United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Plaintiff's Motion for
Remand, filed on May 30, 2017. (Doc. 10). Defendant Magellan
Health, Inc.'s (“Magellan Health”) Response
was filed on June 13, 2017, and Plaintiff's Reply was
filed on July 3, 2017. (Docs. 15, 17). The Court conducted
telephonic hearings on the Motion to Remand on September 21,
2017, and December 7, 2017, in which Timothy L. White
represented Plaintiff, and Amelia M. Willis represented
Defendant Magellan Health. For the following reasons and
those stated in open court, the Court denies Plaintiff's
alleges claims against Defendant Magellan Health for
Retaliation in Violation of the New Mexico Human Rights Act
(NMHRA); Discrimination on the Basis of Physical Handicap
And/Or Serious Medical Condition in Violation of the NMHRA;
Discrimination on the Basis of Race, in Violation of the
NMHRA; Breach of Implied Contract; and Breach of Implied
Contract to Follow Certain Procedures. (“Original
Complaint” Doc. 1-1) at 2-8. The Original Complaint was
filed in New Mexico State District Court, First Judicial
District, on December 19, 2016. (Doc. 1-1) at 2.
April 21, 2017, Defendant Magellan Health, an out-of-state
entity, informed Plaintiff, a New Mexico resident, through
counsel, of its intent to remove the case to federal court.
(Doc. 3-1) at 1, ¶ 3. On April 24, 2017, Plaintiff filed
an amended complaint, adding her former supervisor and
Magellan employee, Patti Macomber, as a
defendant. (Doc. 1-1) at 9-15. Defendant Macomber is
a resident and citizen of New Mexico. Id. at 10,
1, 2017, Defendant Magellan Health filed a Notice of Removal
in this Court, asserting diversity subject-matter
jurisdiction, stating the amount in controversy exceeds $75,
000. (Doc. 1) at 2-7. Defendant Magellan Health states it is
incorporated in Delaware and has its principal place of
business in Arizona, and that Plaintiff is a citizen of New
Mexico. Id. at 3-4, ¶¶ 14-17; (Doc. 1-1)
at 3, ¶ 6. Defendant Magellan Health argues this Court
has jurisdiction because Defendant Macomber, although a
non-diverse party, was fraudulently joined into this lawsuit.
(Doc. 1) at 4-7.
30, 2017, Plaintiff filed its Motion for Remand, (Doc. 10),
challenging Defendant Magellan's contention that the
amount in controversy exceeds $75, 000. On September 21,
2017, this Court held a hearing on the Motion to Remand to
consider the amount in controversy. This Court took that
issue under advisement and requested further briefing on the
question of diversity and, specifically, whether the
fraudulent joinder exception to the complete diversity
requirement applies. On December 7, 2017, the Court held a
second hearing on the Motion to Remand. For the reasons
stated on the record and for those set forth below, the Court
concludes it has subject matter jurisdiction.
Removal under 28 U.S.C. § 1441(a)
defendant can remove a civil case brought in state court if
the District Courts of the United States have original
jurisdiction. 28 U.S.C. § 1441(a). Removal under Section
1332(a) establishes original jurisdiction in the District
Courts in matters between citizens of different states and in
which the amount in controversy exceeds $75, 000. The
removing party bears the burden of proving jurisdiction under
Section 1332(a). See Montoya v. Chao, 296 F.3d 952,
955 (10th Cir. 2002) (“The burden of establishing
subject-matter jurisdiction is on the party asserting
Amount in Controversy Requirement
amount in controversy requirement is determined by the
information before the Court at the time of removal. See
Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1488
(10th Cir. 1991) (“the propriety of removal is judged
on the complaint as it stands at the time of the
removal.”) (citing Pullman Co. v. Jenkins, 305
U.S. 534, 537 (1939)). “[A] defendant's notice of
removal need include only a plausible allegation that the
amount in controversy exceeds the jurisdictional
threshold.” Dart Cherokee Basin Operating Co., LLC
v. Owens, 135 S.Ct. 547, 554 (2014) (citing 28 U.S.C.
§ 1446(a)). And “[e]vidence establishing the
amount is required by § 1446(c)(2)(B) only when the
plaintiff contests, or the court questions, the
defendant's allegation.” Id.
removing party can use the complaint, interrogatories,
affidavits “or other evidence submitted in federal
court, ” to determine the amount in controversy.
McPhail v. Deere & Co., 529 F.3d 947, 956 (10th
Cir. 2008). “Furthermore, a plaintiff's proposed
settlement amount ‘is relevant evidence of the amount
in controversy if it appears to reflect a reasonable estimate
of the plaintiff's claim.'” Id.
(citing Cohn v. Petsmart, Inc., 281 F.3d 837, 840
(9th Cir. 2002)). “Attorney's fees can be included
in the amount in controversy if the underlying state law on
which one or more of the plaintiff's claims is based
permits an award of attorney's fees.” Zozaya v.
Standard Insurance Company, 2015 WL 11118066, at *4
(D.N.M.) (citing Miera v. Dairyland Ins. Co., 143
F.3d 1337, 1340 (10th Cir. 1998)).
Magellan Health argues that Plaintiff's estimation of the
case and the prospect of attorney's fees put the amount
in controversy in this case beyond $75, 000. (Doc. 15) at 6.
This Court agrees. Correspondence between Defendant's
counsel and Plaintiff's counsel between March 28, and 29,
2017, set the amount in controversy at least at $75, 000,
$50, 000 of which was for compensatory damages for
Plaintiff's loss of employment and the rest was for
emotional distress damages. See (Doc. 21) at 8.
Plaintiff alleges claims under the NMHRA. Notably, the amount
referenced in the correspondence between counsel does not
include attorney's fees, which, as explained below, are
recoverable for those claims she brings under the NMHRA.
Specifically, under the NMHRA, “the court in its
discretion may allow actual damages and reasonable
attorney's fees and the state shall be liable the same as
a private person.” NMSA 1978, § 28-1-13(D) (Repl.
Pamp. 2012). Indeed, Plaintiff includes attorney's fees
in her request for relief. (Doc. 1-1) at 15. Therefore, the
Court concludes, while reserving judgment on the question of
attorneys fees, that if Plaintiff succeeds in her NMHRA
claims, she could recover reasonable attorney's fees.
Such fees “may significantly add to the amount in
controversy.” Zozaya 2015 WL 11118066, at *4.
Therefore, based on the record existing at the time of
removal, Plaintiff has placed more than $75, 000 in
nevertheless, argues that her counsel's affidavit
averring to pursue no claim nor seek any amount beyond $75,
000 demonstrates that the amount in controversy does not
exceed $75, 000. (Doc. 10) at 3-7. Plaintiff counsel's
affidavit states, in relevant part, “[a]s attorney for
plaintiff, I represent to the Court that [plaintiff] will not
seek, nor will I on her behalf, any recovery with respect to