Tajran v. Estate of McDonald

MIKE TAJRAN; DEENA TAJRAN, Plaintiffs, v. ESTATE OF IRENE MCDONALD,Deceased; KEITH JOHNSON, Defendants.

Case No. 19-cv-1290-BAS-KSC

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

January 17, 2020

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO REMAND (ECF No. 2)

Presently before the Court is Plaintiffs Mike Tajran and Deena Tajran's motion to remand this action to state court. (ECF No. 2.) Defendants removed this matter based on diversity jurisdiction under 28 U.S.C. §§ 1332 and 1441(b). (ECF No. 1.) Plaintiffs argue remand is appropriate because removal was untimely and Defendants failed to demonstrate complete diversity of citizenship. (ECF No. 2.) Plaintiffs also seek an award of attorney's fees because they believe Defendants lacked an objective basis for removal. (Id.) Defendants oppose. (ECF No. 4.)

The Court finds this motion suitable for determination on the papers submitted and without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). The Court concludes remand is appropriate but declines to award attorney's fees. Hence, for the following reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' motion to remand.

I. BACKGROUND

Plaintiffs allege that on January 17, 2017, Mike Tajran and Irene McDonald were involved in a car accident in San Diego, California. (First Am. Compl. 4.¹) Mike Tajran allegedly suffered significant injuries, including a loss of mental competency. (Id. at 3-6.)

On December 18, 2018, Plaintiffs commenced this action in the San Diego County Superior Court. (Compl. 1.) Plaintiffs used a form personal injury complaint from the Judicial Council of California for their pleading. (Id.) This Complaint names Irene McDonald as the defendant and pleads standardized claims on behalf of Mike Tajran for general negligence and injury by a motor vehicle. (Id. at 1, 4-5.) The Complaint also includes a loss of consortium claim by Deena Tajran. (Id. at 6.)

Plaintiffs' counsel submits a declaration stating that, unbeknownst to Plaintiffs, Irene McDonald passed away several days before Plaintiffs filed their Complaint. (Nunez Decl. ¶ 2, ECF No. 2-2.) Plaintiffs' counsel later received a courtesy copy of a notice to creditors of a probate action in Washington state court naming Keith Johnson as the personal representative of McDonald's estate. (Id.)

On April 18, 2019, Plaintiffs filed a First Amended Complaint to substitute the "Estate of Irene McDonald, Deceased" ("Estate Defendant") in place of McDonald. (First Am. Compl. 1.) Plaintiffs used the same form complaint for this amended pleading. The form includes a statement alleging that "[e]ach defendant named above is a natural person" unless one of several boxes is checked to provide otherwise. (Id. at 2.) Plaintiffs checked a box to identify the Estate Defendant as"other (specify)." (Id.) In the form's accompanying blank box, Plaintiffs typed, "Pursuant to Probate Code § 550 et seq." (Id.) In addition, following common practice in California, Plaintiffs included unknown doe defendants in the First Amended Complaint. (Id. at 2-3.)

On May 21, 2019, Plaintiffs filed an ex parte application to add Keith Johnson—McDonald's estate's representative—to the First Amended Complaint pursuant to California Code of Civil Procedure § 377.41.² (See Order on Ex Parte Application to Add Personal Representative.) Shortly thereafter, the state court issued an order adding Johnson to the pleading "as Doe 6." (Id.; see also Nunez Decl. ¶ 3.)

On May 31, 2019, Plaintiffs attempted to serve the Estate Defendant by serving McDonald's liability insurer, the Automobile Club of Southern California ("AAA"). (See Proof of Service of Summons on AAA.) On July 10, 2019, the Estate Defendant and Johnson filed a joint Notice of Removal. (Notice of Removal, ECF No. 1.) Although the Notice alleges May 31, 2019, is the service date for the Estate Defendant, the Notice does not allege whether—or when—Johnson was served. (See id. ¶ 4.) Nor does the Notice include any other allegations regarding the timeliness of removal. (See id. ¶¶ 1-6.)

The Notice alleges diversity jurisdiction is proper because the amount in controversy exceeds $75,000 and complete diversity of citizenship exists. (Notice of Removal ¶ 5.) Defendants allege Plaintiffs are citizens of California; the Estate Defendant "is a citizen of the State of Washington, as the place of domicile when Irene McDonald passed away"; and Johnson "likewise is a citizen of Washington as the legal representative of decedent's estate." (Id. ¶ 6.)

Plaintiffs filed their motion to remand on August 9, 2019. (Mot., ECF No. 2.) Then, without leave of court, Defendants filed an Amended Notice of Removal on August 19, 2019. (Am. Notice of Removal, ECF No. 4.) The Amended Notice alleges that "Johnson was personally served with the First Amended Complaint" on June 19, 2019—less than thirty days before the original Notice was filed. (Id. ¶ 5.) Defendants' counsel explains that the original Notice "was mistakenly filed without attaching the summons to Defendant Keith Johnson" due to a "clerical error by [counsel's] office."³ (Holnagel Decl. ¶ 1, ECF No. 4-3.) The Amended Notice includes the same allegations regarding diversity jurisdiction. (See Am. Notice of Removal ¶¶ 6-7.) Defendants also filed an opposition to Plaintiffs' motion to remand. (Opp'n, ECF No. 4-2.)

II. LEGAL STANDARD

"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). "They possess only that power authorized by Constitution or a statute, which is not to be expanded by judicial decree." Id. (internal citations omitted). "It is to be presumed that a cause lies outside this limited jurisdiction and the burden of establishing the contrary rests upon the party asserting jurisdiction." Id. (internal citations omitted); see also Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006).

Consistent with the limited jurisdiction of federal courts, the removal statute is strictly construed against removal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992); see also Sygenta Crop Prot. v. Henson, 537 U.S. 28, 32 (2002); O'Halloran v. Univ. of Wash., 856 F.2d 1375, 1380 (9th Cir. 1988). "The 'strong presumption' against removal jurisdiction means that the defendant always has theburden of establishing that removal is proper." Gaus, 980 F.2d at 566; see also Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 n.3 (9th Cir. 1990); O'Halloran, 856 F.2d at 1380.

"A motion to remand is the proper procedure for challenging removal." Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing 28 U.S.C. § 1447(c)). The propriety of removal turns on whether the case could have originally been filed in federal court, Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 163 (1997), and the court's analysis focuses on the pleadings "as of the time the complaint is filed and removal is effected," Strotek Corp. v. Air Transp. Ass'n of Am., 300 F.3d 1129, 1131 (9th Cir. 2002).

III. ANALYSIS

Plaintiffs raise two arguments to justify remanding this action to state court. First, Plaintiffs argue removal was untimely because Defendants filed their Notice of Removal more than thirty days after the Estate Defendant was served. (See Mot. 1:25-28; Pl.'s Mem. 3:13-22.) Second, Plaintiffs argue Defendants failed to demonstrate in their Notice that complete diversity of citizenship exists. (Pl.'s Mem. 3:23-4:28.) The Court focuses on the diversity issue because it is dispositive.⁴

Diversity jurisdiction exists where an action is between "citizens of different States" and "the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs." 28 U.S.C. § 1332(a). "When an action is removed based on diversity, complete diversity must exist at removal." Gould v. Mut. Life Ins. Co. of New York, 790 F.2d 769, 773 (9th Cir. 1986) (citing Miller v. Grgurich, 763 F.2d 372, 373 (9th Cir. 1985)). Complete diversity exists where "the citizenship of each plaintiff is diverse from the citizenship of each defendant." Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). When removing a case, defendants are "merely required to allege (not to prove)" the citizenship of the parties. See Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001).

To recap, there are four parties named in the First Amended Complaint: Plaintiff Mike Tajran, Plaintiff Deena Tajran, Defendant Keith Johnson, and Defendant Estate of Irene McDonald, Deceased. The Notice of Removal alleges Mike Tajran and Deena Tajran are "citizen[s] of the State of California." (Notice of Removal ¶ 6.) This allegation adequately establishes their citizenship. See Ehrman v. Cox Commc'ns, Inc., 932 F.3d 1223, 1228 (9th Cir. 2019).

Further, the Notice alleges Defendant Keith Johnson is the legal representative of Irene McDonald's estate. (Notice of Removal ¶ 6.) Under 28 U.S.C. § 1332(c)(2), "the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent." The Notice alleges McDonald was domiciled in Washington when she passed away, (Notice of Removal ¶ 6), making her a citizen of Washington, see Ehrman, 932 F.3d at 1227. Hence, Johnson is likewise a citizen of Washington. See 28 U.S.C. § 1332(c)(2).

Defendants allege the remaining party, the Estate Defendant, is also a citizen of Washington, which—if true—would establish complete diversity. (See Notice of Removal ¶ 6.) Plaintiffs, however, attack the sufficiency of this allegation. Theyargue the Estate Defendant is not the real party defendant because they are suing it under California Probate Code § 550. (See Pl.'s Mem. 3:12-4:28 (identifying AAA as the "real party in interest"); see also First Am. Compl. 2 (suing the Estate Defendant under "Probate Code § 550 et seq.").) As explained below, this statute allows a plaintiff to sue a decedent's estate as a nominal...