United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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
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)).
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
McPhail, 529 F.3d at 954 (quoting Meridian Sec.
Ins. Co. v. Sadowski, 441 F.3d 536, 541-42 (7th Cir.
The Court does not have Diversity Jurisdiction because the
Matter in Controversy does not Exceed $75, 000.
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 ...