Rodgers v. United Air Lines, Inc. et al
Filing
29
ORDER granting 19 Motion to Remand to State Court by Judge Christine M. Arguello on 5/9/13.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-00218-CMA-MEH
JAMES TIMOTHY RODGERS,
Plaintiff,
v.
UNITED AIR LINES, INC., and
CITY AND COUNTY OF DENVER,
Defendants.
ORDER GRANTING PLAINTIFF’S MOTION TO REMAND
This matter is before the Court on Plaintiff’s Motion to Remand. (Doc. # 19.)
Plaintiff requests that the Court remand this case to Colorado state court, arguing that
the Notice of Removal (Doc. # 1) filed by Defendant United Air Lines (“United”) was
improper. For the following reasons, Plaintiff’s Motion is GRANTED. As such, the
Court REMANDS the case to the District Court, City and County of Denver, Colorado,
for further proceedings.
I. BACKGROUND
Plaintiff originally brought this lawsuit in state court. Plaintiff’s Complaint, filed on
December 28, 2012, alleged that Plaintiff was injured when a door hit his head while
he was deplaning a United flight at the Denver International Airport (“DIA”). (Doc. # 1-1,
¶ 2.) Plaintiff brought claims against Defendants United and City and County of Denver
for premises liability and negligence. 1 (Id. at 5-9.)
The case is removed to this Court solely on the basis of diversity jurisdiction.
Plaintiff admits that both he and Defendant Denver are citizens of Colorado; thus,
complete diversity does not exist between the parties. (Id., ¶¶ 12-14.) However, United
argues that Denver has been fraudulently joined and should be disregarded for
purposes of determining diversity jurisdiction. (Doc. # 1 at 4-7.) United does not argue
that Plaintiff committed “outright fraud” in his Complaint. (Doc. 22 at 3-4.) Instead,
United argues that Plaintiff has no viable claims against Denver because Plaintiff failed
to allege sufficient facts to show that sovereign immunity does not apply to Denver;
therefore, Denver is not a proper party to this lawsuit. (Id.)
II. ANALYSIS
A. FRAUDULENT JOINDER STANDARDS
The diversity statute provides that “[t]he 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.” 28 U.S.C. § 1332(a).
Section 1332(a) requires “complete diversity,” i.e., no plaintiff may be the citizen of
a state of which any defendant is also a citizen. See Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 373-74 (1978). Citizenship of all properly joined parties must
be considered in determining diversity jurisdiction. See, e.g., Frontier Airlines, Inc. v.
United Air Lines, Inc., 758 F. Supp. 1399, 1403 (D. Colo. 1989). However, “[i]f the
1
On February 4, 2013, Plaintiff and Continental Airlines filed a Joint Stipulation dismissing
Continental with prejudice. (Doc. # 11.)
2
plaintiff fails to state a cause of action against [the] resident defendant who defeats
diversity, and the failure is obvious according to the settled rules of the state, the joinder
of the resident defendant is fraudulent” and that party is disregarded for jurisdictional
purposes. See id. at 1403-04. This is not an easy showing to make. A federal court
may not “pre-try, as a matter of course, doubtful issues of fact to determine removability;
the issue must be capable of summary determination and be proven with complete
certainty.” Smoot v. Chicago, Rock Islands & Pac. R.R. Co., 378 F.2d 879, 882 (10th
Cir. 1967). In other words, “[i]f there is even a possibility that a state court would find
that the complaint states a cause of action against the resident defendant, the federal
court must find that the joinder was proper and remand the case to state court.”
Frontier Airlines, 758 F. Supp. at 1404.
As with all cases, the party asserting the existence of federal jurisdiction bears
the burden of establishing that such jurisdiction exists. See, e.g., Martin v. Franklin
Capital Corp., 251 F.3d 1284, 1290 (10th Cir.2001). United’s burden here is
substantial. See, e.g., Montano v. Allstate Indem., No. 99-2225, 2000 WL 525592, at *1
(10th Cir. Apr. 14, 2000) (unpublished) (noting the “heavy burden on the party asserting
fraudulent joinder”). Although the court may look beyond the pleadings to determine
whether the joinder was fraudulent, see Frontier Airlines, 758 F. Supp. at 1404-05, the
standard for such review “is more exacting than that for dismissing a claim under Fed.
R. Civ. P. 12(b)(6); indeed, the latter entails the kind of merits determination that, absent
fraudulent joinder, should be left to the state court where the action was commenced.”
Montano, 2000 WL 525592, at *2. To that end, the federal court must “resolve any
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doubts in favor of the Plaintiff and against the exercise of federal jurisdiction.” Torres v.
Am. Fam. Mut. Ins. Co., No. 07-cv-1330, 2008 WL 762278, at *3 (D. Colo. Mar. 19,
2008). Moreover, a plaintiff need not show that all claims are proper; “remand is
required if any one of the claims against the non-diverse defendant . . . is possibly
viable.” Montano, 2000 WL 525592, at *2. “A claim which can be dismissed only after
an intricate analysis of state law is not so wholly insubstantial and frivolous that it may
be disregarded for purposes of diversity jurisdiction.” Spataro v. Depuy Orthopaedics,
Inc., No. CIV 08-0274 JCH/LAM, 2009 WL 382617, *5 (D.N.M. Jan. 9, 2009) (citing
Montano v. Allstate Indem., 2000 WL 525592, at *2).
As a threshold matter, United argues that factual allegations in Plaintiff’s motion
to remand that were not alleged in his complaint cannot be considered by this Court
because the “motion to remand was unverified . . . so the new facts alleged are not
proper evidence before the Court.” (Doc. # 22 at 3) In so arguing, United cites to a
case, which holds that “factual allegations in unverified pleadings are not ‘evidence’ to
be considered in a factual inquiry” with regard to Fed. R. Crim. P. 41(g). (citing United
States v. Aguirre, 245 F. App’x 801, 802-803 (10th Cir. 2007)). However, that case,
which dealt with a criminal defendant’s request for the equitable return of seized
personal property, is inapposite here. A motion to remand often requires that a court
consider unverified facts because it looks to the sufficiency of a party’s pleading. See
Frontier Airlines, 758 F. Supp. at 1404. Moreover, “[w]hile a court normally evaluates
the propriety of a removal by determining whether the allegations on the face of the
complaint satisfy the jurisdictional requirements, fraudulent joinder claims are assertions
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that the pleadings are deceptive.” Nerad v. AstraZeneca Pharmaceuticals, Inc., 203
F. App’x 911, 913 (10th Cir. 2006) (unpublished). Thus, when defendants claim
fraudulent joinder, the Tenth Circuit directs this Court to “pierce the pleadings, consider
the entire record, and determine the basis of joinder by any means necessary.” Id.
(citing Dodd v. Fawcett Publ’ns, Inc., 329 F.2d 82, 85 (10th Cir. 1964)).
B. SOVEREIGN IMMUNITY
United contends Denver is protected by sovereign immunity and Plaintiff did not
plead sufficient facts to establish that the dangerous condition exception applies.
The Colorado Governmental Immunity Act (“CGIA”) provides “[a] public entity
shall be immune from liability in all claims for injury which lie in tort or could lie in tort
. . . .” Colo. Rev. Stat. § 24-10-106(1). Sovereign immunity is waived by a public entity
in an action for injuries resulting from a dangerous condition of a public building. Colo.
Rev. Stat. § 24-10-106(1)(c). Dangerous condition is defined as:
(1) a physical condition of a facility or the use thereof,
(2) that constitutes an unreasonable risk to the health or safety of the
public,
(3) which is known to exist or which in the exercise of reasonable care
should have been known to exist, and
(4) which condition is proximately caused by the negligent act or omission
of the public entity or public employee in constructing or maintaining
such facility.
Walton v. State of Colorado, 968 P.2d 636, 644 (Colo. 1998) (citing Colo. Rev.
Stat. § 24-10-103(1)). United concedes that Plaintiff has satisfied elements one,
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two, and three, but argues that Plaintiff failed to plead any facts related to
element four. 2 (Doc. # 22 at 6.)
United correctly points out that ownership alone will not constitute a waiver of
immunity under the CGIA. See Swieckowski by Swieckowski v. City of Ft. Collins, 934
P.2d 1380, 1384 (Colo. 1997) (ownership alone is not sufficient; plaintiff must show that
the condition existed because of the government’s act or omission in maintaining or
constructing the condition rather than the design). However, Plaintiff argues that his
Complaint alleges that Denver knew the door to be dangerous and “unreasonably failed
to correct the door’s dangerous condition.”3 (Doc. # 19 at 5) (emphasis added). “[T]he
government’s duty to ‘maintain’ was intended by the legislature to mean a duty to
restore a facility to the same condition as originally constructed.” Swieckowski by
Swieckowski, 934 P.2d at 1384; Walton, 968 P.2d at 644-45. The Court finds that by
alleging that Denver failed to correct the dangerous condition, Plaintiff sufficiently
alleged that Denver did not restore the door to the same condition as originally
constructed. See Webster’s Third New International Dictionary 511 (1986) (defining
2
United makes much of the fact that Plaintiff did not identify the door that caused his injury as
the “jet bridge door” in his Complaint, arguing that “Plaintiff could have hit his head on either a
door connected to an airplane or an unidentified door somewhere in DIA.” (Doc. # 22 at 3 n. 3,
6 n. 4.) However, United overstates this perceived ambiguity. In a letter attached to the Notice
of Removal, Plaintiff’s counsel states that Plaintiff “hit his head on a door that was not fully
raised when deplaning into a jetway at [DIA]. At that time, there was a dangerous condition
in the jetway, which caused [Plaintiff] to hit his head.” (Doc. #1-3) (emphasis added). This
sufficiently identified the door as in the jetway, as opposed to anywhere in DIA, and as
discussed supra, the Court is permitted to look to the entire record to determine whether
United’s allegations of fraudulent joinder are substantiated. See Nerad, Inc., 203 F. App’x
at 913.
3
United also adopts this interpretation of Plaintiff’s Complaint. (Doc. # 22 at 5, 8.)
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“correct” as “to make or set right” and “to alter or adjust so as to bring to some standard
or required condition”).
Further, Plaintiff alleged in his Complaint that Denver “created the danger
presented by the door.” (Doc. # 4, ¶ 102.) Despite United’s assertions to the contrary,
this sufficiently raised the possibility that Denver negligently constructed the door in
such a way that it constituted a dangerous condition under the CGIA. See Grizzell v.
Hartman Enterprises, Inc., 68 P.3d 551, 553 (Colo. App. 2003) (“A complaint need
not express all facts that support the claim, but need only serve notice of the claim
asserted.”); see also Nerad, 203 F. App’x at 913 (“[T]he claim need not be a sure thing,
but it must have a basis in the alleged facts and the applicable law.”) Plaintiff was not
required, as United argues, to allege negligence with regard to creating this danger.
Compare (Doc. # 22 at 9) with Colo. Rev. Stat § 24-10-103(1.3) (a dangerous condition
is “proximately cause by the negligent act or omission of the public entity”) (emphasis
added). 4 Plaintiff alleged that Denver created the danger, knew or should have known
of the danger, and unreasonably failed to exercise reasonable care to protect against
the danger. (See Doc. # 4, ¶¶ 102-05) This tracked the language of the dangerous
condition exception and sufficiently put Defendants on notice that Plaintiff intended to
assert this exception to overcome Denver’s sovereign immunity. See Colo. Rev. Stat
§ 24-10-103(1.3) (a dangerous condition is “a physical condition of a facility . . . that
constitutes an unreasonable risk to the . . . public, which is known to exist or which in
the exercise of reasonable care should have been known to exist . . . .”); Grizzell v.
4
The Court also notes that Plaintiff did raise this allegation in the context of his negligence
claim. (See Doc. # 4, ¶¶ 102-05, 107-10)
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Hartman Enterprises, Inc., 68 P.3d at 553 (the chief function of the complaint is to give
notice to defendant of the transaction or occurrence that is the subject of plaintiff’s
claims). Thus, United did not meet its burden in proving that Plaintiff’s claims against
Denver are not possibly viable at the time of removal. See Nerad, 203 F. App’x at 913;
Montano, 2000 WL 525592, at *2; Smoot, 378 F.2d at 882.
III. ATTORNEY’S FEES
Plaintiff asks this Court to award attorney fees and costs incurred as a result of
removal pursuant to 28 U.S.C. § 1447(c). The Court does not agree that United had
“no objectively reasonable basis for removal.” See Martin v. Franklin Capital Corp., 546
U.S. 132, 141 (2005). Although United did not meet its high burden to demonstrate
fraudulent joinder with regard to Denver, see Montano, 2000 WL 525592, at *1, United
presented plausible arguments regarding potential deficiencies in Plaintiff’s Complaint.
See Martin, 546 U.S. at 140 (the appropriate test for awarding fees should not
undermine Congress’ basic decision to afford defendants a right to remove as a general
matter).
Furthermore, Plaintiff has not demonstrated that this case presents “unusual
circumstances” that warrant an award of attorney fees and costs. See id. Plaintiff
contends that United used removal proceedings to impermissibly forum shop and gain
a substantive advantage by avoiding Colorado’s liberal notice pleading standards.
(Doc. # 19 at 6-7.) However, this advantage would exist only if removal was proper.
Furthermore, after United filed its motion to dismiss, Plaintiff could have amended his
complaint as a matter of course to comply with federal requirements. See Fed. R. Civ.
8
P. 15 (a party may amend its pleading within 21 days after service of a responsive
pleading). Therefore, the Court does not view this case as one in which warrants
attorney fees and costs.
IV. CONCLUSION
Accordingly, it is ORDERED that Plaintiff’s Motion to Remand to State Court
(Doc. # 19) is GRANTED. This case is REMANDED to the District Court, City and
County of Denver, Colorado, for further proceedings. The parties shall bear their own
costs and fees associated with removal.
DATED: May
09
, 2013
BY THE COURT:
_______________________________
CHRISTINE M. ARGUELLO
United States District Judge
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