1 2 3 4

5

6

7

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10

11 MICHAEL TAGWERKER, Case No.: 24-cv-00897-H-AHG 12

Plaintiff, 13 ORDER GRANTING PLAINTIFF’S v. MOTION TO PERMIT JOINDER 14 AND TO REMAND AMAZON.COM SERVICES LLC; 15 FUZHOU FEIWO TRADING [Doc. No. 33.] 16 COMPANY, LTD; ELENKERWALKER.COM; 17 IMAGINELIFE; FLYWORLD, LLC; and 18 Does 1 through 20, 19 Defendants. 20 On August 26, 2024, Plaintiff Michael Tagwerker filed a motion pursuant to 28

(e) to permit joinder of a new defendant and to remand the action back to 22 state court. (Doc. No. 33.) On September 10, 2024, the Court took Plaintiff’s motion under 23 submission. (Doc. No. 37.) On September 16, 2024, Defendant Amazon.com Services 24 LLC (“Amazon”) filed a response in opposition to Plaintiff’s motion. (Doc. No. 39.) On 25 September 23, 2024, Plaintiff filed a reply. (Doc. No. 40.) For the reasons below, the 26 Court grants Plaintiff’s motion. 27 / / / 28 1 Background 2 The following factual background is taken from the allegations in Plaintiff’s 3 complaint. Defendants Fuzhou Feiwo Trading Company, LTD, ElenkerWalker.com, 4 ImagineLife, and Flyworld, LLC’s business activities include developing, designing, 5 licensing, manufacturing, distributing, marketing, and selling knee scooters, including the 6 Elenker Model JG-9155 knee scooter. (Doc. No. 1-5, Compl. ¶ 11.) Those defendants 7 sold, supplied or otherwise distributed Elenker Model JG-9155 knee scooters to Defendant 8 Amazon, so Amazon could market, distribute, sell, package, ship, and deliver the knee 9 scooters to customers through the Amazon.com website. (Id. ¶ 14.) 10 In August 2022, Plaintiff was recovering from a stress fracture in his right foot. (Id. 11 ¶ 18.) On August 9, 2022, Plaintiff purchased an Elenker Model JG-9155 knee scooter 12 (“the knee scooter at issue”) through Amazon’s website. (Id.) Plaintiff then received the 13 knee scooter and began using it. (Id. ¶ 22.) Plaintiff alleges that, on August 23, 2022, 14 while he was using the knee scooter at issue, the front left wheel of the knee scooter 15 unexpectedly separated from the frame, causing him to fall and sustain a tear to his left 16 rotator cuff and neck injuries. (Id. ¶¶ 25–26.) Plaintiff further alleges that, as a result of 17 the fall, he “underwent shoulder surgery and will undergo additional surgeries in the 18 future,” and that the incident has caused him to suffer mental and emotional distress. (Id. 19 ¶ 26.) 20 On October 24, 2023, Plaintiff filed a complaint against Defendants Amazon, 21 Fuzhou Feiwo Trading Company, LTD, ElenkerWalker.com, ImagineLife, Flyworld, 22 LLC, and Does 1 through 20 in the Superior Court of California, County of San Diego, 23 alleging causes of action for: (1) strict product liability; and (2) negligence. (Doc. No. 1- 24 5, Compl. ¶¶ 27–46.) On May 21, 2024, Amazon removed Plaintiff’s action from state 25 court to the United States District Court for the Southern District of California pursuant to 26

and 1446 on the basis of diversity jurisdiction under

. 27 (Doc. No. 1, Notice of Removal ¶ 4.) Specifically, in the Notice of Removal, Amazon 28 alleges that there is complete diversity of citizenship in the action because Plaintiff is a 1 citizen of California for diversity jurisdiction purposes and none of the Defendants are 2 citizens of California. (Id. ¶¶ 5–7.) On May 21, 2024, Amazon also filed an answer to 3 Plaintiff’s complaint. (Doc. No. 2.) On August 30, 2024, the Court granted Plaintiff’s 4 motion for additional time to serve Defendants Fuzhou Feiwo Trading Company, LTD and 5 ImagineLife. (Doc. No. 36.) 6 By the present motion, Plaintiff moves pursuant to

(e) to amend his 7 complaint to add Real Relax, Inc. (“RealRelax”) as a non-diverse defendant1 in this action, 8 thereby destroying diversity jurisdiction and triggering a mandatory remand of the action 9 to state court.2 (See Doc. No. 33-1 at 1, 23.) 10 Discussion 11 I. Legal Standard 12 A motion for leave to amend the complaint to add a non-diverse defendant whose 13 joinder would destroy diversity jurisdiction is analyzed under

(e). See 14 Santa Clara Valley Water Dist. v. CH2M Hill, Inc., No. 19-CV-08295-LHK,

4252677, at *2 (N.D. Cal. July 24, 2020) (citing McGrath v. Home Depot USA, Inc., 298

, 607 (S.D. Cal. 2014)); McDaniel v. Ford Motor Co., No. 3:22-CV-00517- 17 DMS-KSC,

, at *2 (S.D. Cal. Aug. 22, 2022). Section 1447(e) provides: 18 “If after removal the plaintiff seeks to join additional defendants whose joinder would 19 destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and 20 remand the action to state court.”

(e). In assessing a motion for leave to 21 amend under § 1447(e), “[t]he decision regarding joinder of a diversity destroying- 22 defendant is left to the discretion of the district court.” Newcombe v. Adolf Coors Co., 23 24

25 1 In its opposition, Defendant Amazon concedes that RealRelax is a non-diverse 26 defendant. (See Doc. No. 39 at 1, 2; see also Doc. No. 33-12, Ex. 9 (RealRelax’s articles of incorporation stating that it is incorporated in California).) 27 2 Plaintiff states in his motion that he will also amend the complaint to remove 28 1

(9th Cir. 1998) (“The language of § 1447(e) is couched in permissive 2 terms.”). 3 In deciding whether to allow joinder of a diversity-destroying defendant, district 4 courts consider a number of factors, including: 5 (1) whether the new defendant is necessary for just adjudication of the controversy pursuant to Federal Rule of Civil Procedure 19(a); (2) whether 6 the statute of limitations would bar an action against the new defendant in 7 state court; (3) whether there has been an unexplained delay in seeking joinder; (4) whether the plaintiff seeks joinder solely to defeat diversity 8 jurisdiction; (5) whether the claims against the prospective defendant appear 9 valid; and (6) whether denial of joinder will prejudice the plaintiff. 10 Belangue v. Costco Wholesale Corp., No. 3:23-CV-01850-W-JLB,

, at 11 *1 (S.D. Cal. July 16, 2024) (citing IBC Aviation Servs., Inc. v. Compania Mexicana de 12 Aviacion, S.A. de C.V.,

(N.D. Cal. 2000)). “Any of the factors 13 might prove decisive, and none are a required condition for joinder.”

(citing Vasquez 14 v. Wells Fargo Bank, Nat’l Ass’n,

(N.D. Cal. 2015)). If the court 15 permits the joinder of the non-diverse defendant, then the case must be remanded. See 16 Mohandas v. Wells Fargo Bank, N.A., No. LACV22103349JAKPDX,

, 17 at *2 (C.D. Cal. Dec. 8, 2023) (“‘Remand is mandatory if the district court allows the 18 joinder of a non-diverse party under § 1447(e).’”); see also

(c) (“If at any 19 time before final judgment it appears that the district court lacks subject matter jurisdiction, 20 the case shall be remanded.”). 21 II. Analysis 22 A. Joinder Under Rule 19(a) 23 “Federal Rule of Civil Procedure 19 requires joinder of a party if its absence would 24 preclude the court from granting complete relief amongst existing parties, impede a party’s 25 ability to protect its interests, or leave an existing party subject to a substantial risk of 26 incurring inconsistent outcomes.” Andrade v. Ford Motor Co., No. 3:22-CV-00291-RBM- 27 MSB,

, at *3 (S.D. Cal. Mar. 20, 2023) (citing Fed. R. Civ. P. 19(a)). 28 “While courts consider Rule 19 in determining whether to permit joinder under Section 1 1447(e), ‘amendment under Section 1447(e) is a less restrictive standard and is met when 2 failure to join will lead to separate and redundant actions.’”

(quoting McDaniel, 2022

, at *2). Joinder is not permitted under Section 1447(e) “where the non- 4 diverse defendant is ‘only tangentially related to the cause of action or would not prevent 5 complete relief.’” Tillman v. Lowe’s Home Centers, LLC, No. 23-CV-647-L-BGS, 2023

, at *1 (S.D. Cal. Aug. 30, 2023) (quoting IBC Aviation Servs.,

2d at 1012). 8 Failure to join RealRelax in this action will lead to separate and redundant actions. 9 Plaintiff explains that California has a two-year statute of limitation for personal injury 10 actions and that, under that provision, the statute of limitations expired on August 23, 2024 11 for Plaintiff’s claims. (See Doc. No. 33-1 at 13 (citing Cal. Code Civ. P. § 335.1).) In 12 order to comply with this statute of limitations, Plaintiff filed a separate state court action 13 in the Superior Court of California, County of San Diego on August 14, 2024 against 14 RealRelax and has served RealRelax with the summons and complaint. (Id.; see Doc. No. 15 33-19, Ex. 16; Doc. No. 33-20, Ex. 17.) Thus, this Court’s failure to join RealRelax in this 16 action will cause Plaintiff to have to continue to pursue his claims against RealRelax – an 17 alleged distributor of the product at issue – in a separate state court action, involving many 18 of the same issues of fact and law as this action. As such, this factor weighs in favor of 19 permitting joinder. See, e.g., McCarty v. Johnson & Johnson, No. 1:10-CV-00350, 2010

, at *8 (E.D. Cal. June 29, 2010) (finding the factor weighed in favor of joinder 21 because the distributor was not “tangentially related to the strict products liability claims 22 and denying joinder would cause the plaintiff to have to pursue his claim against the 23 distributor in a separate action on the same facts and law). 24 B. Statute of Limitations 25 “If the statute of limitations would preclude the filing of an action against the new 26 defendants in state court, this factor would weigh in favor of granting leave to amend to 27 add the new defendants.” Forster v. Tractor Supply Co., No. 1:23-CV-00627-KES-BAM, 28

, at *3 (E.D. Cal. Aug. 23, 2024). “If, however, a ‘plaintiff could file 1 an action against the joined defendant in state court, then there is less reason to join them 2 in this action.’”

(quoting Reyes v. FCA US LLC, No. 1:20-CV-00833-DAD-SKO, 3

, at *10 (E.D. Cal. Dec. 8, 2020)). 4 Plaintiff has filed a separate state court action against RealRelax in order to comply 5 with California’s statute of limitations for personal injury actions. (See Doc. No. 33-1 at 6 13–14; Doc. No. 33-19, Ex. 16.) Therefore, this factor weighs against joinder. See, e.g., 7 Andrade,

, at *4 (“Since Plaintiff’s action against Desert Auto is not 8 time-barred in state court, this factor weighs against joinder.”). 9 C. Timeliness 10 “When determining whether to allow amendment to add a non-diverse party, courts 11 consider whether the amendment was attempted in a timely fashion.” Andrade,

2586302, at *4 (quoting Avellanet v. FC US LLC, No. CV-19-7621-JFW-KSx,

5448199, at *3 (C.D. Cal. Oct. 24, 2019)). “Courts often look to the procedural stage of 14 the case and whether the party seeking joinder ‘knew or should have known the facts and 15 theories raised by the amendment in the original pleading.’” Lewis v. Bear Stearns 16 Residential Mortg. Corp., No. 2:23-CV-1010-CSK PS,

, at *10 (E.D. 17 Cal. June 11, 2024) (citation omitted). 18 Plaintiff has requested to add RealRelax as a new defendant in a timely fashion. 19 Although the original complaint was filed in October 2023, (see Doc. No. 1-5, Compl.), 20 Plaintiff explains that, despite the exercise of reasonable diligence, Plaintiff did not know 21 of RealRelax’s existence or its role in the manufacture, marketing, distribution, or sale of 22 the knee scooter at issue until August 2024, when it engaged in a further investigation of 23 ElenkerWalker’s scooters on Walmart.com. (See Doc. No. 33-1 at 6, 15; Doc. No. 40 at 24 5; see Doc. No. 33-3, Ross Dec. ¶ 8; Doc. No. 33-16, Ex. 13.) Amazon criticizes Plaintiff 25 for not conducting this additional investigation earlier and contends that this shows a lack 26 of diligence by Plaintiff. (See Doc. No. 39 at 6–7.) But, in response, Plaintiff provides a 27 reasonable explanation for the timing of his further investigation. (See Doc. No. 40 at 6.) 28 Plaintiff explains that it was not until July 2024 that Amazon asserted in this litigation that 1 all of its co-defendants are not incorporated, registered, or authorized to do business in 2 California or anywhere in the United States. (Id. (citing Doc. No. 14 at 5).) In light of this 3 representation, Plaintiff then engaged in a further investigation to find an entity involved 4 in the stream of commerce related to Plaintiff’s purchase of the scooter that was authorized 5 to transact business in the United States, and Plaintiff found RealRelax. (Id.) Plaintiff then 6 filed the present motion seeking joinder of RealRelax within a month of learning of 7 RealRelax’s existence. Thus, Plaintiff has acted with reasonable diligence and filed the 8 present motion in a timely fashion. 9 Moreover, this action is still in its early stages. It is still at the pleading stage with a 10 case management conference not scheduled to occur until January 2025. (See Doc. No. 11 28.) As such, this factor weighs in favor of permitting the joinder. 12 D. Motive for Seeking Joinder 13 “‘[T]he question of whether joinder is solely intended to defeat jurisdiction is 14 intertwined with the question of whether the claims against the new defendant appear 15 valid.’” Andrade,

, at *4. “‘Courts have permitted joinder even where 16 the plaintiff appears to be primarily motivated by a desire to defeat diversity jurisdiction, 17 as long as the plaintiff has alleged a valid claim against the non-diverse defendant.’” 18 Forster,

, at *4. “Suspicion of diversity destroying amendments is not 19 as important now that § 1447(e) gives courts more flexibility in dealing with the addition 20 of such defendants.” IBC Aviation Servs.,

. 21 There is nothing in the record that suggests that the present motion for joinder is 22 solely intended to defeat subject matter jurisdiction. The Court rejects Amazon’s assertion 23 that RealRelax is a sham defendant. (See Doc. No. 39 at 2.) Plaintiff asserts that RealRelax 24 is an integral participant in the distribution and sale of the knee scooter at issue. (Doc. No. 25 33-1 at 16.) Further, as detailed below, Plaintiff has a facially valid strict products liability 26 27 28 1 claim against RealRelax. See infra Order, Section II.E. As such, Plaintiff’s request to 2 join RealRelax as a defendant in this action is made in good faith, and this factor weighs 3 in favor of permitting the joinder. 4 E. Validity 5 “‘For the purposes of joinder under § 1447(e), a plaintiff’s claim need only be 6 facially viable—the claim need not be plausible nor stated with particularity.’” Andrade, 7

, at *5. “In assessing the validity of a plaintiff’s claims, ‘the court need 8 only determine whether the claim seems valid’ which is not the standard for evaluating 9 either a motion to dismiss or a motion for summary judgment.”

10 Plaintiff states a facially viable claim for strict products liability against RealRelax. 11 Under California law, “[a] manufacturer, distributor, or retailer is liable in tort if a defect 12 in the manufacture or design of its product causes injury while the product is being used in 13 a reasonably foreseeable way.” Soule v. Gen. Motors Corp.,

(1994). 14 In the proposed amended complaint, Plaintiff alleges that RealRelax sold, supplied, or 15 otherwise distributed the knee scooter to Amazon, and Plaintiff purchased the knee scooter 16 through Amazon’s website. (See Doc. No. 33-18, Ex. 15, Proposed FAC ¶¶ 14, 18, 28.) 17 Plaintiff further alleges that the knee scooter was defective in its design and manufacturer; 18 that the defect was the direct and proximate cause of Plaintiff’s injuries; and that he used 19 the knee scooter in the manner in which it was intended to be used. (See

¶¶ 22–26, 31, 20 34–36.) These allegations are sufficient to demonstrate a facially viable claim against Real 21 Relax for strict products liability. See Soule,

. 22

23 3 Amazon asserts that Court should infer an ulterior motive on the part of Plaintiff 24 because the proposed amended complaint contains only a few changes from the original 25 complaint. (Doc. No. 39 at 7–8 (citing Keledjian v. Jabil Cir., Inc., No. 17CV0332-MMA (JLB),

, at *6 (S.D. Cal. Aug. 10, 2017)).) The Court rejects this 26 argument. Given that the claims at issue are strict products liability and negligence claims 27 asserted against the various alleged participants in the stream-of-commerce related to Plaintiff’s purchase of the scooter at issue, it is understandable that the original complaint 28 1 In its response, Amazon contends that Plaintiff’s claim against RealRelax is 2 meritless because RealRelax is not the seller or manufacturer of the scooter at issue. (Doc. 3 No. 39 at 1, 2, 8–9.) But under California law, strict liability does not only apply to sellers 4 and manufacturers. Indeed, in the case cited by Amazon itself, a California court explains: 5 “When the purchase of a product ‘is the primary objective or essence of the transaction, 6 strict liability applies even to those who are mere conduits in distributing the product to the 7 consumer.’” Hernandezcueva v. E.F. Brady Co.,

(2015) 8 (quoting Pierson v. Sharp Mem’l Hosp., Inc.,

, 344 (1989)); see also 9 Soule,

(stating that strict liability applies to “distributors”); Bolger v. 10 Amazon.com, LLC,

, 456 (2020) (“The doctrine [of strict liability] 11 applies to every entity involved in the vertical distribution of consumer goods, so long as 12 the policies of the doctrine support its application.”). Plaintiff asserts that RealRelax is a 13 supplier/distributor of the knee scooter at issue and was part of the vertical stream-of- 14 commerce for his knee scooter purchase. (See Doc. No. 33-1 at 6–7, 18–19.) This is 15 sufficient to support a facially valid strict products liability claim against RealRelax. See, 16 e.g., Kosinski v. Dolium, No. 8:23-CV-01506-JVS-JDE,

, at *3 (C.D. 17 Cal. Apr. 4, 2024) (“Here, the FAC clearly identifies Northwest as a distributor of Dolium 18 kegs, making it subject to claims for strict product liability.” (citations omitted) (citing 19 Hernandezcueva,

)); see also Andrade,

, at *5 20 (explaining that the claim need only be facially valid – it does not need to capable of 21 satisfying the Rule 12(b)(6) motions to dismiss plausibility standard). As such, this factor 22 weighs in favor of permitting joinder.4 See, e.g., McCarty,

, at *8 23 24

25 4 In his motion, Plaintiff alleges that he also has a facially viable claim against 26 RealRelax for negligence. (Doc. No. 33-1 at 19.) Because the Court concludes that this 27 factor weighs in favor of joinder in light of the facial viability of Plaintiff’s claim for strict products liability against RealRelax, the Court declines to analyze the facial viability of 28 1 (finding factor weighed in favor of joinder where plaintiff could state a valid strict liability 2 claim against the proposed defendant). 3 F. Prejudice to Plaintiff 4 “In determining whether a plaintiff would suffer prejudice, courts have considered 5 whether denial of leave to amend would require parallel in state and federal court 6 proceedings or would lead the plaintiff to forgo claims against the non-diverse defendants.” 7 Murphy v. Am. Gen. Life Ins. Co.,

(C.D. Cal. 2015). 8 Additionally, “‘[w]here claims against parties sought to be joined in an action arise out of 9 the same factual circumstances, it is in the economic benefit of all parties and the judicial 10 system to have the entire controversy adjudicated only once[.]’” Andrade,

2586302, at *6. 12 Plaintiff has already filed a separate state court action against RealRelax. (See Doc. 13 No. 33-1 at 13–14; Doc. No. 33-19, Ex. 16.) Denying Plaintiff’s motion for joinder would 14 require Plaintiff to continue to engage in parallel state court and federal court proceedings 15 involving the same factual circumstances. As such, Plaintiff would suffer prejudice if the 16 Court were to deny his motion, and, therefore, this factor weighs in favor of permitting 17 joinder. See, e.g., Belangue,

, at *3; Andrade,

, at *6. 18 G. Conclusion 19 In sum, all but one of the factors weigh in favor of permitting Plaintiff to join 20 RealRelax as a defendant in this action. Importantly, Plaintiff has a facially valid claim for 21 strict products liability against Defendant RealRelax, and Plaintiff would be prejudiced if 22 he were forced to pursue his claims against RealRelax in a separate state court action. As 23 such, the Court grants Plaintiff’s motion for joinder of non-diverse defendant RealRelax 24 pursuant to

(e). 25 / / / 26 / / / 27 / / / 28 1 Conclusion 2 For the reasons above, the Court grants Plaintiff's motion and grants Plaintiff leave 3 ||to amend his complaint to add non-diverse defendant RealRelax. Because the addition of 4 || RealRelax as a defendant in this action destroys the Court’s diversity jurisdiction, (see Doc. 5 || No. 39 at 1, 2; Doc. No. 33-12, Ex. 9), the Court remands the action back to the Superior 6 ||Court of California, County of San Diego. See Mohandas,

, at *2 7 || “Remand 1s mandatory if the district court allows the joinder of a non-diverse party under 8 1447(e).’”). 9 In addition to the present motion, Plaintiff's prior motion to remand and Defendant 10 || Amazon’s motion to dismiss are currently pending before the Court. (Doc. Nos. 6, 13.) 11 || Because the Court remands the action back to state court, the Court denies Plaintiff's prior 12 ||motion to remand as moot, and the Court denies Defendant Amazon’s motion to dismiss 13 |/as moot without prejudice to Amazon refiling the motion to dismiss in state court. 14 IT IS SO ORDERED. 15 || DATED: September 23, 2024 | | | | l | | | 16 MARILYN W. HUFF, Distri ge 17 UNITED STATES DISTRICT COURT 18 19 20 21 22 23 24 25 26 27 28