2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 PHILIP JOSEPH GERVASI, Case No. 2:22-cv-01010-MMD-BNW

7 Plaintiff, ORDER REMANDING CASE v. 8 HOME DEPOT U.S.A., INC., et al., 9 Defendants. 10 11 I. SUMMARY 12 Defendant Home Depot U.S.A., Inc. removed this slip-and-fall case based on 13 diversity of citizenship. (ECF No. 10 at 4.) However, Plaintiff Philip Joseph Gervasi and 14 Defendant Deborah Reid are both citizens of Nevada, and more specifically Clark County. 15 (ECF No. 4-1 at 5.) Home Depot argued at removal that Reid is a sham defendant 16 fraudulently joined. (ECF No. 10 at 6-9.) But if Reid was not fraudulently joined, the Court 17 would lack jurisdiction over this case. See

(b)(2); see also Spencer v. 18 U.S. Dist. Ct. for N. Dist. of Ca.,

, 870 (9th Cir. 2004) (“[T]he presence of a 19 local defendant at the time removal is sought bars removal.”) (citation omitted). The Court 20 accordingly ordered Home Depot to show cause why it should not remand this case. (ECF 21 No. 13 (“OSC”).) Home Depot responded to the Court’s OSC (ECF No. 15), and then after 22 some prompting (ECF No. 20), Gervasi did as well (ECF No. 21). Because Gervasi 23 contends he named Reid as a Defendant in good faith, Home Depot does not dispute her 24 citizenship or that she had some involvement in the alleged slip and fall, and as further 25 explained below, the Court will remand this case. 26 II. BACKGROUND 27 The following facts are adapted from the Complaint. (ECF No. 4-1.) Gervasi lives 28 in Clark County, Nevada. (Id. at 5.) Reid also lives in Clark County, Nevada. (Id.) All 2 shopping at a Home Depot in Las Vegas (id.) in July 2021 when he unexpectedly slipped 3 and fell onto the floor of the store because an unknown liquid was on it (id. at 7). Gervasi 4 was injured in the fall and has already incurred medical expenses. (Id. at 8.) Gervasi 5 brings claims for negligence and negligent hiring, training, and supervision against Home 6 Depot, Reid, and unknown defendants who may have also contributed to his injuries. (Id. 7 at 8-14.) 8 III. LEGAL STANDARD 9 Federal courts are courts of limited jurisdiction, having subject-matter jurisdiction 10 only over matters authorized by the Constitution and Congress. See U.S. Const. art. III, 11 § 2, cl. 1; see also, e.g., Kokkonen v. Guardian Life Ins. Co. of Am.,

, 377 12 (1994). A suit filed in state court may be removed to federal court if the federal court would 13 have had original jurisdiction over the suit at commencement of the action. See 28 U.S.C. 14 § 1441(a). However, courts strictly construe the removal statute against removal 15 jurisdiction, and “[f]ederal jurisdiction must be rejected if there is any doubt as to the right 16 of removal in the first instance.” Gaus v. Miles, Inc.,

(9th Cir. 1992) 17 (emphasis added, citation omitted). The party seeking removal bears the burden of 18 establishing federal jurisdiction. See

19 IV. DISCUSSION 20 The Court must remand this case because it has doubts as to the right of removal 21 in the first instance, and Home Depot’s response to the OSC has not resolved those 22 doubts. See

Indeed, Home Depot’s counsel swears that Reid is “a resident and citizen 23 of Nevada.” (ECF No. 16 at 2.) And Home Depot does not rebut Plaintiff’s allegation that 24 he too is a resident of Nevada. (Id.; see also ECF No. 4-1 at 5.) Reid’s presence in the 25 case as a named defendant at the time Home Depot removed bars removal. See 26 Spencer, 393 F.3d at 870. 27 As to Home Depot’s fraudulent joinder argument, Home Depot argues that Reid is 28 an improper tortfeasor because she is just a cashier in the garden department who did 1 || not water the plants on the day Gervasi fell, and otherwise had a limited role in the 2 || incident. (ECF No. 15 at 4-5.) Gervasi basically responds that this may be true, but he 3 || has not yet conducted discovery and thus does not know the full extent of Reid’s role in 4 || contributing to the slippery floor he slipped on. (ECF No. 21 at 3.) Indeed, Gervasi notes, 5 || Home Depot confirms that Reid was an employee working at the store where Gervasi 6 || slipped at the time of the accident that was involved to at least some extent in the incident 7 || (id. (citing ECF No. 16 at 2)), and thus she was not fraudulently joined (id. at 2-4). The 8 || Court agrees with Gervasi. 9 The Court cannot say at this time that Reid is fraudulently joined. Nor can the Court 10 || say precisely what Reid’s involvement in the accident was—that is a factual issue not 11 || suitable for resolution at this early stage. All the Court can say at this point is that Reid is 12 || named as a defendant (ECF No. 4-1 at 5), she destroys complete diversity (id.), and there 13 || is no dispute that she worked for Home Depot at the time of the accident that she was 14 || also involved in (ECF No. 16 at 2). This gives the Court at least a doubt that removal was 15 || proper here. See Gaus,

. The Court will accordingly remand this case. 16 || See

17 || V. CONCLUSION 18 The Court notes that the parties made several arguments and cited to several 19 || cases not discussed above. The Court has reviewed these arguments and cases and 20 || determines that they do not warrant discussion as they do not affect the outcome of the 21 || issues before the Court. 22 This action is remanded to the Eighth Judicial District Court in and for the County 23 || of Clark. The Clerk of Court is directed to close this case. 24 DATED THIS 26" Day of September 2022. 25

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