United States District Court, D. New Mexico
PAULA MARTIN, SKYE MARTIN, CHEYENNE MARTIN, KAELAN TASSI, and CHRISTOPHER TASSI, Plaintiffs,
DERICK WEEBOTHEE and GOVERNMENT EMPLOYEES INSURANCE COMPANY, a foreign corporation doing business in New Mexico, Defendants.
MEMORANDUM OPINION AND ORDER
VÁZQUEZ, UNITED STATS DISTRICT JUDGE
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.
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.
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.
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.
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
at ¶ 21.
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.
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.
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.
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.
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