United States District Court, D. New Mexico
OSCAR D. GARCIA, Plaintiff,
TRANSPORT LOGISTICS CORP., et al., Defendants.
ORDER DENYING REMAND
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE
MATTER is before the Court on Plaintiff's “Opposed
Motion to Remand and Memorandum in Support”
(“Motion”) filed on October 19, 2017. ECF No. 10.
Defendant Jose Arrellano (“Defendant Arrellano”)
responded on November 1, 2017. ECF No. 14. The next day,
Defendant Transport Logistics Corporation d/b/a Regio Express
(“Defendant TLC/Regio”) filed its “Joinder
and Adoption of Co-Defendant Jose Arrellano's Response
[ECF No. 14] to Plaintiff's Motion for Remand.” ECF
No. 16. Plaintiff replied on November 14, 2017. ECF No. 18.
The Court, having reviewed the record, the parties'
briefing, and current law, finds that Plaintiff's Motion
is not well taken and must therefore be
December 29, 2016, Plaintiff, as personal representative of
the estate of Jose Eduardo Garcia Rodriguez (“the
decedent”), filed suit in the Twelfth Judicial District
Court in Lincoln County, New Mexico, alleging counts of
wrongful death and negligence against Defendants. Def.
Arrellano's Notice of Removal (“Notice”), Ex.
A at 1, ECF No. 1. Plaintiff alleges that on February 15,
2016, the decedent was traveling from Roswell, New Mexico, to
Ruidoso, New Mexico, when Defendant Jose Arrellano, who was
traveling in the opposite direction, negligently struck and
killed him with his tractor trailer in the center lane of
U.S. Highway 70. Id., Ex. A at 2. Plaintiff further
contends that at the time of the incident, Defendant
Arrellano was acting within the course and scope of his
employment with Defendant TLC/Regio. Id. Under the
theory of vicarious liability, Plaintiff advances demands
against Defendant Arrellano and Defendant TLC/Regio
(collectively, “Defendants”), for: (1) the award
of compensatory damages and consequential damages in an
amount to be determined at trial; (2) punitive damages in an
amount to be determined at trial; and (3) costs and attorney
fees. Id., Ex. A at 4. In accordance with Rule
1-008(A)(3) of the New Mexico Rules of Civil Procedure for
the District Courts, Plaintiff's complaint alleged no
specific monetary amount of damages. See NMRA
1-008(A)(3) (2017) (“Unless it is a necessary
allegation of the complaint, the complaint shall not contain
an allegation for damages in any specific monetary
October 13, 2017, Defendant Arrellano removed this case to
federal court and Defendant TLC/Regio separately filed its
consent to removal. ECF Nos. 1, 5. In his Notice, Defendant
Arrellano admits that he and Defendant TLC/Regio answered
Plaintiff's state court complaint on February 21, 2017.
Def. Arrellano's Notice 2. Nevertheless, he asserts that
“[o]n September 13, 2017, Plaintiff identified an
amount [of damages] for the first time, triggering 28 U.S.C.
§ 1446(b)(1), giving the Defendants thirty (30) days
from receipt of the demand to file a notice of
removal.” Id. at 2. That identification came
through an email, which reads in relevant part:
One last thing occurred to me; if it turns out there is
really just the one $1, 000, 000.00 policy, I think we would
just make a demand for it. Even with some comparative fault
on the part of Jose, the value of the case exceeds $1, 000,
000.00 many times over; there probably wouldn't be much
to mediate if there's really just a [one million dollar]
Id., Ex. D. Based on that email of September 13,
2017, Defendant Arrellano initiated removal. See ECF
No. 1; 28 U.S.C. § 1446(b)(1) (2012).
urges the Court to remand the instant matter to state court,
arguing that removal is untimely. Plaintiff contends that his
state complaint was sufficient to put Defendants on notice
that the removal requirements were met as to diversity and
amount in controversy, and consequently, the thirty-day
period for Defendants to remove was triggered upon the filing
of the complaint. See Pl.'s Mot. 5-6, ECF No.
respond that Plaintiff's Complaint is ambiguous as to the
amount of damages sought. Def. Arrellano's Resp. 2, ECF
No. 14. Defendants further argue that because Plaintiff's
intention to seek an amount in excess of the jurisdictional
minimum of $75, 000 was not made unambiguously clear until
September 13, 2017, the period for initiating removal was not
triggered until that date.
case originally filed in state court may be removed to [this]
court if, but only if, ‘federal subject-matter
jurisdiction would exist over the claim.'”
Firstenberg v. City of Santa Fe, 696 F.3d 1018, 1023
(10th Cir. 2012) (citation omitted). “[A]ny civil
action brought in a State court of which the district courts
of the United States have original jurisdiction, may be
removed by the defendant or the defendants, to the district
court of the United States for the district and division
embracing the place where such action is pending.” 28
U.S.C. § 1441(a) (2012).
may be removed to federal court on the basis of a federal
question, i.e., “an action arising under the
Constitution, laws, or treaties of the United States.”
Id. § 1331. In addition, a case may be removed
on the basis of diversity jurisdiction. The federal district
court “shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or
value of $75, 000 . . . and is between citizens of different
States.” Id. § 1332(a)(1).
28, United States Code, Section 1446 governs the procedure to
remove an action to federal court. It states in pertinent
part that “[a] defendant or defendants desiring to
remove any civil action from a State court shall file in the
district court of the United States . . . a short and plain
statement of the grounds for removal, together with a copy of
all process, pleadings, and orders served ...