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Horn v. Guglielmo & Associates, PLLC

United States District Court, D. New Mexico

May 28, 2019

JENNIFER HORN, Plaintiff,
v.
GUGLIELMO & ASSOCIATES PLLC, LVNV FUNDING, LLC, and DONALD MEISINGER, its Collection Agency Member Defendants.

          MEMORANDUM OPINION AND ORDER

          MARTHA VÁZQUEZ, UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on Plaintiff's Motion to Remand to State Court Due to $48, 500 Offer on November 8 and Lack of Diversity. [Doc. 6]. The Court, having considered the motion, briefs, and relevant law, and being otherwise fully informed, finds that the Motion is well-taken and will be granted.

         BACKGROUND

         On September 21, 2018, Plaintiff Jennifer Horn filed this action in state court against Defendant Guglielmo & Associates PLLC, Defendant LVNV Funding, LLC, and Defendant Donald Meisinger, its Collection Agency Member. Plaintiff asserts in her complaint a claim under the New Mexico Unfair Trade Practices Act, NMSA 1978 §§ 57-12-1 to -26 (“UPA”), which provides a plaintiff the ability to recover treble damages, and she further brings claims for restitution, disgorgement, and unjust enrichment damages. Plaintiff alleges that Defendants made her social security number, signature, and bank account number public, and thus are in violation of the UPA. The face of the complaint does not refer to any monetary amounts.

         On November 8, 2018, Plaintiff made a settlement offer of $48, 500. On December 3, 2018, Defendants filed a notice of removal asserting that the Court has diversity jurisdiction because the parties are citizens of different states and the matter in controversy exceeds $75, 000. On December 18, 2018, Plaintiff made a second settlement offer for $45, 000. On that same day, Plaintiff filed the present motion to remand.

         LEGAL STANDARD

         Federal 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.

         Defendants removed this case to federal court based on diversity jurisdiction. 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 v. Matheson, 733 F.3d 980, 987 (10th Cir. 2013). When analyzing a removal based on diversity jurisdiction, the amount in controversy “is ordinarily determined by the allegations in the complaint, or, where they are not dispositive, by the allegations in the notice of removal.” Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995) (citation omitted); see also Siloam Springs Hotel, L.L.C. v. Century Sur. Co., 781 F.3d 1233, 1239 (10th Cir. 2015) (“[T]he relevant time period for determining the existence of complete diversity is the time of the filing of the complaint.”). 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). Where a state court complaint does not identify a specific amount that the plaintiff seeks to recover, the burden is on the defendant seeking removal to prove jurisdictional facts by a preponderance of the evidence such that the amount in controversy may exceed $75, 000. McPhail v. Deere & Co., 529 F.3d 947 (10th Cir. 2008). “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)).

         “[T]he defendant must affirmatively establish jurisdiction by proving jurisdictional facts that [make] it possible that $75, 000 [is] in play.” Id. at 955 (emphasis in original). The Tenth Circuit has held that “[b]oth the requisite amount in controversy and the existence of diversity must be affirmatively established on the face of either the petition or the removal notice.” Laughlin, 50 F.3d at 873. “Moreover, there is a presumption against removal jurisdiction.” Id. (citation omitted). A defendant seeking removal can establish jurisdictional facts by a preponderance in a number of ways:

by contentions, interrogatories or admissions in state court; by calculation from the complaint's allegations[;] by reference to the plaintiff's informal estimates or settlement demands[;] or by introducing evidence, in the form of affidavits from the defendant's employees or experts, about how much it would cost to satisfy the plaintiff's demands.

McPhail, 529 F.3d at 954 (quoting Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 541-42 (7th Cir. 2006)).

         DISCUSSION

         I. The Court does not have Diversity Jurisdiction because the Matter in Controversy does not Exceed $75, 000.

         Defendants argue that this Court has federal diversity jurisdiction because the parties are diverse as Defendant Meisinger was fraudulently joined, and thus, his citizenship should be disregarded, and the amount in controversy exceeds $75, 000. The Court will first analyze whether the amount in controversy exceeds $75, 000, and if the amount in controversy does not exceed $75, 000, the Court will remand to state court. See 28 U.S.C. § 1447 (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”); see also Tuck v. United Servs. Auto. Ass'n, 859 F.2d 842, 844 (10th Cir. 1988) (“A court lacking jurisdiction . . . must dismiss the cause at any stage of ...


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