Case 2:21-cv-08662-ODW-GJS Document 28 Filed 06/30/22 Page 1 of 6 Page ID #:587

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6 7 United States District Court 8 9 Central District of California 10 11 LORI JOHNSON, Case № 2:21-cv-08662-ODW (GJSx)

12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION TO REMAND [20]

14 WALMART, INC., et al.,

15 Defendants. 16 17

18 I. INTRODUCTION 19 On May 20, 2021, Plaintiff Lori Johnson initiated this action in state court 20 against Defendants Walmart Inc. and “David,” an individual. (Notice of Removal 21 (“NOR”), Ex. 1 (“Complaint” or “Compl.”), ECF No. 1-1.) On November 3, 2021, 22 Walmart removed the case to this Court based on diversity jurisdiction. (NOR, ECF 23 No. 1.) Johnson now moves to remand. (Mot. Remand (“Motion” or “Mot.”), ECF 24 No. 20.) For the reasons below, the Court finds it has subject matter jurisdiction and 25 accordingly DENIES Johnson’s Motion.1 26 27

28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Case 2:21-cv-08662-ODW-GJS Document 28 Filed 06/30/22 Page 2 of 6 Page ID #:588

1 II. BACKGROUND 2 As Johnson alleges, on June 28, 2020, Johnson was visiting Walmart’s store to 3 purchase miscellaneous items. (Compl. ¶¶ 8, 14.) After entering the store, Johnson 4 slipped on a substance on the floor and fell, sustaining injuries. (Id.) Johnson alleges 5 that an individual named David was the supervisor of the store responsible for 6 maintenance at the time of her fall. (Id. ¶ 3.) 7 Johnson originally filed this action in state court, asserting causes of action for 8 negligence and premises liability against Walmart and “David”. (Id. ¶¶ 7–17.) 9 Walmart later removed this action to federal court based on diversity jurisdiction, 10 asserting that: (1) Walmart is a citizen of Arkansas and Delaware; (2) Johnson is a 11 citizen of California; (3) David’s citizenship should be disregarded; and (4) the 12 amount in controversy exceeds $75,000. (NOR 3.) Therefore, Walmart contends that 13 this Court has subject matter jurisdiction. 14 On November 9, 2021, the Court questioned its jurisdiction and ordered 15 Walmart to show cause why this action should not be remanded to state court for lack 16 of subject matter jurisdiction. (Order Show Cause (“OSC”), ECF No. 10.) On 17 November 22, 2021, Walmart responded to the Court’s Order to Show Cause, (Resp. 18 OSC, ECF No. 11), and amended its Notice of Removal, (Am. NOR, ECF No. 11). 19 On November 24, 2021, the Court, satisfied with Walmart’s showing and amended 20 notice of removal, discharged the Order to Show Cause. (Min. Order, ECF No. 13.) 21 On April 28, 2022, Johnson moved to remand on the ground that Walmart 22 failed to establish diversity jurisdiction. (See generally Mot.) In her Motion, Johnson 23 asserts that David, whose real identity is unknown, is a citizen of California and 24 defeats diversity. (Id. at 21.) Johnson also contends that Walmart has failed to 25 establish that the amount in controversy exceeds $75,000. (Id. at 23.) Finally, 26 Johnson seeks attorneys’ fees in association with her Motion. (Id. at 28–30.) 27 Walmart opposes the Motion. (See Opp’n, ECF No. 22.) Johnson did not file a 28 Reply.

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1 III. LEGAL STANDARD 2 Federal courts have subject matter jurisdiction only as authorized by the 3 Constitution and Congress. U.S. Const. art. III, § 2, cl. 1; see also Kokkonen v. 4 Guardian Life Ins. Co.,

(1994). When a suit is filed in state court, 5 the suit may be removed to federal court only if federal court would have had original 6 jurisdiction.

(a). Federal courts have original jurisdiction when an 7 action arises under federal law or where there is complete diversity of citizenship 8 between the parties and the amount in controversy exceeds $75,000.

§§ 1331, 9 1332(a). 10 Courts strictly construe the removal statute against removal and “federal 11 jurisdiction must be rejected if there is any doubt as to the right of removal in the first 12 instance.” Gaus v. Miles, Inc.,

(9th Cir. 1992). The party seeking 13 removal bears the burden of establishing federal jurisdiction.

14 IV. DISCUSSION 15 The Court finds that it has subject matter jurisdiction because the parties are 16 diverse and the amount in controversy is met. Accordingly, as explained below, the 17 Court denies Johnson’s Motion to remand and request for attorneys’ fees. 18 A. Diversity of Citizenship 19 At the outset, it is uncontroverted that there is complete diversity of citizenship 20 between Johnson and Walmart. Johnson is a citizen of California and Walmart is a 21 citizen of Delaware, where it is incorporated, and of Arkansas, where it holds its 22 principal place of business. (NOR 3.) However, Johnson contends that Walmart has 23 failed to establish diversity of citizenship because Johnson alleges that David is a 24 citizen of California. (Mot. 2, 21; Compl. ¶ 3.) The Court disagrees, and finds that 25 the parties are diverse from each other because David is a fictitious defendant whose 26 citizenship may be disregarded. 27 “In determining whether a civil action is removable on the basis of jurisdiction 28 under section 1332(a) . . . the citizenship of defendants sued under fictitious names

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1 shall be disregarded.”

(b)(1). The Ninth Circuit has explicitly held 2 that “[t]he citizenship of fictitious defendants is disregarded for removal purposes and 3 becomes relevant only if and when the plaintiff seeks leave to substitute a named 4 defendant.” Soliman v. Philip Morris Inc.,

(9th Cir. 2002). 5 Some courts have found a distinction between “fictitious” and “real” Does. 6 See, e.g., Gardiner Fam., LLC v. Crimson Res. Mgmt. Corp.,

, 7 1036 (E.D. Cal. 2015). Courts considering this distinction assess whether the 8 “[p]laintiffs’ description of Doe defendants or their activities is specific enough as to 9 suggest their identity, citizenship, or relationship to the action.” Id.; see Johnson v. 10 Starbucks Corp.,

, 1083 (C.D. Cal. 2020). 11 Johnson contends that David is not “wholly fictitious” and may not be 12 disregarded. (Mot. 21.) The Court disagrees. Without including a last name or any 13 other identifying details, Johnson merely identifies David as “a supervisor and/or 14 manager of the store at the time of Plaintiff’s slip and fall” who was “responsible for 15 the maintenance of the store.” (Compl. ¶ 3.) This description is not specific enough 16 to suggest David’s identity and therefore is insufficient to render David a real 17 Defendant. 18 Moreover, Johnson has been unable to supplement David’s identity, even after 19 conducting discovery. Walmart provided Johnson witness statements and an incident 20 report. (See Decl. Meghan E. Turner ISO Opp’n ¶¶ 6, 7, Exs. 1, 2, ECF No. 22-3.) 21 Neither lists any employee named David. At the time of the incident, there were no 22 managers responsible for maintenance of the store named David.2 (Decl. Denisce 23 Quizaman ISO Am. NOR ¶ 8, ECF No. 12-12.) 24 2 In any case, as Walmart correctly points out, a person’s place of employment alone does not 25 implicate their citizenship status. See Garcia v. Walmart, Inc., No. 2:22-cv-00371-SVW-MRW,

, at *3 (C.D. Cal. March 16, 2022) (“[A] person’s place of employment does not 26 certainly implicate their citizenship status, especially in a state as diverse as California comprised of out-of-state college students, immigrants from different countries and many other multinationals.” 27 (internal quotation marks omitted)). Therefore, even if David was properly identified as a real party 28 to this action, the Court still could not, at this time, conclude that David indeed is a California citizen and defeats diversity.

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1 Therefore, David is a fictitious defendant. Pursuant to the plain language of 2

(b)(1) and Ninth Circuit precedent, this Court cannot consider 3 David’s citizenship unless and until Johnson seeks leave to substitute a named 4 defendant. Accordingly, this Court looks only to the citizenships of Johnson and 5 Walmart and finds that complete diversity exists for the purpose of establishing 6 subject matter jurisdiction. 7 B. Amount in Controversy 8 Johnson contends that Walmart fails to establish that the amount in controversy 9 exceeds $75,000. (Mot. 23–26.) However, the Court finds that the amount in 10 controversy is met because Johnson has previously admitted that the amount in 11 controversy exceeds $75,000. 12 “[A] defendant’s notice of removal need include only a plausible allegation that 13 the amount in controversy exceeds the jurisdictional threshold.” Dart Cherokee Basin 14 Operating Co., LLC v. Owens,

, 89 (2014). If the plaintiff disputes the 15 alleged amount in controversy, “both sides submit proof and the court decides, by a 16 preponderance of the evidence, whether the amount-in-controversy requirement has 17 been satisfied.”

. “The parties may submit evidence outside the complaint, 18 including affidavits or declarations, or other ‘summary-judgment-type evidence 19 relevant to the amount in controversy at the time of removal.’” Ibarra v. Manheim 20 Invs., Inc.,

(9th Cir. 2015) (quoting Singer v. State Farm Mut. 21 Auto. Ins. Co.,

(9th Cir. 1997)). “[A] defendant cannot establish 22 removal jurisdiction by mere speculation and conjecture, with unreasonable 23 assumptions.”

24 Johnson does not allege a specific amount of damages, but seeks to recover 25 general damages, medical expenses, loss of earnings, interest, and costs of suit. 26 (Compl. 5, Prayer for Relief.) Walmart plausibly alleges that the amount in 27 controversy exceeds $75,000, (NOR 3), and supports this allegation with Johnson’s 28 own admission, in response to Walmart’s Request for Admissions, that her damages

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1 || exceed $75,000, (Decl. Meghan Turner ISO NOR (“Turner Decl. ISO NOR”), Ex. 7 2} No. 48, ECF No. 1-7; Turner Decl. ISO NOR, Ex. 8 No. 48, ECF No. 1-8). Thus, 3 | Walmart has established removal jurisdiction with evidence rather than by mere 4|| speculation and conjecture based on unreasonable assumptions. See Garcia,

|| 796197, at *1 n.1 (C.D. Cal. Mar. 16, 2022) (finding that the amount in controversy 6 || was satisfied because in the plaintiff’s response to requests for admission, the 7 | “Plaintiff explicitly admitted that he seeks damages in excess of $75,000”). 8 | Accordingly, the Court finds the amount in controversy exceeds $75,000 for the 9 || purpose of establishing diversity jurisdiction and that the Court therefore finds that it 10 || has subject-matter jurisdiction over this action. 11 Vv. CONCLUSION 12 For the reasons discussed above, the Court DENIES Johnson’s Motion to 13 | Remand, (ECF No. 20), and DENIES Johnson’s request for attorneys’ fees and costs 14 || incurred in association with the Motion. 15 16 IT IS SO ORDERED. 17 18 June 30, 2022

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21 OTIS D. WRIGHT, I 22 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28