United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S
MOTION TO REMAND
MATTER comes before the Court upon Plaintiff's Motion to
Remand, filed May 18, 2017 (Doc. 7). Having reviewed the
parties' briefs and applicable law, the Court finds that
Plaintiff's motion is well-taken and, therefore, is
a personal injury case. Plaintiff Pete Romero was an employee
of Defendant Circle K Stores, Inc. (“Circle K” or
“Defendant” for purposes of this opinion) and was
stabbed on or about March 30, 2014 by two unknown male
suspects when he attempted to block their exit from the store
after they stole an 18-pack of Corona beer. After the
criminals fled the store, Plaintiff realized he had been
stabbed multiple times and sustained injuries which resulted
in internal bleeding that required surgery and subsequent
surgical procedures. Plaintiff alleges that he continues to
suffer long-term effects from the attack.
filed this lawsuit in the First Judicial District Court,
County of Santa Fe on March 27, 2017, and Defendants removed
the case to federal court on May 3, 2017 on the basis of
diversity of citizenship. Doc. 1 at 2-3. In Count I of the
complaint, Plaintiff alleges that Circle K deliberately chose
not to provide adequate security and training, placing him in
an inherently dangerous situation where it was expected he
would be a crime victim and suffer harm or death. Doc.
In Count II, Plaintiff claims Circle K disposed of or
destroyed relevant evidence material to Plaintiff's
claims. Id. In Count III, Plaintiff seeks
compensatory and punitive damages.
to the Notice of Removal (Doc. 1), Plaintiff alleges that
Circle K is a nonresident, for-profit corporation operating
convenience stores in New Mexico. In the notice, Defendant
further certifies that Circle K is a Texas corporation with
its principal place of business in Tempe, Arizona. Circle K
is a citizen of a state other than New Mexico. The dispute
here is whether the individual Circle K employees and the
John Doe Defendants are proper Defendants. Since these
individual defendants are alleged to be residents of
Albuquerque, New Mexico, their presence in this case would
ordinarily destroy diversity. However, Defendant claims that
they are not proper parties to this lawsuit because Plaintiff
has not asserted any claim against them and their residences
in New Mexico should not be considered when evaluating
diversity of citizenship.
question before the Court here is whether Plaintiff has
fraudulently joined these individual defendants in order to
deprive Circle K of the right to have this litigated in
federal court. Plaintiff also challenges Defendants'
contention that the amount-in-controversy is met for
courts are courts of limited jurisdiction; thus, there is a
presumption against removal jurisdiction, which the defendant
seeking removal must overcome. See Fajen v. Found.
Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir.1982);
Martin v. Franklin Capital Corp., 251 F.3d 1283,
1290 (10th Cir. 2001). Removal statutes are strictly
construed, and ambiguities should be resolved in favor of
jurisdiction under 28 U.S.C. § 1332(a)(1) requires: (i)
complete diversity among the parties; and (ii) that the
matter in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs. However, fraudulent joinder
is an exception to the requirement of complete diversity.
Black Iron, LLC v. Helm-Pacific, 2017 WL 2623846, at
*4 (D.Utah, 2017). The joinder of a non-diverse party is
“fraudulent” when it serves no purpose other than
“to frustrate federal jurisdiction.”4 Dodd v.
Fawcett Publ'ns, Inc., 329 F.2d 82, 85 (10th Cir.
1964). A defendant may remove a case to federal court based
upon diversity jurisdiction in the absence of complete
diversity if a plaintiff joins a non-diverse party
fraudulently to defeat federal jurisdiction. See Am.
Nat'l Bank & Trust Co. v. Bic Corp., 931 F.2d
1411, 1412 (10th Cir.1991). The citizenship of fraudulently
joined defendants “should be ignored for the purposes
of assessing complete diversity.” See Dutcher v.
Matheson, 733 F.3d 980, 987-988 (10th Cir. 2013).
Tenth Circuit has stated that fraudulent joinder must be
“established with complete certainty upon undisputed
evidence.” Smoot v. Chicago, Rock Island &
Pacific Railroad Co., 378 F.2d 879 (10th Cir.1967). In
evaluating a claim of fraudulent joinder, “all doubts
are to be resolved against removal.” Fajen v.
Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir.
other words, the removing party “bears a heavy burden
of proving fraudulent joinder, and all factual and legal
issues must be resolved in favor of the plaintiff.”
See Dutcher, 733 F.3d at 988 (quoting
Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 461
(2d Cir. 1998)). This is a high bar for Defendants to meet,
and poses a standard “more exacting than that for
dismissing a claim under Fed.R..Civ.P. 12(b)(6)” and
“which entails the kind of merits determination that,
absent fraudulent joinder, should be left to the state court
where the action was commenced.” Montano v.
Allstate Indemnity, 2000 WL 525592 at **1-2 (10th Cir.
party defending removal may carry this “heavy
burden” and successfully assert fraudulent joinder by
demonstrating either: (1) actual fraud in the pleading of
jurisdictional facts, or (2) the inability of the plaintiff
to establish a cause of action against the non-diverse party
in state court. Dutcher v. Matheson, 733 F.3d 980,
988 (10th Cir. 2013); Black Iron, LLC v.
Helm-Pacific, 2017 WL 2623846, at *4 (D.Utah, 2017);
see also Montano v. Allstate, 2000 WL 525592 at
**1-2 (to prove fraudulent joinder, the removing party must
demonstrate that there is no possibility that plaintiff would
be able to establish a cause of action against the joined
party in state court).
fraudulent joinder analysis is a jurisdictional inquiry and
therefore a district court should “pierce the
pleadings, consider the entire record, and determine the
basis of joinder by any means available, ” Dodd v.
Fawcett Publ'ns, Inc., 329 F.2d 82, 85 (10th
Cir.1964) (citations omitted); Albert v. Smith's Food
& Drug Centers, Inc.356 F.3d 1242, 1247 (10th Cir.
2004)(fraudulent joinder analysis is a jurisdictional
inquiry); Smoot, 378 F.2d at 882 (federal courts may