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Roberts v. Harrison K-9 Security Services, LLC

United States District Court, D. New Mexico

August 15, 2018

JIM ROBERTS and TRACEY[1] ROBERTS,, Plaintiffs,
v.
HARRISON K-9 SECURITY SERVICES, LLC, a Nevada Limited Liability Company,

          MEMORANDUM OPINION AND ORDER OF REMAND

         This matter is before the Court on Plaintiff's Motion to Remand [Doc. 9], filed November 3, 2017. The Court has also reviewed Defendant's response and Plaintiff's reply. After reviewing the briefs, the law, and the evidence provided on jurisdiction, the Court concludes that the motion should be granted and the case remanded to the Second Judicial District Court, County of Bernalillo, New Mexico.

         FACTUAL AND PROCEDURAL BACKGROUND

         On December 2, 2016, Plaintiffs Jim and Tracey Roberts (“Plaintiffs”) filed their Complaint for Damages [Doc. 1-4] in the Second Judicial District Court, County of Bernalillo, State of New Mexico.

         According to the complaint, in early 2016, during a rash of crime in their neighborhood, Plaintiffs purchased a personal protection security dog from Defendant Harrison K-9 Security Services, LLC (“Harrison”). Harrison sells its trained canines for anywhere from $30, 000 to several hundred thousand dollars, representing that the cost reflects the fact that the dogs are expertly trained personal protection dogs that are not only great companions, but also gentle with children. Harrison represented to Plaintiffs over the course of several conversations that it could supply them with the best family watch dog available of superior quality and training. As a result, Plaintiffs purchased from Harrison a purebred male German Shepherd named Leo for the price of $50, 000. Plaintiffs paid Harrison an additional $7, 073.20 to deliver Leo to New Mexico and conduct on-site training at their home. On June 27, 2016, a Harrison K-9 trainer did deliver Leo to Plaintiffs' home in New Mexico and conduct a two-day training session to teach Plaintiffs the German commands and hand signals necessary to control the dog. At that time, Plaintiffs noticed that Leo had an odd gait and was limping, but when they pointed it out the trainer said that it was normal for a “true German Shepherd” from Germany. Unconvinced, on June 29, 2016, Plaintiff Tracy Roberts took Leo to a veterinarian for an exam and x-rays, which revealed chronic changes in Leo's left hip. The following day, Plaintiffs requested that Harrison provide them with Leo's prior x-rays for comparison purposes. Those x-rays, taken on June 5, 2015 in Germany appeared to show a healthy hip, but also appeared to have been from a different dog. Harrison continued to insist that Leo was healthy.

         Rather than admit that Leo had a medical defect that made him unsuitable for sale, Harrison offered to exchange Leo for another dog, Eyra, who also allegedly had a German and internationally certified pedigree. Eyra cost only $40, 000, but Harrison refused to refund Plaintiffs the $10, 000 difference. Instead, Harrison offered to send trainers to Plaintiffs' home in New Mexico for “touch up” training of Eyra to account for the difference in price. Plaintiffs agreed, and on July 13, 2016, two Harrison K-9 trainers delivered Eyra to Plaintiffs. They conducted the training and the next day produced a contact for Plaintiff Tracey Roberts to sign. The contract [Doc. 9-1 at 27 of 34] states: “In consideration for the return of [Leo] by buyer, Harrison K-9 agrees to exchange and buyers agrees to accept [Eyra], a security dog that has been trained for Personal Protection.” However, the contract did not address the additional $10, 000 worth of “touch up” training of Eyra, so Ms. Roberts objected and offered to write in the provision by hand. The Harrison trainers refused, stating that they would leave and take Eyra with them if she did not sign the pre-printed contract as it was. Feeling that she had no choice, Ms. Roberts signed the contract.

         Later that day, Ms. Roberts contacted Defendant's manager, Ms. Holley, to discuss the omission of the $10, 000 from the written contract. Ms. Holley stated that no changes could be made to Harrison's standard form of contract, but that Plaintiffs had Harrison's word that the additional trainings would be conducted so that they received the full value of the $50, 000 they had paid.

         On two occasions during the following month, Ms. Roberts gave Eyra the command to bark and guard in response to someone Ms. Roberts perceived as a threat. However, Eyra ignored her repeated commands. Later, when Plaintiffs' dog-breeder friend came to their house, Ms. Roberts gave the command to bark and guard, and again Eyra ignored the commands. However, when the friend held a bite pillow and a tug in her hands, Eyra followed the commands. Ms. Roberts called and left a message for Ms. Holley, who did not return the call. Further, Plaintiffs allege that at the time of delivery Eyra had a medical condition that Harrison did not disclose which affects her energy level, prevents her from providing protection, and which cannot be cured.

         On December 2, 2016, Plaintiffs filed their complaint in the Second Judicial District Court, County of Bernalillo, New Mexico. Doc. 1-4. They assert claims for revocation of acceptance, breach of contract, breach of express warranty, breach of implied warranty of merchantability, breach of warranty of fitness for a particular purpose, breach of the covenant of good faith and fair dealing, unjust enrichment, and negligent misrepresentation. They also seek a finding that the contract is void for unconscionability. With regard to damages, Plaintiffs' complaint states:

Plaintiffs are entitled to the return of all monies paid to Defendant as well as incidental and consequential damages incurred as a result of the Purchased Goods' nonconformities, including the costs associated with treating the undisclosed medical condition of the Purchased Goods, and all other damages allowable under law, all in amounts to be proven at trial, but in a total amount less than seventy-five thousand dollars, exclusive of interest and costs.

Doc. 1-4 at ¶ 69.[2]

         On October 6, 2017, Harrison removed the case to this federal district court. According to the Notice of Removal [Doc. 1], there was diversity between the parties and the amount in controversy exceeds $75, 000. As grounds for the latter, Harrison cited Plaintiffs' Rule 1-068 Offer of Judgment [Doc. 1-2], in which Plaintiffs asked to recover $72, 191.57 as well as to retain possession of the dog Eyra. Because Harrison values Eyra at $50, 000, Harrison construed the Offer of Judgment to be a demand for $132, 191.57. Doc. 1 at 2.

         On November 30, 2017, Plaintiffs filed their motion to remand on the grounds that the amount in controversy was not satisfied.

         LEGAL STANDARD

         Defendants may remove a civil action to federal court where the district court would have original jurisdiction over the case based upon diversity of citizenship. Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d 1072, 1076 (10th Cir. 1999) (quoting Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996)). Nonetheless, federal courts “are to ... narrowly [construe removal statutes] in light of our constitutional role as limited tribunals.” Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1095 (10th Cir. 2005) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941). The defendant seeking to remove an action to ...


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