United States District Court, D. New Mexico
TODD LOPEZ, as Personal Representative of the Estate of NORMA SANCHEZ; VENANCIO GALLEGOS, Individually and as Next Friend of K.P., M.P., N.G., A.G., and R.G.; PERLA GALLEGOS, Individually and as Next Friend of S.M. and M.M.; Plaintiffs,
WALKER STAINLESS EQUIPMENT COMPANY, LLC and TIMOTHY L. PARKER, Defendants.
MEMORANDUM OPINION AND ORDER ON PLAINTIFFS'
MOTION FOR REMAND
WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Plaintiffs' Motion
for Remand [Doc. 4], filed September 16, 2019. Plaintiffs
filed a complaint against Defendants in New Mexico's
First Judicial District Court on July 1, 2019. Doc. 1-1.
Defendant Walker removed the case on diversity grounds to
this Court on August 26, 2019. Doc. 1. Three weeks later,
Plaintiffs filed the subject motion requesting the Court
remand the case to New Mexico's First Judicial District
statutes are to be strictly construed, and all doubts are to
be resolved against removal.” Fajen v. Found.
Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982)
(citations omitted). “[A]ny civil action brought in a
State court of which the district courts of the United States
have original jurisdiction, may be removed by the defendant .
. . to the district court of the United States for the
district . . . embracing the place where such action is
pending.” 28 U.S.C. § 1441(a). “The district
courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or value of
$75, 000 . . . and is between . . . citizens of different
States.” § 1332(a). “When jurisdiction is
premised on diversity of citizenship . . . as is the case
here, each plaintiff must be diverse from each defendant to
have what is known as complete diversity. Ravenswood Inv.
Co., L.P. v. Avalon Corr. Servs., 651 F.3d 1219, 1223
(10th Cir. 2011) (citation omitted).
Walker is a Wisconsin citizen. Defendant Parker is a New
Mexico citizen. Plaintiffs are also New Mexico citizens. Doc.
1 at 4. Complete diversity, as a result, does not exist.
Defendant Walker, however, argues in its removal notice that
Plaintiffs fraudulently joined Defendant Parker and,
therefore, complete diversity does exist. Defendant Walker
explains that Defendant Parker is fraudulently joined because
he is entitled to qualified immunity and, as such, Plaintiffs
cannot prevail against him. Doc. 1 at 5-6. Plaintiffs'
motion, therefore, turns on whether Defendant Parker is
entitled to qualified immunity.
asserted claims against Defendant Parker under the New Mexico
Tort Claims Act (NMTCA). Doc. 4 at 1. New Mexico Courts have
not determined whether qualified immunity is a defense under
the NMTCA. Romero v. Sanchez, 119 N.M. 690, 696
(1995) (“Whether the doctrine of qualified immunity
protects an official from an action brought under the Tort
Claims Act is an open question.”). In the absence of a
clear directive to apply qualified immunity to the NMTCA,
this Court has consistently declined to do so. Gahan v.
Sharp, 2015 WL 13666979, at *4 (D.N.M. Jan. 26, 2015)
(Gonzales, J.) (“Without a clear mandate from the New
Mexico courts to apply qualified immunity to the NMTCA, this
Court declines to do so.”); Boger v. Lucero,
2013 WL 12122307, at *1 (D.N.M. June 3, 2013) (Vazquez, J.)
(“In Romero, the New Mexico Supreme Court
expressly declined to address the question of whether
qualified immunity could be asserted as a defense to claims
under the NMTCA. This Court has not identified any authority
wherein the New Mexico courts have stated that such a defense
exists.”); Todd v. Montoya, 877 F.Supp.2d
1048, 1105-06 (D.N.M. 2012) (Browning, J.) (“The Court
concludes that, given the Supreme Court of New Mexico's
statements in Romero v. Sanchez, qualified immunity
does not apply to claims brought under the NMTCA.”).
Defendant Walker offers this Court no reason to deviate from
the above cited persuasive case precedent.
Defendant Walker raises new grounds for removal in its
response. Doc. 6 at 3-9. Defendant Walker, after
Plaintiffs' reply, also filed a motion to amend its
removal notice, again, raising new grounds for removal. Doc.
10. Defendants, however, “are not allowed to switch
jurisdictional horses midstream.” New Mexico ex
rel. Balderas v. Valley Meat Co., LLC, 2015 WL 3544288,
at *25 (D.N.M. May 20, 2015); see Rader v. Sun Life
Assur. Co. of Canada, 941 F.Supp.2d 1191, 1196 (N.D.
Cal. 2013) (“The notice of removal cannot be amended to
add new bases for removal after the thirty day removal period
has run, nor can a defendant present new grounds for removal
for the first time in opposition to a motion for
remand.”); see also 14C Charles Alan Wright
& Arthur R. Miller, Federal Practice and
Procedure § 3733 (Rev. 4th ed.)
(“[D]efendants may not add completely new grounds for
removal or furnish missing allegations, even if the court
rejects the first-proferred [sic] basis of removal, and the
court will not, on its own motion, retain jurisdiction on the
basis of a ground that is present but that defendants have
not relied upon.”).
Walker has failed to show that Plaintiffs fraudulently joined
Defendant Parker because he is entitled to qualified
immunity. Defendant Walker's new grounds for removal,
offered in its response and motion to amend its removal
notice, are not appropriate because they were offered for the
first time in opposition to Plaintiffs' motion for
IS THEREFORE ORDERED that Plaintiffs' Motion for
Remand [Doc. 4] is GRANTED for the reasons
set forth in this Memorandum Opinion and Order.
IS FURTHER ORDERED that the Clerk of the Court
proceed to have this case REMANDED to the
First Judicial ...