United States District Court, D. New Mexico
SUSAN BYERS, Individually; and RACHEL HIGGINS, as Personal Representatives of the Estate of Darelle Byers, Deceased, Plaintiffs,
CENTRAL TRANSPORT, LLC; GERARDO HERRERA-MONTOYA; and MIKE'S TIRES & SERVICE, INC., Defendants.
MEMORANDUM OPINION AND ORDER
17, 2019, Defendants Central Transport, LLC and Gerardo
Herrera-Montoya (collectively, “CT Defendants”)
invoked the doctrine of fraudulent joinder with regards to
non-diverse Defendant Mike's Tires & Services, Inc.
(“Mike's Tires”) and filed a notice
(“Second Notice of Removal”) removing the case
from state court to federal court on the basis of diversity
jurisdiction under 28 U.S.C. §§ 1332 and
1441(a). This is CT Defendants' second attempt
to invoke the doctrine of fraudulent joinder to remove the
case from state court to federal court.
August 27, 2019, Plaintiffs filed a Motion for Remand
requesting that the Court remand the case to state court a
second time. The Motion for Remand is fully
briefed. Shortly after Plaintiffs filed their
Motion for Remand, Mike's Tires moved to dismiss
Plaintiffs' single claim against it under Federal Rule of
Civil Procedure 12(b)(1). The Court will grant Plaintiffs'
Motion to Remand. Because the Court concludes that it lacks
subject matter jurisdiction over this case, the Court will
not address Mike's Tires' Motion to Dismiss.
17, 2018, Plaintiffs Darelle and Susan Byers filed a civil
action in New Mexico state court seeking damages for
negligence resulting in personal injury against Defendants
Central Transport, LLC, Gerardo Herrera-Montoya, and
Mike's Tires. Doc. No. 1 at ¶ 5; ORIGINAL COMPLAINT,
Doc. No. 1-2. The claims arise out of a collision that
occurred on June 29, 2018, on Interstate 10 in New Mexico
between a Central Transport tractor-trailer operated by
Defendant Herrera-Montoya and the vehicle driven by Darelle
Byers in which his wife Susan was a passenger. See
Doc. No. 1 at ¶ 6. Plaintiffs allege that Defendant
Mike's Tires had performed work on the Byers' vehicle
and missed a defect that contributed to the vehicle stalling.
Id. at ¶ 7. Plaintiffs aver that this caused
Mr. Byers to attempt to move to the highway's shoulder to
restart the vehicle, at which time the truck operated by
Defendant Herrera-Montoya struck the Byers' vehicle from
the rear. Id. Sometime after filing the complaint,
Darelle Byers died. As a result, on December 11, 2018,
Plaintiffs filed their First Amended Complaint, substituting
Plaintiff Rachel Higgins as Personal Representative of the
Estate of Darelle Byers for Plaintiff Darelle Byers, and
adding a wrongful death claim. See FIRST AMENDED
COMPLAINT, Doc. No. 1-16.
February 8, 2019, CT Defendants invoked the doctrine of
fraudulent joinder and removed the case from state court to
federal court under 28 U.S.C. §§ 1332 and
1441(a). See No. 19-cv-107, NOTICE OF
REMOVAL, Doc. No. 1. On February 15, 2019, Defendant
Mike's Tires filed a motion under Federal Rule of Civil
Procedure 12(b)(1), also based on fraudulent joinder, asking
the Court to dismiss any claims in the First Amended
Complaint against Mike's Tires and to terminate
Mike's Tires as a defendant for lack of subject matter
jurisdiction. No. 19-cv-107, MOTION TO DISMISS
PLAINTIFF'S [sic] FIRST AMENDED COMPLAINT FROM DEFENDANT
MIKE'S TIRES, Doc. No. 5. On May 21, 2019, the Court held
that CT Defendants did not meet their burden of establishing
fraudulent joinder and remanded the case to the First
Judicial District Court, County of Santa Fe, State of New
Mexico. See Mem. Op. and Order at 13. CT Defendants
have now attempted to remove this case for a second time.
Doc. No. 1.
1446(b) permits a party to file a second notice of removal if
subsequent pleadings or events reveal a new and different
basis for removal. See 28 U.S.C. 1446(b)(3);
see, e.g., In re Diet Drugs, 282 F.3d 220,
232 n.8 (3rd Cir. 2002) (“The removal statute . . .
does not categorically prohibit the filing of a second
removal petition following remand . . . . [i]f subsequent
pleadings or conduct by the parties or various other
circumstances brings a case that was not previously removable
within the removal jurisdiction of the federal courts.”
(internal citations and quotation marks omitted)); S.W.S.
Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th
Cir. 1996) (“The prohibition against removal ‘on
the same ground' does not concern the theory on which
federal jurisdiction exists (i.e., federal question or
diversity jurisdiction), but rather the pleading or event
that made the case removable.” (citing O'Bryan
v. Chandler, 496 F.2d 403, 410 (10th Cir. 1974)). The
United States Supreme Court has explained that
if, after an order to remand has been made, it results, from
the subsequent pleadings or conduct of the parties to the
cause, that the cause is removable, on the development of
such situation a second application to remove may be made,
and the right to do so because of the changed aspect is not
controlled by the previous order remanding the cause.
Fritzlen v. Boatmen's Bank, 212 U.S. 364, 372
(1909). Thus, once a federal court remands a case to state
court, the law precludes a defendant from seeking a second
removal on the same grounds. See id.
Defendants claim that additional evidence obtained through
discovery further “demonstrates a complete lack of
evidence to support Plaintiffs' negligence claims against
Mike's Tires.” Doc. No. 1 at ¶ 20. CT
Defendants also note that, based on this lack of evidence,
Mike's Tires filed a motion for summary judgment in state
court seeking dismissal of Plaintiffs' action against it.
Id. at ¶ 18. Finally, CT Defendants have
introduced an affidavit of Ralph C. Callaway, a friend of
Susan and Darelle Byers, which CT Defendants allege
demonstrates actual fraud on the part of Plaintiffs to
conceal information. Id. at ¶¶ 24, 26; see
also AFFIDAVIT OF RALPH C. CALLAWAY, Doc. No. 1-62.
Defendants removed this case under 28 U.S.C. § 1332(a)
on the ground that this Court has 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.” Symes v. Harris, 472 F.3d 754, 758 (10th
Cir. 2006). “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). The parties do not dispute that the
amount in controversy here exceeds $75, 000. Doc. No. 1,
¶ 46; Mem. Op. and Order at 4. But both Plaintiffs and
Defendant Mike's Tires are New Mexico citizens. Doc. No.
1, ¶ 4; Doc. No. 1-16 at ¶¶ 3-7. Accordingly,
as pleaded in the First Amended Complaint, complete diversity
does not exist in this case.
“[a] district court may disregard a nondiverse party
named in the state court complaint and retain jurisdiction if
joinder of the nondiverse party is a sham or
fraudulent.” Baeza v. Tibbetts, No. 06-cv-0407
MV/WPL, 2006 WL 2863486, *7 (D. N.M. July 7, 2006). For the
second time, CT Defendants urge the Court to find that
Plaintiffs fraudulently joined Mike's Tires in an attempt
to avoid federal jurisdiction. “To establish
[fraudulent] joinder, the removing party must demonstrate
either: (1) actual fraud in the pleading of jurisdictional
facts, or (2) inability of the plaintiff to establish a cause
of action against the non-diverse party in state
court.” Dutcher, 733 F.3d at 988 (alteration
in original). Under both methods, “[t]he defendant
seeking removal bears a heavy burden of proving fraudulent
joinder, and all factual and legal issues must be resolved in
favor of the plaintiff.” Id. Further,
“fraudulent joinder, like any other allegation of
fraud, must be pleaded with particularity and proven with
certainty. It cannot be inferred from a mere misjoinder of
parties or causes of action.” McLeod v. Cities
Serv. Gas Co., 233 F.2d 242, 246 (10th Cir. 1956).
Finally, the Court is instructed that it should “pierce
the pleadings, consider the entire record, and determine the
basis of joinder by any means available.” Dodd v.
Fawcett Publications, 329 F.2d 82, 85 (10th Cir. 1964)
(citations omitted). Here, CT Defendants seek to establish
fraudulent joinder by both methods. CT Defendants claim that
evidence discovered in the state court proceeding supports
their second removal to federal court.
Ability to establish ...