Osorio v. Hol-Mac Corporation ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 MAYRA OSORIO, 7 Case No. 20-cv-00236-JCS Plaintiff, 8 v. ORDER GRANTING MOTION TO 9 REMAND HOL-MAC CORPORATION, 10 Defendant. Re: Dkt. No. 10 11 12 13 14 15 I. INTRODUCTION 16 This is an action for the wrongful death of Plaintiff Mayra Osorio’s husband, Edwin 17 Gomez-Zarate, who was killed in an accident involving a forklift that was allegedly owned, 18 designed, manufactured or distributed by Defendant Quality Corporation (“Quality”). Defendant 19 Hol-Mac Corporation (“Hol-Mac”) is allegedly Quality’s successor-in-interest. Hol-Mac removed 20 the action to federal court on January 10, 2020 on the basis of diversity jurisdiction. Notice of 21 Removal ¶ 9. Presently before the Court is Plaintiff’s Motion to Remand (“Motion”), in which 22 she argues that the removal was untimely because it was filed more than thirty days after Hol-Mac 23 “knew the matter was removable.” Motion at 1, 3 (citing 28 U.S.C. § 1446(b)(3)). A hearing on 24 the Motions was held on March 13, 2020. For the reasons stated below, the Motion is 25 GRANTED.1 26 27 1 At the hearing, Plaintiff stipulated to the dismissal without prejudice of Defendant Quality 1 II. BACKGROUND 2 Plaintiff filed her complaint in Contra Costa Superior Court on August 9, 2019. 3 Declaration of Jack C. Henning in Support of Defendant and Cross-Complainant Hol-Mac 4 Corporation’s Opposition to Plaintiff’s Motion to Remand Action to State Court (“Henning 5 Decl.”), Ex. A (Complaint). In the complaint, Plaintiff alleged that she was a resident of 6 Livermore, California. Id. ¶ 2. However, the Complaint contained no allegations with respect to 7 her domicile. The Complaint further alleged that Hol-Mac is a Mississippi Corporation and 8 Quality is a Colorado Corporation. Id. ¶¶ 4-5. 9 Hol-Mac removed the case to this Court on January 10, 2020 on the basis of diversity 10 jurisdiction. It stated in its Notice of Removal that the removal was timely because Hol-Mac did 11 not learn of Plaintiff’s domicile until Plaintiff served (by mail) her responses to form 12 interrogatories, on December 16, 2019. Notice of Removal ¶ 13; see also Henning Decl., ¶ 9 13 (stating that he received the interrogatory responses on December 24, 2019) & Ex. D 14 (Interrogatory Responses). According to Hol-Mac’s counsel, “although unverified at the time, 15 Hol-Mac subsequently received Plaintiff’s verification to the responses on February 10, 2020. 16 Henning Decl. ¶ 9 & Ex. D. In the interrogatory responses, Plaintiff stated that she had lived at 17 her current addresses, in Livermore, California “longer than five years.” Henning Decl., Ex. D. 18 She also provided employment information showing that she has worked in California since 2006. 19 Id. 20 In the Motion, Plaintiff contends Hol-Mac learned of the existence of diversity more than 21 thirty days before it filed its Notice of Removal. Motion at 4. In particular, Plaintiff points to the 22 allegation in her Complaint that she is a resident of Livermore, California, arguing that this should 23 have been a “red flag” that her domicile was California and therefore that there was diversity 24 between the parties. Id. She argues that if the allegation regarding residency in her complaint 25 was not sufficient to establish her domicile, it was established on November 13, 2019, when her 26 counsel provided Defendant with an “informal production” of a Cal-OSHA investigation report, 27 Sheriff’s report and coroner’s report related to the accident. Id.; see also Declaration of 1 4-5 & Ex. 1. According to Plaintiff, “[t]he Coroner’s Report listed Decedent’s address in 2 Livermore, California. It separately listed Plaintiff’s address at the same location in Livermore, 3 California. It also detailed her phone number which was a ‘925’ area code number. Consistent 4 with her address, the ‘925’ area code encompasses Livermore, California. The Coroner’s Report 5 also listed decedent’s California Driver’s License Number.” Viadro Decl. ¶ 6 & Ex. 2. In 6 addition, “the Cal-OSHA investigation detailed a Livermore ‘business address’ for Decedent’s 7 employer. It also details that Decedent had been with the employer for 3 years.” Id. ¶ 8 & Ex. 3. 8 Plaintiff asserts that these documents were sufficient to trigger the thirty-day removal period under 9 28 U.S.C. § 1446(b)(3). 10 In its Opposition brief, Hol-Mac contends the allegation of residency is not sufficient to 11 establish domicile because residency is not prima facie evidence of domicile in the Ninth Circuit. 12 Opposition at 3 (citing treat Mondragon v. Capital One Auto Fin., 736 F.3d 880, 886 (9th Cir. 13 2013)). Rather, courts in the Ninth Circuit consider a variety of factors to determine domicile with 14 no one factor controlling, Hol-Mac contends. Id. (citing Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 15 1986)). Hol-Mac argues that the information contained in the reports it received from Plaintiff’s 16 counsel was not sufficient to establish that Plaintiff’s domicile was California based on the factors 17 considered by courts in the Ninth Circuit. Id. at 4-6. It further asserts that it would have risked 18 sanctions under Rule 11 of the Federal Rules of Civil Procedure had it removed to federal court on 19 the basis of the information it had received from Plaintiff’s counsel. Id. at 6 (citing Harris v. 20 Bankers Life & Cas. Co., 425 F.3d 689, 697 (9th Cir. 2005)). 21 Hol-Mac argues that removal based on the informal reports supplied by Plaintiff’s counsel 22 would have been premature for the additional reason that a party who removes to federal court on 23 the basis of diversity must show that the parties are diverse by a preponderance of the evidence – a 24 burden that is met by submitting “summary judgment type evidence” – and the reports did not 25 meet that requirement because they were merely unauthenticated hearsay. Id. at 7 (citing Ibarra 26 v. Manheim Investments, Inc., 775 F.3d 1193, 1196 (9th Cir. 2015); Garcia v. Wal-Mart Stores 27 Inc., 207 F. Supp. 3d 1114, 1121 (C.D. Cal. 2016)). 1 paper[s]” under 28 U.S.C. § 1446(b)(3) and therefore cannot trigger the thirty-day removal period. 2 Id. at 8-10. 3 III. ANALYSIS 4 A. Legal Standards Governing Removal 5 Under 28 U.S.C. § 1441, the Court has removal jurisdiction over civil actions where, 6 pursuant to 28 U.S.C. § 1332(a), there is complete diversity of citizenship and the matter in 7 controversy exceeds the sum or value of $75,000. For diversity purposes, a person is a citizen of a 8 state if they are (1) a citizen of the United States and (2) domiciled in that state. Kantor v. 9 Wellesley Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir. 1983). “A person residing in a given state 10 is not necessarily domiciled there, and thus is not necessarily a citizen of that state.” Kanter v. 11 Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). “[T]he existence of domicile for 12 purposes of diversity is determined as of the time the lawsuit is filed.” Lew v. Moss, 797 F.2d 747, 13 750 (9th Cir. 1986) (citation omitted). 14 A notice of removal must be filed within thirty days of service of an initial pleading or 15 summons, or some “other paper from which it may first be ascertained that the case is one which 16 is or has become removable.” 28 U.S.C. § 1446(b)(1), (3). A defendant “need not make 17 extrapolations or engage in guesswork; yet the statute ‘requires a defendant to apply a reasonable 18 amount of intelligence in ascertaining removability.’” Kuxhausen v. BMW Fin. Servs. NA LLC, 19 707 F.3d 1136, 1140 (9th Cir. 2013) (quoting Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 206 20 (2d Cir. 2001)). “‘The type of document that constitutes an “other paper” for the purposes of the 21 statute is broad, reflecting courts’ “embracive construction” of the term.’” Thomas v. CVS Health 22 Corp., No. 2:19-CV-04283-R-FFM, 2019 WL 3526344, at *2 (C.D. Cal. Aug. 1, 2019) (quoting 23 Rynearson v. Motricity, Inc., 626 F. Supp. 2d 1093, 1097 (W.D. Wash. 2009) (quoting 14C 24 Charles Alan Wright & Arthur Miller, Federal Practice & Procedure § 3732 n. 26)). Documents 25 that have been held to qualify as an “other paper” include “responses to request for admissions, 26 Wilson v. Gen. Motors Corp., 888 F.2d 779, 780 (11th Cir.1989); settlement offers, Addo v. Globe 27 Life & Accident Ins. Co., 230 F.3d 759, 761–62 (5th Cir.2000); interrogatory responses, Akin v. 1 Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir.1996); demand letters, Williams v. Safeco Ins. Co., 74 2 F.Supp.2d 925, 929 (W.D.Mo.1999); and email estimating damages, Callahan v. Countrywide 3 Home Loans, Inc., No. 3:06–105, 2006 WL 1776747, at *3–*4 (N.D.Fla. June 26, 2006)).” 4 Lowery v. Alabama Power Co., 483 F.3d 1184, 1213 n. 62 (11th Cir. 2007). 5 B. Legal Standards Governing Determination of Domicile 6 A person’s domicile is their permanent home, where they reside with the intention to 7 remain or to which they intend to return. See Lew v. Moss, 797 F.2d at 749. A person residing in a 8 given state is not necessarily domiciled there, and thus is not necessarily a citizen of that state. See, 9 e.g., Weible v. United States, 244 F.2d 158, 163 (9th Cir. 1957) (“Residence is physical, whereas 10 domicile is generally a compound of physical presence plus an intention to make a certain definite 11 place one’s permanent abode, though, to be sure, domicile often hangs on the slender thread of 12 intent alone, as for instance where one is a wanderer over the earth. Residence is not an immutable 13 condition of domicile.”). While a number of Circuits treat a person’s residence as prima facie 14 evidence of the person’s domicile, the Ninth Circuit has not adopted that presumption. 15 Mondragon v. Capital One Auto Fin., 736 F.3d 880, 885–86 (9th Cir. 2013) (citations omitted). 16 Instead, courts in the Ninth Circuit consider a variety of factors, with no one factor controlling, 17 including: “current residence, voting registration and voting practices, location of personal and 18 real property, location of brokerage and bank accounts, location of spouse and family, membership 19 in unions and other organizations, place of employment or business, driver’s license and 20 automobile registration, and payment of taxes.” Lew v. Moss, 797 F.2d at 750 (citing 13B C. 21 Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3612, at 529-31 (1984 & 22 Supp.1986) (citing authorities)). Domicile is evaluated based on “objective facts,” with no single 23 factor controlling, and “statements of intent are entitled to little weight when in conflict with 24 facts.” Id. 25 C. Discussion 26 Because in the Ninth Circuit residency does not provide a sufficient basis to establish a 27 party’s citizenship for the purposes of diversity jurisdiction, the allegation in Plaintiff’s complaint 1 for removal under 28 U.S.C. § 1446(b). Kantor v. Wellesley Galleries, Ltd., 704 F.2d at 1090; 2 Kanter v. Warner-Lambert Co., 265 F.3d at 857; Widjaja v. Wal-Mart Stores, Inc., No. 3 210CV3883JHNJCGX, 2010 WL 11601038, at *3 (C.D. Cal. July 23, 2010) (holding that 4 allegation in the complaint regarding co-defendant’s residence was not sufficient basis to support 5 removal based on diversity jurisdiction because “allegations as to residency do not establish 6 citizenship.”). On the other hand, the information contained in the documents supplied by 7 Plaintiff’s counsel – when considered in tandem with the allegation in the complaint that she is a 8 current resident of Livermore, California – clearly establishes that Plaintiff was domiciled in 9 California when she filed the complaint. These documents showed that in 2017, Plaintiff and her 10 husband resided together in Livermore, California, that her husband had a California driver’s 11 license, and that he had worked for an employer with a business address in Livermore, California 12 for the three years preceding his death. Given that Plaintiff also alleged in her complaint (filed two 13 years later) that she resides in Livermore California, the court concludes that under the totality of 14 the circumstances, the “objective facts” showed that the case was removable on the basis of 15 diversity jurisdiction and therefore, the receipt of the reports on November 13, 2019 triggered the 16 30-day clock for removal purposes. 17 The Court rejects Defendant’s argument that the clock did not begin to run because the 18 reports that Plaintiff’s counsel provided through an informal production do not constitute “other 19 papers” because they are merely documents that were “passed along” by counsel and were not 20 actually created by Plaintiff. See Opposition at 8-9. Federal courts have not applied such a 21 narrow interpretation of “other paper,” instead finding that documents exchanged between the 22 parties in the same case may constitute an “other paper.” See Ritchie v. Williams, 395 F.3d 283, 23 287 (6th Cir. 2005) (finding that 30-day clock was triggered by production of a contract showing 24 that state law claims were preempted and therefore were more appropriately characterized as 25 federal law claims); Lovern v. Gen. Motors Corp., 121 F.3d 160, 162 (4th Cir. 1997) (implying 26 that both police report and interrogatory responses produced by the plaintiff were “other papers” 27 that started 30-day clock running, though declining to decide whether police report alone would 1 Supp. 979, 980 (M.D. Fla. 1978)(discovery documents produced in case, including a letter from a 2 || doctor establishing that the plaintiff was disabled, were sufficient to start 30-day clock running 3 because they established amount in controversy). 4 Likewise, the Court is not persuaded by Hol-Mac’s argument that the 30-day clock was not 5 || triggered because the reports are not admissible evidence. While Hol-Mac may not have received 6 affidavits from the custodians of record certifying the authenticity of these documents or 7 establishing they are business records under Rule 803(3) of the Federal Rule of Evidence, the 8 || reports were supplied by Plaintiffs counsel and therefore they carry indicia of authenticity. There 9 || is nothing in the record to suggest that the factual findings in the reports that are relevant to 10 || Plaintiffs domicile are unreliable. The Court therefore concludes that these documents were 11 sufficient to trigger the 30-day clock, even if the documents were not admissible, because Hol- 12 || Mac should have been able to ascertain from these documents that the grounds for removal on the 13 basis of diversity existed. See Torres vy. Util. Tree Serv., Inc., No. 16-CV-03424-BLF, 2017 WL 14 30561, at *2 (N.D. Cal. Jan. 3, 2017) (“while the Court acknowledges that civil procedural rules 15 require the responses be verified or made ‘under oath,’ such rules do not preclude finding that an 16 || unverified discovery response can serve as a proper section 1446(b) notice for purposes of 3 17 || removal”) (citing Babasa v. LensCrafters, Inc., 498 F.3d 972 (9th Cir. 2007)). 18 IV. CONCLUSION 19 For the reasons stated above, the Motion is GRANTED. This case shall be remanded to 20 || the Superior Court for the County of Contra Costa. The Clerk is instructed to close the file. 21 IT IS SO ORDERED. 22 Dated: March 15, 2020 23 5 Z2 C2 J PH C. SPERO 24 ief Magistrate Judge 25 26 27 28