A.N.M.R. et al v. Sonrise Pilot, LLC et al

Filing 62

ORDER On Pending Motions. Defendants' motion to compel 55 is granted in part and denied in part. Defendants' motion for summary judgment 56 is denied, by Judge Richard P. Matsch on 9/29/2011.(rpmcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 10-cv-00010-RPM
MARITZA RAMOS AREVALO, as court-appointed
conservator on behalf of minor children
A.N.M.R., and
C.A.M.R.,
Plaintiffs,
v.
SONRISE PILOT, LLC, a Colorado limited liability company,
DAVID HAINAULT,
Defendants.

ORDER ON PENDING MOTIONS

This wrongful death action arises out of a two-vehicle accident that occurred on January
8, 2008, on Highway 82 near Carbondale, Colorado. An accident report prepared by Corporal
D.C. Gibbons of the Colorado State Patrol states that the accident occurred at approximately
6:35 a.m., when a tractor-trailer exited a private driveway on the north side of Highway 82 and
attempted to make a left turn onto eastbound Highway 82. The tractor-trailer was unable to
complete the turn due to oncoming eastbound traffic. The tractor stopped in the median, with the
trailer blocking both westbound lanes of Highway 82. An automobile traveling west on
Highway 82 collided with the front of the trailer. The driver of that automobile and one of the

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two passengers died from injuries sustained in the accident. The other passenger was severely
injured.
The tractor-trailer was owned by Davidson Industries, Inc. (“Davidson”) and was being
driven by Mark Chamness, a Davidson employee. Pac-Van, Inc. (“Pac-Van”) had hired
Davidson to transport mobile offices to Aspen for use at the X-Games. The tractor-trailer and its
load constituted an oversize vehicle under Colorado law and was subject to rules and regulations
promulgated by the Colorado Department of Transportation for the movement of extra-legal
loads. Pac-Van hired Sonrise Pilot, LLC (“Sonrise Pilot”) to provide a pilot vehicle to escort the
extra-legal load. David Hainault (“Hainault”), an employee of Sonrise Pilot, was driving the
pilot escort vehicle when the accident occurred.
Noemy Ramos Jiminez (“the decedent”) died in the accident. She was a citizen of El
Salvador and the single mother of two minor children (“the Ramos children”), who reside in
El Salvador and are citizens of that country. In September 2008, Maritza Ramos Arevalo, a halfsister of the decedent, was appointed conservator for the Ramos children, by order of the District
Court of Garfield County, Colorado. Arevalo (“the Children’s Conservator”) is a dual citizen of
El Salvador and the United States and has resided in Colorado for approximately 20 years.
In January 2010, the Children’s Conservator, acting as the representative of the Ramos
children, commenced this action against Pac-Van, Sonrise Pilot, and Hainault. Diversity of
citizenship is alleged as the basis for federal jurisdiction.
The Ramos Plaintiffs’ claims against Pac-Van were dismissed pursuant to stipulation on
August 18, 2010. The remaining claims are claims of negligence and negligence per se against
Hainault and Sonrise Pilot and a claim of respondeat superior against Sonrise Pilot.

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The Defendants moved pursuant to Fed.R.Civ.P. 37 to compel production of four
categories of information and documents. The first category relates to the immigration status of
the decedent and the Children’s Conservator. Specifically, the Defendants seek more detailed
information about when, how and where the decedent entered the United States. The Defendants
also seek discovery of how the Children’s Conservator entered the United States. The
Defendants assert that during the deposition of the Children’s Conservator she gave evasive
answers to questions regarding these subjects and refused to answer some questions. The
Defendants argue the information sought is relevant to the evaluation of subject matter
jurisdiction. The Defendants question whether subject matter jurisdiction is proper but have not
moved for dismissal on that ground.
Contrary to the Defendants’ argument, the citizenship of Children’s Conservator does not
determine the Plaintiffs’ citizenship in this action. 28 U.S.C. § 1332(c)(2) provides that for the
purpose of determining diversity of citizenship, “the legal representative of an infant or
incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent.”
Although here the minor children are citizens of a foreign country, the same rule should apply.
The appointment of a representative should not affect the access to federal court that the
represented person would otherwise enjoy. For the purpose of determining whether there is
complete diversity of citizenship, the Plaintiffs’ citizenship is El Salvador because the Ramos
children are citizens of that country.
The Plaintiffs have alleged that David Hainault was a citizen of Michigan when the
action commenced; that Sonrise Pilot, LLC is a citizen of Colorado, and that Pac-Van, Inc. is a
citizen of Indiana. Those allegations are not contested. Complete diversity exists and existed

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when the action was filed. Evidence of how the Children’s Conservator entered the United
States is not relevant.
The immigration status of the decedent is relevant to the Ramos Plaintiffs’ claim for
damages. See Silva v. Wilcox, 223 P.3d 127 (Colo. Ct. App. 2009) (holding that “[t]o the extent
that a defendant is able to establish that a plaintiff immigrant is not authorized to be in the United
States and has secured employment by violating the law or is in violation of the law in some
other particular fashion related to such employment, so that the plaintiff is unlikely to remain in
this country throughout the period of claimed lost future income, . . . the jury should be provided
that information in determining whether to award damages for lost future wages.”)
There is no dispute that the decedent was a citizen of El Salvador at the time of her death.
The Plaintiffs have acknowledged that she was present in the United States illegally and was an
undocumented worker. The Defendants have not shown the need for more detailed information
regarding the circumstances of the decedent’s entry into the United States.
The Defendants seek to compel production of the Plaintiffs’ settlement agreement with
Pac-Van, which contains a confidentiality provision. The Ramos Plaintiffs’ response states they
have no objection to the entry of an order authorizing release of that agreement. (Pls.’ Resp. at
14.)
The Defendants have withdrawn their request for an order compelling the production of
tax information and documentation. (Defs.’ reply at 2.)
The Defendants seek an order compelling production of communications between the
Plaintiffs’ counsel and Plaintiffs’ experts. In particular, the Defendants seek production of the
Plaintiffs’ communications with Mr. Jeff Joseph, an immigration attorney. The Plaintiffs

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identified Mr. Joseph as a testifying expert and provided his expert report. (Ex. 4 to Pls.’ resp.
br.) In that report, Mr. Joseph opines that the decedent would have been eligible for asylum if
she had applied because she was fleeing a situation of severe domestic violence. Mr. Joseph
opines that if the decedent had been granted asylum, she would have been permitted to remain in
the U.S. permanently and could have obtained a work permit pursuant to her asylum status, and
would have been eligible to file for permanent resident status after one year. Mr. Joseph’s report
states that his conversations with members of the decedent’s family provided the basis for his
opinion that the decedent would have had a strong case for asylum.
The Defendants assert that the Plaintiffs have not fully disclosed the factual bases for
Mr. Joseph’s opinion. They seek an order compelling production of information purportedly
withheld and communications between Mr. Joseph and the Plaintiffs’ counsel. The Defendants
also moved pursuant to Rule 37(c) for an order striking Mr. Joseph’s testimony, arguing the
Plaintiffs violated the expert discovery requirements of Rule 26.
The opinion stated in Mr. Joseph’s report is not admissible because it is based on
speculation. The decedent had not applied for asylum. The motion to strike is granted.
The Defendants moved pursuant to Rule 56 for summary judgment of dismissal, arguing
that the Plaintiffs’ claims fail as a matter of law. The Defendants contend that undisputed facts
establish that Hainault did not breach any duties owed to highway users and did not cause the
accident.
Contrary to the Defendants’ arguments, determinations of whether Hainault was
negligent in the performance of pilot escort duties and whether the alleged negligence was a
cause of the accident involve factual disputes that must be determined at trial.

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Based on the foregoing, it is
ORDERED that the Defendants’ motion to compel (#55) is granted in part. The
Plaintiffs shall produce the Pac-Van settlement agreement to Defendants’ counsel who shall
respect the confidentiality of it. The motion is denied with respect to the Defendants’ requests
for information about how Maritza Ramos Arevalo entered the United States and for additional
information about the circumstances of Noemy Ramos Jiminez’ entry into the United States. It
is
FURTHER ORDERED that Defendants’ motion to strike the testimony of Jeff Joseph
(#55) is granted, and it is
FURTHER ORDERED that the Defendants’ motion for summary judgment (#56) is
denied.
Dated: September 29, 2011
BY THE COURT:
s/Richard P. Matsch
Richard P. Matsch, Senior District Judge

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