United States District Court, D. New Mexico
LEE HUNT, as Personal Representative of Estate of James Butler, and PEARL YEAST, Plaintiffs,
TRI-STATE CARE FLIGHT, LLC, and VALERIE CAVIGNEAUX, as Personal Representative of Estate of David Cavigneaux, Defendants.
PROPOSED FINDINGS AND RECOMMENDATION TO DENY
PLAINTIFFS' MOTION TO REMAND
filed this case in state court and Defendants promptly
removed it to federal court, alleging that Plaintiffs'
joinder of Defendant Estate of David Cavigneaux
("Defendant Estate") was fraudulent. Doc. 1.
Plaintiffs disagree and seek remand to state court. Doc. 22.
United States District Judge Martha Vazquez referred
Plaintiffs' motion to remand to me to issue proposed
findings and a recommended disposition. Doc. 43. Because
Plaintiffs do not state a cause of action against Defendant
Estate and they have failed to make any allegations inside or
outside the pleadings under which they could possibly prevail
against Defendant Estate, I recommend denying Plaintiffs'
motion for remand.
early morning hours of July 17, 2014, a helicopter air
ambulance owned by Defendant Tri-State Care Flight, LLC
("Tri-State") and piloted by David Cavigneaux
crashed, killing Cavigneaux, James Butler, and Rebecca
Serkey. Compl. (Doc. 1-2) at¶¶ 76-82. Plaintiffs
(the Estate of James Butler and the wife of James Butler)
allege that Defendant Tri-State contacted Cavigneaux and
arranged the flight without providing Cavigneaux information
essential to making an informed decision about whether to
accept the flight. Compl. ¶¶ 77, 79-80.
Specifically, Plaintiffs allege that Defendant Tri-State did
not advise Cavigneaux about the dangerous weather conditions
that night or that other pilots had turned down the same
flight because of dangerous weather conditions. Compl. at
¶¶ 79-80. Plaintiffs also allege that Defendant
Tri-State pressured pilots to take flights into dangerous
weather conditions and that, when it pressured Cavigneaux to
take the July 17, 2014 flight, it "either expected an
injury or death to occur to a crew member like Jamie Butler,
or utterly disregarded the consequences of its decisions . .
.." Compl. at ¶ 90.
contrast to the complaint's many references to Defendant
Tri-State, references to Defendant Estate comprise a small
part of Plaintiffs' complaint. What, if any, allegations
Plaintiffs make against Defendant Estate are central to
resolution of Plaintiffs' motion to remand and so
discussion of allegations against Defendant Estate are
incorporated into the analysis below rather than set forth
filed their complaint in state court on May 16, 2017. Doc.
1-2. Defendant Tri-State removed this case to federal court
on June 29, 2017 based on diversity jurisdiction and the
premise that Plaintiffs fraudulently joined Defendant Estate.
Doc. 1 at 1-2. Plaintiffs responded to this removal by filing
the present motion for remand. Doc. 22.
action is removable from state court if the federal district
court has original jurisdiction over the matter. 28 U.S.C.
§ 1441(a). Pursuant to 28 U.S.C. § 1332(a), a
federal district court possesses original subject-matter
jurisdiction over a case when the parties are diverse in
citizenship and the amount in controversy exceeds $75,
000.00. See Johnson v. Rodrigues, 226 F.3d 1103,
1107 (10th Cir. 2000). As the party invoking the Court's
jurisdiction in this case, Defendants "bear the burden
of establishing that the requirements for the exercise of
diversity jurisdiction are present." See Martin v.
Franklin Capital Corp., 251 F.3d 1284, 1290 (10th Cir.
2001) abrogated on other grounds by Dart Cherokee Basin
Operating Co., LLC v. Owens, 135 S.Ct. 547
(2014); see also Montoya v. Chao, 296 F.3d 952, 955
(10th Cir. 2002) ("The burden of establishing
subject-matter jurisdiction is on the party asserting
jurisdiction."). There is a presumption against removal
jurisdiction. See Laughlin v. Kmart Corp., 50 F.3d
871, 873 (10th Cir. 1995); see also Okla. Farm Bureau
Mut. Ins. Co. v. JSSJ Corp., 149 Fed.Appx. 775, 778
(10th Cir. 2005) (unpublished) (explaining that "[g]iven
the limited scope of federal jurisdiction, there is a
presumption against removal, and courts must deny such
jurisdiction if not affirmatively apparent on the
do not dispute that Defendant Estate is a New Mexico resident
that, if properly joined, would defeat federal diversity
jurisdiction. Instead, Defendants argue that the New Mexico
Workmen's Compensation Act ("WCA") precludes
Plaintiffs' lawsuit against Defendant Estate and,
therefore, the inclusion of Defendant Estate in this lawsuit
was fraudulently done to defeat federal diversity
jurisdiction. Specifically, Defendants assert that, to step
outside the boundaries of the WCA and successfully sue
Cavigneaux, Plaintiffs must be able to demonstrate that
Cavigneaux's conduct was willful and that it proximately
caused Plaintiffs' injuries. Defendants assert that
Plaintiffs' complaint fails to set forth facts under
which Plaintiffs' lawsuit against Defendant Estate could
possibly succeed. Conversely, Plaintiffs contend that their
complaint does contain allegations against Defendant Estate
under which they could possibly prevail. Plaintiffs
alternatively assert that the Court should allow them to
amend their complaint. I agree with Defendants that
Plaintiffs' complaint does not allege facts under which
their lawsuit against Defendant Estate could possibly
succeed. I do not address Plaintiffs' request to amend
their complaint because that issue is not properly before me.
also argue that any deficiencies in their complaint are not
fatal to their remand motion because, in considering whether
Plaintiffs could possibly prevail against Defendant Estate,
the Court may look outside the pleadings. If the Court does
so, Plaintiffs argue, it will see that Plaintiffs'
lawsuit against Defendant Estate is viable. I disagree.
Defendants have met their burden of demonstrating that
Plaintiffs' lawsuit against Defendant Estate could not
possibly succeed and nothing Plaintiffs have cited to
Plaintiffs argue that this case is not removable because it
originated under the WCA and federal law bars removal of a
worker's compensation lawsuit to federal court. Doc. 23
at 15. Defendants counter that Plaintiffs are not suing under
the WCA and, because Plaintiffs' claims arise outside the
WCA, federal law precluding the removal of WCA cases to
federal court does not apply. Defendants are correct.
Law Regarding Fraudulent Joinder
order to invoke diversity jurisdiction, a party must show
that complete diversity of citizenship exists between the
adverse parties. . . . Complete diversity is lacking when any
of the plaintiffs has the same residency as even a single
defendant." Dutcher v. Matheson, 733 F.3d 980,
987 (10th Cir. 2013). As stated above, while Defendants do
not dispute that Plaintiff and Defendant Estate are both
citizens of New Mexico, Defendants contend that the case was