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Martin v. Weebothee

United States District Court, D. New Mexico

July 30, 2018

PAULA MARTIN, SKYE MARTIN, CHEYENNE MARTIN, KAELAN TASSI, and CHRISTOPHER TASSI, Plaintiffs,
v.
DERICK WEEBOTHEE and GOVERNMENT EMPLOYEES INSURANCE COMPANY, a foreign corporation doing business in New Mexico, Defendants.

          MEMORANDUM OPINION AND ORDER

          MARTHA VÁZQUEZ, UNITED STATS DISTRICT JUDGE

         THIS MATTER comes before the Court on Defendant's Motion to Dismiss Derick Weebothee (“Motion to Dismiss”) [Doc. 19], Defendant's Motion for Leave to File Supplemental Briefing Regarding Defendant's Motion to Dismiss Derek [sic.] Weebothee in Light of Return of Service Filed by Plaintiffs (“Motion for Leave”) [Doc. 28], Plaintiffs' Motion to Extend Deadline to Effectuate Service of Defendant Derick Weebothee (“Motion to Extend”) [Doc. 34], and Plaintiffs' First Amended Motion to Remand (“Amended Motion to Remand”) [Doc. 35]. The Court, having considered the motions, briefs, and relevant law, and being otherwise fully informed, finds that Plaintiffs' Motion to Extend, Defendant's Motion to Dismiss and Defendant's Motion for Leave are well-taken and will be granted, and Plaintiffs' Amended Motion to Remand is not well-taken and will be denied.

         BACKGROUND

         On April 24, 2014, Plaintiff Cheyenne Martin was driving a car, owned by her brother, Plaintiff Skye Martin, in Albuquerque. Doc. 1-1 at ¶¶ 7-8. Plaintiffs Kaelan Tassi and Christopher Tassi were passengers in the car. Id. at ¶ 8. Plaintiffs' car was hit by a car driven by William Tsethlikia, who was under the influence of drugs and/or alcohol. Id. at ¶¶ 10, 15. Defendant Derick Weebothee was a passenger in Tsethlikia's car. Id. at ¶ 9. After the collision, Tsethlikia and Weebothee verbally and physically assaulted one or more Plaintiffs, and then fled the scene on foot. Id. at ¶¶ 11-12.

         As a result of the collision and ensuing altercation, on March 9, 2015, Plaintiffs filed suit in state court against Tsethlikia and Weebothee. Doc. 37 at ¶ 1. Plaintiffs dismissed that lawsuit on May 11, 2016, without ever serving Weebothee. Id.

         Thereafter, on November 8, 2016, Plaintiffs commenced the instant action in state court, naming Government Employees Insurance Company (“GEICO”) and Weebothee as Defendants. Doc. 1-1. Plaintiffs are residents of Bernalillo County, New Mexico. Id. at ¶ 3. GEICO is incorporated in Maryland and its principal place of business is in Maryland. Doc. 1 at ¶ 8. Weebothee is a resident of Bernalillo County, New Mexico. Doc. 1-1 at ¶ 3.

         On November 28, 2016, Plaintiffs served Defendant Government Employees Insurance Company (“GEICO”). Doc. 37 at ¶ 3. GEICO removed the action to this Court on December 28, 2016, on the basis of diversity jurisdiction, asserting improper joinder. Id. at ¶ 4. Specifically, GEICO's notice of removal provides:

Plaintiffs allege no claims and seek no damages against Weebothee. Instead, Plaintiffs are seeking to recover from GEICO under Skye Martin's UM/UIM policy for the punitive damages they allegedly sustained due to Weebothee's and Tsethlikia's actions. Plaintiffs do not have a viable claim against Weebothee. Weebothee is thus improperly joined. Accordingly, diversity of citizenship is present in this matter, as Weebothee's citizenship does not defeat diversity.

         Doc. 1 at ¶ 21.

         On March 2, 2017, the Court held a scheduling conference during which it addressed the status of service on Weebothee. Doc. 11. The Court proposed giving Plaintiffs an additional 21 days to effect service on Weebothee. Id. Counsel for both parties agreed to this proposal. Id.

         As of June 9, 2017, Plaintiffs had not served Weebothee. Doc. 19 at ¶ 5. As a result, GEICO filed its Motion to Dismiss, requesting that the Court dismiss Weebothee from the action. Doc. 19. Plaintiffs filed no response to GEICO's Motion to Dismiss. On July 27, 2017, GEICO filed a Notice of Completion of Briefing for Defendant's Motion to Dismiss. Doc. 22.

         Four days later, on July 31, 2017, Plaintiffs filed a Certificate of Service. Doc. 23. The Certificate of Service states that Stephanie Weebothee a/k/a/ Stephanie Francisco, Weebothee's mother, was served with a copy of Plaintiffs' Original Complaint for Personal Injury and Punitive Damages and Summons at his last known residential address, 2401 Storm Tower Street SW, Albuquerque, New Mexico. Id.

         The next day, on August 1, 2017, Plaintiffs filed their first motion to remand. Doc. 24. In support of that motion, Plaintiffs stated that, “[a]fter a long and arduous undertaking, Plaintiff [sic.] recently located and successfully effectuate [sic.] service upon Weebothee in Albuquerque New Mexico.” Id. at ¶ 4. Plaintiffs argued that, “having effectuated service upon Weebothee, there no longer exists complete diversity of citizenship, ” and thus that remand is required. Id. at ¶ 6.

         In light of the return of service filed by Plaintiffs in support of their motion to remand, on August 11, 2017, GEICO filed its Motion for Leave, and attached supplemental briefing in further support of its Motion to Dismiss. Doc. 28. In its supplemental brief, GEICO argues that Plaintiffs did not properly serve Weebothee, and that accordingly, this Court lacks personal jurisdiction over him. Id. Specifically, GEICO notes that after removal of the action, Plaintiffs were required to secure a summons from this Court and serve it upon Weebothee. Plaintiffs did not obtain a federal summons, but instead attempted to serve Weebothee with a New Mexico state court summons. Id. at 5. On August 15, 2017, GEICO filed a response in opposition to Plaintiffs' motion to remand, repeating the argument set forth in its supplemental brief that Plaintiffs failed to ...


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