Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 NELLIE CASILLAS, Case No.: 26-cv-01605-AJB-SBC 14 Plaintiff, ORDER GRANTING MOTION TO 15 v. REMAND 16 COSTCO WHOLESALE CORPORATION, et al., (Doc. No. 15) 17 Defendants. 18 19 20 Before the Court is the Motion to Remand filed by Plaintiff Nellie Casillas 21 (“Casillas”). (Doc. No. 15.) The motion is fully briefed. (Doc. Nos. 15; 18–19.) 22 For the reasons set for below, the Court GRANTS Casillas’s motion to remand. 23 (Doc. No. 15.) 24 I. BACKGROUND 25 A. Factual Background 26 According to Casillas, on May 4, 2024, Defendant Larry Lopez (“Lopez”) pushed a 27 line of shopping carts into her and injured Casillas while she was shopping at the Costco 28 Warehouse run by Defendant Costco Wholesale Corporation (“Costco”) and located at 725 1 Center Drive, San Marcos, California 92069. (Id. at 6; see also Doc. No. 1-2 at 5.) At that 2 time, Costco employed Lopez. (Doc. No. 15 at 6.) Casillas claims that Defendant Jose 3 Hernandez (“Hernandez”) managed and supervised Lopez at the time of the incident. (Id.) 4 Casillas seeks damages in the amount of $2,000,010.00. (Doc. No. 1-2 at 11.) 5 B. Procedural Background 6 On January 2, 2026, Casillas initiated this action in San Diego County Superior 7 Court. (Id. at 2–5.) Casillas served the Complaint on Costco on January 21, 2026. (Doc. 8 No. 15-3.) Casillas claims that she served Hernandez via substituted service to a “Mike 9 ‘Doe’ Person In Charge” on January 26, 2026. (Doc. No. 15-4.) However, nothing in the 10 record indicates that Casillas has attempted to serve Lopez. 11 On March 13, 2026, Costco removed this case to this Court pursuant to 28 U.S.C. 12 §§ 1332, 1441, and 1446, asserting that (1) complete diversity exists because Casillas is a 13 citizen of California and Costco is a citizen of the state of Washington (Doc. No. 1 at 2); 14 (2) Lopez and Hernandez had not been served nor appeared in court, and therefore their 15 consent to the removal is not required (id.); (3) Hernandez and Lopez were fraudulently 16 joined (id.); and (4) the amount in controversy exceeds $75,000 (id. at 3). 17 On April 15, 2026, Casillas moved to remand, arguing that (1) the Court lacks 18 subject matter jurisdiction because complete diversity does not exist (Doc. No. 15 at 8–10); 19 (2) Costco failed to establish the requisite amount in controversy (id. at 10–11); and (3) the 20 removal was procedurally defective for lack of consent from all defendants and that Costco 21 knowingly filed an improper notice of removal (id. at 12–13). 22 On April 30, 2026, Costco filed its opposition, arguing that the removal is proper 23 because (1) there are no factual allegations regarding Hernandez and therefore no basis for 24 a claim against him (Doc. No. 18 at 8–11); (2) Hernandez was fraudulently joined (id. at 25 12–17); and (3) there is no evidence Lopez is a California citizen (id. at 17). 26 27 1 Page citations refer to the pagination generated by the Case Management/Electronic Case files 28 1 II. LEGAL STANDARD 2 Federal courts are courts of limited jurisdiction, having subject matter jurisdiction 3 only over matters authorized by the Constitution and Congress. See Kokkonen v. Guardian 4 Life Ins. Co., 511 U.S. 375, 377 (1994). A defendant may remove a civil action to federal 5 court only if the district court would have original jurisdiction over the action. 28 U.S.C. 6 § 1441(a). “In general, removal statutes are strictly construed against removal.” Luther v. 7 Countywide Home Loans Servicing LP, 533 F.3d 1031, 1034 (9th Cir. 2008) (citations 8 omitted). There is a “strong presumption” against removal jurisdiction, and the party 9 seeking removal always bears the burden of establishing that removal is proper. Gaus v. 10 Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citations omitted). If there is any doubt as 11 to the propriety of removal, federal jurisdiction must be rejected. Id. (citation omitted). 12 III. DISCUSSION 13 A. The Court lacks jurisdiction over Casillas’s claim. 14 Because the removal statute is strictly construed against removal, any doubt about 15 the propriety of removal must be resolved in favor of remand. Moore-Thomas v. Alaska 16 Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). As the removing party, Costco bears 17 the burden of establishing that removal was proper, including that this Court has subject 18 matter jurisdiction. Geographic Expeditions, Inc. v. Est. of Lhotka ex rel. Lhotka, 599 F.3d 19 1102, 1106 (9th Cir. 2010). Because Costco contends that a non-diverse defendant was 20 fraudulently joined, it bears a “‘heavy burden’ since there is a ‘general presumption against 21 [finding] fraudulent joinder.’” GranCare, LLC v. Thrower by & through Mills, 889 F.3d 22 543, 548–49 (9th Cir. 2018) (quoting Hunter v. Philip Morris USA, 582 F.3d 1039, 1046 23 (9th Cir. 2009)). 24 The Court finds that Costco satisfied the procedural requirements for removal under 25 28 U.S.C. § 1446. The Court agrees with Casillas, however, that there is not complete 26 diversity. 28 U.S.C. § 1332(a); Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). Costco 27 has not met its burden of establishing that Lopez is diverse from Casillas, nor has it met its 28 burden to show Hernandez, a California citizen, was fraudulently joined, so his presence 1 independently defeats diversity jurisdiction. See GranCare, 889 F.3d at 548. Although the 2 amount in controversy exceeds the $75,000 jurisdictional threshold, 28 U.S.C. § 1332(a), 3 that showing does not cure the lack of complete diversity. 4 1. Costco complied with the procedural requirements for removal. 5 Casillas claims that Costco did not comply with 28 U.S.C. § 1446’s procedural 6 requirements because Costco did not obtain Hernandez and Lopez’s consent to the 7 removal. (Doc. No. 15 at 11.) 8 Costco cites Northern Illinois Gas Co. v. Airco Industrial Gases, 676 F.2d 270, 272 9 (7th Cir. 1982), and Destfino v. Reiswig, 630 F.3d 952, 955 (9th Cir. 2011), as authority 10 that it does not need Hernandez and Lopez’s consent because they have not been served. 11 (Doc. No. 1 at ¶ 5.) 12 Costco is correct. Ninth Circuit precedent makes clear that a defendant only needs 13 to obtain the consent of all defendants who have been served to remove a matter to federal 14 court. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n.1 (9th Cir. 1988) (stating that 15 all defendants who have been properly joined and served must join in or consent to 16 removal) (citing Salveson v. W. States Bankcard Ass’n, 731 F.2d 1423, 1429 (9th Cir. 17 1984)). Casillas does not provide any evidence that she has served Lopez. It is also unclear 18 whether Casillas has properly served Hernandez. (See Doc. No. 15-4.)2 Because Casillas 19 has not shown that she effectuated service on Lopez and Hernandez, Costco did not need 20 21 22 2 Casillas contends that she served Hernandez by substituted service, but she does not offer any evidence that she could serve Hernandez through a “Mike ‘Doe’ Person in Charge.” (See id.) Federal Rule 23 of Civil Procedure 4(e)(2) permits service of an individual by: “(A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or 24 usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a 25 copy of each to an agent authorized by appointment or by law to receive service of process.” Casillas has not shown that the “Mike ‘Doe’ Person in Charge” resided at Hernandez’s dwelling or was an authorized 26 agent. (See Doc. No 15-4.) Nor has Casillas demonstrated compliance with California’s substituted- service statute, which permits service on a “person apparently in charge” at a defendant’s usual place of 27 business only after reasonable diligence in attempting personal service and a required follow-up mailing. Cal. Code Civ. Proc. § 415.20(b); see Fed. R. Civ. P. 4(e)(1). The Court accordingly assumes that Casillas 28 1 to obtain their consent to remove the present matter to this Court. Emrich, 846 F.2d at 1193 2 n.1. Accordingly, the Court finds that Costco complied with the procedural requirements 3 of 28 U.S.C. § 1446. 4 2. The Court lacks subject matter jurisdiction because complete diversity does not exist. 5 Costco has failed to demonstrate that Lopez is diverse from Casillas. 6 Costco claims that there is no evidence that Lopez is a California citizen and that it 7 does not know Lopez’s current residence or citizenship (Doc. No. 18 at 6, 17.) Casillas 8 states that Lopez is a citizen of California. (Doc. No. 15 at 6.) As the removing party, 9 Costco bears the burden of establishing that removal is proper, including that complete 10 diversity exists. Geographic Expeditions, 599 F.3d at 1106–07. Costco cannot satisfy its 11 burden by asserting that a defendant’s citizenship is unknown; rather, it must affirmatively 12 establish that diversity exists. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857–58 (9th 13 Cir. 2001). Costco does not meet this burden because it does not provide any support to 14 show that Lopez is not a citizen of California. (See generally Doc. No. 18.) See also Kanter, 15 F.3d at 857–58. 16 3. Costco has not met its burden to establish fraudulent joinder. 17 Costco next claims that Casillas fraudulently joined Hernandez as a defendant 18 because he lacks any factual connection to the incident. (Doc. No. 18 at 8–17.) 19 Casillas relies on GranCare to show that she did not fraudulently join Hernandez 20 since she can state a viable claim against him under California law given his alleged role 21 as the general manager of the Costco location responsible for training employees. (Doc. 22 No. 15 at 8.) 23 “There are two ways to establish fraudulent joinder: ‘(1) actual fraud in the pleading 24 of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against 25 the non-diverse party in state court.’” GranCare, 889 F.3d at 548 (quoting Hunter, 582 26 F.3d at 1044). “Fraudulent joinder is established the second way if a defendant shows that 27 an ‘individual[] joined in the action cannot be liable on any theory.’” Id. (quoting Ritchey 28 1 v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998)). “A defendant invoking federal 2 court diversity jurisdiction on the basis of fraudulent joinder bears a ‘heavy burden’ since 3 there is a ‘general presumption against [finding] fraudulent joinder.’” Id. (quoting Hunter, 4 582 F.3d at 1046). “[I]f there is a possibility that a state court would find that the complaint 5 states a cause of action against any of the resident defendants, the federal court must find 6 that the joinder was proper and remand the case to the state court.” Hunter, 582 F.3d at 7 1046 (citation omitted); see also GranCare, 889 F.3d at 548. 8 Costco does not assert that there is actual fraud in the pleading of jurisdictional facts, 9 so the Court solely considers whether Casillas can establish a cause of action against 10 Hernandez. The complaint at issue asserts one cause of action of negligence under 11 California law. (Doc. No. 1-2 at 5.) “Under California law, a store manager may be held 12 individually liable for negligence.” Padilla v. Costco Wholesale Corp., No. 13 25-cv-07408-EMC (EMC), 2025 WL 3633035, at *2 (N.D. Cal. Dec. 15, 2025) (collecting 14 cases); see, e.g., Mackovski v. Costco Wholesale Corp., No. 8:23-cv-02272-FWS-DFM, 15 2024 WL 2732244, at *3 (C.D. Cal. May 28, 2024) (“district courts in the Ninth Circuit 16 have specifically allowed a plaintiff to bring . . . premises liability claims against store 17 managers in situations similar to the instant [a]ction.”) (citing cases). “As a result, there is 18 an array of authorities remanding slip-and-fall premises liability cases against nondiverse 19 store managers for lack of fraudulent joinder.” Murdock v. Costco Wholesale Corp., No. 20 EDCV 25-02200-MWF (MBKX), 2025 WL 2985227, at *2 (C.D. Cal. Oct. 22, 2025) 21 (citing cases). Under Padilla, Mackovski, and Murdock, Casillas can state a negligence 22 claim against Hernandez under California law, defeating a claim of fraudulent joinder. 23 Costco’s arguments to the contrary are unavailing. For example, Costco cites 24 McCabe v. General Foods Corp. for the proposition that “mere employment status or 25 managerial title, without more, is insufficient to establish personal liability.” (Doc. No. 18 26 at 9–10 (quoting McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987)). 27 But McCabe is a wrongful termination case—not a personal injury case—giving it no 28 bearing on the negligence claim at issue here. See McCabe, 811 F.2d at 1337. Costco also 1 argues that Hernandez and Lopez are fraudulently joined by citing three cases that address 2 joinder of defendants under Rule 19 after removal, not the more lenient standard for 3 addressing whether a defendant was fraudulently included from the outset of the litigation. 4 (Doc. No. 18 at 10–11, 18 (citing Calderon v. Lowe’s Home Ctrs., LLC, No. 5 2:15-CV-01140-ODW-AGR, 2015 WL 3889289 (C.D. Cal. June 24, 2015); Leyba v. 6 Walmart, Inc., No. 2:20-cv-07604-ODW (Ex), 2021 WL 8893640 (C.D. Cal. Feb. 2, 2021); 7 Eguilos v. Volkswagen Grp. of Am., Inc., No. 2:22-CV-00614-KJM-KJN, 2022 WL 8 2713273 (E.D. Cal. July 13, 2022)).) Costco additionally cites out-of-circuit case law for 9 the proposition that a plaintiff cannot bring claims against a supervisor. (Doc. No. 18 at 10, 10 14) (citing Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 433–34 (6th Cir. 2012).) 11 However, this decision is not relevant to whether Casillas can bring certain claims under 12 California law because Casias addresses Michigan law. See Casias, 695 F.3d at 434. 13 Costco next offers a declaration from Hernandez purportedly detailing the ways he 14 was not involved. (Doc. No. 18-2.) But courts routinely find that such declarations are 15 self-serving and do not rise to the level of the extraordinarily strong evidence required to 16 demonstrate fraudulent joinder. See, e.g., GranCare, 889 F.3d at 551 (“GranCare submitted 17 a declaration from Rhodes in which she denied the allegations and emphasized that her role 18 is largely administrative. But a denial, even a sworn denial, of allegations does not prove 19 their falsity”); Berryhill v. Costco Wholesale Corp., No. 2:23-cv-00315 WBS AC, 2023 20 WL 3302869, at *2 (E.D. Cal. May 8, 2023) (“a self-serving declaration written by the 21 defendant in question hardly qualifies as the ‘extraordinarily strong evidence’ required to 22 prove fraudulent joinder.”) (citation omitted); Mackovski, 2024 WL 2732244, at *4 (“even 23 if the court were to consider defense counsel’s declaration, the Ninth Circuit has rejected 24 comparable declarations contesting the truth of a complaint’s allegations as insufficient to 25 demonstrate fraudulent joinder.”); Pacheco v. Home Depot U.S.A., Inc., No. 26 24-cv-05590-EKL, 2025 WL 314146, at *2–3 (N.D. Cal. Jan. 28, 2025) (finding an 27 employee-defendant’s declaration that “she (1) ‘was not working’ at the store on the day 28 1 of the incident, (2) ‘did not observe’ the allegedly unsafe condition, and (3) has ‘no 2 personal knowledge’ of the incident” was insufficient to demonstrate fraudulent joinder). 3 Under these circumstances, Costco has failed to carry its “heavy burden” to show 4 that Casillas fraudulently joined Hernandez. GranCare, 889 F.3d at 548. 5 4. The amount in controversy requirement is satisfied. 6 “The district courts shall have original jurisdiction of all civil actions where the 7 matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.” 8 28 U.S.C. § 1332(a). The amount in controversy “claimed by the plaintiff controls” unless 9 it “appear[s] to a legal certainty that the claim is really for less than the jurisdictional 10 amount.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288–89 (1938). 11 Plaintiff seeks $2,000,010.00 in damages. (Doc. No. 1-2 at 11.) Given that Plaintiff 12 seeks more than $75,000, the amount-in-controversy requirement is satisfied. See 28 13 U.S.C. § 1332(a). 14 B. Casillas is entitled to attorney fees for her motion to remand. 15 In moving for remand, Casillas also seeks fees. (See Doc. No. 15 at 13.) 16 Under 28 U.S.C. § 1447(c), “[a]n order remanding the case may require payment of 17 just costs and any actual expenses, including attorney fees, incurred as a result of the 18 removal.” “The appropriate test for awarding fees under § 1447(c) should recognize 19 Congress’ desire to deter removals intended to prolong litigation and impose costs on the 20 opposing party, while not undermining Congress’ basic decision to afford defendants a 21 right to remove as a general matter, when the statutory criteria are satisfied.” Martin, 546 22 U.S. at 140. “Absent unusual circumstances, courts may award attorney’s fees under 23 § 1447(c) only where the removing party lacked an objectively unreasonable basis for 24 seeking removal.” Id. at 141. 25 Here, Costco lacked an objectively reasonable basis for removing the action. 26 First, Costco had no objectively reasonable basis to argue that Lopez is diverse from 27 Casillas. Instead, Costco dismisses its burden to show that Lopez is not a California citizen. 28 (Doc. No. 18 at 17.) Costco also improperly substitutes Rule 19’s mandatory joinder test 1 the fraudulent joinder test. (See id. at 8-17.) This dismissal and attempted sleight of 2 || hand shows that Costco had no objectively reasonable basis for claiming complete diversity 3 || exists given Lopez’s presence in this matter. 4 Second, Costco similarly had no objectively reasonable basis to argue that 5 || Hernandez is diverse from Casillas. Costco does not dispute that Hernandez is a California 6 || citizen. (See id. at 8.) Rather, Costco relies on wholly inapposite caselaw to argue that the 7 ||Court should ignore Hernandez’s citizenship. (See supra at 5-8.) Furthermore, it should 8 ||have been evident to Costco that out-of-circuit caselaw that does not address California 9 || law is irrelevant. (See supra at 7.) It also should have been obvious that this case arises in 10 different procedural posture than cases like Leyba, Calderon, and Eguilos. (See supra at 11 || 6-7.) 12 Under these circumstances, the Court cannot find that Costco had an objectively 13 ||reasonable basis for removing this action to federal court. Casillas is, in turn, entitled to 14 || fees. Martin, 546 U.S. at 141. 15 CONCLUSION 16 For the foregoing reasons, Casillas’s motion to remand is GRANTED. The action 17 |}is REMANDED to San Diego County Superior Court. 18 On or before August 29, 2026, Casillas must file a motion for attorney fees and any 19 documentation in support of her request. 20 IT IS SO ORDERED. 21 ||Dated: August 6, 2026 23 I | clerk, US.District Court United States District Judge 25 26 27 28