Opinion
No. C 01-3744 MMC
December 3, 2001
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND AND REQUEST FOR COSTS AND FEES
Before the Court is plaintiff's motion to remand the above-titled action pursuant to 28 U.S.C. § 1447. Defendant has not filed opposition.
In his complaint, plaintiff, alleging that he was injured by a defective forklift, seeks relief under California law. Although plaintiff and three defendants, Raymond Handling Concepts, Barrett Business Services, and Sales Link, are California residents, the diverse defendants removed the action on the theory that the three non-diverse defendants are "sham" defendants and, thus, the Court has diversity jurisdiction. (See Notice of Removal at ¶ 3.)
A defendant is fraudulently joined if the "plaintiff fails to state a cause of action against a [non-diverse] defendant, and the failure is obvious according to the settled rules of the state." See McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). Here, plaintiff alleges that Raymond Handling Concepts sold the forklift (see Compl. at Prod. L-4.a) and negligently installed it. (See id. at GN-1.) In their Notice of Removal, defendants assert that Raymond Handling Concepts' "sole involvement in this action stems from a post-incident investigation conducted of the forklift, and the subsequent report made of its findings, " and that it "was not involved in the original sale of the forklift." (See Notice of Removal at ¶ 6.) In support of his motion to remand, however, plaintiff offers evidence to counter these allegations. First, plaintiff offers evidence that Raymond Handling Concepts identified itself as the "dealer" of the subject forklift. (See McMahon Decl. Ex. A.) A "dealer" of a defective product is strictly liable for any defects in that product. See Vandermark v. Ford Motor Co., 61 Cal.2d 256, 262-63 (1964) (holding seller is "strictly liable in tort for personal injuries caused by defects in [products] sold by it"). Second, plaintiff offers evidence that Raymond Handling Concepts serviced the forklift less than a month before the accident. (See McMahon Decl. Ex. A.)
With respect to non-diverse defendants Barrett Business Services and Sales Link, plaintiff alleges in his complaint that both were negligent. (See Complaint at GN-1.) In their Notice of Removal, defendants assert that such claims are barred by the exclusivity provisions of the Workers' Compensation Act because Barrett Business Services, a temporary employment agency, and Sales Link, the entity at which Barrett Business Services placed plaintiff, are both considered plaintiffs employers. (See Notice of Removal at ¶ 7.) In his motion, plaintiff argues that defendants lack evidence to prove that both of those defendants are his employer. Although defendants are entitled to present evidence to support their allegations of fraudulent joinder, see McCabe, 811 F.2d at 1339 (9th Cir. 1987) (holding defendant "is entitled to present the facts showing the joinder to be fraudulent"), as noted, defendants have filed no opposition and thus have not presented any facts to support the assertions made in the Notice of Removal.
Accordingly, Material Handling has failed to meet its burden of demonstrating complete diversity. In the absence of complete diversity, the Court lacks jurisdiction over the instant action, and the action will be remanded to state court.
As the Court lacks jurisdiction over plaintiffs complaint, the Court will not address defendants' motion to strike and the November 30, 2001 hearing on defendants' motion to strike is hereby VACATED.
Plaintiff also seeks an award of attorney's fees and costs. 28 U.S.C. § 1447 (c) provides, in relevant part, that "[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." See 28 U.S.C.S. 1447(c). A district court has "wide discretion" in deciding whether to award attorney's fees under § 1447(c). See Moore v. Permanente Medical Group, 981 F.2d 443, 447 (9th Cir. 1992). "[B]ad faith need not be demonstrated." See id. at 448. Here, although defendants had an opportunity to support their allegations, defendants failed to offer any evidence or to otherwise respond to plaintiffs motion and the evidence submitted therewith. Under the circumstances, the Court finds that plaintiff is entitled to the fees necessarily incurred in filing the instant motion, which plaintiffs counsel declares are $2,000. (See McMahon Decl. at ¶ 5.)
Plaintiff seeks an additional award of $2,000, which represents the expected attorney's fees necessary to reply to any opposition and to attend the hearing. As defendants failed to file opposition and the Court previously vacated the hearing date set for the instant motion, such expenditures will not be necessary.
For the reasons stated above:
1. Plaintiff's motion to remand is hereby GRANTED.
2. Plaintiff's request for costs and fees is hereby GRANTED, and plaintiff is awarded the sum of $2,000.
The Clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
IT IS ORDERED AND ADJUDGED Plaintiff's motion to remand is hereby GRANTED. Plaintiff's request for costs and fees is hereby GRANTED, and plaintiff is awarded the sum of $2,000.