United States District Court, D. New Mexico
D. MARIA SCHMIDT, as Personal Representative of THE ESTATE OF RUSSELL W. BLOSE, Plaintiff,
THE REINALT-THOMAS CORPORATION, a Michigan corporation d/b/a/ DISCOUNT TIRE COMPANY/AMERICA'S TIRE CO., and DISCOUNT TIRE CO., INC., an Arizona corporation, Defendants.
MEMORANDUM OPINION AND ORDER
September 6, 2018, Defendants The Reinalt-Thomas Corporation
(Reinalt) and Discount Tire Co, Inc. (Discount Tire)
(collectively, Defendants) removed this case from the First
Judicial District Court in Santa Fe County, New Mexico, to
this Court. Plaintiff D. Maria Schmidt (Plaintiff)
asks the Court to remand the case to state court, asserting
that the removal was both untimely and
improper. The Motion is fully briefed. Finding that
Defendants' removal was timely but improper, the Court
will grant the Motion.
is the personal representative of the estate of Russell W.
Blose (Decedent). Compl. ¶ 3, Doc. 1-2. Plaintiff's
claims arise from a roll-over accident that took place in New
Mexico, allegedly caused by a defective tire, in which
Decedent was killed. Id. ¶¶ 29-30. At the
time of the accident, Decedent was traveling from Arizona
through New Mexico, on his way to Wisconsin. Mot. at 2.
Decedent had sold his house in Arizona, and he and his family
were moving to Wisconsin to live with his father.
Id. at 2, 5. He was driving one pickup truck and
pulling another, both filled with belongings, while his wife
and children followed behind in a rented U-haul. Compl.
¶ 22; Mot. at 2, 7; Resp. at 4-5; Reply at 3. A tire
failed on the truck Decedent was towing, causing him to lose
control of his vehicle, which crossed the median and rolled
over. Compl. ¶¶ 22-24, 28-30. Decedent died from
the injuries he suffered in the accident. Id. ¶
February 1, 2018, Plaintiff filed suit against Defendants in
New Mexico state court alleging that Defendants had sold
Decedent defective tires, one of which failed during the
drive through New Mexico and caused the accident.
Id. ¶¶ 18, 27-30. Plaintiff asserted
claims under the Unfair Practices Act, NMSA 1978 §
57-12-2, and for strict products liability, negligence,
breach of warranty, and punitive damages. Id.
¶¶ 31-48. Defendants are citizens of Arizona, and
Plaintiff alleged in the Complaint that Decedent was also a
citizen of Arizona. Id. ¶¶ 2, 4-6.
However, during the discovery process Defendants became aware
that Decedent had been in the process of moving to Wisconsin
when he died. Mot. at 2-3. On July 2, 2018, Plaintiff
provided Defendants with interrogatory responses stating that
“Decedent and his family departed from Phoenix, AZ on
Friday, March 24, 2017 at around 2 or 3 p.m. and were
expecting to arrive in Wisconsin on March 27, 2017 around
mid-afternoon. They were moving from Arizona to Wisconsin,
into Decedent's dad's house.” Mot. at 2. The
discovery responses also contained a list of property being
transported, a copy of the one-way U-haul contract, and
listed the Wisconsin address of Decedent's father as the
residence of Decedent's widow. Mot. at 2-3, Reply at 3.
contend that they discovered through the August 7, 2018,
deposition testimony of Decedent's widow that Decedent
had abandoned his Arizona domicile. Resp. at 2- 4.
Accordingly, Defendants removed this case to federal court
based on diversity of citizenship and an amount in
controversy over $75, 000, arguing that Decedent should be
considered a citizen of Wisconsin, his intended destination
at the time of his death. Notice at 12. The amount in
controversy is not in dispute, but Plaintiff asserts that
Defendants' September 6, 2018 removal was (1) untimely,
because Defendants had notice of the facts on which they rely
before the August 7, 2018 deposition; and (2) improper,
because Decedent's domicile remained in Arizona at the
time of his death. Mot. at 1.
a certain time period, a defendant may remove a case from
state court if the federal court would have original
jurisdiction over the action. 28 U.S.C. §§ 1441,
1446(b). Removable cases include civil actions between
citizens of different states where the amount in controversy
exceeds $75, 000. 28 U.S.C. § 1332(a)(1). But because
federal courts are courts of limited jurisdiction, a removing
defendant must overcome the presumption that no federal
jurisdiction exists and establish jurisdiction by a
preponderance of the evidence. Dutcher v. Matheson,
733 F.3d 980, 985 (10th Cir. 2013). Removal statutes are
strictly construed, and the Court will resolve all doubts
against removal. See Fajen v. Found., Reserve Ins.
Co., 683 F.2d 331, 333 (10th Cir. 1982). The Court will
first consider the timeliness of Defendants' Notice, then
will address the evidence of jurisdiction to determine the
propriety of removal.
timeliness of Defendants' removal hinges on when they
were put on notice of the facts on which they rely to argue
that Decedent was not a citizen of Arizona. Generally,
defendants must file a notice of removal within 30 days of
receiving the initial state-court pleading. 28 U.S.C. §
1446(b)(1). However, “if the case stated by the initial
pleading is not removable, a notice of removal may be filed
within 30 days after receipt by the defendant, through
service or otherwise, of a copy of an amended pleading,
motion, order or other paper from which it may first be
ascertained that the case is one which is or has become
removable.” § 1446(b)(3). “Most courts,
including [the Tenth Circuit Court of Appeals], have
consistently interpreted the term other paper
broadly to include state-court filings and discovery.”
Paros Props. LLC v. Colo. Cas. Ins. Co., 835 F.3d
1264, 1268 (10th Cir. 2016). Consequently, both the
deposition testimony relied on by Defendants and the prior
discovery responses relied on by Plaintiff could have
triggered the duty to remove under § 1446(b)(3).
“[t]he 30-day clock does not begin to run until the
plaintiff provides the defendant with ‘clear and
unequivocal notice' that the suit is removable.”
Id. at 1269. The Tenth Circuit applies this standard
strictly and requires that the information given to the
defendant establishes removability with certainty.
Id. at 1269-70. The Tenth Circuit Court of Appeals
“disagree[s] with cases from other jurisdictions which
impose a duty to investigate and determine removability where
the initial pleading indicates that the right to remove
may exist.” Akin v. Ashland Chemical
Co., 156 F.3d 1030, 1036 (10th Cir. 1998). The Court has
explained that practical concerns over the expenditure of
judicial and party resources weigh against allowing extensive
litigation over when a defendant realized or should have
realized that a case was removable. Paros Props.,
835 F.3d at 1270. Instead, the Tenth Circuit Court of Appeals
has cited favorably many cases from other circuits holding
that defendants have no duty to investigate removability and
that the courts will not inquire into a defendant's
subjective knowledge or what they should have inferred by
what date. See Id. at 1270-71 (collecting cases).
to the element of citizenship for the purposes of diversity
jurisdiction, the Tenth Circuit has held that a defendant was
not put on notice that a plaintiff's citizenship had
changed by his deposition testimony that “after
‘mov[ing] to California [from Salt Lake City] the first
part of July of 1972, ” he had “returned [to Salt
Lake City] in August of  and purchased a
unit.'” Id. (quoting DeBry v.
Transamerica Corp., 601 F.2d 480, 495 (10th Cir. 1979)).
“Because the plaintiff ‘did not say that he had
permanently moved,' [the Court reasoned that] the
defendant did not ‘learn with certainty' from the
deposition that the plaintiff was a citizen of Utah.”
Id. (quoting DeBry, 601 F.2d at 488-89).
Instead, the plaintiff “was noncommittal regarding a
change of residence or citizenship[.]” DeBry,
601 F.2d at 488.
Plaintiff's July 2, 2018 discovery responses informed
Defendants that Decedent and his family “were moving
from Arizona to Wisconsin, into Decedent's dad's
house.” Mot. at 2. But Plaintiff did not state that the
move was permanent. Although the lists of possessions and the
one-way U-haul rental would not have suggested a short-term
change in location, neither did they provide ‘clear and
unequivocal notice' of a new domicile. Because domicile
is determined in part by intent, it is possible to move to a
new state and reside there for years without necessarily
acquiring new citizenship. See Bair v. Peck, 738
F.Supp. 1354, 1356 (D. Kan. 1990) (A new domicile is not
established if there is an “existing intention to
return upon the happening of a reasonably foreseeable event.
Consequently, it is often presumed a student attending an
out-of-state university intends to return to his or her home
state upon completion of studies.” (internal citations
omitted)); Walden v. Broce Construction Co., 357
F.2d 242, 245 (10th Cir. 1966) (“[C]itizenship is not
necessarily lost by protracted absence from home, where the
intention to return remains.”). Applying Debry
and strictly construing the notice requirements of §
1446(b)(3), the Court finds that Defendants were not put on
notice of removability by Plaintiff's July 2, 2018
discovery responses and therefore that the Notice of Removal
jurisdiction exists only if no plaintiff and no defendant are
citizens of the same state-that is, there must be
‘complete diversity between all plaintiffs and all
defendants.'” Middleton v. Stephenson, 749
F.3d 1197, 1200 (10th Cir. 2014) (quoting Lincoln Prop.
Co. v. Roche, 546 U.S. 81, 89 (2005)). Corporations are
considered citizens of every state in which they have been
incorporated or have their principal place of business.
§ 1332(c)(1). Defendants are citizens of Arizona.
“[T]he legal representative of the estate of a decedent
shall be deemed to be a citizen only of the same State as the