United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S
MOTION FOR REMAND, DENYING AS MOOT PLAINTIFF'S MOTION TO
STAY PROCEEDINGS PENDING RULING ON PLAINTIFF'S MOTION FOR
REMAND, AND DENYING AS MOOT DEFENDANTS' MOTION TO DISMISS
CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS
WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE
MATTER comes before the Court upon Plaintiff's
Motion for Remand. [R. Doc. 10, filed August 23,
2018] Having reviewed the parties' briefs and
applicable law, the Court finds that Plaintiff's Motion
is well-taken and, therefore, is GRANTED.
Plaintiff's Motion to Stay Proceedings Pending Ruling on
Plaintiff's Motion for Remand, [R. Doc. 11, filed
August 23, 2018], and Motion to
Dismiss Claims Against the Individual Defendants, [R.
Doc. 9, filed August 20, 2018], are
DENIED AS MOOT.
15, 2017, Plaintiff Manuel Hinojos filed a charge of
discrimination form with the New Mexico Department of
Workforce Solutions, Human Rights Bureau, also referred to as
the New Mexico Human Rights Division (“NMHRD”).
[R. Doc. 26.2 at 1, filed September 27, 2018]. The face of
the charge of discrimination only names “Pay and Save
Inc., d.b.a. Lowe's [Market]”. [Id.].
However, the charge of discrimination also included an
attached affidavit, which among others, named Defendant David
Figueroa. [Id. at 3]. Plaintiff later received a
letter of nondetermination and filed the present complaint in
original complaint was filed in the First Judicial District
Court for the State of New Mexico on May 29, 2018 alleging
that Defendant Pay and Save Inc., doing business as
Lowe's Market (hereinafter “Lowe's”),
Defendant Roger Lowe, Jr., and Defendant David Figueroa
(collectively referred to as “Defendants”)
violated the New Mexico Human Rights Act
(“NMHRA”) because they discriminated against
Plaintiff on the basis of his race and his serious medical
condition. He also claims that Defendants retaliated against
him in violation of the NMHRA, and he claims intentional
infliction of emotional distress. [R. Doc. 1.1, filed July
filed a Notice of Removal with this Court on July 25, 2018
alleging that federal jurisdiction exists because this is a
civil action between citizens of different
states and Plaintiff's allegations reflect
that the amount in controversy exceeds the sum of $75, 000,
and that Plaintiff failed to exhaust his administrative
remedies against Defendants. [R. Doc. 1 at 2].
original complaint states that he was a store manager at a
Lowe's locale in Santa Fe, New Mexico. [R. Doc. 1.1 at 3,
¶ 7]. Plaintiff's supervisors included the Area
Manager, Defendant Figueroa, who was originally named in the
state-court complaint. [Id. ¶ 9]. The complaint
alleges that there was discrimination at Lowe's because
the workforce and lower-level employees were predominantly
Hispanic and of Mexican decent or national origin, and that
the number of Hispanic and Mexican personnel in management
was low and not representative of Lowe's overall
workforce. [Id. at 4, ¶ 15]. Moreover, the
complaint alleges that Plaintiff was denied promotion
opportunities despite running a successful store, and that
Defendants tolerated racially charged language at the
workplace. [Id. ¶¶ 17, 19]. The complaint
also alleges that Defendants had a goal called the
“50-50 mix”, which refers to Defendants'
alleged goal of attaining a customer base of fifty percent
Hispanic and fifty percent Anglo since the current customer
base is allegedly eighty percent Hispanic and twenty percent
Anglo. [Id. at 5-6, ¶ 23]. Finally, the
complaint alleges that Plaintiff objected to the alleged
discriminatory treatment and made formal complaints to
Lowe's management, and that he was retaliated against for
openly criticizing this alleged discriminatory treatment.
[Id. at 6, ¶ 24]. Plaintiff points to several
instances of managerial conduct and decisions to discontinue
bread and drink products that were allegedly preferred by
Hispanic and Mexican customers. [Id. at 8-9,
¶¶ 36, 39]. Plaintiff alleges that Defendant
Figueroa participated in firing Plaintiff because Defendant
Figueroa allegedly traveled to Texas to meet with management,
and Plaintiff was fired approximately one week after this
meeting. [Id. at 12, ¶ 53].
also filed a Motion to Dismiss Claims Against the Individual
Defendants, [R. Doc. 9, filed August 20, 2018], and Plaintiff
filed a Motion to Stay Proceedings Pending Ruling on
Plaintiff's Motion for Remand. [R. Doc. 11, filed August
23, 2018]. The Court will first determine whether
jurisdiction exists in order to rule on any other pending
motions. Sinochem Int'l Co. Ltd. v. Malaysia
Int'l Shipping Corp., 549 U.S. 422, 430-31 (2007) (a
court “generally may not rule on the merits of a case
without first determining that it has jurisdiction over the
category of claim in the suit (subject-matter jurisdiction)
[. . . .]”).
Removal and Diversity Jurisdiction
courts are courts of limited jurisdiction, and there is a
presumption against removal jurisdiction, which the defendant
seeking removal must overcome. See Fajen v. Found.
Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir.
1982); see also Martin v. Franklin Capital Corp.,
251 F.3d 1283, 1290 (10th Cir. 2001). Removal statutes are to
be strictly construed, and all doubts are to be resolved
against removal. Id. at 333.
removed this case to federal court based on diversity
jurisdiction pursuant to 28 U.S.C. § 1332(a). To invoke
diversity jurisdiction, “a party must show that
complete diversity of citizenship exists between the adverse
parties and that the amount in controversy exceeds $75,
000.” Dutcher, 733 F.3d at 987.
“Complete diversity is lacking when any of the
plaintiffs has the same residency as even a single
defendant.” Id.; see also Lincoln Prop.
Co. v. Roche, 546 U.S. 81, 84 (2005) (“Defendants
may remove an action on the basis of diversity of citizenship
if there is complete diversity between all named plaintiffs
and all named defendants, and no defendant is a citizen of
the forum State.”). “[T]he relevant time period
for determining the existence of complete diversity is the
time of the filing of the complaint.” Siloam
Springs Hotel, L.L.C. v. Century Sur. Co., 781 F.3d
1233, 1239 (10th Cir. 2015). A matter may be remanded to
state court if the federal court lacks subject matter
jurisdiction (such as diversity jurisdiction). 28 U.S.C.
§ 1447(c). “The burden of establishing
subject-matter jurisdiction is on the party asserting
jurisdiction.” Montoya v. Chao, 296 F.3d 952,
955 (10th Cir. 2002) (citing Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
joinder of a non-diverse party is “fraudulent”
when it serves no purpose other than “to frustrate
federal jurisdiction.” Dodd v. Fawcett Publ'ns,
Inc., 329 F.2d 82, 85 (10th Cir. 1964). A defendant may
remove a case to federal court based upon diversity
jurisdiction in the absence of complete diversity if a
plaintiff joins a non-diverse party fraudulently to defeat
federal jurisdiction. See Am. Nat'l Bank & Trust
Co. v. Bic Corp., 931 F.2d 1411, 1412 (10th Cir. 1991).
The citizenship of ...