Sedgh v. Costco Wholesale Corporation

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA [3] FLORENCE SEDGH, 4 Case No. 2:24-cv-02303-RFB-NJK Plaintiff, 5 Order v. 6 [Docket No. 20] COSTCO WHOLESALE CORPORATION, [7] Defendant. [8] 9 Pending before the Court is Plaintiff’s motion for leave to amend the complaint. Docket 10 No. 20. Defendant filed a response. Docket No. 21. Plaintiff filed a reply. Docket No. 22. The 11 motion is properly resolved without a hearing. See Local Rule 78-1. 12 I. Background 13 Plaintiff sues Defendant for personal injuries, alleging that she was injured at Defendant’s 14 store when a store employee, “while wheeling two carts with one carrying a mattress, rammed into 15 Plaintiff’s cart.” Docket No. 20 at 2. Originally filed in state court, the case was removed to 16 federal court based on diversity jurisdiction. Docket No. 1 at 1. 17 The Court entered the scheduling order on January 13, 2025. Docket No. 14. The deadline 18 to amend the pleadings and add parties expired on March 11, 2025. Id. at 1. On April 9, 2025, 19 Plaintiff filed the instant motion to amend the complaint to name Marcelo Mayer as the store 20 employee that was wheeling the cart. Docket No. 20. Such amendment would destroy the 21 diversity jurisdiction of this Court. Docket No. 21 at 3. 22 II. Standards 23 A. Magistrate Judge Authority 24 Generally, a motion for leave to amend the pleadings is a nondispositive matter that may 25 be ruled on by a magistrate judge. Morgal v. Maricopa Cty. Bd. of Sup’rs, 284 F.R.D. 452 , 458 26 (D. Ariz. 2012); see also Anderson v. Woodcreek Venture Ltd., 351 F.3d 911, 917 (9th Cir. 2003) 27 (identifying a motion for leave to amend the complaint as a nondispositive matter within a 28 magistrate judge’s authority to resolve). It is particularly well-established that a magistrate judge 1 is empowered to grant leave to amend. See Bastidas v. Chappell, 791 F.3d 1155, 1163-64 (9th 2 Cir. 2015) (discussing U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099 , 1102 3 n.1 (9th Cir. 1985)). On the other hand, denial of a motion for leave to amend can be considered 4 dispositive in some circumstances. Bastidas, 791 F.3d at 1163-64 . In this case, Plaintiff seeks to 5 amend the complaint in order to name Mayer as a defendant. Docket No. 20 at 1. As such, the 6 denial of the instant motion is not dispositive of Plaintiff’s claims and the Court will resolve the 7 matter as being within the undersigned magistrate judge’s authority. See Smith v. Las Vegas Metro. 8 Police Dep’t, No. 2:23-CV-00092-JAD-NJK, 2024 WL 4615860 , at *3 (D. Nev. Oct. 30, 2024) 9 (finding that a motion to add a defendant is a non-dispositive matter). If either party disagrees 10 with this determination as to the nondispositive nature of the ruling, they are free to raise that issue 11 in an objection to the district judge. See Florence v. Stanback, 607 F. Supp. 2d 1119, 1122 (C.D. 12 Cal. 2009 ); see also Bastidas, 791 F.3d at 1162 (as part of waiver analysis, encouraging magistrate 13 judges to warn litigants of the ability to object to a determination that a matter is nondispositive). 14 B. Leave to Amend 15 While Federal Rule of Civil Procedure 15 typically governs requests to amend, a request 16 for post-removal joinder of a party that will destroy diversity of citizenship must be analyzed under [17] 28 U.S.C. § 1447 (e), which states that, “[i]f after removal the plaintiff seeks to join additional 18 defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, 19 or permit joinder and remand the action to State court.” Kwasniewski v. Sanofi-Aventis U.S., LLC, [20] 637 Fed. Appx. 405, 407 (9th Cir. 2016) (“Plaintiffs sought leave to amend the complaint .... The 21 district court properly denied the motion because the proposed amendment sought to rejoin 22 diversity-destroying defendants under the analysis required by 28 U.S.C. § 1447 (e).”); Lieberman 23 v. Wal-Mart Stores, Inc., Case No. 2:12-CV-1650-JCM-PAL, 2013 WL 596098 , at *1 (D. Nev. 24 Feb. 15, 2013) (citations omitted). Analysis under § 1447(e) requires higher scrutiny than standard 25 amendment under Federal Rule of Civil Procedure 15. Lieberman, 2013 WL 596098 , at *1 26 (citation omitted). Courts have broad discretion when deciding whether to permit diversity27 destroying joinder. 3WL, LLC v. Master Protection, LP, 851 Fed. Appx. 4 , 7 (9th Cir. 2021); [28] 1 Glaster v. Dollar Tree Stores, Inc., Case No. 2:15-CV-00252-MMD-VCF, 2016 WL 128139 , at 2 *2 (D. Nev. Jan. 12, 2016). 3 Analysis of a motion brought under § 1447(e) includes the following factors: 4 (1) whether the party sought to be joined is needed for just adjudication and would be joined under Federal Rule of Civil 5 Procedure 19(a); (2) whether the statute of limitations would prevent the filing of a new action against the new defendant in state court; 6 (3) whether there has been an unexplained delay in seeking to join the new defendant; (4) whether plaintiff seeks to join the new party 7 solely to defeat federal jurisdiction; (5) whether denial of the joinder would prejudice the plaintiff; (6) the strength of the claims against 8 the new defendant. 9 Lieberman, 2013 WL 596098 , at *1 (internal citations omitted). “Any of the factors might prove 10 decisive, and none is an absolutely necessary condition for joinder.” Id. citing Yang v. Swissport 11 USA, Inc., Case No. C 09–03823 SI, 2010 WL 2680800 , at *3 (N.D. Cal. 2010). 12 III. Analysis 13 A. Just Adjudication 14 Federal Rule of Civil Procedure 19(a) “requires joinder of persons whose absence would 15 preclude the grant for complete relief, or whose absence would impede their ability to protect their 16 interests or would subject any of the parties to the danger of inconsistent obligations.” Lieberman, [17] 2013 WL 596098 at *2. Here, Defendant admits that Mayer “was undisputedly within the course 18 and scope of his employment at the time of the incident.” Docket No. 21 at 4. Defendant admits 19 that, if Mayer’s conduct arises to negligence, Defendant would be responsible for his actions and 20 any monetary damages under respondeant superior.1 Id. at 7. When an employer is vicariously 21 liable for its employee, “the employee is not necessary to the litigation.” Lopez v. Kroger Co., Case 22 No. 2:16-CV-02457-KJD-PAL, 2017 WL 3142471 , at *2 (D. Nev. July 24, 2017) (internal citation 23 omitted). [24] 25 1 Plaintiff submits that Defendant “has previously denied in its Answer that it would be vicariously liable and has since made conflicting representations in its Opposition.” Docket No. 26 22 at 5. However, Defendant did not deny that it would be vicariously liable in its answer; it said “it is without sufficient knowledge or information necessary to form a belief as to the truth or 27 falsity of the allegations contained therein, and, therefore, denies the same.” Docket No. 1 at 26. This is not the contradictory and conflicting representation that Plaintiff purports it to be. See 28 Docket No. 22 at 2-3. 1 Thus, Mayer is not a necessary party whose absence would prevent Plaintiff from obtaining 2 complete and adequate relief. See Ybarra v. Walmart, Inc., No. 2:23-CV-00639-GMN-EJY, 2023 3 WL 9067759 , at *2 (D. Nev. Nov. 20, 2023) (finding that defendant’s employee was not a 4 necessary party when defendant admitted to vicarious liability); see also Sanchez by & through 5 Gomez v. Target Corp., LLC, No. 2:21-CV-00058-KJD-DJA, 2021 WL 952095 , at *1 (D. Nev. 6 Mar. 12 , 2021) (finding that store employees are not necessary for just adjudication when any 7 recovery for their alleged negligence can be recovered from their employer under the doctrine of 8 respondeat superior) (internal citation omitted). As such, the first factor weighs against allowing 9 amendment. 10 B. Statute of Limitations 11 “Generally, if a statute of limitations does not bar a plaintiff from filing suit in state court, 12 a federal court may be less inclined to permit joinder of a non-diverse defendant because the 13 plaintiff could still theoretically seek relief from state court.” Lieberman, 2013 WL 596098 at *3 14 (internal citations omitted). Under NRS 11.190(4)(e), there is a two-year statute of limitations for 15 commencing an action involving injury to a person caused by neglect of another. Because the 16 events at issue took place on September 22, 2023, Docket No. 20 at 2, the statute of limitations 17 does not bar Plaintiff from filing suit in state court. The second factor, therefore, weighs against 18 allowing amendment. 19 C. Untimely Delay 20 The Court considers whether an amendment to add a party is timely. Lieberman, 2013 WL 21 596098 at *4. The deadline to amend and add parties expired on March 11, 2025. Docket No. 14 22 at 1. The instant motion was filed on April 9, 2025. Docket No. 20. Plaintiff submits that on 23 March 31, 2025, Defendant served its responses to Plaintiff’s interrogatories identifying Mayer as 24 “the employee pushing the flatbed with the mattress that Plaintiff’s cart encountered.” Docket No. 25 20 at 2; see also Docket No. 20-1 at 7. Plaintiff submits she “has not delayed in making her request 26 but instead seeks to amend at an early stage of the proceedings” and that she immediately filed the 27 motion after being made aware of Mayer’s identity. Docket No. 20 at 5. Plaintiff submits that she 28 “immediately sought discovery to ascertain Mr. Mayer’s identity.” Docket No. 222 at 6. Yet, 1 Plaintiff did not seek that discovery until February 14, 2025, Docket No. 20 at 2, one month into 2 the discovery period. See Docket No. 14. On March 26, 2025, the Court found that the parties 3 failed to demonstrate diligence as they had conducted little affirmative discovery. Docket No. 19 4 at 1. 5 Further, Plaintiff fails to address the threshold issue that her motion was made after the 6 deadline to amend and add parties expired. Plaintiff’s motion was untimely made and, thus, the 7 third factor weighs against amendment. 8 D. Motive for Joinder 9 “[A] trial court should look with particular care at ... [the] motive in removal cases[ ] when 10 the presence of a new defendant will defeat the court’s diversity jurisdiction and will require a 11 remand to the state court.” Desert Empire Bank v. Insurance Co. of North America, 623 F.2d 12 1371, 1376 (9th Cir. 1980); Valdes v. Smith’s Food & Drug Centers, Inc., Case No. 2:19-CV13 01313-JCM-DJA, 2019 WL 13214705 , at *2 (D. Nev. Oct. 4, 2019). Plaintiff submits that she is 14 not seeking to add Mayer to destroy diversity, but to “bring all necessary parties into the case at 15 an early stage, which serves the beneficial purpose of resolving related issues at the same time and 16 having all such issues determined on the merits by one court.” Docket No. 20 at 5. The inclusion 17 of a Doe defendant in Plaintiff’s complaint, Docket No. 1 at 8-9, bolsters Plaintiff’s argument that 18 her motive for joinder is not solely to destroy diversity jurisdiction. See Lieberman, 2013 WL 19 596098 at *5. Plaintiff has a reasonable motive to add Mayer given his alleged role in the injury 20 and potential individual liability. 21 However, because Defendant admits vicarious liability if Mayer was negligent, adding 22 Mayer as a defendant does not provide another avenue for Plaintiff to obtain relief. Therefore, this 23 factor is neutral. 24 E. Prejudice to Plaintiff 25 When an employer acknowledges it could be liable for potentially tortious actions of its 26 employees under respondeat superior and has the financial resources to satisfy a potential 27 judgment, the prejudice to a plaintiff arising from denying a motion to add an individual defendant 28 is diminished. Sanchez by & through Gomez, 2021 WL 952095 , at *1. Prejudice to Plaintiff 1 cannot be demonstrated given that Defendant admits that if Mayer was negligent in acting in the 2 course and scope of his employment, Defendant is vicariously liable for his actions. Docket No. 3 21 at 7. Further, Defendant could satisfy the judgment Plaintiff seeks. Id. Additionally, in 4 Defendant’s first supplement disclosure, it admitted it “is self-insured in an amount sufficient to 5 cover excess of all of Plaintiff’s claimed damages in this case.” Docket No. 20-2 at 4. Defendant 6 also submits that “there is no evidence Mr. Mayer would have any attributable assets and Plaintiff’s 7 ability to recover against [Defendant] would not be compromised if he is not a party in this case.” 8 Docket No. 21 at 8. Plaintiff submits that Defendant’s representation about Mayer’s financial 9 status “is unverified and unsupported.” Docket No. 22 at 5. Plaintiff also submits that, while she 10 “can obtain relief from Defendant,” she is unaware of its financial strength. Id. at 6. The Court 11 finds no reason, and Plaintiff fails to provide any, to believe Defendant’s representations to the 12 Court that it would be vicariously liable and could satisfy the judgment Plaintiff seeks are not 13 supported. See Fed. R. Civ. P. 11 (b)(3). Thus, the fifth factor weighs against allowing 14 amendment. 15 F. Merit of Claims 16 The Court must also determine “whether the claim[s] sought to be added seem 17 meritorious.” Lieberman, 2013 WL 596098 at *5. Plaintiff’s proposed amended complaint alleges 18 that Mayer ran into Plaintiff’s shopping cart. Docket No. 20-4 at 4. The rest of the complaint does 19 not include any other allegations or specific claims against Mayer. See Docket No. 20-4. Further, 20 Plaintiff alleges a negligence claim against Defendants. See id. at 4. To prevail on a negligence 21 theory, Plaintiff must establish that Defendants owed her a duty of care. See Monarrez v. Wal22 Mart Stores, Inc., No. 2:21-CV-00431-ART-DJA, 2023 WL 4400003 , at *2 (D. Nev. May 26, 23 2023) (internal citation omitted). However, it would be the business owner that owes that duty, 24 not the individual employee. See id. (“An owner of a business owes its patrons “a duty to keep 25 the premises in a reasonably safe condition for use—the duty of ordinary care”) (internal citation 26 omitted). Further, the two remaining claims in the proposed amended complaint are for negligent 27 hiring and vicarious liability, which are solely claims against Defendant Costco. See Docket No. 28 20-4 at 5-6. ] Finally, Plaintiff's proposed amended complaint alleges that Defendant Costco “is 2|| vicariously liable for the damages caused by its employees.” Jd. at 6. Because any successful 3} claim Plaintiff has against Mayer is Defendant’s responsibility, Mayer is not a necessary party for Plaintiff to get full relief. See Ybarra, 2023 WL 9067759 , at *3. Thus, the final factor weighs 5] against allowing amendment. 1V. Conclusion 7 Defendant Costco admits that its employee was acting in the course and scope of his 8|| employment and if, its employee is found negligent, Defendant is responsible for the conduct under 9|| respondeat superior. Docket No. 21 at 7. Further, Defendant can satisfy any judgment rendered. 10] 7d. Under these circumstances, the Court finds that Plaintiff fails the higher scrutiny test for adding 11] a defendant who will destroy diversity. 12 Accordingly, Plaintiff's motion for leave to amend complaint is DENIED. Docket No. 20. 13 IT IS SO ORDERED. 14 Dated: June 9, 2025 GAR ne Nancy 4 XK oppe 16 United-Staies Magistrate Judge