Zambrano v. Casago International LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Lizzette Zambrano,
Plaintiff,
v.
Casago International LLC, et al.,
Defendants.
NO. CV-25-03420-PHX-SMM
ORDER
This matter was assigned to Magistrate Judge Eileen S. Willett. (Doc. 2). On
November 26, 2025, the Magistrate Judge filed a Report and Recommendation (“R&R”)
with this Court.1 (Doc. 38). The Magistrate Judge recommends that this Court grant
Plaintiff’s Motion to Remand. (Doc. 19). Defendants filed Objections to the R&R. (Doc.
1 This case was assigned to a Magistrate Judge. However, not all parties consented to the
jurisdiction of the Magistrate Judge. Thus, the matter is before this Court pursuant to
General Order 21-25, which states in relevant part:
When a United States Magistrate Judge to whom a civil action has been
assigned pursuant to Local Rule 3.7(a)(1) considers dismissal to be
appropriate but lacks the jurisdiction to do so under 28 U.S.C. § 636(c)(1)
due to incomplete status of election by the parties to consent or not consent
to the full authority of the Magistrate Judge,
IT IS ORDERED that the Magistrate Judge will prepare a Report and
Recommendation for the Chief United States District Judge or designee.
IT IS FURTHER ORDERED designating the following District Court
Judges to review and, if deemed suitable, to sign the order of dismissal on
my behalf:
Phoenix/Prescott: Senior United States District Judge Stephen M. McNamee
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45). Plaintiff filed a Reply (Doc. 47), and Defendants filed a Sur-Reply. (Doc. 48). After
considering the R&R and the objections raised by the parties thereto, the Court incorporates
and adopts the Magistrate Judge’s R&R.
STANDARD OF REVIEW
When reviewing a Magistrate Judge’s Report and Recommendation, this Court
“shall make a de novo determination of those portions of the report . . . to which objection
is made” and “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. 636(b)(1)(C); see also Baxter
v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). However, the relevant provision of the
Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any review
at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140,
149 (1985); see also Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) (“Of
course, de novo review of a R & R is only required when an objection is made to the R &
R.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)
(“Neither the Constitution nor the [Federal Magistrates Act] requires a district judge to
review, de novo, findings and recommendations that the parties themselves accept as
correct.”). Likewise, it is well-settled that “failure to object to a magistrate judge’s factual
findings waives the right to challenge those findings.” Bastidas v. Chappell, 791 F.3d 1155,
1159 (9th Cir. 2015) (quoting Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012)).
DISCUSSION2
Defendants object to remanding this action. (Doc. 45). First, Defendants contend
that the R&R misapplies the successive removal standard because Defendants have alleged
a new basis of fraudulent joinder. (Id. at 5-9). Second, Defendants challenge the Court’s
prior ruling finding a lack of diversity jurisdiction. (Id. at 7). Finally, Defendants contend
that this Court must address Defendants’ Motions to Dismiss before Plaintiff’s Motion to
Remand. (Id. at 4).
2 The factual and procedural history of this case is set forth in the Magistrate Judge’s
Report and Recommendation (Doc. 38).
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A. Striking Defendants’ Sur-Reply
First, the Court strikes Defendants’ Sur-Reply. (Doc. 48). While Defendants
adequately objected to the R&R, Defendants’ “Reply to Plaintiff’s Response to Objection
to Report and Recommendation” (Doc. 48) is improper under applicable law.
The Federal Rules of Civil Procedure do not authorize replies in support of
objections to a report and recommendation. See Fed. R. Civ. P. 72(b)(2) (permitting
objections only to a R&R and a response to the objections). However, a court has
“discretion” to accept further briefing, which typically sets forth new arguments or
evidence. S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1314 (9th Cir. 1982).
Defendants did not seek leave to file their Sur-Reply—the seven-page filing merely
reiterates arguments from prior pleadings and raises no new issues. (See Docs. 31, 45).
Since Rule 72 does not permit a sur-reply and Defendants identify no new or extraordinary
circumstances justifying the need of a sur-reply, the Court finds the pleading unnecessary.
Accordingly, the Court strikes Defendants’ Sur-Reply from the record and will not
consider it in its analysis below. (Doc. 48).
B. Fraudulent Joinder
Second, the R&R finds that Defendants’ removal relies on the same fraudulent
joinder theory asserted in Defendants’ prior removal. (Doc. 38 at 3); Zambrano v. Casago
International LLC et al, 2:25-cv-02888-JJT (D. A.Z. Aug. 12, 2025). Defendants contend
that the present removal is distinguishable because Defendant Daniel Cooney, who
initiated this removal, had not been served at the time of the prior removal. (Doc. 45 at 5).
“A successive removal petition is permitted only upon a ‘relevant change of
circumstances’—that is, ‘when subsequent pleadings or events reveal
a new and different ground for removal.’” Reyes v. Dollar Tree Stores, Inc., 781 F.3d
1185, 1188 (9th Cir. 2015) (citing Kirkbride v. Cont’l Cas. Co., 933 F.2d 729, 732 (9th
Cir. 1991)). Fraudulent joinder is a “heavy burden”, and courts apply “a general
presumption against fraudulent joinder.” Grancare, LLC v. Thrower, 889 F.3d 543, 548
(9th Cir. 2018) (quoting Hunter v. Philip Morris USA, 582 F.3d 1039, 1046 (9th Cir.
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2009)). “There are two ways to establish fraudulent joinder: (1) actual fraud in the pleading
of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against
the non-diverse party in state court.” Hunter, 582 F.3d at 1044 (internal quotation marks
and citation omitted). If “there is a possibility that a state court would find that the
complaint states a cause of action,” the joinder was proper, and remand is required.
Grancare, 889 F.3d at 548. (emphasis in original). Further, mere conflicting evidence on
disputed facts is insufficient to demonstrate fraudulent joinder. See Id. at 552.
The Court agrees with the R&R that Defendants have failed to demonstrate any
“new or different ground” for fraudulent joinder. Reyes, 781 F.3d at 1188. Plaintiff alleges
that Defendant Casago operates the booking website used to reserve the reservation and
serves as property manager of Defendant Sonoran Sea Resort where the alleged wrongful
death occurred. (Doc. 1-3 at ¶¶ 4, 36). Further, Plaintiff alleges that Defendant Casago “is
responsible for maintaining the premises in a safe condition for guests.” (Id. at ¶ 36).
Defendants dispute these factual allegations through Declarations (See Doc. 31-1 at ¶ 7),
however, conflicting evidence on contested facts does not establish fraudulent joinder. See
Allen v. Boeing Co., 784 F.3d 625, 634 (9th Cir. 2015) (holding that an inability to resolve
the issue summarily indicates the removing party has not met its burden). Therefore, the
Court agrees with Magistrate Judge that Defendants’ declarations fail to show how Plaintiff
cannot possibly prevail on its claims.
Alternatively, Defendants argue that this removal is different because Defendant
Cooney had not been served during the prior removal. (Doc. 45 at 8), is an attempt to
invoke “snap removal,” despite not expressly using the term.3 Notwithstanding that the
Ninth Circuit has “not decided the permissibility of snap removal,” Defendants’ reliance
on this procedure is unpersuasive. See Casola v. Dexcom, Inc., 98 F.4th 947, 964 (9th Cir.
2024).
3 A “snap removal” is when “in-forum defendants in potential diversity actions . . . race to
file a notice of removal before being served with process and then claim shelter under the
‘properly joined and served’ language in § 1441(b)(2).” Casola v. Dexcom, Inc., 98 F.4th
947, 964 (9th Cir. 2024).
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This Court has previously issued a decision on the issue presented in this
case:
In the Court’s view, the statutory context of § 1441(b)(2) supports the
conclusion that the language ‘properly joined and served as defendants’
excepts from the statute’s prohibition on removal those instances in which a
forum defendant is fraudulently joined so as to defeat removal jurisdiction.
The inclusion of “properly joined and served” does not, however, permit a
forum defendant to circumvent the rule merely by removing the action prior
to being served with process ... the language of § 1441(b)(2) does not permit
removal in instances where a forum defendant has yet to be served, but
instead applies to permit removal in cases of fraudulent joinder.
Hamm v. Dogtopia Enters. LLC, No. CV-24-01493-PHX-SMM, 2024 U.S.
Dist. LEXIS 148434, at *5 (D. Ariz. Aug. 19, 2024) (citation omitted).
In this case, there have been “no amendments to the Superior Court Complaint, no
change in the parties, and no intervening changes in law.” (Doc. 38 at 3). The Court cannot
reason that Defendant Cooney’s service timeline constitutes a “different ground for
removal.” Reyes, 781 F.3d at 1188. The Arizona Defendants, including Defendant Cooney,
are represented by the same counsel who filed the prior removal on the basis of fraudulent
joinder, underscoring to the Court that Defendants are merely attempting multiple bites at
the same removal argument. Further, Section 1441(b)(2) provides adequate protection
against fraudulent joinder, a “heavy burden” that Defendants have failed to meet. See
Grancare, 889 F.3d at 548.
Accordingly, the Court finds that Defendants are properly joined in this action.
C. Forum Defendant Rule
Third, Defendants challenge the Court’s prior remand analysis. (Doc. 45 at 7). In its
previous ruling, the Court remanded the case sua sponte, finding that the Court lacked
jurisdiction because “there must be diverse Americans on both sides of the dispute for
diversity jurisdiction to exist.” Zambrano v. Casago International LLC et al., 2:25-cv-
02888-JJT (D. Ariz. Aug. 12, 2025); (Doc. 38 at 2). Defendants contend that the Court’s
analysis is incorrect because diversity jurisdiction is defeated only when “there are foreign
citizens on both sides.” (Doc. 45 at 8).
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Federal courts have “original jurisdiction over all civil actions where the matter in
controversy exceeds the sum or value of $75,000” and there is “complete diversity between
all plaintiffs and all defendants.” Lincoln Prop. Co. v. Roche, 546 U.S. 81, 83 (2005); 28
U.S.C. §1332(a)(2). “Section 1332(a)(2) vests federal district courts with subject matter
jurisdiction over suits involving ‘citizens of a State and citizens or subjects of a foreign
state,’ 28 U.S.C. § 1332(a)(2), but not over suits in which ‘aliens [are] on both sides of the
case[.]’” Voltage Pictures, LLC v. Gussi S.A. de C.V., 92 F.4th 815, 822 (9th Cir. 2024)
(citing Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 569 (2004)). However,
Section 1332(a)(3) confers “jurisdiction over suits in which aliens are on both sides of the
case, but only if there are also diverse U.S. citizens on both sides.” Id.; see Transure, Inc.
v. Marsh and McLennan, Inc., 766 F.2d 1297, 1298–99 (9th Cir. 1985) (citing 28 U.S.C. §
1332(a)(3)).
In this matter, Plaintiff, a Texas citizen, filed this action in Arizona state court
seeking $1,000,000 in damages. (See Doc. 1 at 6; Doc. 46). Defendants are citizens of
Arizona, Washington, Mississippi, and Mexico. (See Docs. 12, 18). On its face, the Court
has jurisdiction because the parties are diverse and no foreign citizens appear on both sides.
See Voltage Pictures, 92 F.4th at 822. However, the Court remands this case under the
forum defendant rule.
A district court has authority to remand under § 1447(c) on two grounds: “(1) lack
of subject matter jurisdiction, or (2) ‘nonjurisdictional defects’[.]” Casola, 98 F.4th at 953
(quoting Acad. of Country Music v. Cont’l Cas. Co., 991 F.3d 1059, 1067 (9th Cir. 2021)).
“[T]he forum defendant rule, contained in 28 U.S.C. § 1441(b)(2), prohibits removal based
on diversity jurisdiction ‘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.’” Id. at 950 (citing 28
U.S.C. § 1441(b)(2)). While a court may not sua sponte remand for a violation of §
1441(b)(2), a plaintiff may move to remand a case “within 30 days of removal[.]” Lively
v. Wild Oats Mkts., Inc., 456 F.3d 933, 942 (9th Cir. 2006).
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This action—comprised of state-law claims against in-state defendants—is
precisely one to which the forum-defendant rule is intended to apply. Within 30 days of
removal, Plaintiff filed the Motion to Remand invoking the forum defendant rule. (See
Doc. 19 at 9). The Court sees no reason to diverge from this practice, as “diversity
jurisdiction is unnecessary” because “there is less reason to fear state court prejudice[.]”
Spencer v. United States Dist. Court, 393 F.3d 867, 870 (9th Cir. 2004) (citation omitted).
Accordingly, the Court finds that Defendants’ in-state citizenship precludes removal
jurisdiction and grants Plaintiff’s Motion to Remand. (Doc. 19).
D. Motions to Dismiss
Finally, Defendants contend that the Court should resolve the Motions to Dismiss
for Failure to State a Claim (Doc. 5) and Forum Non Conveniens (Doc. 14) before the
Motion to Remand. (Doc. 45 at 4). However, since the Court has determined that removal
was improper, the Court declines to address the merits of any other pending motions.
CONCLUSION
Accordingly,
IT IS ORDERED adopting the Report and Recommendation of the Magistrate
Judge. (Doc. 38).
IT IS FURTHER ORDERED granting Plaintiff’s Motion to Remand. (Doc. 19).
IT IS FURTHER ORDERED striking Defendants’ Sur-Reply to Reply to
Objection to Report and Recommendation. (Doc. 48).
IT IS FURTHER ORDERED dismissing Defendants Motion to Dismiss for
Failure to State a Claim as moot. (Doc. 5).
IT IS FURTHER ORDERED dismissing Defendants’ Motion to Dismiss for
Forum Non Conveniens as moot. (Doc. 14).
IT IS FURTHER ORDERED directing the Clerk of Court to remand this action
to the Maricopa County Superior Court of Arizona.
///
///
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Dated this 20th day of March, 2026.
Case 2:25-cv-03420-SMM Document 49 Filed 03/20/26 Page 8 of 8