 14, 2-3 ¶¶ 2-6). 7 Plaintiffs’ Complaint alleges that on or about September 6, 2021, Plaintiff Santos 8 Gutierrez was removing irrigation hoses from mandarin fields owned by his employer, Dresick 9 Farms Inc. (Id. at 13 ¶ 10). Plaintiff was operating an ATV on Dresick property when he was 10 struck and injured by a truck going approximately 40-45 miles per hour, driven by an employee 11 of Helena named “Tomas” who was drunk and operating a cell phone. (Id. ¶ 11). The Complaint 12 asserts causes of action against Helena and Does 1-50 for Negligence, Negligent Entrustment, and 13 Loss of Consortium on behalf of Plaintiff Gutierrez’s wife, Blanca Martinez. (See Doc. No. 2 at 14 11-18). The Complaint states “[t]he true name and capacity of Helena’s truck driver Tomas, are 15 unknown to Plaintiffs, who therefore will ask leave to amend this compliant [sic] to show his true 16 name and capacity when ascertained.” (Id. ¶ 12). 17 In the Answer to Plaintiffs’ Complaint, Defendant, citing California Code of Civil 18 Procedure § 431.30 “denies, generally and specifically, each and every allegation of Plaintiffs’ 19 Complaint in its entirety . . .” (Id. at 28). Defendant’s Answer also asserts fifteen specific 20 affirmative defenses including the affirmative defense of failure to join indispensable parties. (Id. 21 at 31). 22 On December 14, 2023, Plaintiffs filed a pleading titled “Doe Amendment to Complaint” 23 seeking to amend the initial Complaint and provide the full name of the individual previously 24 identified only as “Tomas.” (Doc. No. 10). On January 16, 2024, the Court granted Defendant’s 25 construed Motion to Strike the Doe Amendment under Rule 12 and Rule 15 because Plaintiffs 26 had not obtained consent to file an amended complaint, and because the proposed amended 27 complaint was not complete, and freestanding on its face as required by Local Rule 220. (See 28 Doc. No. 14). 1 On January 17, 2024, Plaintiffs filed the instant Motion to Amend, which is accompanied 2 by a proposed First Amended Complaint naming Tomas Rodriguez as a Defendant.2 (Doc. Nos. 3 15, 15-1). While neither Plaintiffs nor Defendant specifically allege any facts as to Nieto’s 4 citizenship, Defendant’s Opposition brief states that “add[ing] . . . Helena’s driver Nieto . . . 5 would destroy subject matter jurisdiction and require remand.” (Doc. No. 17 at 4). Both parties 6 appear to agree that Nieto is a California citizen, and his addition to this action would destroy the 7 present diversity of citizenship between the parties. (See generally Doc. Nos. 17, 19). The Court 8 accepts the Parties’ representations of Nieto’s citizenship and assumes that adding him as a 9 Defendant would divest this Court of subject matter jurisdiction. 10 APPLICABLE LAW AND ANALYSIS 11 A. Legal Standard 12 As an initial matter, the Parties disagree as to whether Plaintiffs’ Motion to Amend is 13 governed by Rule 15(a)(2) or 28 U.S.C. § 1447(e). The Court finds § 1447(e) the appropriate 14 standard for considering whether Plaintiffs should be permitted to amend their complaint to add a 15 non-diverse party under Rule 15(a). See McGrath v. Home Depot USA, Inc., 298 F.R.D. 601, 606 16 (S.D. Cal. 2014). 17 Generally, leave to amend a complaint must be “freely given” absent “any apparent or declared 18 reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated 19 failure to cure deficiencies by amendments previously allowed undue prejudice to the opposing 20 party by virtue of allowance of the amendment, futility of the amendment” or other similar 21 showings. Foman v. Davis, 371 U.S. 178, 182 (1962); see also Fed. R. Civ. P. 15(a)(2). 22 However, where a proposed amendment would add a non-diverse party after removal—thereby 23 precluding existing, diversity jurisdiction—there is greater discretion in determining whether to 24 allow the amendment. 28 U.S.C. § 1447(e); see also Newcombe v. Adolf Coors Co., 157 F.3d 25 26 2 Plaintiffs name Tomas Rodriguez as the newly added defendant throughout their Motion and in their proposed First Amended Complaint. (See generally Doc. Nos. 15, 15-1). In their Opposition, Defendants 27 refer to the defendant as Tomas Rodriguez Nieto or Nieto (Doc. No. 17 at 1) and their Reply, Plaintiffs also acknowledge Defendant’s full name as Tomas Rodriguez Nieto. (Doc. No. 19 at 6). For clarity 28 purposes, the Court refers to the defendant as Tomas or Nieto. 1 686, 691 (9th Cir. 1998). 2 Section 1447(e) provides: “[i]f after removal the plaintiff seeks to join additional 3 defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, 4 or permit joinder and remand the action to the State court.” 28 U.S.C. § 1447(e). Under § 5 1447(e), a district court has two options. Stevens v. Brink’s Home Sec., Inc., 378 F.3d 944, 949 6 (9th Cir. 2004). It may deny joinder and retain diversity jurisdiction in the case. Alternatively, it 7 may permit joinder; however, if joinder is permitted, the case must be remanded to state court. 8 Id. 9 Section 1447(e) does not state the factors to be considered when deciding whether joinder 10 should be permitted or denied. However, courts generally 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 preclude an 13 original action against the new defendant in state court; (3) whether there has been unexplained 14 delay in requesting joinder; (4) whether joinder is intended solely to defeat federal jurisdiction; 15 (5) whether the claims against the new defendant appear valid; and (6) whether denial of joinder 16 will prejudice the plaintiff. IBC Aviation Servs. v. Compania Mexicana De Aviacion, S.A. de 17 C.V., 125 F. Supp. 2d 1008, 1011 (N.D. Cal. 2000) (citing Palestini v. Gen. Dynamics Corp., 193 18 F.R.D. 654, 658 (S.D. Cal. 2000)). 19 B. Parties Positions 20 1. Plaintiff’s Motion 21 Plaintiffs assert in their moving brief that under Rule 15(a)(2) the Motion to Amend 22 should be granted. The initial Complaint stated their intention to amend their pleading once they 23 ascertained Tomas’ full name, and they have done so with minimal delay. (Doc. No. 15 at 3). 24 Thus, they assert there is no bad faith or undue delay. (Id.). Second, they assert the proposed 25 amendment does not prejudice Helena because the company was on notice of Plaintiffs’ intention 26 to name Tomas from the inception of this action. (Id. at 4). Third, Plaintiffs contend that 27 amendment would not be futile because adding Tomas’ full name does not make the action 28 subject to dismissal. (Id.). And because Plaintiffs have not previously amended the Complaint, 1 there is no basis to find they should be denied the opportunity to amend due to repeated failures to 2 cure. (Id.). 3 2. Helena’s Opposition 4 Defendant, meanwhile, asserts that the appropriate standard for reviewing Plaintiff’s 5 Motion is 28 U.S.C. § 1447(e) and that Plaintiffs’ failure to justify their Motion under the correct 6 standard alone warrants denying the Motion. (Doc. No. 17 at 4). Further, Defendants contend 7 that Plaintiffs’ sole reason for joining Rodriguez is to destroy diversity and obtain remand to state 8 court. (Id.). They state that Plaintiffs previously “believed they could obtain remand by arguing 9 the case was nonremovable because arising under workers’ compensation laws.” (Id.). Only 10 after Defendant “debunked” this theory did Plaintiffs “move on to trying to add an unnecessary 11 defendant” i.e., Nieto. (Id.). Defendant states that it obtained a photo of Plaintiff Gutierrez’s 12 driver’s license at the scene of the accident and “has every reason to believe” that Plaintiff 13 obtained Nieto’s information at the scene but nevertheless delayed naming him as a Defendant. 14 (Id.). 15 As to the 1447(e) factors, Defendant argues virtually all of them weigh against granting 16 Plaintiffs’ Motion. First, they contend that Nieto is not a necessary party because “Plaintiffs 17 allege that Nieto was [acting] in the course and scope of his employment at the time of the 18 accident, and do not seek to bring any claims against Nieto that are outside the alleged vicarious 19 liability of Helena as Nieto’s employer.” (Id. at 5). Second, Helena argues that Plaintiffs’ 20 “unexplained, and unjustified, delay in seeking joinder” weighs against the Motion. (Id.). Third, 21 because the “proposed joinder is intended solely to defeat jurisdiction” the Motion should be 22 denied. (Id.). Fourth, Helena asserts that “Plaintiffs will not be prejudiced if joinder is denied 23 because Plaintiffs’ proposed claims against Nieto are claims on which Helena will be vicariously 24 liable if Plaintiffs prevail”; moreover, they note that Nieto “is still subject to being subpoenaed as 25 a witness per Federal Rule of Civil Procedure Rule 45.” (Id.). As to the fifth factor, Helena 26 acknowledges that the statute of limitations has run on Plaintiffs’ proposed claims against Nieto, 27 which would thus be barred if brought separately in state court. (Id.). However, Helena contends 28 this factor is neutral because “Plaintiffs do not seek to assert any claims or request any relief that 1 is unattainable from Helena based on their current allegations.” (Id.). 2 3. Plaintiff’s Reply 3 In their Reply, Plaintiffs reject Defendant’s analysis of the 1447(e) factors and assert that 4 each favors granting the Motion. 5 a. Necessary Party 6 As to Defendant’s argument that Rodriguez is not a necessary party to this action, 7 Plaintiffs note that Helena’s Answer categorically denies every factual assertion in the Complaint, 8 including the allegations that Nieto is Helena’s employee and was acting in the scope of his 9 employment; thus, Plaintiffs assert they were required to name Nieto as a Defendant. (Id.). 10 Second, Helena’s Eleventh Affirmative Defense asserts that “Plaintiffs have failed to join 11 indispensable parties.” Plaintiffs infer this is as a reference to the driver of the truck that struck 12 Plaintiff Gutierrez, and thus Helena’s own Answer implies that Nieto is an indispensable party. 13 (Id.). 14 Finally, Plaintiffs intend to seek punitive damages based on Nieto allegedly injuring 15 Gutierrez while driving under the influence. (Id. at 5). They acknowledge they may be unable to 16 meet the requirements to seek punitive damages against Helena under a respondeat superior 17 theory. Thus, naming Nieto as a Defendant is necessary for Plaintiffs to preserve all available 18 avenues for obtaining punitive damages. (Id.). 19 b. Delay in Seeking Joinder 20 Plaintiffs dispute Defendant’s assertion that they intentionally delayed identifying Nieto. 21 Plaintiffs note that Defendant’s belief that Plaintiff Gutierrez obtained Nieto’s information at the 22 scene of the September 6, 2021 accident is pure speculation, asserted “on information and belief” 23 by Defense counsel, and should therefore be disregarded. (Id. at 5-6). Rather, Plaintiffs assert 24 they “acted promptly” to file a Motion to Amend just one week after receiving Nieto’s full name 25 through Helena’s Rule 26 disclosure on December 7, 2023. (Id. at 6). Thus, Plaintiffs contend 26 they did not delay in seeking to join Nieto to this action. 27 c. Whether Joinder is Being Used Solely to Defeat Jurisdiction 28 Plaintiffs dispute Defendant’s claim that they are using joinder solely to defeat 1 jurisdiction. Plaintiffs assert that two cases referenced in Defendant’s Opposition in fact support 2 their Motion. First, in IBC Aviation Services, the court granted a motion to add a new non- 3 diverse defendant after removal, even though the party was known to plaintiff prior to removal. 4 (See Doc. No. 19 at 7) (citing IBC Aviation Servs., Inc. v. Compania Mexicana de Aviacion, S.A. 5 de C.V., 125 F.Supp.2d 1008 (N.D. Cal. 2000). Meanwhile, here, Plaintiffs did not know Nieto’s 6 full name prior to removal, making an inference of improper motive or gamesmanship far weaker. 7 Thus, under IBC Aviation, Plaintiffs contend, their Motion should be granted. 8 Next, Plaintiffs cite Desert Empire Bank, which noted that “a trial court should look with 9 particular care at . . . motive in removal cases, when the presence of a new defendant will defeat 10 the court’s diversity jurisdiction and will require a remand to the state court.” Desert Empire 11 Bank v. Ins. Co. of N. Am., 623 F.2d 1371, 1376 (9th Cir. 1980). In that case, the Ninth Circuit 12 ultimately found no evidence of improper motive, given that the trial court had encouraged 13 plaintiff to add the non-diverse defendant, and had referred to him in a hearing as “an 14 indispensable party.” Id. Plaintiffs contend that Nieto is an indispensable party given that he 15 allegedly caused the injury giving rise to the claims Plaintiffs assert. (Doc. No. 19 at 7-8). Thus, 16 he is not a “tangential” party being joined merely to defeat federal jurisdiction; rather, he is “at 17 the very center” of the dispute in this case. (Id. at 8). 18 d. Prejudice 19 Plaintiffs contend that denial of the Motion will prejudice them greatly, for the reasons set 20 forth in their brief—Nieto is essential to the claims in this suit and thus Plaintiffs may be unable 21 to obtain full relief without joining him as a Defendant. (Id.). 22 e. Statute of Limitations 23 Finally, Plaintiffs point out that, because the incident in question took place on September 24 6, 2021, their claims against Nieto would be barred by the two-year statute of limitations for 25 personal injury actions if forced to file as a separate case. (Id. at 9). Thus, this factor weighs in 26 favor of granting the Motion. 27 C. Analysis 28 The Court addresses each of the factors in seriatim and concludes that that leave to amend 1 should be granted.3 2 1. Whether Rodriguez is Needed for Just Adjudication 3 Rule 19(a) provides that joinder is required if, in the absence of the person, “the court 4 cannot accord complete relief among existing parties” or if that person “claims an interest relating 5 to the subject of the action and is so situated” that proceeding without the person would “impair 6 the person’s ability to protect the interest” or would “leave an existing party subject to a 7 substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the 8 interest.” Fed. R. Civ. P. 19(a). In sum, a party is necessary under Rule 19(a) if a “failure to join 9 will lead to separate and redundant actions.” Aqua Connect, Inc. v. Code Rebel, LLC, 2012 WL 10 1535769, at *2 (C.D. Cal. Apr. 27, 2012). 11 Joinder of a person is not required, however, if it would destroy subject matter jurisdiction 12 under Fed. R. Civ. P. 19(a). Lopez v. Gen. Motors Corp., 697 F.2d 1328, 1332 (9th Cir. 1983); 13 IBC Aviation, 125 F.Supp.2d at 1012. Moreover, joinder pursuant to § 1447(e) is not appropriate 14 if the non-diverse defendant whose joinder is sought is only “tangentially related to the cause of 15 action or would not prevent complete relief.” IBC Aviation, 125 F.Supp.2d at 1012. Further, 16 under § 1447(e), a court has discretion to deny joinder of a party “whose identity was 17 ascertainable and thus could have been named in the first complaint.” Boon v. Allstate Ins. Co., 18 229 F.Supp.2d 1016, 1023 (C.D. Cal. 2002). 19 In IBC Aviation, the court found that a diversity-destroying amendment to the complaint 20 was proper because the newly added defendant, the vice president of one of the corporate 21 defendants, was the principal person responsible for the acts underlying the plaintiff’s claim 22 against the corporate defendants. 125 F.Supp.2d at 1012. The court reasoned that “[d]isallowing 23 the amendment would hinder [plaintiff] from asserting its rights against the employee directly 24 involved in the alleged breach . . . and related causes of action.” Id. 25 Here, Tomas Rodriguez Nieto is similarly central to the claims at issue in Plaintiffs’ suit. 26 Nieto’s conduct is the primary basis for at least two of Plaintiffs’ causes of action—negligence 27 and loss of consortium—and, with respect to these tort claims, Nieto could be jointly and 28 3 The Court addresses each of the factors in the order they are listed in IBC Aviation. 1 severally liable with Helena. See, e.g., Frances T. v. Village Green Owners Ass’n, 42 Cal.3d 490, 2 505 (1986) (“any . . . employee . . . individually owe[s] a duty of care, independent of the 3 corporate entity’s own duty, to refrain from acting in a manner that creates an unreasonable risk 4 of personal injury to third parties.”). Thus, the Court finds that Nieto’s actions bear much more 5 than a tangential relationship to several of Plaintiff’s causes of action. Accordingly, the Court 6 finds that the first factor favors allowing Plaintiff's amendment. 7 2. Statute of Limitations 8 As conceded by both parties, any individual claim against Nieto in state court would be 9 barred by the two-year statute of limitations for personal injury actions. Defendant claims this 10 factor is neutral because Plaintiffs “do not need to sue Nieto individually to obtain complete 11 relief.” (Doc. No. 17 at 13). They cite to Hardin v. Wal-Mart Stores, 813 F.Supp.2d 1167, 1174 12 (E.D. Cal. 2011), aff’d in part, 604 F. App'x 545 (9th Cir. 2015), where the court denied joinder 13 of a non-diverse defendant for several reasons, including because “there is no danger that Plaintiff 14 would receive incomplete relief if he were only permitted to pursue his claim against Defendant.” 15 Hardin, 813 F. Supp. 2d at 1174. In Hardin, however, the existing defendant, Wal-Mart Stores, 16 did not deny that the proposed non-diverse defendant was an employee or acting within the scope 17 of his employment. By contrast here, Defendant’s Answer denies any such relationship. 18 Consequently, it is quite possible that Plaintiffs will fail to establish respondeat superior liability 19 against Helena and thus Plaintiffs will be unable to “obtain complete relief” by naming only 20 Helena. Thus, this factor weighs in favor of joining Nieto. 21 3. Unexplained Delay 22 While more than two years elapsed between the events giving rise to this action and 23 Plaintiffs’ Motion to Amend, there is no evidence that Plaintiffs intentionally delayed adding 24 Nieto as a Defendant. Plaintiffs identified Nieto by his first name in the April 20, 2023 25 Complaint and filed their initial Motion to Amend one week after obtaining Nieto’s full name 26 through Rule 26(c) discovery on December 7, 2023. (Doc. No. 19 at 6). The Court finds no 27 reason to believe Plaintiffs were in possession of Nieto’s full name but withheld naming him out 28 of some improper motive and Defendant’s claim to the contrary is pure speculation. Thus, the 1 Court finds no evidence of undue delay. 2 4. Whether Joinder is Intended Solely to Destroy Federal Jurisdiction 3 Consideration of the fourth and fifth IBC Aviation factors4 are intertwined; “an assessment 4 as to the strength of the claims against the proposed new Defendant[] bears directly on whether 5 joinder is sought solely to divest this Court of jurisdiction.” McGrath v. Home Depot USA, Inc., 6 298 F.R.D. 601, 608 (S.D. Cal. 2014). As set forth above, Plaintiffs’ claims against Nieto are 7 central to this action and the facts reflect a strong case against Nieto in his individual capacity. 8 Plaintiffs’ intention to name Nieto as a defendant has been clear since the initial Complaint in 9 April 2023. Thus, Defendant’s contention that he is now being named only to defeat jurisdiction 10 is belied by the facts and procedural history of this case. This factor weighs in favor of granting 11 the Motion. 12 5. Whether Denial of Joinder Will Prejudice Plaintiffs 13 As discussed above, denial of joinder will prejudice Plaintiffs primarily because any 14 claims against Nieto brought in a separate action are now barred by the applicable statute of 15 limitations. And because the Court is not persuaded that Plaintiffs can obtain complete relief 16 from Helena alone, denying joinder would deny Plaintiffs the possibility of complete relief in this 17 case. This factor weighs in favor of granting the Motion. 18 D. Remand is Required 19 This action was filed in Fresno Superior Court and removed by Defendant on the ground 20 of diversity. (Doc. No. 1). Title 28 U.S.C. § 1332(a), in relevant part, provides that federal 21 district courts “shall have original jurisdiction of all civil actions where the matter in controversy 22 exceeds the sum or value of $ 75,000, exclusive of interest and costs, and is between – (1) citizens 23 of different States.” Diversity jurisdiction requires complete diversity of citizenship, i.e., that 24 every plaintiff be a citizen of a different state from every defendant. Grancare, LLC v. Thrower 25 ex rel. Mills, 889 F.3d 543, 548 (9th Cir. 2018) (citing Caterpillar Inc. v. Lewis, 519 U.S. 61, 68, 26 117 S.Ct. 467, 136 L. E. 2d 437 (1996)). “Courts have an independent obligation to determine 27 4 The fifth IBC Aviation factor asks whether the claims against the new defendant appear valid. IBC Aviation, 125 F. 28 Supp. 2d at 1011. 1 whether subject-matter jurisdiction exists” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). 2 Because the general removal statute, 28 U.S.C.§ 1441, is “strictly construed” “[i]f a district court 3 determines at any time that less than a preponderance of the evidence supports the right of 4 removal, it must remand the action to the state court.” Hansen v. Grp. Health Coop., 902 F.3d 5 1051, 1056 (9th Cir. 2018) (citations omitted). 6 If this district court finds Plaintiffs’ First Amended Complaint proper, the joinder of Nieto 7 will destroy diversity. Because there is less than a preponderance of evidence that diversity is 8 complete, this case must be remanded if the Court permits Plaintiff to file his proposed First 9 Amended Complaint. 10 FINDINGS AND RECOMMENDATIONS 11 Because adding the proposed defendant, Tomas Rodriguez Nieto, would destroy federal 12 subject matter jurisdiction over this case, the Court reviewed Plaintiff’s Motion to Amend under 13 28 U.S.C. § 1447(e) rather than applying the liberal amendment Rule of 15(a)(2). Bakshi v. 14 Bayer Healthcare, LLC, 2007 WL 1232049, at *2 (N.D. Cal. Apr. 26, 2007). In examining the 15 five factors, courts typically consider under 1447(e), the Court finds that each one weighs in favor 16 of granting Plaintiffs’ Motion to Amend. Nieto’s conduct gave rise to at least two of the causes 17 of action identified in Plaintiffs’ Complaint and he is central to the claims at issue in this case. 18 Because the five factors support joinder, the undersigned recommends the District Court grant 19 Plaintiff’s Motion and after the filing of the First Amended Complaint order the case remanded to 20 Fresno County Superior Court. 21 Accordingly, it is hereby RECOMMENDED: 22 1. Plaintiffs’ Motion to Amend (Doc. No. 15) be GRANTED and Plaintiff be 23 directed to file a signed copy of the proposed First Amended Complaint.5 24 2. Upon the filing of Plaintiffs’ First Amended Complaint, this case be remanded to 25 Fresno County Superior Court pursuant to 28 U.S.C. § 1447(c) because the district 26 court lacks jurisdiction. 27 5 Because the proposed First Amended Complaint is unsigned, the Clerk cannot be directed to file the 28 proposed First Amended Complaint as the operative pleading. 1 NOTICE TO PARTIES 2 These Findings and Recommendations will be submitted to the United States District 3 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 4 | after being served with a copy of these Findings and Recommendations, a party may file written 5 | objections with the Court. /d.; Local Rule 304(b). The document should be captioned, 6 | “Objections to Magistrate Judge’s Findings and Recommendations.” The assigned District Judge 7 | will review these Findings and Recommendations under 28 U.S.C. § 636(b)(1)(C). A party’s 8 | failure to file objections within the specified time may result in the waiver of certain rights on 9 | appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 10 Dated: _ February 23, 2024 Mihaw. Wh. arch Yack 12 HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12