United States District Court, D. Arizona
JAMES A. TEIBORG, District Judge.
Pending before the Court is Plaintiffs' 28 U.S.C. § 1447(c) Motion to Remand. (Doc. 17). The Court now rules on the motion.
Plaintiffs allege the following facts. In August 2011, Osbon Auto Repair, located in Glendale, Arizona, repaired the rear axle on Plaintiff Roberson's 1997 Mercury Mountaineer. (Doc. 17, Ex. D). On November 24, 2011, Plaintiff Roberson's 1997 Mercury Mountaineer experienced a rear axle failure causing the vehicle to swerve off the road and rollover. (Doc. 16 at 4). Plaintiffs' infant son was strapped in a Graco car seat. ( Id. ). The car seat detached from its base and was ejected from the vehicle. ( Id. ) Plaintiffs' son was killed. (Doc. 17 at 2).
On November 22, 2013, Plaintiffs filed a complaint in Maricopa County Superior Court against the manufacturers of the car seat, Defendant Newell Rubbermaid, Inc., and its subsidiary, Graco Children's Products, Inc. (collectively "Graco Defendants"). (Doc. 1, Ex. A at 3). Plaintiffs also named Osbon Auto Repair; the owner of Osbon Auto Repair, Felipe De Jesus Sauceda and his wife, Jane Doe De Jesus Sauceda; and the Osbon employee who worked on the vehicle, John Doe Arnenta and his wife, Jane Doe Arnenta (collectively the "Osbon Defendants") as defendants. ( Id. ) When Plaintiffs filed their complaint, Osbon Auto Repair was no longer in business, and Plaintiffs could not locate any of the other Osbon Defendants for personal service. (Doc. 21 at 4). However, with the state court's approval, Plaintiffs served the Osbon Defendants by publication of the Complaint on April 5, 2014. (Doc. 17, Ex. B). On March 19, 2014, Graco Defendants removed the matter to the United States District Court of Arizona, pursuant to 28 U.S.C. §§ 1441 and 1446. (Doc. 1 at 1). Subsequently, Plaintiffs filed an amended complaint. (Doc. 16). Plaintiffs now move to remand the matter to state court. (Doc. 17).
II. MOTION TO REMAND
A. Legal Standard
A federal district court has "original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interests and costs, and is between... citizens of different States[.]" 28 U.S.C. § 1332(a)(1). The removal statute, 28 U.S.C. § 1441, provides, in pertinent part: "[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant" to the United States district court "for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a); see Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987) ("Only... actions that originally could have been filed in federal court may be removed to federal court by the defendant.").
Courts strictly construe the removal statute and disfavor removal jurisdiction. See, e.g., Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). There is a "strong presumption" against removal, and "[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus, 980 F.2d at 566 (internal citations omitted). "The strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id. If at any time it appears that the district court lacks subject matter jurisdiction, the case must be remanded. 28 U.S.C. § 1447(c).
Plaintiffs assert that remand is proper because the Court lacks subject matter jurisdiction. (Doc. 17 at 2). Specifically, Plaintiffs argue that there are no claims arising under federal law and because "Arizona residents are on both sides of this case... removal based on diversity was improper." ( Id. ) In response, Graco Defendants make two arguments. First, they argue that removal is proper because it appears from the face of the Complaint that diversity jurisdiction exists. (Doc. 20 at 2). Alternatively, Graco Defendants contend that removal is proper because the Osbon Defendants were fraudulently joined to destroy diversity. ( Id. at 4).
Graco Defendants contend that because Plaintiffs have not been able to locate the Osbon Defendants, Plaintiffs have not established that the Osbon Defendants were Arizona residents when Plaintiffs filed their original complaint. (Doc. 20 at 2-3).
For the Court to have diversity jurisdiction, each plaintiff must be a citizen of a different state than each of the defendants. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). A defendant who is a citizen of a plaintiff's state destroys complete diversity, regardless of whether that defendant was properly served prior to removal. Pullman Co. v. Jenkins, 305 U.S. 534, 538 (1939); Preaseau v. Prudential Ins. Co., 591 F.2d 74, 78 (9th Cir. 1979); Clarence E. Morris, Inc. v. Vitek, 412 F.2d 1174, 1176 (9th Cir. 1969) ("[T]he existence of diversity is determined from the fact of citizenship of the parties named and not from the fact of service."). It is immaterial whether the resident defendant is named or whether that defendant's true identity is known. See Preaseau, 591 F.2d at 78; Pecherski v. Gen. Motors Corp., 636 F.2d 1156, 1159 ...