United States District Court, D. Arizona
MICHAEL T. LIBURDI UNITED STALES DISTRICT JUDGE
James Glenn, Jr. moves for a remand of this action to the
Arizona Superior Court. (Doc. 8.) The motion is fully
briefed. For the reasons explained below, the Court grants
Mr. Glenn's motion.
Glenn's Amended Complaint alleges that on September 6,
2018, he was injured in the parking lot of a Wells Fargo Bank
branch in Flagstaff, Arizona. Mr. Glenn, an Arizona citizen,
and his son arrived at Wells Fargo in his son's vehicle.
Mr. Glenn's son was driving, and Mr. Glenn was the
his son parked, Mr. Glenn exited the vehicle and began
walking toward the branch entrance when “he tripped on
a piece of rebar sticking out of the parking lot
asphalt.” (Amended Complaint ¶ 18 (Doc. 1-3).) The
rebar was intended “to hold the concrete parking space
bumper in place, however, the concrete parking space bumper
was behind the rebar, leaving it exposed.”
(Id. ¶ 19) (emphasis in original.) Mr. Glenn
alleges that he “suffered serious injuries, including a
fractured right hip.” (Id. ¶ 20.)
Amended Complaint further alleges that, while Mr. Glenn was
waiting for medical care to arrive at the scene, Mr.
Glenn's son had a conversation with Roxanne Presmyk. She
is the Wells Fargo branch's services manager and an
Arizona citizen. Ms. Presmyk allegedly told Mr. Glenn's
son that “she and other employees of the Wells Fargo
branch located at the premises were aware of the exposed
rebar and were aware [that] a dangerous condition
existed.” (Id. ¶ 22.) Ms. Presmyk
allegedly told Mr. Glenn's son “that someone was to
‘take care of' or ‘fix' the concrete
parking space bumper, namely, to place it back on the rebar,
however, no one had done so.” (Id. ¶ 23.)
Glenn initiated this litigation in the Arizona Superior Court
in Coconino County on February 12, 2019. He filed an Amended
Complaint on March 7, 2019. The Amended Complaint names as
defendants Wells Fargo Bank, CBRE, Inc., and Ms.
Presmyrk. The Amended Complaint asserts various
state law claims for relief against the defendants, including
negligence, gross negligence, premises liability, and
Fargo Bank filed a Notice of Removal in this Court on March
18, 2019. (Doc. 1.) The jurisdictional basis asserted in the
Notice of Removal (at ¶ 9) is diversity of citizenship
under 28 U.S.C. § 1332. Mr. Glenn filed a Motion to
Remand (Doc. 8) on March 26, 2019, and briefing is complete.
Article III of the United States Constitution, this
Court's exercise of judicial power is contingent upon the
presence of subject-matter jurisdiction. One such form of
jurisdiction is diversity of citizenship. U.S. Const. art.
III § 2. Congress has established the standard for
diversity of citizenship jurisdiction in 28 U.S.C. §
1332. Diversity of citizenship requires that the party
seeking to invoke federal jurisdiction establish two
elements: that the amount in controversy exceed $75, 000 and
that there be “complete diversity” between each
plaintiff and each defendant. Caterpillar Inc. v.
Lewis, 519 U.S. 61, 68 (1996). In litigation where a
complaint is initially filed in state court, such as this
one, a defendant may remove the case to federal court
provided that federal subject-matter jurisdiction exists. 28
U.S.C. § 1441.
Fargo's Notice of Removal acknowledges (Doc. 1 at ¶
6) the lack of complete diversity by virtue of Ms.
Presmyk's Arizona citizenship. The Notice of Removal,
however, raises (at ¶ 7) the so-called fraudulent
joinder doctrine, asserting that “[Ms.] Presmyk is an
improper defendant and should be ignored for diversity
fraudulent joinder doctrine holds that a federal court may
disregard the citizenship status of a defendant whose
inclusion in the complaint is a subterfuge for defeating
complete diversity. Grancare, LLC v. Thrower by &
through Mills, 889 F.3d 543, 548 (9th Cir. 2018) (citing
Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S.
146, 152 (1914)). When presented with a potential fraudulent
joinder, a court should apply a general presumption that the
non-diverse defendant was properly joined. A party seeking to
overcome that presumption bears a heavy burden of proof to
establish either “(1) actual fraud in the pleading of
jurisdictional facts, or (2) inability of the plaintiff to
establish a cause of action against the non-diverse party in
state court.” Id. (quoting Hunter v.
Phillip Morris USA, 582 F.3d 1039, 1044 (9th Cir.
2009)). This test is not merely an application of the
standard for Rule 12(b)(6) motion to dismiss. Id. at
549. “A claim against a defendant may fail under Rule
12(b)(6), but that defendant has not necessarily been
fraudulently joined.” Id.
response to Mr. Glenn's argument concerning Ms.
Presmyrk's status as a non-diverse defendant, Wells Fargo
simply restates the rule. (Doc. 14.) The brief does not
provide any explanation as to whether there was “actual
fraud” concerning Ms. Presmyk's joinder as a
defendant. Nor does the brief explain why Mr. Glenn would be
unable to establish a cause of action against Ms. Presmyk in
state court. The only justification in the record provided by
Wells Fargo for its fraudulent joinder claim is in the Notice
of Removal in which Wells Fargo asserts (at ¶ 6) that
Ms. Presmyk's status as a citizen of Arizona should be
disregarded because she “is merely an employee of Wells
Fargo Bank N.A. and did not ‘create the condition'