Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kim v. Czerny

United States District Court, D. New Mexico

July 17, 2017

CHAD KIM AND DANAE KIM, Plaintiffs,
v.
ZUZANNA A. CZERNY, MAGDALENA Z. CZERNY, AND PROGRESSIVE ADVANCED INSURANCE COMPANY, Defendants.

          MEMORANDUM OPINION AND ORDER

          M. CHRISTINA ARMIJO Chief United States District Judge.

         THIS MATTER is before the Court on Defendants' Motion to Deny the Joinder of Jurisdiction Defeating Defendants and to Strike Plaintiffs' Improperly Filed First Amended Complaint [Doc. 12] and Defendants' Motion to Dismiss for Lack of Personal Jurisdiction [Doc. 5]. The Court has considered the parties' submissions, including Plaintiffs' First Amended Complaint for Personal Injuries [Doc. 9], and the relevant law, and is otherwise fully informed.

         For the following reasons, the Court DENIES in part and GRANTS in part Defendants' Motion to Deny the Joinder of Jurisdiction Defeating Defendants and to Strike Plaintiffs' Improperly Filed First Amended Complaint [Doc. 12]. Specifically, the Court DENIES the Motion to Strike Plaintiffs' Improperly Filed First Amended Complaint and GRANTS the Motion to Deny Joinder of Jurisdiction Defeating Defendants.

         Further, the Court GRANTS Defendants' Motion to Dismiss for Lack of Personal Jurisdiction [Doc. 5].

         I. Background

         After a car accident in Tempe, Arizona in which they were injured, Plaintiffs filed a Complaint in the Second Judicial District Court on November 4, 2016 alleging that Zuzanna Czerny negligently operated a vehicle and that Magdalena Czerny negligently entrusted the vehicle to Zuzanna Czerny. [Doc. 1-1] Defendants removed the matter to this Court, and then filed a Motion to Dismiss for Lack of Personal Jurisdiction on December 21, 2016. [Doc. 1; Doc. 5] On January 13, 2017, twenty-three days after the filing of Defendants' Motion to Dismiss for Lack of Personal Jurisdiction, Plaintiffs filed a First Amended Complaint, in which Plaintiffs seek to add as defendants claims adjuster Britni Vickers (“Vickers”) and John Doe Adjuster Mark (Last Name Unknown) (“Mark”), as well as new claims for “fraud and misrepresentation” and negligent misrepresentation. [Doc. 9]

         On January 27, 2017, Defendants filed a Motion to Deny the Joinder of Jurisdiction Defeating Defendants and to Strike Plaintiffs' Improperly Filed First Amended Complaint. [Doc. 12] Defendants maintain that the First Amended Complaint should be stricken because it was improperly filed after the twenty-one-day deadline for amendments of right under Federal Rule of Civil Procedure 15(a)(1)(b) and without leave of the Court under Federal Rule of Civil Procedure 15(a)(2). [Doc. 12]

         In their Response to Defendants' Motion to Deny the Joinder of Jurisdiction Defeating Defendants and to Strike Plaintiffs' Improperly Filed First Amended Complaint, filed on February 21, 2017, Plaintiffs “concede that they did not first seek leave of the Court in filing their [First] Amended Complaint” and state that they had “justifiable cause” for this failure. [Doc. 19, pg. 3, n.1] They do not explain what “justifiable cause” lies behind the tardy filing. They also state that “Plaintiffs intend to file their Motion for Leave to Amend forthwith.” [Doc. 19, pg. 3 n.1] Plaintiffs have not yet filed a motion for leave to amend.

         In sum, Plaintiffs argue that the joinder of new defendants should be permitted, that such joinder destroys this Court's subject matter jurisdiction, and that the matter should therefore be remanded to state court under 28 U.S.C. § 1447(e) without reaching the personal jurisdiction question. [Doc. 19] Defendants argue that joinder should be denied, subject matter jurisdiction retained, and the matter dismissed for lack of personal jurisdiction. [Doc. 12; Doc. 5]

         II. Discussion

         A. Rule 15

         Defendants argue that the First Amended Complaint was not filed within the deadline set forth in Federal Rule of Civil Procedure 15(a)(1)(B), that is, within 21 days of service of Defendants' initial Motion to Dismiss. Defendants are correct. Defendants also correctly argue [Doc. 12, pp. 2-4] that, under these circumstances, the Curt must decide whether to grant leave to Plaintiffs to file the proposed amended complaint. Fed R. Civ. P. 15(a)(2). Nonetheless, rather than striking the First Amended Complaint for Personal Injuries, the Court determines that even if the Court were to consider it as a proposed amended complaint, the complaint would be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962) (stating that absent a reason such as futility, the Court should freely grant leave to amend a complaint). An amendment is futile if it would not survive a motion to dismiss. See Bradley v. Val-Mejias, 379 F.3rd 892, 901 (10th Cir.2004). As discussed below, amendment would be futile because Plaintiffs fail to state a claim against the proposed new defendants, making joinder futile, and even if additional claims are added against the current defendants, personal jurisdiction is lacking as to them.

         B. The Court Will Address Joinder, then Personal Jurisdiction

         The next question is whether to consider joinder, which implicates the Court's subject matter jurisdiction, or personal jurisdiction first. The district court may exercise its discretion in deciding which issue to take up first. Cantor Fitzgerald, L.P., v. Peaslee, 88 F.3d 152, 155 (2d Cir. 1996). “Customarily, a federal court first resolves any doubts about its jurisdiction over the subject matter of a case before reaching the merits or otherwise disposing of the case.” Id. This approach is grounded in “[a] State's dignitary interest.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 586 (1999). Thus, “[i]f personal jurisdiction raises ‘difficult questions of [state] law, ' and subject-matter jurisdiction is resolved ‘as eas[ily]' as personal jurisdiction, a district court will ordinarily conclude that ‘federalism concerns tip the scales in favor of initially ruling on the motion to remand.'” Id. quoting Allen v. Ferguson, 791 F.2d 611, 616 (7th Cir. 1986).

         Here, Plaintiffs' First Amended Complaint adds two defendants who are allegedly New Mexico residents. [Doc. 9] Because Plaintiffs are also New Mexico residents, joinder of these defendants will destroy the diversity of the parties on which this Court's subject matter jurisdiction is based. 28 U.S.C. §1332. Consequently, the Court will first take up the issues related to joinder, then address personal jurisdiction.

         C. The Court Will Not Permit Joinder of New Defendants

         Here, the additions to the First Amended Complaint include both claims and parties, as Plaintiffs seek to add two claims and two defendants. [Doc. 9] Defendants object to the addition of “diversity destroying defendants, ” but do not argue against the addition of the new claims for fraud/misrepresentation and negligent misrepresentation. [Doc. 12] Defendants' arguments are based wholly on 28 U.S.C. § 1447(e) (“If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.”). “But because Section 1447(e) is only concerned with the joinder of non-diverse parties post-removal, it is applicable only in so far as the proposed amended complaint seeks to join non-diverse parties.” Culver v. Lithia Motors, Inc., No. CV 15-669 MCA/SCY, 2016 WL 7426587, at *5 (D.N.M. May 12, 2016), report and recommendation adopted, No. CV 15-669 MCA/SCY, 2016 WL 7447552 (D.N.M. July 19, 2016). “In other words, a court's review of proposed amendments containing new allegations regarding current defendants is still governed by Rule 15.” Id.

         Despite Plaintiffs' failure to expressly state their intent, a reading of the proposed amended complaint as a whole reveals the Plaintiffs intend to add claims against the Progressive Advanced claims handlers in their capacities as agents of Progressive Advanced, rather than in their individual capacities. Farm Bureau Prop. & Cas. INS. Co. v. Hale, No. 1:14-CV-00527-WJ/WPL, 2014 WL 11512598, at *5 (D.N.M. Nov. 14, 2014) (“It is well-settled that insurance agents and adjusters may be sued in their individual capacity for breach of common law and statutory duties.”); 4 Steven Plitt, et al., Couch on Ins. § 56:11 (“An insurer is liable for the fraud of its agent when acting within the scope of his or her actual or apparent authority.”). This is because the headings for the new claims indicate that they are against Vickers and “Mark.” [Doc. 9] However, the substantive portions of the new claims do not include any allegations against Vickers and “Mark” in their individual capacities. [Doc. 9] Instead, Plaintiffs allege that Vickers and “Mark” were “at all times relevant and material . . . employee[s] of Defendant Progressive Advanced Insurance Company and interacted with Plaintiffs Chad and Danae Kim on behalf of Defendants Zuzanna and Magdalena Czerny and Progressive Advanced Insurance Company.” [Doc. 9, ¶¶ 6, 7] They also allege that Vickers and “Mark” are “manager[s], agent[s], servant[s], claim representative[s] and/or employee[s] of Defendant Progressive Advanced” and that they were “acting within the course and scope of [their] relationship with Defendant Progressive Advanced at all times herein to perform business for Defendant in the State of New Mexico through the claims handling of insurance policies in the State of New Mexico.” [Doc. 9, ¶¶ 14-17] Finally, Plaintiffs allege that Vickers and “Mark” were “acting within the course and scope of [their] relationship with Defendant Progressive Advanced at all ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.