United States District Court, D. New Mexico
ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court sua sponte.
On June 5, 2018, Plaintiff Crystal Neal commenced the instant
action in state court. (Doc. 1-2, Compl.). According to her
complaint, on June 16, 2015, Ms. Neal, at the time a
passenger in a white SUV stopped at an intersection waiting
to make a left-hand turn, was struck by a commercial vehicle
as the commercial vehicle made “a radical right hand
turn[.]” (Id., ¶¶7-8). After tearing
into the SUV and dragging it, the driver attempted to flee
the scene. (Id., ¶¶9-10). Ms. Neal,
however, chased down and stopped the individual.
(Id.). Ms. Neal alleges the driver, Nathan
“Doe” was negligent, the company that employed
him is vicariously liable for his negligence, and the company
that hired him negligently entrusted the commercial vehicle
to him. (Id., ¶¶ 16-31).
the straightforward facts and legal claims, Ms. Neal named
numerous defendants, including H8H, LLC, doing business as
Hard 8 Hauling, LLC, Wal-Mart, Inc., Nathan Doe, John and
Jane Does I-X, Black and White Corporations I-X, ABC
Partnerships I-X, and ABC Organizations I-X. (Doc. 1-2).
Summonses were issued by the state court for Wal-Mart and
H8H, LLC. (Doc. 1-3) The record, however, contains only one
return of service-for Wal-Mart. Defendant Walmart
Transportation Services, LLC subsequently removed the case to
this Court. (Doc. 1). Although not named in the complaint,
Walmart Transportation asserts it is the true party in
interest and Ms. Neal incorrectly sued Wal-Mart, Inc.
notice of removal, Walmart Transportation avers it is
“a Delaware Limited Liability Company.” (Doc. 1).
Walmart Transportation also asserts that the amount in
controversy exceeds $75, 000 because Ms. Neal seeks punitive
damages and, as a result of the accident, allegedly suffers
from debilitating injuries, pain, mental anguish,
disfigurement, loss of enjoyment of life, lost income, and
other economic loss including past and future medical bills.
(Id.). In its filing, Walmart Transportation
identified Defendant Nathon “Doe” as Nathon
Charest, a resident of Texas, who also owned and operated
H8H, LLC at the time of the accident. (Id.). H8H,
LLC is alleged to be a Texas limited liability company.
reviewing the record, including the complaint and notice of
removal, the Court concludes that there are a number of
deficiencies the parties need to address. On Ms. Neal's
side, it is unclear what role the fictitious defendants
played and could have played in causing the accident, why
they could not be identified, and why they have not been
served. The complaint also does not appear to assert any
claim against any fictitious defendant. It is also evident
that the complaint, as written, names parties incorrectly or
incompletely and should be amended. The Court will give Ms.
Neal a chance to correct these deficiencies.
Walmart Transportation's side, the notice of removal does
not provide sufficient information for the Court to determine
whether diversity jurisdiction, in fact, exists. The
citizenship of a limited liability company is determined by
reference to its members. Unlike corporations, they are
treated as citizens of each and every state in which any
member is a citizen. Siloam Springs Hotel, L.L.C. v.
Century Sur. Co., 781 F.3d 1233, 1234 (10th Cir. 2015).
Walmart Transportation did not disclose the citizenship of
its members or those of H8H.
Walmart does not provide a factual predicate for the Court to
determine whether the amount in controversy satisfied.
See McPhail v. Deere & Co., 529 F.3d 947, 952
(10th Cir. 2008) (the party invoking federal jurisdiction has
the burden to establish both the diversity-of-citizenship and
amount-in-controversy requirements are satisfied). The Court
is cognizant of the fact that New Mexico courts do not
require, or even permit, complaints to state a sum certain,
other than confirming the amount sought exceeds $25, 000,
which makes establishing the federal jurisdictional threshold
all the more difficult. But here, Walmart simply recites the
category of damages Ms. Neal seeks. Although the types of
damages sought provide a starting point, broad categories do
not assist the Court in determining whether this matter was
appropriately removed. For example, Ms. Neal's complaint
alleged that after the accident, she “ran down”
the driver because he failed to stop. It is, therefore, not
clear that the value of damages are greater than $75, 000
where Ms. Neal had the physical ability after being struck to
chase and stop the alleged primary tortfeasor.
courts are of limited jurisdiction. As such, the Court must
strictly construe the removal statute and, as a general
matter, resolve all doubts against removal. See Fajen v.
Found. Reserve Ins. Co., Inc., 683 F.2d 331, 333 (10th
Cir. 1982). In light of the information the parties have
presented to the Court, the Court is unable to determine
whether exercising subject matter jurisdiction is
appropriate. Before contemplating remand, however, the Court
will give Walmart Transportation an opportunity to present a
factual predicate for its conclusion that the matter exceeds
the jurisdictional amount in controversy requirement as well
as provide information on the citizenship of the various
members of the limited liabilities involved.
IS, THEREFORE, ORDERED that Plaintiff show cause in
writing on or before August 15, 2018 why the
claims against the fictitious entities named by Plaintiff as
defendants, and the claims against the incorrectly identified
defendants, should not be dismissed. As an alternative to
responding to the Order to Show Cause, on or before
August 15, 2018, Plaintiff may file a motion
to amended her complaint to dismiss the fictitious
defendants, or to identify them and set forth a cause of
action against each named defendant, and to correctly
identify the defendants she has incorrectly identified.
IS FURTHER ORDERED that Defendant Walmart
Transportation show cause in writing on or before
August 15, 2018 why the matter should not be
remanded to the state court ...