Quinones v. MTC Financial Incorporated et al

Filing 36

ORDER granting 20 Motion to Remand to State Court. It is further Ordered hat this action is REMANDED to Pima County Superior Court. It is further Ordered that all pending motions (Docs. 7 , 8 , 9 , and 11 ) are TERMINATED on CM/ECF as "moot." It is further Ordered that the Clerk of the Court enter judgment closing this civil action, and mail a certified copy of this Order to Pima County Superior Court. Signed by Senior Judge Cindy K Jorgenson on 4/18/2018. (MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Elizabeth Quinones,
Plaintiff,

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ORDER

v.

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No. CV-17-00481-TUC-CKJ

MTC Financial Incorporated, et al.,

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Defendants.

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Plaintiff commenced this action against multiple Defendants, including MTC

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Financial and its agent Amanda Alcantara, in Arizona state court. See Doc. 1-1 (stating

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various counts related to an allegedly unlawful foreclosure). Defendants then filed to

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remove the case to this Court; claiming that the only non-diverse defendant — Amanda

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Alcantara — was “fraudulently joined,” therefore “complete diversity” exists for

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purposes of federal jurisdiction. See Doc. 1 at pg. 5; see also, Roth v Allstate, 17-CV-587

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(D. Ariz., Feb. 7, 2018) (“A federal court only possesses jurisdiction pursuant to 28

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U.S.C. § 1332 if ‘complete diversity’ exists.”).

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Plaintiff has now filed a motion to remand asserting that the Complaint alleges a

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“possible” claim against Alcantara and that Defendants failed to properly remove the

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case. See Doc. 20 (claiming that Defendants have not overcome the “heavy burden” of

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demonstrating that Alcantara was “fraudulently” named in the Complaint). The Court has

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also received and considered Defendants’ motions in opposition, and Plaintiff’s replys

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thereto. See Docs. 25, 27, 29, and 30.

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A person is fraudulently joined if the plaintiff “fails to state a cause of action

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

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the state.” See IDS Prop. Cas. Ins. Co. v. Gambrell, 913 F. Supp. 2d 748, 752 (D. Ariz.

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2012) (quoting McCabe v. Gen. Foods Corp., 811 F.2d 1336 (9th Cir. 1987)).

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Courts resolve uncertainty in favor of remand, and can only retain jurisdiction if a

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plaintiff has no reasonable possibility of a claim against the non-diverse defendant. Id.

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(holding that “there is a presumption against removal [and] the defendant has the burden

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of establishing that removal is proper and thus that fraudulent joinder exists”).

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Here, Defendants provide no extrinsic evidence that Plaintiff specifically named

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Alcantara as a defendant simply for the fraudulent purpose of defeating diversity

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jurisdiction. See generally, Docs. 25 & 27. Rather, Defendants argue that Plaintiff has

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failed to adequately allege a plausible claim for relief against Alcantara based on state

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law. Id. (relying on analysis that turns on the correct interpretation of state law). 1

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However, the standard for whether a defendant was “fraudulently joined” is less

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than the “plausibility” standard for adjudicating a motion to dismiss. See Diaz v. Allstate

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Ins. Grp., 185 F.R.D. 581, 586 (C.D. Cal. 1998) (“merely showing that an action is likely

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to be dismissed against that defendant does not demonstrate fraudulent joinder”). And in

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Arizona, an agent can be independently liable for actions taken within the scope of their

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responsibilities. See Griffith v. Faltz, 162 Ariz. 599, 600–01 (Ct. App. 1990) (“It is well-

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established law that an agent will not be excused from responsibility for tortious conduct

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[when] acting for [a] principal.”); see also, 4801 E. Washington St. Holdings, LLC, acting

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ex rel. CW Capital Asset Mgmt. LLC v. Breakwater Equity Partners LLC, 2015 WL

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1859057, at *8 (D. Ariz. Apr. 23, 2015) (finding, under Arizona law, “whether an agent

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is acting on [their] own behalf or for another is immaterial to [personal] liability”)

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(quoting Griffith).

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See further, Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990) (explaining that,
when adjudicating a motion to remand, a “district court must resolve all contested issues of
substantive fact in favor of the plaintiff and must resolve any uncertainties as to the current state of
controlling substantive law in favor of the plaintiff”).

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Ultimately, Plaintiff has stated a possible tort claim against Alcantara as the

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individual who executed various — allegedly fraudulent — documents as Defendant

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MTC’s Arizona agent. See Doc. 1-1 at pgs. 12 & 22 (alleging a violation of A.R.S. § 33-

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420(A) and “aiding and abetting”). While the merits of this claim are not certain, it is

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possible that Alcantara could face personal liability for her actions on behalf of MTC.

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See, e.g., Wells Fargo Bank v. Arizona Laborers, Teamsters & Cement Masons Local No.

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395 Pension Tr. Fund, 201 Ariz. 474, 485 (2002) (“Arizona recognizes aiding and

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abetting as embodied in Restatement § 876(b), that a person who aids and abets a

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tortfeasor is [themselves] liable for the resulting harm to a third person”).

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Accordingly, IT IS ORDERED that Plaintiff’s motion (Doc. 20) is GRANTED.

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IT IS FURTHER ORDERED that this action is REMANDED to Pima County

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Superior Court.
IT IS FURTHER ORDERED that all pending motions (Docs. 7, 8, 9, and 11) are
TERMINATED on CM/ECF as “moot.”
IT IS FURTHER ORDERED that the Clerk of the Court enter judgment closing
this civil action, and mail a certified copy of this Order to Pima County Superior Court.
Dated this 18th day of April, 2018.

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