1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 ENEDINA OVERSTREET, ) 4 ) Plaintiff, ) Case No.: 2:22-cv-01252-GMN-EJY 5 vs. ) ) ORDER 6 WAL-MART STORES, INC., ) 7 ) Defendant. ) 8 ) 9 Pending before the Court is the Motion to Remand, (ECF No. 8), filed by Plaintiff 10 Enedina Overstreet (“Plaintiff”). Defendant Wal-Mart Stores, Inc. (“Defendant”) filed a 11 Response, (ECF No. 10), but Plaintiff did not reply. 12 For the reasons discussed below, the Court DENIES Plaintiff’s Motion to Remand. 13 I. BACKGROUND 14 This case arises from an incident during which one of Defendant’s employees allegedly 15 struck and injured Plaintiff while negligently operating a handcart. (Compl. ¶ 9, Ex. 1 to Pet. 16 Removal, ECF No. 1-2). Plaintiff originally filed her Complaint in the Eighth Judicial District 17 Court for Clark County, Nevada against Defendant as well as unidentified “Roes” and “Does.” 18 (See generally id., Ex. 1 to Pet. Removal). Defendant subsequently removed the case to this 19 Court. (See Pet. Removal, ECF No. 1). In its Petition, Defendant alleges that the Court has 20 subject-matter jurisdiction pursuant to

. (Id. ¶¶ 6–19). Plaintiff then moved 21 for remand. (Mot. Remand, ECF No. 8). 22 II. LEGAL STANDARD 23 “Federal courts are courts of limited jurisdiction,” and “possess only that power 24 authorized by Constitution and statute, which is not to be expanded by judicial decree.” 25 Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994) (internal citations 1 omitted). “It is to be presumed that a cause lies outside this limited jurisdiction, and the burden 2 of establishing the contrary rests upon the party asserting jurisdiction.”

(internal citations 3 omitted). 4 The federal removal statute provides that a defendant may remove an action to federal 5 court based on federal question jurisdiction or diversity jurisdiction.

. “The 6 ‘strong presumption against removal jurisdiction means that the defendant always has the 7 burden of establishing that removal is proper,’ and that the court resolves all ambiguity in favor 8 of remand to state court.” Hunter v. Philip Morris USA,

(9th Cir. 2009) 9 (quoting Gaus v. Miles, Inc.,

(9th Cir. 1992) (per curiam)). “If at any time 10 before final judgment it appears that the district court lacks subject matter jurisdiction, the case 11 shall be remanded.”

(c). 12 To remove a state law civil action to federal court on the basis of diversity jurisdiction, a 13 removing defendant must show that the parties are completely diverse and that the matter in 14 controversy exceeds the sum or value of $75,000.

(a). Complete diversity of 15 citizenship under

requires that each plaintiff must be a citizen of a different 16 state than each defendant. Morris v. Princess Cruises, Inc.,

(9th Cir. 17 2001).

18 III. DISCUSSION 19 Preliminarily, the Court notes that the parties do not dispute that Plaintiff and Defendant 20 are citizens of different states.1 (See generally Pet. Remand, ECF No. 1); (Mot. Remand, ECF 21 No. 8); (Resp., ECF No. 10). Additionally, the parties do not dispute that the amount in 22 controversy is met. 23 /// 24 25 1 Plaintiff is a citizen of Nevada. (Compl. ¶ 1, Ex. 1 to Pet. Removal). Defendant is incorporated in Delaware and maintains its principal place of business in Arkansas. (Pet. Removal ¶ 8); (see Compl. ¶ 2, Ex. 1 to Pet. Removal) (identifying Defendant as a “Foreign Corporation”). 1 (See generally Mot. Remand) (limiting legal argument to issue of complete diversity of 2 citizenship); (Resp.).2 3 The issue at dispute is whether a fictitious defendant named in the Complaint destroys 4 diversity of jurisdiction. (Compl. ¶¶ 3–4); (Mot. Remand 5:1–10). Generally, “the citizenship 5 of defendants sued under fictitious names shall be disregarded.”

(b)(1). 6 However, “[n]umerous courts have recognized that ‘when a plaintiff’s allegations give a 7 definite clue about the identity of the fictitious defendant by specifically referring to an 8 individual who acted as the company’s agent, the court should consider the citizenship of the 9 fictitious defendant.’” Velarde v. Smith’s Food & Drug Centers, Inc., No. 2:18-cv-1389-JCM- 10 NJK,

, at *2 (D. Nev. Nov. 27, 2018) (quoting Collins v. Garfield Beach 11 CVS, LLC, No. CV 17-3375 FMO (GJSx),

, at *2 (C.D. Cal. June 26, 2017). 12 This is because it is “unfair to force plaintiffs from their state court forum into federal court by 13 allowing [a defendant] to plead ignorance about the defendant-employee’s identity and 14 citizenship when [a corporate defendant] is in a position to know that information.” Sandoval v. 15 Republic Servs., Inc., No. 2:18-cv-01224-ODW-KSX,

, at *3 (C.D. Cal. Apr. 16 24, 2018) (quoting Collins,

, at *2). 17 However, this is not a case in which a corporate defendant is concealing the identity of

18 an employee to manufacture diversity. Plaintiff’s Complaint names several fictitious 19 defendants, including “DOE EMPLOYEE,” the employee who allegedly struck Plaintiff. 20 (Compl. ¶¶ 3, 9, Ex. 1 to Pet. Removal). This employee has since been identified as Adam 21

22 2 It appears that the parties disagree on whether Defendant timely removed the case to federal court within thirty days after Defendant received any paper “from which it may first be ascertained that the case is one which is or has become 23 removable.”

(b)(2)(C)(3); (see Mot. Remand 3:1–2); (Resp. 7:12–25). Defendant argues that an email dated August 2, 2022, conveying Plaintiff’s $350,000.00 settlement demand was the first document establishing the 24 requisite amount in controversy. (Resp. 7:13–15); see Cohn v. Petsmart, Inc.,

(9th Cir. 2002) (“A settlement letter is relevant evidence of the amount in controversy if it appears to reflect a reasonable estimate of the 25 plaintiff’s claim.”). Plaintiff does not offer any evidence that could have alerted Defendant to an amount in controversy exceeding $75,000.00 prior to the August 2 email. (See generally Mot. Remand). Defendant filed its Petition for Removal on August 4, 2022. (See generally Pet. Removal). Accordingly, the Court finds that the Petition for Removal is timely. 1 Wawu, a citizen of Nevada. (Mot. Remand 4:20–5:1). Because the identity of Mr. Wawu is 2 known, the Court can only consider the citizenship of Mr. Wawu if he is properly joined as a 3 defendant.

(b)(2). But the Court previously denied Plaintiff’s request to join 4 Mr. Wawu to the Complaint because his addition was “meant to ‘destroy diversity 5 jurisdiction.’” (Report & Recommendation (“R&R”) 4:9–11, ECF No. 12) (“Plaintiff did not 6 seek to add Mr. Wawu as a defendant until removal occurred. Plaintiff offers no reason for the 7 almost eight month delay in seeking to add Mr. Wawu as a defendant.”); (see Order, ECF No. 8 25) (adopting the R&R). Because the Court will not consider Mr. Wawu’s citizenship to 9 determine diversity of jurisdiction, what remains is complete diversity among the parties. 10 Accordingly, the Court DENIES Plaintiff’s Motion to Remand. 11 IV. CONCLUSION 12 IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand, (ECF No. 8), is 13 DENIED. 14 DATED this ___7__ day of February, 2023. 15 16 ___________________________________ Gloria M. Navarro, District Judge 17 UNITED STATES DISTRICT COURT 18 19 20 21 22 23 24 25