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Shirk v. Gonzales

United States District Court, D. New Mexico

May 29, 2018

KRISTINE SHIRK Plaintiff,
v.
JACKIE GONZALES, SPECIALTY RETAILERS, INC. d/b/a BEALLS, Defendants.

          MEMORANDUM OPINION AND ORDER

          M. CHRISTINA ARMIJO UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on Plaintiff Kristine Shirk&#3');">39;s Motion for Remand. [Doc. 6] The Court, having considered the submissions, the relevant law, and otherwise being fully informed in the premises, hereby DENIES the Motion.

         BACKGROUND

         Plaintiff filed this suit in the First Judicial District Court, in the County of Santa Fe, New Mexico, against her former employer, Specialty Retailers, Inc., and her former immediate supervisor, Jackie Gonzales. [Doc. 1');">1-1');">1, ¶¶ 1');">10, 40] Defendants removed this suit to this Court, asserting diversity jurisdiction pursuant to 28 U.S.C. § 1');">13');">33');">32(a). [Doc. 1');">1, p. 1');">1] Plaintiff now moves for remand, arguing only that Defendants have not proven that the jurisdictional amount is in controversy. [Doc. 6, ¶ 5]

         Plaintiff alleges three causes of action: “Prima Facie Tort;” “Discrimination on the Basis of Race in Violation of the New Mexico Human Rights Act;” and “Negligent Hiring, Training and Supervision.” [Doc. 1');">1-1');">1, ¶¶ 9-48] While the parties dispute whether Plaintiff&#3');">39;s first cause of action is against both Defendants or only Defendant Gonzales [Doc. 6, ¶ 1');">1; Doc. 8, pp. 8-9], for purposes of this decision it is only relevant that Plaintiff brings her second count, alleging discrimination in violation of the New Mexico Human Rights Act (NMHRA), against both Defendants.[1');">1" name="FN1');">1" id="FN1');">1">1');">1] [Doc. 1');">1-1');">1, ¶¶ 3');">38-41');">1; Doc. 6, ¶ 1');">1]

         In their Notice of Removal, Defendants assert, and submit evidence, that Plaintiff is a citizen of New York [Doc. 1');">1, ¶¶ 1');">12-1');">13');">3; Doc. 1');">1-3');">3, p. 4; Doc. 1');">1-4, p. 1');">1, ¶ 4; Doc. 1');">1-4, p. 4], Defendant Specialty Retailers is a citizen of Texas[2] [Doc. 1');">1, ¶¶ 9-1');">11');">1; Doc. 1');">1-5, ¶¶ 3');">3, 5], and Defendant Gonzales is a citizen of Colorado [Doc. 1');">1, ¶¶ 7-8, Doc. 1');">1-4, ¶ 2]. Plaintiff does not contest that her citizenship is diverse from all Defendants (and was so at the time she filed her Complaint)[3');">3" name="FN3');">3" id= "FN3');">3">3');">3] and that no defendant is a citizen of New Mexico.

         As to the amount in controversy, Defendants in part rely on a settlement demand sent by Plaintiff&#3');">39;s Counsel on October 1');">11');">1, 201');">17. In that settlement demand, Plaintiff offered to settle her claim for $1');">100, 000. Plaintiff identified her compensatory damages as $3');">32, 1');">184.50, and asserted that she has also suffered emotional distress damages, and that she seeks punitive damages and attorney&#3');">39;s fees. [Doc. 1');">1-3');">3, pp. 4-5]

         Factually, Plaintiff alleges that she worked for Defendant Specialty Retailers at a Bealls store in Taos, New Mexico, from August 201');">15 to July 201');">16. [Doc. 1');">1-1');">1, ¶¶ 1');">11');">1, 28] She alleges that Defendant Gonzales created a hostile work environment which began a week after Plaintiff began working for Specialty Retailers. Plaintiff alleges that Defendant Gonzales accused Plaintiff of thinking she was better than everyone else, “constantly and consistently verbally abused” Plaintiff, and engaged in “workplace bullying.” [Doc. 1');">1-1');">1, ¶¶ 1');">15, 1');">19] Plaintiff also alleges that another employee called her an old lady and bullied her in text messages, and that although Plaintiff alerted Defendant Specialty Retailers about the text messages, Defendant Specialty Retailers failed to address the harassment. [Doc. 1');">1-1');">1, ¶¶ 21');">1-22] Plaintiff&#3');">39;s father died and Plaintiff did not request leave because she “was fearful of asking for the time off because the Defendant Gonzales was generally rude” to her. [Doc. 1');">1-1');">1, ¶ 1');">18] Despite Plaintiff&#3');">39;s complaints to management about workplace bullying, Defendant Specialty Retailers did nothing to remedy the misconduct. [Doc. 1');">1-1');">1, ¶ 25] Plaintiff does not allege a certain amount of damages; however she seeks back pay, front pay, lost benefits, damages for emotional distress, mental anguish and suffering, punitive damages, pre- and post-judgment interest, attorney&#3');">39;s fees, costs, and expenses. [Doc. 1');">1-1');">1, pp. 7-8]

         Now, in her Motion for Remand, Plaintiff states that she “would stipulate that her claim for damages against each individual defendant exclusive of costs and interest and attorney&#3');">39;s fees does not exceed $75, 000.00, and of the aggregated claims[, ] do not exceed $75, 000.00.” [Doc. 6, ¶ 5]

         ANALYSIS

         Legal Standards

         Defendants assert that this Court has diversity jurisdiction pursuant to Section 1');">13');">33');">32. Diversity jurisdiction is conferred upon the federal courts under Section 1');">13');">33');">32(a) in cases in which the “matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between . . . citizens of different States[.]” Plaintiff does not dispute that the parties are diverse; however, Plaintiff argues that her claims “do not exceed $75, 000.00 for each Defendant, either severally or in Count II, jointly.” [Doc. 6, ¶ 5]

         The Court applies the standards and procedures set forth in 28 U.S.C. §§ 1');">1446 and 1');">1447 in considering Plaintiff&#3');">39;s Motion for Remand. “Track[ing] the general pleading requirement stated in Rule 8(a) of the Federal Rules of Civil Procedure, ” Section 1');">1446(a) requires “a defendant seeking to remove a case to a federal court [to] file in the federal forum a notice of removal ‘containing a short and plain statement of the grounds for removal.&#3');">39;” Dart Cherokee Basin Operating Co., LLC v. Owens, 1');">13');">35 S.Ct. 547');">1');">13');">35 S.Ct. 547, 553');">3 (201');">14) (quoting 28 U.S.C. § 1');">1446(a)). The amount in controversy is an “estimate of the amount that will be put at issue in the course of the litigation.” McPhail v. Deere & Co., 3');">3d 947');">529 F.3');">3d 947, 956 (1');">10th Cir. 2008).

         When the plaintiff&#3');">39;s initial pleading does not state the amount in controversy, the notice of removal may assert the amount in controversy. Section 1');">1446(c)(2)(A). If the defendant&#3');">39;s allegation regarding the amount in controversy is contested, Section 1');">1446(c)(2)(B) states that “removal of the action is proper on the basis of an amount in controversy asserted” by the defendant “if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds” the ...


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