Marks v. Hellmont

6 THE DISTRICT OF GUAM ROBERT JAY MARKS, CIVIL CASE NO. 19-000142 Plaintiff, vs. ORDER ON PLAINTIFF’S MOTIONS 10 TO SUPPLEMENT AND LARS FILIP HELLMONT, DR. DEIDER DEFENDANT’S MOTION TO FILE NEUPER, as Trustee for BH Stiftung, and SUR-REPLY FUJITA PROPERTY GUAM, INC., Defendant.

This order relates to the three pending motions that relate to Defendant Fujita’s pending motion to dismiss (ECF No. 37): Plaintiff’s First Motion to Supplement the Record (ECF No. 54); Plaintiff’s Second Motion to Supplement the Record (ECF No. 64); and Defendant Fujita’s Motion for Leave to File a Sur-Reply (ECF No. 81). After further review, the court finds the briefing sufficient to rule on these motions, see Fed. R. Civ. P. 78(b), and for the reasons set forth below, will grant each motion.

Defendant Fujita’s pending motion to dismiss (ECF No. 37) concerns the “fraudulent joinder” rule. To determine whether the rule applies, a court must determine whether a plaintiff has failed to present any possibility of recovery against a defendant. See Grancare, LLC v. Thrower by and through Mills, 889 F.3d 543, 549 (9th Cir. 2018). Without fully detailing the legal intricacies of Fujita’s motion to dismiss here, Fujita contends Plaintiff cannot possibly recover against it, and thus the fraudulent joinder rule should apply. Plaintiff opposes the applicability of the fraudulent joinder rule as he believes he has some chance of recovering against Fujita.

1 In analyzing this question, the court is to determine if there is a “possibility that a state court would find that the complaint states a cause of action against any of the [non-diverse] defendants.” Jd. at 549-50 (internal quotations omitted). Consequently, the court is to go “somewhat further” than merely examining the pleadings, and may consider affidavits or other evidence to determine if the joinder was a sham, including the consideration of “summary || judgment-type evidence such as affidavits and deposition testimony.” Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998); Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1068 (9th Cir. 2001) (internal quotations omitted). “All doubts concerning the sufficiency of a cause of action because of inartful, ambiguous or technically defective pleading must be resolved in favor 10 of remand” and a “lack of clear precedent does not render the joinder fraudulent.” Gaus v. Miles, 11 Inc., 980 F.2d 564, 566-67 (9th Cir. 1992).

12 As summarized above, Plaintiff has filed two motions to supplement his opposition to 13 Fujita’s motion, and Defendant has filed a motion seeking leave to file a sur-reply. All these 14 motions contain attachments and evidence which purportedly bear on the question of whether 15 Plaintiff has some chance of recovery against Fujita. As Fujita has raised the issue of fraudulent || joinder, the court finds it expedient to consider the evidence and arguments in the three pending 17 motions.

18 Accordingly, IT IS HEREBY ORDERED that Plaintiff's First Motion to Supplement 19 the Record (ECF No. 54) is GRANTED; Plaintiff's Second Motion to Supplement the Record 20 (ECF No. 64) is GRANTED; and Defendant Fujita’s Motion for Leave to File a Sur-Reply (ECF 21 No. 81) is GRANTED. Consequently, the hearing currently set for March 9, 2021 will only || pertain to Fujita’s motion to dismiss (ECF No. 37).

23 SO ORDERED.

2 /s/ Frances M. Tydingco-Gatewood 26 ne. Chief Judge ’ & Dated: Mar 03, 2021