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Hernandez v. Chevron U.S.A., Inc.

United States District Court, D. New Mexico

August 30, 2018

RAUL HERNANDEZ, Plaintiff,
v.
CHEVRON U.S.A., Inc.; AIRSWIFT HOLDINGS LIMITED and GRAND ISLE SHIPYARD, INC., Defendants.

          Joseph G. Isaac Scherr and Legate, PLLC El Paso, Texas Attorney for the Plaintiff Jennifer G. Anderson Megan Muirhead Elizabeth Ann Martinez Modrall Sperling Roehl Harris & Sisk, P.A. Albuquerque, New Mexico Attorneys for the Defendant Chevron U.S.A., Inc.

          Richard A. Bonner Joseph Austin Kemp Smith LLP El Paso, Texas --and-- Eric W. Kristiansen Cody T. Vasut Baker Hostetler, LLP Houston, Texas Attorneys for Defendant Airswift Holdings Limited

          David W. Bunting Rodey, Dickason, Sloan, Akin & Robb P.A. Albuquerque, New Mexico Attorney for Grand Isle Shipyard, Inc.

          MEMORANDUM OPINION AND ORDER [1]

         THIS MATTER comes before the Court on: (i) Defendant Airswift Holdings Limited's Motion to Dismiss for Lack of Personal Jurisdiction and Brief in Support, filed November 8, 2017 (Doc. 7)(“Motion”); (ii) the Plaintiffs' Motion to Stay Ruling Pending Jurisdictional Discovery on Defendant Airswift Holdings Limited's Motion to Dismiss for Lack of Personal Jurisdiction (Doc. 7), filed November 22, 2017 (Doc. 15)(“Motion to Stay”); (iii) Plaintiffs' Motion to Remand, filed November 30, 2017 (Doc. 17)(“Motion to Remand”); and (iv) Plaintiff's Opposed Motion for Leave to File First Amended Complaint to Add Swift Technical Services, L.L.C. as an Additional Party, and to Remand Pursuant to 28 U.S.C. § 1447(e), filed November 30, 2017 (Doc. 18)(“Motion to Amend”). The Court held a hearing on August 13, 2018. The primary issues are: (i) whether Defendant Airswift Holdings Limited has minimum contacts with New Mexico; (ii) whether Hernandez is diverse from Defendants Chevron U.S.A., Inc. and Grand Isle Shipyard, Inc.; and (iii) whether the Court should allow Hernandez to amend Plaintiff's Original Complaint for Personal Injuries, (First Judicial District Court, County of Santa Fe, State of New Mexico), filed September 6, 2017, filed in federal court on November 1, 2017 (Doc. 1-6)(“Complaint”) to add Swift Technical Services, L.L.C. as a defendant, which would destroy complete diversity if it previously existed. The Court concludes that (i) Airswift Holdings lacks minimum contacts with New Mexico; (ii) all plaintiffs were diverse from all defendants at the time of removal; and (iii) Hernandez may amend his complaint to add Swift Technical. Accordingly, the Court grants the Motion, denies the Motion to Stay, denies the Motion to Remand, and grants the Motion to Amend. Because the Court has permitted joinder of a non-diverse Defendant, the Court's jurisdiction has been destroyed, so it will remand the case to the First Judicial District Court, County of Santa Fe, State of New Mexico. See 28 U.S.C. § 1447(e).

         FACTUAL BACKGROUND

         The Court takes its facts from the Complaint. The Court provides these facts for background. It does not adopt them as the truth, and it recognizes that the facts are largely Hernandez' version of events.

         Hernandez is a contract laborer working under Chevron U.S.A. and its agent's -- Airswift Holdings -- employ. See Complaint ¶ 7, at 2. On December 3, 2015, Hernandez was working on a Chevron, U.S.A. plant located near Lovington, New Mexico. See Complaint ¶¶ 6-7, at 2. On that day, Chevron U.S.A. and Airswift Holdings ordered Hernandez to clean an unlit, “completely dark” tank vessel that was filled with “sludge” and “unsafe levels of chemical and toxic vapors.” Complaint ¶¶ 7, 9, at 2-3. As a result of the tank vessel's conditions, Hernandez slipped and fell, sustaining “serious bodily injuries.” Complaint ¶ 21, at 4.

         PROCEDURAL BACKGROUND

         Hernandez sues Chevron U.S.A. and Airswift Holdings for negligence, asserting that they breached their duty of care in at least twenty-five different ways, including: (i) failing to provide proper safety equipment; (ii) failing to install adequate lighting inside the tank; (iii) failing to warn Hernandez of dangers; (iv) failing to establish and enforce safety rules and regulations; (v) failing to inspect; and (vi) failing to adequately train, educate, or provide instructions to its employees. See Complaint ¶ 30, at 5-6. Hernandez also sues Grand Isle, should it be determined that Hernandez was an employee of Grand Isle, for Willful Conduct and Gross Negligence, asserting that the risk of danger to Hernandez “was extremely great, ” because of the “confined work space[]” in which he worked. Complaint ¶ 40, at 9. See id. ¶ 41, at 9. Hernandez requests compensatory and punitive damages, fees, recoverable court costs, and pre- and post-judgment interest. See Complaint ¶ 46, at 11.

         Airswift Holdings removes the case on the basis of diversity jurisdiction. See Notice of Removal ¶ 8, at 3, filed November 1, 2017 (Doc. 1)(“Notice of Removal”).[2] Airswift Holdings contends that there is diversity jurisdiction, because: (i) citizenship is diverse -- Hernandez is a Texas citizen, whereas Airswift Holdings, Chevron U.S.A., and Grand Isle are, respectively, United Kingdom, Pennsylvania, and Louisiana citizens; and (ii) the compensatory and punitive damages, and fees requested exceed $75, 000.00. See Notice of Removal ¶¶ 8-14, at 3-4. Chevron U.S.A. and Grand Isle consent to removal. See Notice of Consent to Notice of Removal at 1, filed November 1, 2017 (Doc. 2); Defendant Grand Isle Shipyard, Inc.'s Consent to Removal to Federal Court at 1, filed November 1, 2017 (Doc. 3).

         1. The Motion.

         Airswift Holdings moves to dismiss for lack of personal jurisdiction. See Motion at 1. Airswift Holdings argues that there is no general personal jurisdiction, because “Airswift is not incorporated in New Mexico, does not do business in New Mexico, does not own property in New Mexico, does not pay taxes in New Mexico, and does not have a bank account in New Mexico.” Motion at 4-5. Airswift Holdings argues that it is not subject to specific personal jurisdiction, because it lacks minimum contacts with New Mexico. See Motion at 5. According to Airswift Holdings, “the only basis for specific jurisdiction articulated by Plaintiff is that, on information and belief, Airswift provided services or materials at Chevron's Buckeye CO2 Plant near Lovington, New Mexico.” Motion at 5. Airswift Holdings contends that such an allegation is “not supported by any facts.” Motion at 5. Specifically, it argues that specific personal jurisdiction is lacking, because Airswift Holdings: (i) does not employ Hernandez; (ii) does not provide any services or materials to Chevron's Buckeye CO2 plant; and (iii) has no contractual relationship with Chevron U.S.A. or Grand Isle. See Motion at 5 (citing Declaration of Peter Searle ¶¶ 4-5, at 1-2 (executed November 7, 2017), filed November 8, 2017 (Doc. 7-1)(“Searle Decl.”)). Finally, Airswift Holdings argues that none of its employees were working at that plant in 2015 or 2016. See Motion at 5 (citing Searle Decl. ¶ 6, at 2). Accordingly, Airswift Holdings requests that Court dismiss Hernandez' claims against it for lack of personal jurisdiction. See Motion at 6.

         2. Motion to Stay.

         Hernandez moves the Court to stay its ruling on the Motion pending jurisdictional discovery. See Motion to Stay at 1. He argues that the stay is appropriate so that Hernandez can uncover Airswift Holdings' relationship with its related entity, Swift Technical, a Texas L.L.C., which, according to Hernandez, had employees or agents at the Lovington plant who were involved in negligent conduct that gives rise to Hernandez' injuries. See Motion to Stay at 1, 5 (citing Notice of Denial of Compensability/Liability and Refusal to Pay Benefits at 1 (dated November 8, 2017), filed November 22, 2017 (Doc. 15)(“Denial Notice”)). Hernandez asserts that a stay to conduct jurisdictional discovery is appropriate “when the existing record is inadequate, ” but a “plaintiff's jurisdictional allegations may be supported through discovery.” Motion to Stay at 5 (citing Trintec Indus. v. Pedre Promotional Prods., 395 F.3d 1275, 1283 (Fed. Cir. 2005)). Hernandez asserts that discovery will show that Airswift Holdings is a “multi-billion dollar corporation” that has injected its products into New Mexico. Motion to Stay at 8. According to Hernandez, such a showing will demonstrate that personal jurisdiction is proper. See Motion to Stay at 8.

         3. Motion to Remand.

         Hernandez moves to remand to state court for lack of subject-matter jurisdiction. See Motion to Remand at 1. He contends that Airswift Holdings does not carry its removal burden, because it does not present any evidence to contest the Complaint's allegations that Grand Isle's principal place of business is in Odessa, Texas, and that Airswift Holdings' principal place of business is Houston, Texas. See Motion to Remand at 7 (“It simply alleges, without any evidence, that Plaintiff is mistaken.”). Hernandez concludes that, because Airswift Holdings did not present sufficient evidence to rebut the Complaint's allegations, remand to state court is required. See Motion to Remand at 8.

         Hernandez also argues that removal is untimely. See Motion to Remand at 9. He argues that, because removal was more than thirty days after Chevron U.S.A. and Grand Isle received the Complaint, the Court should remand the case. See Motion to Remand at 9. Hernandez argues that the evidence does not support Airswift Holdings' argument to the contrary, that Airswift Holdings did not receive the Complaint until October 2, 2017, as the state court record shows that the Complaint was served on Airswift Holdings on September 11, 2017. See Motion to Remand at 9-10. Accordingly, Hernandez asks the Court to remand the case. See Motion to Remand at 11.

         4. Motion to Amend.

         Hernandez moves to amend the Complaint to add Swift Technical Services, L.L.C. as a defendant. See Motion to Amend at 1. He argues that, should the Court grant the amendment, remand to state court would be proper, because Swift Technical is a Texas citizen, thus destroying complete diversity. See Motion to Amend at 4-5. Hernandez asserts that Swift Technical's joinder “is necessary to resolve the underlying issues of liability in this suit, ” and that, should the Court deny joinder, Hernandez would have to sue Swift Technical separately in state court, wasting judicial resources. See Motion to Amend at 5-6 (“This would then create parallel proceedings and a race to judgment and res judicata between the Plaintiff's present suit against Defendants . . . and the Plaintiff's state court suit against Swift Technical.”). Hernandez asserts that allowing an amendment is proper, because he may have “inadvertently” brought his claim against Airswift Holdings, “a related entity, ” rather than Swift Technical, the actual entity “whose negligent conduct proximately caused Plaintiff's injuries and damages.” Motion to Amend at 6-7. Thus, he asks the Court to allow an amendment adding Swift Technical as a defendant. See Motion to Amend at 7.

         5. Response to Motion to Stay.

         Airswift Holdings responds to the Motion to Stay. See Defendant Airswift Holdings Limited's Response to Plaintiff's Motion to Stay Ruling Pending Jurisdictional Discovery on Airswift's Motion to Dismiss for Lack of Personal Jurisdiction at 1, filed December 6, 2017 (Doc. 20)(“Motion to Stay Response”). Airswift Holdings argues that the Court should deny the Motion to Stay, because Hernandez has not made “a colorable or prima facie showing of personal jurisdiction.” Motion to Stay Response at 3 (citing Cent. States Se. & Sw. Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 946 (7th Cir. 2000)). Airswift Holdings contends that a proper way for Hernandez to meet that prima facie showing is to present evidence, “such as affidavits, ” but Hernandez has made no such showing. Motion to Stay Response at 3-4 (“[T]he Court may not take the plaintiff's allegations in the complaint as true if the defendant's proffered evidence to controvert them.”). According to Airswift Holdings, the only evidence that Hernandez has presented -- the Denial Notice -- is inadmissible hearsay and is not authenticated. See Motion to Stay Response at 4 n.1. It adds that, even if the Court can properly consider the Denial Notice, it lacks “any information that would establish that Airswift had . . . minimum contacts with the state of New Mexico.” Motion to Stay Response at 4.

         Airswift Holdings also argues that the Court should deny the Motion to Stay, because jurisdictional discovery will not establish personal jurisdiction. See Motion to Stay Response at 5-6. According to Hernandez, jurisdictional discovery will demonstrate that Airswift Holdings is connected to Swift Technical, but Airswift Holdings argues that, even if Swift Technical is a subsidiary or affiliate of Airswift Holdings, that connection will not establish personal jurisdiction over Airswift Holdings. See Motion to Stay Response at 6. Finally, Airswift Holdings contends that the Court should deny jurisdictional discovery, because Hernandez' request is just a fishing expedition, as Hernandez' complete lack of discovery requests demonstrate. See Motion to Stay Response at 6-7.

         6. Chevron U.S.A.'s Response to the Motion.

         Chevron U.S.A. responds to the Motion. See Defendant Chevron U.S.A. Inc.'s Response to Answer to Defendant Airswift Holdings Limited's Motion to Dismiss for Lack of Personal Jurisdiction at 1, filed December 11, 2017 (Doc. 21)(“Chevron U.S.A. Response.”). Chevron U.S.A. responds that it does not oppose the Motion, unless Airswift Holding's dismissal would “negatively impact Airswift's contractual and common law indemnification obligations to Chevron.” Chevron U.S.A. Response at 1. Chevron U.S.A. concludes that, if the Court “determines that Airswift's dismissal would somehow prejudice Chevron's indemnification rights, then Chevron opposes Airswift's Motion to Dismiss for Lack of Personal Jurisdiction.” Chevron U.S.A. Response at 1.

         7. Grand Isle's Response to Motion to Remand.

         Grand Isle responds to the Motion to Remand. See Defendant Grand Isle Shipyard, Inc.'s Response in Opposition to Plaintiff's Motion to Remand and for Leave to File Amended Complaint at 1, filed December 14, 2017 (Doc. 22)(“Grand Isle's Response to Motion to Remand”). It argues that the Court should deny the Motion to Remand, because Airswift Holdings timely filed its Notice of Removal, there is complete diversity, and there is no dispute that the claim exceeds $75, 000.00. See Grand Isle's Response to Motion to Remand at 1-2.

         8. Airswift Holdings' Response to Motion to Remand.

         Airswift Holding responds to the Motion to Remand. See Defendant Airswift Holdings Limited's Response to Plaintiff's Motion to Remand at 1, filed December 14, 2017 (Doc. 23)(“Airswift Holdings' Response to Motion to Remand”). Airswift Holdings argues that, contrary to Hernandez' assertions, its Notice of Removal is proper, because it timely filed the Notice of Removal, and because Airswift Holdings is not required to attach evidence to the Notice of Removal. See Airswift Holdings' Response to Motion to Remand at 3-5 (citing McPhail v. Deere & Co., 529 F.3d 947, 953 (10th Cir. 2008); Thompson v. Intel Corp., 2012 WL 380748, at *2, 13-14 (D.N.M. Aug. 27, 2012)(Browning, J.)). It argues that the evidence shows that Airswift Holdings did not receive the Complaint until October 2, 2017, so their November 1, 2017, Notice of Removal filing is timely. See Airswift Holdings' Response to Motion to Remand at 5 (citing Declaration of Jill Green ¶ 2, at 1 (executed December 12, 2017), filed December 14, 2017 (Doc. 23-1)(“Green Decl.”)). It argues that, contrary to Hernandez' position, the thirty-day removal period does not start when the New Mexico Secretary of State receives a copy of the summons, but instead starts on the date when the Secretary of State mails a copy of the summons to the defendant. See Airswift Holdings' Response to Motion to Remand at 5. Airswift Holding adds that, under 28 U.S.C. § 1446(b)(3), its removal deadline was sometime in mid-November, 2017, because the Complaint alleges that Grand Isle's principal place of business is Texas, so Airswift Holding was unable to determine that the Complaint was removable until October 17, 2017, when it received an email from Grand Isle that its principal place of business is, in fact, in Louisiana. See Airswift Holdings' Response to Motion to Remand at 6. Finally, Airswift Holdings argues that the evidence it presents demonstrates complete diversity. See Airswift Holdings' Response to Motion to Remand at 7-8 (citing Searle Decl. ¶¶ 2-3, at 1; Declaration of Eric Callais ¶¶ 2-3, at 1 (executed December 12, 2017), filed December 14, 2017 (Doc. 23-4)(“Callais Decl.”).

         9. Airswift Holdings' Response to Motion to Amend.

         Airswift Holdings responds to the Motion to Amend. See Defendant Airswift Holdings Limited's Response to Plaintiff's Opposed Motion for Leave to File First Amended Complaint at 1, filed December 14, 2017 (Doc. 24)(“Airswift Holdings' Response to Motion to Amend”). Airswift Holdings argues that the Court should deny the Motion to Amend, “because it is filed solely for the purpose of destroying diversity jurisdiction.” Airswift Holdings' Response to Motion to Amend at 2. According to Airswift Holdings, Hernandez' motive is apparent, because he “was aware of” Swift Technical “at all times relevant, ” but chose to amend his Complaint only now that Airswift Holdings has established that diversity citizenship exists between all of the other parties. Airswift Holdings' Response to Motion to Amend at 2. Airswift Holdings also argues that Swift Technical is not a necessary party, so joinder is not required under rule 19 of the Federal Rules of Civil Procedure. See Airswift Holdings' Response to Motion to Amend at 4. According to Airswift Holdings, Swift Technical is not a necessary party, because Hernandez could obtain complete relief from the other Defendants in this case. See Airswift Holdings' Response to Motion to Amend at 4. See id. at 5 (“[J]oint-tortfeasors and indemnitors/contributors are not necessary/required parties.”). Airswift Holdings contends, moreover, that Swift Technical is not a necessary party, because Swift Technical would not be subject to inconsistent obligations if it is not made a party, i.e., Swift Technical would not be subject to conflicting state and federal court orders. See Airswift Holdings' Response to Motion to Amend at 5.

         Airswift Holdings contends that, because Swift Technical is not a necessary party, the Court has discretion to deny joinder. See Airswift Holdings' Response to Motion to Amend at 6-7. It asserts that Hernandez' failure to join Swift Technical when he knew about Swift Technical's involvement before removal outweighs any prejudice that Hernandez would suffer from the Court denying joinder. See Airswift Holdings' Response to Motion to Amend at 7 (citing State Distributors, Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 416 (10th Cir. 1984)). Accordingly, Airswift Holdings requests that the Court deny joinder. See Airswift Holdings' Response to Motion to Amend at 8.

         10. Chevron U.S.A.'s Response to Motion to Remand and to Motion to Amend.

         Chevron U.S.A. responds to the Motion to Remand and to the Motion to Amend. See Defendant Chevron U.S.A. Inc.'s Response in Opposition to Plaintiff's Motion for Remand at 1, filed December 14, 2017 (Doc. 25)(“Chevron U.S.A. Response to Motion to Remand”); Defendant Chevron U.S.A. Inc.'s Response in Opposition to Plaintiff's Motion for Leave to Amend at 1, filed December 14, 2017 (Doc. 26)(“Chevron U.S.A. Response to Motion to Amend”). Chevron U.S.A. joins and adopts the arguments that Airswift Holdings asserts in Airswift Holdings' Response to Motion to Remand and in Airswift Holdings' Response to Motion to Amend. See Chevron U.S.A. Response to Motion to Remand at 1-2; Chevron U.S.A. Response to Motion to Amend at 1.

         11. The Reply.

         Hernandez replies to: (i) Airswift Holdings' Response to Motion to Remand; (ii) Airswift Holdings' Response to Motion to Amend; (iii) Chevron U.S.A. Response to Motion to Remand; and (iv) Chevron U.S.A. Response to Motion to Amend. See Plaintiffs' Reply in Support of Plaintiff's Motion for Leave to File First Amended Complaint to add Swift Technical Services, L.L.C. as an Additional Party, and to Remand Pursuant to 28 U.S.C. § 1447(e) (Doc. 18) and Plaintiff's Motion to Remand at 1, filed December 28, 2017 (Doc. 27)(“Reply”). Hernandez argues that, although the Court has discretion to choose whether to resolve the personal jurisdiction issue before the subject-matter jurisdiction issue, the Court should resolve the subject-matter jurisdiction issue first, because they “are straight-forward, do not require additional discovery, ” and implicate the “entire case.” Reply at 1-2. Hernandez contends that joinder is proper and that, contrary to Airswift Holdings' contentions, Hernandez was unaware that Swift Technical could be implicated in this case before Airswift Holdings filed the Notice of Removal. See Reply at 4-5. Hernandez argues that Swift Technical is a necessary party under rule 19, because, without Swift Technical as a party, “the Court cannot grant complete relief, ” as Swift Technical “is a separate entity whose negligence will be determined independently from the negligence” of the remaining Defendants. Reply at 7. Hernandez adds that Swift Technical is also a necessary party, because Chevron U.S.A. and Grand Isle will not “adequately represent its interests, ” and because Swift Technical will be subject to “non-party subpoenas, ” thus subjecting it to “potentially double, multiple, or otherwise inconsistent obligations.” Reply at 8-9.

         Hernandez also contends that joinder is proper under rule 20 of the Federal Rules of Civil Procedure. See Reply at 9-11. He argues that the equities favor joinder, because, otherwise, Hernandez would be forced to pursue a parallel state proceeding, triggering “the attendant host of problems and waste of judicial resources such parallel proceedings inevitably will present.” Reply at 10-11. He argues other equities favor joinder, specifically that Airswift Holdings is the “only defendant that requested removal, ” but is also the only Defendant who filed a motion to dismiss for lack of personal jurisdiction. Reply at 11.

         Hernandez asserts that Airswift Holdings has not demonstrated by a preponderance of the evidence that all Defendants are diverse from all Plaintiffs, because Grand Isle represented to the New Mexico Secretary of state that its “Principal Office Outside of New Mexico” is located in Odessa, Texas. Reply at 12 (citing Corporations and Business Services, New Mexico Secretary of State Search Information at 1, filed December 28, 2017 (Doc. 27-2)(“SOS Search”)). Hernandez concedes, however, that Airswift Holdings' Notice of Removal was timely, because “the state court record affirmatively indicates that” the New Mexico Secretary of State served Airswift Holdings on October 2, 2017. Reply at 12 n.1. Accordingly, Hernandez withdraws its timeliness arguments. See Reply at 12 n.1.

         12. The Hearing.

         The Court held a hearing. See Draft Transcript of Motion Proceedings at 1:23 (Court)(dated August 13, 2018)(“Tr.”).[3] Airswift Holdings argued that it had no minimum contacts with New Mexico, “as it does no business with New Mexico.” Tr. at 9:1-4 (Austin). See id. at 9:5 (Austin)(“Airswift is a UK corporation.”); id. at 10:11-12 (Austin)(“Airswift did not provide any services or materials to Chevron's Buckeye plant.”). Accordingly, it requested that the Court dismiss it for lack of personal jurisdiction. See Tr. at 10:16-21 (Austin).

         Hernandez argued that a stay for jurisdictional discovery is proper, because Airswift Holdings and Swift Technical are related entities. See Tr. at 17:16-17 (Isaac). He contended that there is evidence of Airswift Holdings having contracts with Chevron U.S.A., which “tells us there may be contracts out there” touching New Mexico, which “may be impacted if the Court dismisses Airswift.” Tr. at 18:14-19:12 (Isaac). He, accordingly, asked that the Court grant the stay so that he may conduct jurisdictional discovery. See Tr. at 19:17-19 (Isaac).

         Chevron U.S.A. responded that it does have a contract with “Swift Technical Group, Limited, ” but does not have a “contract specifically with Airswift.” Tr. at 21:17-21 (Anderson). See id. at 22:20-23 (Anderson). It added that it had no reason to think that Airswift Holdings had any contacts or business in New Mexico. See Tr. at 23:1-7 (Anderson, Court).

         Hernandez then argued that, under 28 U.S.C. § 1447(e), the Court should allow him to join Swift Technical as a party. See Tr. at 30:18-19 (Isaac). He contended that, the four equitable factors under that statute favor joinder. See Tr. at 31:2-9 (Isaac). Hernandez argued that, most importantly, he was diligent in requesting the amendment -- asking the Court “roughly two weeks” after he learned Swift Technical is a viable Defendant. See Tr. at 32:15-19 (Isaac). He also argued that he would be prejudiced without joinder, because it would force parallel proceedings. See Tr. at 33:13-14 (Isaac). Accordingly, he requested the Court allow them to join Swift Technical, which would require the Court to remand the case for lack of jurisdiction. See Tr. at 36:22-25 (Isaac).

         Airswift Holdings countered that the Hernandez' primary purpose in filing the Motion to Amend was to destroy diversity. See Tr. at 37:7-8 (Austin). It contended that Hernandez' nineteen-day delay in filing the Motion to Amend after learning of Swift Technical's viability demonstrates Hernandez' gamesmanship. See Tr. at 37:10-20 (Austin). Airswift Holdings also argued that any prejudice from parallel proceedings would be slight. See Tr. at 37:20-38:2 (Austin). Hernandez argued that a nineteen-day gap between learning of a viable defendant and filing a motion to amend “is not a lack of diligence under any scenario, ” especially given that it occurred at the case's inception. See Tr. at 41:2-12 (Isaac). He averred that, on balance, the Section 1447(e) factors favor joinder. See Tr. at 42:3-7 (Isaac).

         The parties briefly argued over Grand Isle's citizenship. See Tr. at 40:10-41:1 (Isaac); id. at 43:20-45:19 (Bunting, Court, Isaac). Hernandez asserted that the New Mexico Secretary of State website lists Grand Isle's principal office outside of New Mexico as Odessa, Texas. See Tr. at 40:14-17 (Isaac). Grand Isle countered that its principal place of business has always been in Louisiana, and that the New Mexico Secretary of State's representation must have resulted from a mistake. See Tr. at 45:1-13 (Bunting). The Court concluded by singling its inclination to dismiss Airswift Holdings and to allow Hernandez to add Swift Technical. See Tr. at 43:2-17 (Court). Airswift Holdings and Chevron U.S.A. agreed that, if the Court allowed Swift Technical's joinder, the Court would be required to remand the case. See Tr. at 45:25-46:12 (Anderson, Austin, Court). Hernandez subsequently filed Plaintiff's First Amended Complaint for Personal Injuries, filed August 13, 2018 (Doc. 42)(“Amended Complaint”), adding Swift Technical as a Defendant. See Amended Complaint ¶ 5, at 2.

         LAW REGARDING PERSONAL JURISDICTION

         When contested, [4] the party asserting the claim has the burden of proving personal jurisdiction. See Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). To assert personal jurisdiction over a nonresident defendant, federal courts must satisfy state law and federal due process. See Doering v. Copper Mountain, Inc., 259 F.3d 1201, 1209-10 (10th Cir. 2001). Under due process, the Court's jurisdiction exists if the defendants have “minimum contacts” with the forum state, which may rest on specific or general personal jurisdiction, and the exercise of personal jurisdiction must comport with “traditional notions of fair play and substantial justice.” Dudnikov v. Chalk & Vermilion Fine Arts Inc., 514 F.3d 1063, 1070 (10th Cir. 2008)(quotation marks omitted). See Bristol-Myers, Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S.Ct. 1773, 1779-80 (2017)(“Bristol-Myers”); Daimler AG v. Bauman, 571 U.S. 117, 126 (2014).

         1. Burden of Proof.

         As already noted, the plaintiff bears the burden of proving personal jurisdiction. See Wenz v. Memery Crystal, 55 F.3d at 1505. When jurisdiction is “decided on the basis of affidavits and other written materials, the plaintiff need only make a prima facie showing” of facts that would support the assertion of jurisdiction. Wenz v. Memery Crystal, 55 F.3d at 1505. “The allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant's affidavit.” Behagen v. Amateur Basketball Ass'n, 744 F.2d 731, 733 (10th Cir. 1984). When, however, a defendant presents credible evidence through affidavits or other materials suggesting the absence of personal jurisdiction, the plaintiff must come forward with sufficient evidence to create a genuine dispute of material fact on the issue. See Doe v. Nat'l Med. Servs., 974 F.2d 143, 145 (10th Cir. 1992). Only if the plaintiff meets the obligation of contesting the credible evidence that the defendant presents does the court resolve the factual disputes in the plaintiff's favor. See Wenz v. Memery Crystal, 55 F.3d at 1505; Behagen v. Amateur Basketball Ass'n, 744 F.2d at 733; Clark v. Meijer, Inc., 376 F.Supp.2d 1077, 1082 (D.N.M.2004)(Browning, J.).

         2. Due Process and Personal Jurisdiction.

         The personal-jurisdiction due process analysis is two-fold. See Fabara v. GoFit, LLC, 308 F.R.D. 380, 400 (D.N.M. 2015)(Browning, J.). First, the defendant must have “minimum contacts” with the forum state such that it “should reasonably anticipate being haled into court there.” Burger King Corp. v. Rudzewicz, 471 U.S. at 473-76. Second, exercising personal jurisdiction over the defendant must comport with “traditional notions of fair play and substantial justice.” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1070 (quotation marks omitted). A defendant may have “minimum contacts” with the forum state in one of two ways, providing a court with either general or specific personal jurisdiction. Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1532-33 (10th Cir. 1996)(citations omitted).

General jurisdiction is based on an out-of-state defendant's “continuous and systematic” contacts with the forum state, and does not require that the claim be related to those contacts. Specific jurisdiction, on the other hand, is premised on something of a quid pro quo: in exchange for “benefitting” from some purposive conduct directed at the forum state, a party is deemed to consent to the exercise of jurisdiction for claims related to those contacts.

Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1078. Thus, “[s]uch contacts may give rise to personal jurisdiction over a non-resident defendant either generally, for any lawsuit, or specifically, solely for lawsuits arising out of particular forum-related activities.” Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir. 2011).

         For a court to exercise specific jurisdiction “‘the suit' must ‘aris[e] out of or relat[e] to the defendant's contacts with the forum.'” Bristol-Myers, 137 S.Ct. at 1780 (quoting Daimler AG v. Bauman, 571 U.S. at 127)(alterations and emphasis in Bristol-Myers). See Bristol-Myers, 137 S.Ct. at 1781 (“[T]here must be an ‘affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State.”)(quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)(“Goodyear”)); Burger King Corp. v. Rudzewicz, 471 U.S. at 472 (ruling that a court may assert specific jurisdiction “if the defendant has purposefully directed his activities at residents of the forum, and the litigation results from alleged injuries that arise out of or relate to those activities.”)(citations and quotation marks omitted). The United States Court of Appeals for the Tenth Circuit has characterized this inquiry as a two-part test: “[F]irst . . . the out-of-state defendant must have ‘purposefully directed' its activities at residents in the forum state, and second, . . . the plaintiff's injuries must ‘arise out of' defendant's forum-related activities.” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1071. The Supreme Court of the United States of America has recently emphasized that, “[f]or specific jurisdiction, a defendant's general connections with the forum are not enough.” Bristol-Myers, 137 S.Ct. at 1781. In the tort context, a defendant has “purposefully directed” his activities at New Mexico or its residents when he or she has: (i) taken intentional action; (ii) the action was “expressly aimed” at New Mexico; and (iii) the action was taken with the knowledge that “the brunt of th[e] injury” would be felt in New Mexico. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1072 (quoting Calder v. Jones, 465 U.S. 783, 789-90 (1984)).

         Although agreements alone are likely to be insufficient to establish minimum contacts, “‘parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other state for the consequences of their activities.'” TH Agric. & Nutrition, LLC v. Ace Eur. Grp. Ltd., 488 F.3d 1282, 1287-88 (10th Cir. 2007)(quoting Burger King Corp. v. Rudzewicz, 471 U.S. at 473, 478). The mere foreseeability of harm occurring in a particular forum will not support a finding of minimum contacts. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S.at 295 (holding that, although “an automobile is mobile by its very design and purpose, ” thus indicating that it is foreseeable that a particular automobile may cause injury in a forum state, “‘foreseeability' alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause”). “[T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 297. As the Tenth Circuit has further explained, because “mere foreseeability” is not sufficient to establish minimum contacts, a plaintiff “must establish . . . not only that defendants foresaw (or knew) that the effects of their conduct would be felt in the forum state, but also that defendants undertook intentional actions that were expressly aimed at that forum state.” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1077.

         General personal jurisdiction jurisprudence has “followed [a] markedly different trajector[y]” than specific personal jurisdiction. Daimler AG v. Bauman, 571 U.S. at 132. The test for general personal jurisdiction turns on whether the defendant is “at home” within the forum state. Daimler AG v. Bauman, 571 U.S. at 137. For individuals, “the paradigm forum for the exercise of general jurisdiction is the individual's domicile.” Daimler AG v. Bauman, 571 U.S. 137 (quoting Goodyear, 564 U.S. at 924). For corporations, “the place of incorporation and principal place of business are ‘paradig[m] . . . bases for general jurisdiction.” Daimler AG v. Bauman, 571 U.S. at 137 (quoting Goodyear, 564 U.S. at 924). In Daimler AG v. Bauman, the Supreme Court rejected an argument that “continuous or systematic” contacts within a forum state were, in and of themselves, sufficient to subject a corporation to general personal jurisdiction. Daimler AG v. Bauman, 571 U.S. at 137-38. In so doing, the Supreme Court reemphasized that a corporation is most often exposed to general personal jurisdiction only if that entity is incorporated in the forum state or if the forum state hosts the entity's principal place of business. See Daimler AG v. Bauman, 571 U.S. at 138-39.

         Once minimum contacts have been established, a court turns to traditional notions of fair play and substantial justice.

If [the defendant] is found to have the requisite minimum contacts with [the forum state], then we proceed to the second step in the due process analysis: ensuring that the exercise of jurisdiction over him does not offend “traditional notions of fair play and substantial justice.” See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)(quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). [The defendant] bears the burden at this stage to “present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” See Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1080 (10th Cir. 2008). We consider the following five factors, . . . in deciding whether the exercise of jurisdiction would be fair:
(1) the burden on the defendant, (2) the forum state's interests in resolving the dispute, (3) the plaintiff's interest in receiving convenient and effectual relief, (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states or foreign nations in furthering fundamental social policies.
Id. (brackets omitted); see also OMI Holdings, Inc., 149 F.3d at 1095 (applying these factors in a case involving a Canadian corporation). “[T]he reasonableness prong of the due process inquiry evokes a sliding scale: the weaker the plaintiff's showing on minimum contacts, the less a defendant need show in terms of unreasonableness to defeat jurisdiction.” TH Agric. & Nutrition, LLC, 488 F.3d at 1292 (internal quotation marks and brackets omitted).

Marcus Food Co. v. DiPanfilo, 671 F.3d 1159, 1167 (10th Cir. 2011). The Supreme Court has recently emphasized that, among the factors, the primary concern “is ‘the burden on the defendant.'” Bristol-Myers, 137 S.Ct. at 1780 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)). “Assessing this burden obviously requires a court to consider the practical problems resulting from litigating in the forum, but it also encompasses the more abstract matter of submitting to the coercive power of a State that may have little legitimate interest in the claims in question.” Bristol-Myers, 137 S.Ct. at 1780.

Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment.

Bristol-Myers, 137 S.Ct. at 1780-81 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 294).

         In Silver v. Brown, 678 F.Supp.2d 1187 (D.N.M. 2009)(Browning, J.), aff'd in part and rev'd in part, 382 Fed.Appx. 723 (10th Cir. 2010), the Court considered whether it had personal jurisdiction over defendants who allegedly slandered, defamed, and caused the plaintiff -- Michael Silver -- distress, by posting a blog on the internet that portrayed him in a negative light. See 678 F.Supp.2d at 1204. The Court determined that it did not have personal jurisdiction over defendant Jack McMullen, because Silver failed to demonstrate that McMullen “was significantly associated with the blog or controlled it in any way.” 678 F.Supp.2d at 1212.

         The Court also concluded that it did not have personal jurisdiction over the blog post's author -- Matthew Brown -- because he was not domiciled in New Mexico, had not traveled to New Mexico, and did not transact business there. See 678 F.Supp.2d at 1211. The Court said that Brown's blog posts similarly did not establish personal jurisdiction, because

the blog is closer to an informative website than a commercial website. No. services are offered, and Brown is not collecting revenue from the website. Brown does not interact with the people who post information on the blog. Brown, to the Court's knowledge, did not solicit negative postings on the website. Further, even though people in New Mexico can view the website, the blog is not a website that is directed solely at the people of New Mexico. The number of people who can access the website in New Mexico in comparison to those who are able to access the website throughout the world, or even in the United States, according to the statistics that Silver provided at the hearing, is nominal.

678 F.Supp.2d at 1211-12.

         On appeal, the Tenth Circuit affirmed the Court's holding as to McMullen, but reversed its decision as to Brown. See 382 Fed.Appx. at 727-32. In an opinion that the Honorable Monrow G. McKay, United States Circuit Judge for the Tenth Circuit, authored, and Judges Broby and Ebel joined, the Tenth Circuit applied the three-part test from Calder v. Jones to conclude that the Court had personal jurisdiction over Brown. See 382 Fed.Appx. at 727-32. Judge McKay first explained that the posting of the blog was “clearly an intentional act” designed to damage the plaintiff's reputation. 382 Fed.Appx. at 729. Second, Judge McKay said that Brown had “expressly aimed his blog at New Mexico, ” where Silver, his business, and the majority of his customers were located. 382 Fed.Appx. at 729. Judge McKay noted: “It was about a New Mexico resident and a New Mexico company. The blog complained of Mr. Silver's and [his business'] actions in the failed business deal. Those actions occurred mainly in New Mexico.” 382 Fed.Appx. at 729-30. Third, Judge McKay explained that Brown knew Silver would suffer the brunt of his injury in New Mexico, as the state was “unquestionably the center of his business activities.” 382 Fed.Appx. at 730.

         In several other recent cases, the Court addressed whether it could assert general or specific jurisdiction over non-individual entities. In Fabara v. GoFit, LLC, 308 F.R.D. 380 (D.N.M.2015)(Browning, J.), a plaintiff -- injured by an allegedly defective exercise ball in New Mexico -- brought suit against the manufacturer, which was incorporated and headquartered in Oklahoma. See 308 F.R.D. at 408. The manufacturer moved to dismiss the complaint, under rule 12(b)(2), arguing that the Court lacked general jurisdiction, because its contacts with New Mexico were neither continuous nor systematic. See 308 F.R.D. at 384. The plaintiff responded with photographs of the manufacturers' products in several stores, arguing that the manufacturer delivered the exercise balls into the stream of commerce with the expectation that New Mexico customers would purchase and use them. See 308 F.R.D. at 389. The Court rejected this theory, explaining that the manufacturer's contacts with New Mexico were not “so systematic and continuous as to make it essentially at home here.” 308 F.R.D. at 397. The Court noted that the manufacturer had almost no physical connections with New Mexico and that its New Mexico internet sales -- roughly $20, 000.00 over nine years -- were insufficiently “substantial” to support general jurisdiction. 308 F.R.D. at 402-03.

         In Diener v. Trapeze Asset Management, Inc., 2015 WL 8332933 (D.N.M. Nov. 30, 2015)(Browning, J.), the Court considered whether it had specific jurisdiction over a Canadian asset-management firm that maintained a passive website, placed its name in a third party's money-manager listing, mailed marketing materials to New Mexico, had telephone conversations with plaintiffs located in New Mexico, and ultimately entered into a contract with plaintiffs located in New Mexico. See 2015 WL 8332933, at *1. The Court concluded that it did not have specific jurisdiction for four primary reasons. See 2015 WL 8332933, at *1. First, the website was wholly passive and did not allow visitors “the opportunity to invest or interact with the site.” 2015 WL 8332933, at *15. Second, the third-party listing was similarly passive. See 2015 WL 8332933, at *15. Third, the Court noted that “phone calls and letters are not necessarily sufficient in themselves to establish minimum contacts, ” noting that the alleged torts occurred in Canada. 2015 WL 8332933, at *17 (quoting Benton v. Cameco Corp., 375 F.3d 1070, 1077 (10th Cir. 2004)). Fourth, the plaintiffs reached out to the defendants to create the contractual relationship, distinguishing the case from others finding purposeful availment. See 2015 WL 8332933, at *17 (citing Burger King Corp. v. Rudzewicz, 471 U.S. at 473).

         Finally, in Resource Associates Grant Writing & Evaluation Servs., Inc. v. Southampton Union Free School Dist., 193 F.Supp.3d 1200 (D.N.M. 2016)(Browning, J.), the Court considered whether it had personal jurisdiction over a school district that had never conducted any business in New Mexico, had never sent a representative to New Mexico, and its only contacts with a New Mexico entity were via telephone and email correspondence that the New Mexico company had initiated. See 193 F.Supp.3d at 1239. Highlighting the contractual nature of the particular contacts at issue, and that due process may be satisfied in contractual relations if the defendant “‘reache[s] out' to the forum state, ” the Court concluded it could not exercise personal jurisdiction over the school district, because the school district did not “not reach out to New Mexico to enter into an agreement”; rather, the New Mexico entity had initiated the communications and contract. 193 F.Supp.3d at 1241-43 (citing Burger King Corp. v. Rudzewicz, 471 U.S. at 479-85).

         LAW REGARDING REMOVAL

         “If a civil action filed in state court satisfies the requirements for original federal jurisdiction, the defendant may invoke 28 U.S.C. § 1441(a) to remove the action to the federal district court ‘embracing the place where such action is pending.'” Thompson v. Intel Corp., 2012 WL 3860748, at *4 (quoting 28 U.S.C. § 1441(a)). See Huffman v. Saul Holdings Ltd. P'ship., 194 F.3d 1072, 1076 (10th Cir. 1999)). 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. See Huffman v. Saul Holdings Ltd. P'ship., 194 F.3d at 1076 (citing 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., 404 F.3d 1090, 1095 (10th Cir. 2005)(citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941). See United States ex rel. King v. Hillcrest Health Ctr., 264 F.3d 1271, 1280 (10th Cir. 2001)). “All doubts are to be resolved against removal.” Fajen v. Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982). The defendant seeking to remove an action to federal court bears the burden of establishing the district court's subject-matter jurisdiction over the case. See Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002).

         1. The Presumption Against Removal.

         Federal courts are courts of limited jurisdiction; thus, there is some measure of a presumption against removal jurisdiction which must be overcome by the defendant seeking removal. See Fajen v. Found. Reserve Ins. Co., 683 F.2d at 333; Bonadeo v. Lujan, 2009 WL 1324119, *4 (D.N.M. 2009)(Browning, J.)(“Removal statutes are strictly construed, and ambiguities should be resolved in favor of remand.”). The defendant seeking removal must establish that federal court jurisdiction is proper “by a preponderance of the evidence.” McPhail v. Deere & Co., 529 F.3d at 953. See also Bonadeo v. Lujan, 2009 WL 1324119, at *4 (“As the removing party, the defendant bears the burden of proving all jurisdictional facts and of establishing a right to removal.”).

         2. Procedural Requirements for Removal.

         Section 1446 of Title 28 of the United States Code governs the procedure for removal. “Because removal is entirely a statutory right, the relevant procedures to effect removal must be followed.” Thompson v. Intel Corp., 2012 WL 3860748, at *5. A removal which does not comply with the express statutory requirements is defective and must be remanded to state court. See Huffman v. Saul Holdings Ltd. P'ship, 194 F .3d at 1077. See also Chavez v. Kincaid, 15 F.Supp.2d 1118, 1119 (D.N.M. ...


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