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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Lisa Guerra, 

Plaintiff, 

v. 

Fry’s Food Stores of Arizona, Inc.; et al., 

Defendants.

No. CV-16-00057-PHX-NVW

ORDER 

Before the Court is Plaintiff’s Motion for Reconsideration Re: Discharge of Order 

to Show Cause (Doc. 12) and Plaintiff’s Motion to Remand (Doc.14). 

I. BACKGROUND 

On January 11, 2016, a document titled “Defendant Smith’s Food & Drug Centers, 

Inc. dba Fry’s Food Stores’ Amended Notice of Filing Notice of Removal,”1 on a 

 1

 In this Order “Fry’s” refers collectively to the five corporate defendants named in 

the Complaint. The Complaint filed December 8, 2015, in the Superior Court of the State 

of Arizona in and for the County of Maricopa, names seven Defendants: “Fry’s Food 

Stores of Arizona, Inc., a California corporation d/b/a Frys’ [sic] Marketplace; Fry’s 

Food Stores, Inc., a California corporation d/b/a Fry’s Marketplace; Smith’s Food & 

Drug Centers, Inc., an Ohio corporation; The Kroger Co., an Ohio corporation; Kroger 

Dedicated Logistics Co., an Ohio corporation; Diana Foerst Garcia, an Arizona resident; 

Javier Lopez, an Arizona resident.” (Doc. 1-2.) The title of the Amended Notice of 

Removal (Doc. 1-1) refers to “Defendant Smith’s Food & Drug Centers, Inc. dba Fry’s 

Food Stores,” but the document itself states that it is filed by “Defendants Fry’s Food 

Stores of Arizona, Inc., a California corporation dba Fry’s Marketplace; Fry’s Food 

Stores, Inc., a California corporation dba Fry’s Marketplace; Smith’s Food & Drug 

Centers, Inc., an Ohio corporation dba Fry’s Food Stores; and Kroger Dedicated 

Logistics Co., an Ohio corporation (collectively “Fry’s”), omitting The Kroger Co. 

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pleading template for the Superior Court of the State of Arizona in and for the County of 

Maricopa, was filed in this Court. (Doc. 1.) Although the document was filed on January 

11, 2016, and the title includes the word “Amended,” the signature is dated January 8, 

2016. (Id.) Fry’s Amended Notice of Filing Notice of Removal states, “Attached hereto 

is a copy of the Notice of Removal filed in said U.S. District Court.” (Id.) The Notice of 

Filing includes an attachment titled “Defendant Smith’s Food & Drug Centers, Inc. dba 

Fry’s Food Stores’ Amended Notice of Removal Under [28] U.S.C. § 1332 (Diversity).” 

(Doc. 1-1.) Although the attachment was filed on January 11, 2016, the signature on the 

attachment is dated January 8, 2016. (Id.) 

Fry’s Amended Notice of Removal states that Plaintiff served process on Fry’s 

statutory agent on December 9, 2015, and Fry’s attempted to electronically file its notice 

of removal on January 8, 2016. Fry’s received confirmation that its filing fee was paid at 

2:33 p.m. on Friday, January 8, 2016. On Monday, January 11, 2016, Fry’s received 

notice from the Clerk of Court that Fry’s filing fee was processed on January 8, 2016, but 

the removal documents had not been filed. (Id.) 

Fry’s Amended Notice of Removal, filed on January 11, 2016, states, “Out of an 

abundance of caution, this Amended Notice has been filed on the date indicated below.” 

(Id.) The “date indicated below” on Fry’s Amended Notice of Removal is January 8, 

2016. Fry’s Amended Notice of Removal states, “Defendants will provide written notice 

of the filing of this notice to counsel for Plaintiff and will file a copy of this Notice of 

 

“Defendants’ Answer to Plaintiff’s Complaint” (Doc. 9) defines “Fry’s” as referring only 

to Smith’s Food & Drug Centers, Inc. dba Fry’s Food Stores” and defines “Defendants” 

as meaning the five named Fry’s-related corporations, including The Kroger Co., and 

Diana Foerst Garcia. In “Defendants’ Response to Plaintiff’s Motion for Reconsideration 

Re: Discharge of Order to Show Cause” (Doc. 17), Defendants defined “Fry’s” as 

including the five Fry’s-related corporations plus Garcia. In “Defendants’ Response to 

Plaintiff’s Motion for Remand” (Doc. 20), Defendants defined “Fry’s” as including the 

five Fry’s-related corporations, but not the two individual defendants, which is the 

definition used in this Order. 

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Removal with the clerk of the Superior [C]ourt of the State of Arizona in and for the 

County of Pima . . . .” (Id., emphasis added.) 

It appears that on January 8, 2016, Fry’s filed in the Maricopa County Superior 

Court a “Notice of Filing Notice of Removal” that refers to an attached Notice of 

Removal that was filed in district court, but nothing was attached. It also appears that on 

January 11, 2016, Fry’s filed in the Maricopa County Superior Court an “Amended 

Notice of Filing Notice of Removal” that refers to an attached Notice of Removal that 

was filed in district court, but nothing was attached. 

Although Fry’s Amended Notice of Removal states that copies of all removal 

documents were mailed to Plaintiff’s counsel on January 8, 2016, Fry’s did not submit to 

the Court an affidavit regarding mailing the initial Notice of Removal to Plaintiff’s 

counsel. The Certificate of Service on Fry’s Amended Notice of Removal states that on 

January 8, 2016,2

 the Amended Notice of Removal was electronically transmitted to the 

Clerk’s Office using the CM/ECF System for filing and would be electronically sent to 

Plaintiff’s counsel as a registered participant. However, Plaintiff’s counsel would not 

have been a registered participant in this case before making an appearance in this Court. 

The Certificate of Service does not say that the Amended Notice of Removal was mailed 

to Plaintiff’s counsel on January 11, 2016. Moreover, Plaintiff submitted to the Court a 

declaration from an employee of Plaintiff’s counsel’s firm stating that she is responsible 

for opening, stamping, scanning, and electronically saving all documents delivered to the 

firm by mail; the firm never received, via regular first class mail, a copy of a notice of 

removal dated January 8, 2016; and the first document the firm received in the mail from 

this case was Fry’s Amended Notice of Removal. 

In addition to claiming to be timely filed, Fry’s Amended Notice of Removal 

claims diversity jurisdiction despite Plaintiff and two of the defendants being citizens of 

 2

 Apparently when the Notice of Removal was amended, the date on the 

Certificate of Service was not. 

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Arizona because “Plaintiff has not stated a cause of action upon which it [sic] can prevail 

against putative defendants Diana Forest Garcia and Javier Lopez.” (Doc. 1-1 at 4.) 

Fry’s Amended Notice of Removal also states that Defendants Garcia and Lopez do not 

need to join in the notice of removal because their inclusion in the lawsuit constitutes 

fraudulent joinder. (Doc. 1-1 at 2.) 

Fry’s Amended Notice of Removal states that “[t]rue and complete copies of all 

process and pleadings served on the Defendants in this action are attached hereto as 

Exhibit 4.” (Doc. 1-1 at 6.) It includes a form showing proof of service of process on 

Smith’s Food & Drug Centers, Inc. (Doc. 1-2 at 8). It does not include proof of service 

on any other defendant. The Supplemental Civil Cover Sheet for Cases Removed from 

Another Jurisdiction that was filed with the Amended Notice of Removal states that 

Fry’s, Garcia, and Lopez were served on December 9, 2015, through service on the 

statutory agent, Corporation Service Company. (Doc. 1-4.) 

On January 12, 2016, “Defendant Diana Foerst Garcia’s Notice of Removal Under 

[28] U.S.C. § 1332 (Diversity)” was filed in this Court. (Doc. 6.) It states that “[t]rue 

and complete copies of all process and pleadings served on the Defendants in this action 

are attached hereto as Exhibit 4.” (Doc. 6 at 6.) It states that Defendant Garcia was 

served with process on December 13, 2016, and Defendant Lopez had not been served. 

But Garcia’s Notice of Removal includes forms showing proof of service for Smith’s 

Food & Drug Centers, Inc., on December 9, 2015 (Doc. 1-2 at 8; Doc. 6 at 15; Doc. 6-1 

at 8), and proof of service for Javier Lopez at an allegedly incorrect address on December 

23, 2015 (Doc. 6 at 9; Doc. 6-1 at 2). It does not include any proof of service on 

Defendant Garcia. Garcia’s Notice of Removal further states that the Arizona citizenship 

of Defendants Garcia and Lopez does not defeat diversity jurisdiction because they were 

fraudulently joined, and the “forum defendant rule,” which ordinarily bars a resident 

defendant from removing a case to federal court in her home state, does not apply to 

fraudulently joined defendants. Garcia’s Notice of Removal further states, “Defendants 

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will provide written notice of the filing of this notice to counsel for Plaintiff and will file 

a copy of this Notice of Removal with the clerk of the Superior [C]ourt of the State of 

Arizona in and for the County of Pima . . . .” (Id., emphasis added.) 

On January 13, 2016, the Court ordered Defendant Fry’s to show cause why this 

case should not be remanded to the Maricopa County Superior Court for the State of 

Arizona for lack of compliance with 28 U.S.C. § 1446(b)(1), which requires removal 

within 30 days of receipt of the initial pleading. (Doc. 8.) On January 14, 2016, 

Defendants Smith’s Food & Drug Centers, Inc. dba Fry’s Food Stores (“Fry’s”), Fry’s 

Food Stores of Arizona, Inc., Fry’s Food Stores, Inc., The Kroger Co., Kroger Dedicated 

Logistics Co., and Diana Foerst Garcia filed their Answer to Plaintiff’s Complaint. (Doc. 

9.) 

On January 20, 2016, Fry’s responded to the order to show cause regarding 

timeliness of its removal and also noted that later-served Defendant Garcia had filed a 

notice of removal. (Doc. 10.) On January 26, 2016, the Court ordered, “In light of the 

later timely removal by Defendant Garcia (Doc. 6), any untimeliness of the removal by 

Defendant Fry’s is moot.” (Doc. 11.) On February 1, 2016, Plaintiff moved for 

reconsideration of the January 26, 2016 Order and requested award of attorney fees under 

28 U.S.C. § 1447(c). (Doc. 12.) Defendants Fry’s and Garcia filed a response, and 

Plaintiff filed a reply. (Docs. 17, 19.) 

On February 8, 2016, Plaintiff filed a motion to remand this case to the Maricopa 

County Superior Court for the State of Arizona and requested award of attorney fees 

under 28 U.S.C. § 1447(c). (Doc. 14.) A response was filed on behalf of all of the 

Defendants, and Plaintiff filed a reply. (Docs. 20, 21.) 

Defendant Javier Lopez filed his Answer to Plaintiff’s Complaint (Doc. 15) and 

Notice of Consent to Removal to District Court (Doc. 16) on February 8, 2016. The 

Notice of Consent states that Lopez “had not been served at the time this case was 

removed to Federal Court by defendant Smith’s Food & Drug Centers, Inc. dba Fry’s 

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Food Stores and defendant Diana Foerst Garcia.” (Doc. 16.) It does not state when 

Lopez was served. 

II. LEGAL STANDARD 

A defendant generally may remove to federal district court any civil action 

brought in a state court if the action is one for which federal district courts have original 

jurisdiction. 28 U.S.C. § 1441(a). A defendant desiring to remove a civil action from 

state court to federal court must file a notice of removal in the federal district court within 

30 days after receipt by the defendant of a copy of the initial pleading, through service or 

otherwise. 28 U.S.C. § 1446(a), (b)(1). The notice of removal must contain “a short and 

plain statement of the grounds for removal, together with a copy of all process, pleadings, 

and orders served upon such defendant or defendants in such action.” 28 U.S.C. 

§ 1446(a). When a civil action is removed under § 1441(a), “all defendants who have 

been properly joined and served must join in or consent to the removal of the action.” 28 

U.S.C. § 1446(b)(2)(A). Promptly after filing the notice of removal, defendants must 

give written notice to all adverse parties and file a copy of the notice of removal with the 

clerk of the state court from which the case is being removed, “which shall effect the 

removal.” 28 U.S.C. § 1446(d). 

Because the right of removal is based entirely on federal statute, statutory 

procedures for removal are to be strictly construed. Syngenta Crop Prot., Inc. v. Henson, 

537 U.S. 28, 32 (2002). There is a strong presumption against removal jurisdiction. 

Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992). 

Diversity jurisdiction requires that the controversy be between citizens of different 

states, i.e., the citizenship of each plaintiff must be diverse from the citizenship of each 

defendant. 28 U.S.C. § 1332(a); Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). 

“Nevertheless, one exception to the requirement of complete diversity is where a nondiverse defendant has been ‘fraudulently joined.’” Morris v. Princess Cruises, Inc., 236 

F.3d 1061, 1067 (9th Cir. 2001). A non-diverse defendant may be considered 

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“fraudulently joined,” and his presence in the lawsuit ignored for purposes of determining 

diversity, “if the plaintiff fails to state a cause of action against a resident defendant, and 

the failure is obvious according to the settled rules of the state.” Id. (citation omitted); 

accord Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009). “[I]f there is 

a possibility that a state court would find that the complaint states a cause of action 

against any of the resident defendants, the federal court must find that the joinder was 

proper and remand the case to state court.” Id. at 1046 (citation omitted). 

Moreover, if the only basis for original jurisdiction is diversity under § 1332(a), 

the action “may not be removed if any of the parties in interest properly joined and served 

as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. 

§ 1441(b)(2). Violation of this forum defendant rule does not deprive a federal court of 

subject matter jurisdiction, but it allows the plaintiff to request within 30 days of removal 

that the case be remanded to state court. Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 

940 (9th Cir. 2006). 

If at any time before final judgment it appears that the district court lacks subject 

matter jurisdiction over a case removed from state court, the case must be remanded. 28 

U.S.C. § 1447(c). “An order remanding the case may require payment of just costs and 

any actual expenses, including attorney fees, incurred as a result of the removal.” (Id.) 

III. ANALYSIS 

A. The Court Lacks Removal Jurisdiction Over This Case. 

The parties do not dispute that Plaintiff and two of the Defendants, Garcia and 

Lopez, are citizens of Arizona, the state in which this action was brought. In order for the 

Court to have removal jurisdiction under § 1441(a) based on complete diversity, the 

Court must find that Garcia and Lopez are fraudulently joined, i.e., the Court must find it 

obvious that Plaintiff fails to state a claim against either Garcia or Lopez under Arizona 

law. 

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Arizona follows a notice pleading standard, which requires that a pleading “give 

the opponent fair notice of the nature and basis of the claim and indicate generally the 

type of litigation involved.” Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, 189 

P.3d 344, 346 (2008). The Complaint alleges that Garcia was the assistant store manager 

and Lopez was the store manager at the grocery store where Plaintiff slipped and fell on 

loose grapes on the floor of the store’s produce department, which caused Plaintiff 

permanent injuries. The Complaint alleges that each of the Defendants had a duty to 

follow reasonable and prudent policies and procedures, including inspection and 

maintenance, to ensure that the floor of the produce department was reasonably safe and 

free from hazards such as loose grapes. Although many of the Complaint’s allegations 

“lump together” all of the Defendants, it describes them as “grocery store owners, 

operators, managers,” etc., and alleges that had they implemented proper safety 

procedures, Plaintiff’s injuries would have been prevented. The Complaint does not 

allege that Garcia and Lopez are vicariously liable for Fry’s torts. 

The Complaint is not a model of clarity, but it gives Garcia and Lopez fair notice 

of the nature and basis of Plaintiff’s negligence claim. All of the Defendants filed 

Answers, not motions under Rule 12(b)(6) or 12(e), which suggests the Complaint was 

not so poorly drafted as to deprive Defendants of fair notice of the nature and basis of 

Plaintiff’s claims. Fry’s contends that because Garcia and Lopez are not the owners or 

possessors of the premises, neither can be held individually liable for Plaintiff’s injuries, 

but cites no binding or persuasive authority holding that to be true as a matter of law. If 

Plaintiff has failed to state a claim against either Garcia or Lopez, it is not obvious under 

settled Arizona law. It cannot be concluded that there is no possibility that a state court 

would find that the Complaint states a cause of action against either Garcia or Lopez. 

Therefore, the Court finds that neither Garcia nor Lopez is fraudulently joined, the Court 

lacks diversity jurisdiction over this matter, and remand is required. This case also 

should be remanded under the forum defendant rule, 28 U.S.C. § 1441(b)(2). 

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B. Fry’s Did Not Timely Remove This Case. 

The parties do not dispute that Fry’s did not file a notice of removal in this Court 

within 30 days after receipt of the Complaint. Fry’s asks the Court to deem its January 8, 

2016 attempt to file a Notice of Removal as timely or find its “apparently unsuccessful 

electronic transmission of the removal documents within the deadline constitutes 

excusable neglect.” Fry’s submitted a declaration by the legal assistant stating she 

attempted to electronically file a Notice of Removal on January 8, 2016; it does not 

include a copy of the Notice of Removal she attempted to file. Fry’s also submitted a 

declaration by its law firm’s information technology manager, who reviewed the legal 

assistant’s Internet history and confirmed that she had opened certain documents and 

visited multiple pages under the Website for the Court’s electronic filing system. Exhibit 

3 to the information technology manager’s declaration is a copy of a .pdf document 

named Notice of Removal to District Court, which among other things, states that 

Defendants Garcia and Lopez join in the notice of removal. 

The Court’s Electronic Case Filing Administrative Policies and Procedures 

Manual states that filing of a document consists of electronic transmission to the ECF 

system together with the transmission of a Notice of Electronic Filing from the Court. 

The Manual also states that to open a new case, the user must pay the filing fee through 

Pay.gov. If payment is not accepted by Pay.gov, the ECF system will not complete the 

transaction and the case will not be opened. Initial case filings must be submitted 

electronically by filing the initiating documents and civil cover sheet. A notice of 

removal, including a copy of the state court record, must also include a Supplemental 

Civil Cover Sheet as an attachment. The Manual defines “technical failure” as “a 

malfunction of court-owned/leased hardware, software, and/or telecommunications 

facility which results in the inability of a registered user to submit a filing electronically.” 

The Manual states that problems on the filer’s end will not generally excuse an untimely 

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filing, but a registered user whose filing is untimely due to a technical failure may seek 

relief from the Court. 

There is no evidence of a “technical failure,” as defined in the Manual. In fact, 

there is very little of evidence of what Fry’s attempted to file on January 8, 2016, and it 

did not refile the same documents on January 11, 2016. There is no authority for the 

Court to find Fry’s January 11, 2016 filing of the Amended Notice of Removal (as an 

attachment to an Amended Notice of Filing Notice of Removal) as timely because of 

excusable neglect. Moreover, the January 11, 2016 filing has multiple flaws, including 

that it appears to be what should have been filed in the Maricopa County Superior Court, 

not this Court; it bears the wrong date; it declares that it will be filed in Pima County 

Superior Court; it does not include a copy of the complete state court record or all process 

and pleadings served on the Defendants; and the Supplemental Civil Cover Sheet states 

that all of the Defendants were served on December 9, 2015. Further, it appears that a 

notice of filing was filed in Maricopa County Superior Court without an attached notice 

of removal. 

Even if the Court determined that Garcia and Lopez were fraudulently joined, 

strict construction of the statutory removal procedures would preclude finding any of 

Fry’s removal attempts to be timely. 

C. This Case Cannot Be Removed by Defendant Garcia. 

Because Garcia is not fraudulently joined, her presence destroys diversity of 

citizenship removal jurisdiction. She is also barred from removing because she is a 

forum defendant. It is not necessary to decide whether she could remove as a 

fraudulently joined forum defendant. 

For these multiple reasons, remand to the state court is necessary. 

D. Postscript

It is regrettable that Fry’s attempted filing failed because of counsel’s and his 

staff’s lack of complete familiarity with the Court’s Electronic Case Filing 

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Administrative and Procedures Manual. If familiar with the Manual, they would have 

known they cannot count on a document having been filed until they receive electronic 

confirmation, not just that the fee was paid, but that the document was filed. The job is 

not done until the confirmation is received. Fortunately, that oversight causes no harm in 

this case because the case is otherwise unremovable. This case is a reminder to attorneys 

that electronic filing is a technical matter, not a learn-as-you-go experiment, and they 

cannot do it safely without knowing the Manual. 

This case also points out an important principle of law practice: never plan to file 

a time-jurisdictional document on the last day. There is no time for anything to go wrong 

and still be fixed. In earlier times, the courier on his way to file the document could be in 

an auto accident and end up in the hospital rather than the clerk’s office. Now the details 

of electronic filing can leave some thinking they are done when they are not. Just file it 

at least one day before the deadline. 

IT IS THEREFORE ORDERED that Plaintiff’s Motion for Reconsideration Re: 

Discharge of Order to Show Cause (Doc. 12) and Plaintiff’s Motion to Remand (Doc.14) 

are granted. 

IT IS FURTHER ORDERED that the January 26, 2016 Order (Doc. 11) is 

vacated. 

IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1447(c), the Clerk shall 

remand this case to the Maricopa County Superior Court for the State of Arizona. The 

Clerk shall terminate this case in this court. 

Dated this 21st day of March, 2016. 

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