Ibarra et al v. Kennedy Funding Incorporated et al

Filing 42

REPORT AND RECOMMENDATION: The Magistrate Judge recommends the District Court, enter an order GRANTING the amended 13 motion to remand, filed by the plaintiffs on 1/22/14. If the action is remanded, the court may retain jurisdiction to permit the p laintiffs an opportunity to file a separate motion for attorneys fees and costs. Any party may serve and file written objections within 14 days of being served with a copy of this report and recommendation. If objections are not timely filed, the par tys right to de novo review may be waived. The Local Rules permit the filing of a response to an objection. They do not permit the filing of a reply to a response. (See attached PDF for complete information). Signed by Magistrate Judge Leslie A Bowman on 5/12/14.(BAC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Alberto Sanchez Ibarra and Martha Gayou )
Matiella, husband and wife; Alberto Martin )
Sanchez Gayou and Kristy Anne Shannon, )
husband and wife; and Luis Carlos Sanchez )
Gayou and Margot Padres Elias, husband and )
wife,
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Plaintiffs,
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v.
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Kennedy Funding, Inc., a foreign corporation; )
Fuentes, Gomez & Associates, LLC, an Arizona )
limited liability company; Ramon Alberto )
Fuentes and Lilia Lizeth Corrales, husband and )
wife; Efrain Corrales and Cecilia Corrales; )
husband and wife; and Jose Martin Fuentes and )
Jane Doe Fuentes, husband and wife,
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Defendants.
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______________________________________ )
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Kennedy Funding, Inc., a foreign corporation, )
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Counterclaimant
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v.
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Alberto Sanchez Ibarra and Martha Gayou )
Matiella, husband and wife; et al.
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Counterdefendants
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______________________________________ )

CIV 13-2371 TUC JGZ (LAB)

REPORT AND
RECOMMENDATION

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Pending before the court is an amended motion to remand, filed by the plaintiffs on
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January 22, 2014. (Doc. 13)
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This action arises out of a loan in the amount of $3.46 million made by the defendant,

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Kennedy Funding, Inc. (Kennedy), to the defendant, Fuentes, Gomez & Associates, LLC

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(FG&A). The loan was secured by a mortgage granted by the plaintiffs on certain property in

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Mexico. FG&A subsequently defaulted on the loan, and so far, Kennedy has been unable to

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foreclose on the Mexican property. On May 28, 2012, Kennedy sent the plaintiffs a letter

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accompanied by four documents dated June 15, 2004 – a Loan and Security Agreement, a

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Promissory Note, a Guaranty, and an Assignment of Licenses. Kennedy asserts that, pursuant

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to these documents, the plaintiffs are personally liable for FG&A’s debt. The plaintiffs maintain

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these documents are forgeries, and they are not indebted to Kennedy for any amount.

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In the pending motion, the plaintiffs move that the action be remanded to state court

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because, contrary to the notice of removal, this court lacks diversity jurisdiction. Specifically,

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the plaintiffs argue the individual defendants are not diverse from the plaintiffs, Kennedy’s

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assertion of fraudulent joinder notwithstanding. See 28 U.S.C. § 1332(a)(1).

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The case has been referred to Magistrate Judge Bowman for report and recommendation

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pursuant to the Local Rules of Practice. LRCiv 72.1. The court finds the motion suitable for

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decision without oral argument.

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The motion should be granted. There is no fraudulent joinder, and this court does not
have diversity jurisdiction.

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Background

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This action was originally filed in Santa Cruz County Superior Court on October 29,

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2013. (Doc. 1-4, p. 2) The complaint contains five counts but only three of them are relevant

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to the pending motion. In Count 1, the plaintiffs seek a declaratory judgment stating that the

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documents that purport to hold them personally liable are forgeries that are “null, void, and of

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no effect against the [plaintiffs].” (Doc. 1-4, p. 8) In Count 3, the plaintiffs assert a claim for

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civil conspiracy against the individual defendants, Ramon Alberto Fuentes, Efrain Corrales, and

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Jose Martin Fuentes, who the plaintiffs believe procured the forged documents. (Doc. 1-4, p.

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9) In Count 4, the plaintiffs claim the individual defendants have engaged in a pattern of

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unlawful activities. (Doc. 1-4, p. 9)

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The complaint gives the following information concerning the citizenship of the various

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parties: The plaintiffs, Luis Carlos Sanchez Gayou, Margot Padres Elias, Alberto Sanchez

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Gayou, and Kristy Anne Shannon, “are citizens of and reside in Santa Cruz County, Arizona.”

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(Doc. 1-4, p. 3) The plaintiffs, Alberto Sanchez Iberra and Martha Gayou Matiella, “reside in

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Pima County, Arizona.” Id.

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The individual defendants, Ramon Alberto Fuentes, Efrain Corrales, and Jose Martin

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Fuentes, “claimed to reside in and to be a citizen of Santa Cruz County, Arizona, but whose

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current place of residence and citizenship are unknown.” Id. The defendant, Fuentes, Gomez

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& Associates, LLC (FG&A), was incorporated in Arizona and has its principal place of business

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here. Id. Kennedy Funding (Kennedy) is New Jersey corporation. Id. The complaint does not

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state Kennedy’s principal place of business. See 28 U.S.C.A. § 1332 (“[A] corporation shall

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be deemed to be a citizen of every State and foreign state by which it has been incorporated and

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of the State or foreign state where it has its principal place of business . . . .”).

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The defendant, Kennedy, was served on November 21, 2013. (Doc. 7, p. 2) On

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December 19, 2013, Kennedy filed a notice of removal in this court pursuant to 28 U.S.C. §

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1446 alleging diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Doc. 1, p. 1) Kennedy

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asserts that “all legitimately named Defendants to this action are diverse in citizenship from all

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Plaintiffs” and “[a]ny named Defendants that may be citizens of Arizona were fraudulently

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joined and must be disregarded for diversity jurisdiction purposes.” (Doc. 1, p. 2)

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Shortly afterwards, the plaintiffs filed an application for entry of default against

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Kennedy, which was granted by the Clerk. (Docs. 4, 5) Kennedy filed a motion to vacate entry

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of default on January 3, 2014. (Doc. 7)

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On January 21, 2014, the plaintiffs filed a motion to remand. The next day, they filed

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the pending amended motion to remand. (Doc. 13) The District Court vacated the entry of

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default against Kennedy on February 26, 2014. (Doc. 26)

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In the pending motion, the plaintiffs argue this court lacks subject matter jurisdiction

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because all defendants are not diverse from all plaintiffs, Kennedy’s assertion of fraudulent

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joinder notwithstanding. (Doc. 13)

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As a preliminary matter, Kennedy argues the plaintiffs waived their right to object to

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procedural defects in the removal notice when they filed their motion for entry of default against

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Kennedy. The plaintiffs, however, argue the action must be remanded because this court does

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not have diversity jurisdiction. This is not a procedural defect. It is a failure to assert subject

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matter jurisdiction, an issue that cannot be waived. See Kelton Arms Condominium Owners

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Ass'n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003).

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Discussion

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A civil action filed in state court may be removed if that action could have been filed in

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federal court originally. 28 U.S.C. § 1441. Removal proceeds pursuant to statute, which is

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strictly construed. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). “The strong

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presumption against removal jurisdiction means that the defendant always has the burden of

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establishing that removal is proper.” Id. (punctuation modified)

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“When an action is removed based on diversity, complete diversity must exist at

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removal.” Gould v. Mutual Life Ins. Co. of New York, 790 F.2d 769, 773 (9th Cir. 1986); cert.

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denied, 479 U.S. 987 (1986). “Diversity is generally determined from the face of the

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complaint.” Id. If the complaint fails to establish diversity, the notice of removal must supply

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the missing allegations. Schroeder v. Trans World Airlines, Inc., 702 F.2d 189, 191 (9th

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Cir.1983), overruled on other grounds by Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 9-11,

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123 S.Ct. 2058 (2003). “Absent unusual circumstances, a party seeking to invoke diversity

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jurisdiction should be able to allege affirmatively the actual citizenship of the relevant parties.”

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Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001).

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The notice of removal states this court has diversity jurisdiction pursuant to 28 U.S.C.

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§ 1332. The face of the complaint, however, does not establish complete diversity between all

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plaintiffs and all defendants. For instance, the complaint does not state the citizenship of the

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plaintiffs, Alberto Sanchez Iberra and Martha Gayou Matiella. The complaint gives their

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residency but not their citizenship. This is not sufficient. See Kanter v. Warner-Lambert Co.,

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265 F.3d 853, 857 (9th Cir. 2001) (“[T]he diversity jurisdiction statute . . . speaks of citizenship,

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not of residency.”); but see (Doc. 13, p. 2). The complaint also fails to state the principal place

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of business of the defendant, Kennedy. See 28 U.S.C.A. § 1332 (“[A] corporation shall be

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deemed to be a citizen of every State and foreign state by which it has been incorporated and

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of the State or foreign state where it has its principal place of business . . . .”).

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The complaint states that FG&A was incorporated in Arizona and has its principal place

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of business there. But as a limited liability corporation, FG&A takes the citizenship of its

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owners/members. See Johnson v. Columbia Properties Anchorage, LP, 437 F.3d 894, 899 (9th

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Cir. 2006). They apparently are the individual defendants, Ramon Alberto Fuentes, Efrain

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Corrales, and Jose Martin Fuentes. (Doc. 13, p. 2)

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Finally, and most importantly, the complaint fails to state the citizenship of the individual

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defendants, Ramon Alberto Fuentes, Efrain Corrales, and Jose Martin Fuentes. In fact, it states

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they once claimed to be Arizona citizens, but now their citizenship is unknown.

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The complaint fails to establish complete diversity of citizenship as required by 28

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U.S.C. § 1332. The missing allegations, therefore, must be supplied by the notice of removal.

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They are not.

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The notice does not state the citizenship of each party. Instead, it states simply that “all

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legitimately named Defendants to this action are diverse in citizenship from all Plaintiffs” and

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“[a]ny named Defendants that may be citizens of Arizona were fraudulently joined and must

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be disregarded for diversity jurisdiction purposes.” (Doc. 1, p. 2) The notice does not explain

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which defendants were fraudulently joined and why that is so. The notice of removal is facially

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deficient, and remand is appropriate. See Kanter v. Warner-Lambert Co., 265 F.3d 853, 857

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(9th Cir. 2001); Monroe v. Gagan, 2008 WL 4418155, 9 (D.Ariz. 2008).

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Kennedy, however, has asked permission to amend its notice of removal in lieu of

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remand should this court find its notice of removal inadequate. See 28 U.S.C. § 1653

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(“Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate

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courts.”). Accordingly, the court will consider the question of fraudulent joinder. If it exists,

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then amendment might not be futile.

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“Fraudulent joinder is a term of art.” McCabe v. General Foods Corp., 811 F.2d 1336,

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1339 (9th Cir. 1987). “If the plaintiff fails to state a cause of action against a resident defendant,

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and the failure is obvious according to the settled rules of the state, the joinder of the resident

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defendant is fraudulent,” and “the defendant’s presence in the lawsuit is ignored for the

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purposes of determining diversity.” Id.; Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067

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(9th Cir. 2001) (punctuation modified). “The defendant seeking removal to the federal court

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is entitled to present the facts showing the joinder to be fraudulent.” McCabe v. General Foods

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Corp., 811 F.2d 1336, 1339 (9th Cir. 1987).

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The defendant’s burden to establish fraudulent joinder is significant. “In borderline

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situations, where it is doubtful whether the complaint states a cause of action against the

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resident defendant, the doubt is ordinarily resolved in favor of the retention of the cause in the

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state court.” Albi v. Street & Smith Publications, 140 F.2d 310, 312 (9th Cir. 1944). In other

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words, “[f]raudulent joinder must be proven by clear and convincing evidence.” Hamilton

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Materials, Inc. v. Dow Chemical Corp., 494 F.3d 1203, 1206 (9th Cir. 2007).

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“Fraudulent joinder inquiry focuses on the validity of the legal theory being asserted

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against the non-diverse defendant.” Didyoung v. Allstate Ins. Co., 2012 WL 1983779, 3

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(D.Ariz. 2012). “Accordingly, if the facts alleged in the Complaint taken as true and drawing

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all inferences in Plaintiff’s favor, can possibly state a claim under Arizona law against the

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defendant in question, there is no fraudulent joinder.” Id.

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In Count 1, the plaintiffs seek a declaratory judgment pursuant to A.R.S. § 12-1832 that

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the documents that purport to hold them personally liable for the loan made to FG&A are

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forgeries and unenforceable. A.R.S. § 12-1841 states that, “When declaratory relief is sought,

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all persons shall be made parties who have or claim any interest which would be affected by the

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declaration . . . .”

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Here, the plaintiffs named as defendants Ramon Alberto Fuentes, Efrain Corrales, and

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Jose Martin Fuentes. Their names also appear on the allegedly fraudulent documents as

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guarantors for FG&A’s debt. These individual defendants obviously have an interest in the

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litigation. If the plaintiffs prove their signatures were forged, the guarantee would not be

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binding on them, but it still might be binding on the individual defendants. They could end up

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liable for FG&A’s debt all by themselves.

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The plaintiffs also named as a defendant FG&A. FG&A has a direct interest in the

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litigation because it will determine whether or not the plaintiffs are personally liable for the debt

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it owes to Kennedy.

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Kennedy argues it is the only proper defendant because the plaintiffs seek an order

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declaring the guarantee unenforceable and this order would only affect Kennedy’s rights, not

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the rights of the other defendants. The statute, however, requires joinder not only of those

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persons who have rights determined by the declaration but of those persons “who have or claim

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any interest which would be affected by the declaration.” A.R.S. § 12-1841. Here, the other

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defendants have an interest in having the plaintiffs on the hook for the debt. They therefore

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must be joined. See also Missouri United School Ins. Council v. Lexington Ins. Co., 2010 WL

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1254657, 2 (E.D.Mo. 2010) (Insured was properly joined in declaratory judgment action

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brought by insurance company seeking an order declaring two other insurance companies

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should also be providing coverage to the insured.).

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Kennedy Funding further argues the other defendants are fraudulently joined citing

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Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 838 (1989). This case, according to

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Kennedy, holds that a co-guarantor who is “jointly and severally liable” is not an indispensable

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party and may be dismissed pursuant to Rule 21. (Doc. 32, p. 9) Newman-Green, however,

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is inapposite to the instant case.

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In that case, the plaintiff discovered during appeal that the presence of one of the

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defendants defeated the court’s diversity jurisdiction. Id. He subsequently moved to dismiss

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that defendant in order to preserve the district court’s judgment below. Id. The Supreme Court

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held that the court of appeals could grant the motion to dismiss the defendant pursuant to Rule

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21 without remanding the case to the district court level. Id. The defendant could be dismissed

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because he was “jointly and severally liable” and therefore a dispensible party. Id.

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In this case, however, the cause of action is statutory. Whether or not the other

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defendants should be joined is therefore determined by that statute, not by the nature of their

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liability. More important, in Newman-Green the plaintiff filed a motion to dismiss the

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defendant that defeated diversity. The Supreme Court held that the court of appeals had the

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authority to grant the plaintiff’s motion to dismiss a dispensible defendant that destroys

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diversity. It did not hold that a defendant that destroys diversity always must be dismissed.

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Here, there has been no such motion to dismiss. Newman-Green is inapposite to the instant

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case.

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Finally, Kennedy argues that if the other defendants are proper parties, then the court

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should realign them as plaintiffs. “Federal courts have broad authority to look beyond the

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pleadings, and arrange—or realign—the parties according to their sides in the dispute.” Scotts

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Co. LLC v. Seeds, Inc., 688 F.3d 1154, 1156 (9th Cir. 2012) (punctuation modified). The court

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will “align for jurisdictional purposes those parties whose interests coincide respecting the

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primary matter in dispute.” Id.

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In this case, Kennedy argues the other defendants and the plaintiffs all want the

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documents to be held unenforceable against Kennedy. Accordingly, their interests are aligned.

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The court does not agree. The plaintiffs want the documents declared unenforceable against

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them. They express no opinion as to whether or not they are enforceable against the individual

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defendants. The individual defendants, as the court noted above, are interested in having the

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documents declared enforceable against the plaintiffs because then someone else would be on

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the hook for FG&A’s debt. FG&A has an interest in having as many people as possible

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responsible for its debt to Kennedy. The interests of the other defendants does not coincide with

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the interests of the plaintiffs. They should not be realigned.

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The other defendants were properly joined in Count 1. There is no evidence that they
are diverse from all plaintiffs. This court does not have diversity jurisdiction.

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In Count 3, the plaintiffs bring a claim of civil conspiracy against the individual

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defendants. “For a civil conspiracy to occur two or more persons must agree to accomplish an

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unlawful purpose or to accomplish a lawful object by unlawful means, causing damages.”

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Rowland v. Union Hills Country Club, 157 Ariz. 301, 306, 757 P.2d 105, 110 (App. 1988)

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The plaintiffs allege the individual defendants conspired to commit forgery in violation of

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A.R.S. § 13-2002(A)(2).

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Kennedy argues this claim fails because the object of the conspiracy must be a tort, and

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forgery is not a tort. (Doc. 32, p. 12) (citing Wells Fargo Bank v. Ariz. Laborers, Teamsters

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& Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 498 (2002)). In the case

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cited by Kennedy, Wells Fargo Bank, the Arizona Supreme Court considered whether summary

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judgment was appropriate on a claim for civil conspiracy to commit fraud. Id. In that case, the

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underlying purpose of the conspiracy was a tort. The court, however, did not find that the

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underlying purpose of the conspiracy must be a tort and not a crime. Id. In fact, it does not

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appear that the Arizona courts have answered this issue definitively. Kennedy could be right,

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but “could be” is not enough. But see Chowdhury v. Aegis Mortg. Corp., 2009 WL 3270090,

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6 (E.D.Mich. 2009) (“The plaintiff must also allege an underlying tort or criminal activity the

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co-conspirators agreed to commit.”); Walker v. North Wales Borough, 395 F.Supp.2d 219, 233

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(E.D.Pa. 2005) (“Thus, civil conspiracy requires an agreement and either a criminal act or

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intentional tort.”); SICK, Inc. v. Motion Control Corp., 2003 WL 21448864, 10 (D.Minn.

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2003) (“Thus, courts have held that civil conspiracy must be based upon a criminal act or an

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underlying intentional tort.”).

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Kennedy cannot show that the plaintiff’s claim “fails to state a cause of action against

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a resident defendant, and the failure is obvious according to the settled rules of the state”

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McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). Accordingly, there is

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no fraudulent joinder. See, e.g., Slocum v. Firstar Bank Cedar Rapids, 2002 WL 1070943, 3

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(Iowa App. 2002) (unpublished) (“[S]ubstantial evidence supports the jury finding that the bank

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knew of the forgery of certain documents, participated in the forgery of the documents [and

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therefore was liable for civil conspiracy].”).

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Kennedy further argues the civil conspiracy claim is barred by the two-year statute of

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limitations for tort claims. See A.R.S. § 12-542. Kennedy acknowledges that Arizona employs

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a discovery rule that could delay the onset of the limitations period, but it argues the claim is

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still barred. (Doc. 32, p. 10) (citing Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of

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Am., 182 Ariz. 586, 588, 898 P.2d 964 (Ariz. 1995).

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According to Kennedy, the plaintiffs should have known about the allegedly forged

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documents on June 17, 2004 because that is the date that the Mortgage document was signed,

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and the plaintiffs admit to signing the Mortgage. Kennedy maintains the Mortgage and the

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allegedly forged documents were in the same “packet of Loan Documents” and “[i]f they signed

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one document, they would necessarily be aware of the other documents, which also required

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their signatures.” (Doc. 32, p. 11)

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In the alternative, Kennedy argues the plaintiffs knew about the allegedly forged

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documents on May 13, 2005. On that date, Kennedy and FG&A signed a document whereby

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Kennedy agreed to forgo its right to unpaid interest and late fees if FG&A timely cured its

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default. This document referenced the Loan and Security Agreement, one of the alleged

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forgeries. Kennedy alleges this document was sent to the plaintiffs but does not state if the

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Loan and Security Agreement was also sent.

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Finally, Kennedy argues the plaintiffs knew about the allegedly forged documents by

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September 10, 2008. On that date, Kennedy filed suit in Mexico to enforce the Mortgage

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agreement, and in its complaint, Kennedy stated that it believed the plaintiffs were “Guarantors”

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for the loan. (Doc. 32, p. 11)

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The plaintiffs, on the other hand, assert the opposite. In the complaint, the plaintiffs

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explicitly allege that they were unaware of the allegedly forged documents until May 28, 2012,

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when Kennedy sent the plaintiffs a letter accompanied by the four documents asserting that the

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individual plaintiffs are personally liable for FG&A’s debt. (Doc. 1-4, p. 7)

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Kennedy provides some evidence that the civil conspiracy claim is barred by the two-

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year statute of limitations. It has not, however, established by “clear and convincing” evidence

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that this count fails to state a cause of action against the individual defendants “and the failure

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is obvious according to the settled rules of the state.” See McCabe v. General Foods Corp., 811

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F.2d 1336, 1339 (9th Cir. 1987); Hamilton Materials, Inc. v. Dow Chemical Corp., 494 F.3d

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1203, 1206 (9th Cir. 2007) (emphasis added); see also Mirchandani v. BMO Harris Bank NA,

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2011 WL 6019311, 5 (D.Ariz. 2011) (“For the purposes of determining whether TradeCor was

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properly joined, it is enough to find that Plaintiffs have ‘a glimmer of hope’ that a state court

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may so find, and the Court finds that they do.”).

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The individual defendants were properly joined in Count 3. There is no evidence that

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they are diverse from all plaintiffs. This court does not have diversity jurisdiction. The court

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does not consider whether or not fraudulent joinder exists in Count 4.

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Finally, Kennedy argues removal is appropriate based on the federal question presented

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in their counterclaim. A counterclaim raising a federal question, however, cannot justify

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removal. Takeda v. Northwestern Nat. Life Ins. Co., 765 F.2d 815, 822 (9th Cir. 1985).

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The notice of removal fails to establish diversity jurisdiction. And, joinder of defendants
other than Kennedy was not “fraudulent.” Amendment of the notice would be futile.

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Recommendation

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The Magistrate Judge recommends the District Court, after its independent review of the

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record, enter an order GRANTING the amended motion to remand, filed by the plaintiffs on

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January 22, 2014. (Doc. 13) If the action is remanded, the court may retain jurisdiction to

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permit the plaintiffs an opportunity to file a separate motion for attorney’s fees and costs

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pursuant to 28 U.S.C. § 1447(c). See LRCiv 54.2; Gilding v. Carr, 608 F.Supp.2d 1147, 1156

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(D.Ariz. 2009).

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Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within

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14 days of being served with a copy of this report and recommendation. If objections are not

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timely filed, the party’s right to de novo review may be waived. The Local Rules permit the

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filing of a response to an objection. They do not permit the filing of a reply to a response.

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DATED this 12th day of May, 2014.

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