Jensen Farms v. Primus Group, Inc.

Filing 26

ORDER on 23 Unopposed Amended MOTION for Substitution of Parties Pursuant to F.R.C.P. 25 (c) and to Dismiss Plaintiff Jensen Farms by Judge Raymond P. Moore on 1/23/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 13BcvB03285BRMBKMT
JENSEN FARMS, a Colorado partnership,
Plaintiff,
v.
PRIMUS GROUP, INC. d/b/a PRIMUS LABS, a California corporation,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
THIS MATTER is before the Court on “Plaintiff’s Unopposed Amended Motion for
Substitution of Parties Pursuant to F.R.C.P. 25(c), and to Dismiss Plaintiff Jensen Farms” (ECF
No. 23), seeking to substitute 46 assignees as plaintiffs in place of Plaintiff Jensen Farms. Upon
review of the Motion, and the file, the Court finds the following matters require further
consideration: (1) one of the proposed plaintiffs is a minor child; (2) 30 of the proposed plaintiffs
are “estates”; and (3) this action was removed from the District Court, Prowers County, State of
Colorado based on diversity jurisdiction. The Court will address each in turn.
First, pursuant to Fed.R.Civ.P. 5.2(a), and in accordance with this Court’s privacy policy as
stated in the ECF Civil Procedures, filings containing the name of an individual known to be a
minor may include only the minor’s initials.
Next, pursuant to Fed.R.Civ.P. 17(b), as relevant here, a party’s capacity to sue or be sued
is determined by the law of the state where this Court is located, here, Colorado. Based on

Exhibit A to the Assignment of Rights Agreement, it appears that most of the proposed substituted
plaintiffs may be “estates” and not their personal representatives. Under Colorado law, an issue is
raised as to whether an estate is a legal entity with capacity to sue or be sued. See Boatright v.
Derr, 919 P.2d 221 (Colo. 1996).
Finally, this action was removed to this Court based on diversity jurisdiction. The
Complaint was filed in state court on October 15, 2013, but the Notice of Removal was filed on
December 4, 2013. In the interim, through the Assignment of Rights Agreement dated November
19, 2013, Plaintiff Jensen Farms assigned all of its rights against Defendant to the 46 proposed
plaintiffs. Thus, at the time of the removal, the proposed plaintiffs were the real parties in
interest. The citizenships of such proposed plaintiffs are unknown but the Motion seeks to
substitute them as parties, raising the issue of whether such substitution would destroy diversity
jurisdiction under the facts and circumstances of this removed case. See, e.g.,
Freeport-McMoRan, Inc. v. K N Energy, 498 U.S. 426 (1991); Salt Lake Tribune Pub. Co., LLC v.
AT & T Corp., 320 F.3d 1081 (10th Cir. 2003); 14B Charles A. Wright, Arthur R. Miller, Edward
H. Cooper, Vikram D. Amar, Richard D. Freer, Helen Hershkoff, Joan E. Steinman & Catherine T.
Struve, Federal Practice & Procedure § 3723 & n. 15 (4th ed. 2013) (collecting cases addressing
removal).
Accordingly, it is hereby ORDERED that:
1.

All filings containing the name of a minor shall use only the minor’s initials and not
his or her full name;

2

2.

By Friday, February 7, 2014, the parties shall: (i) notify the Court whether the
proposed substituted plaintiffs listed as “estates” are, in fact, the estates or the
personal representatives of such estates; and (ii) if the estates are the proposed
plaintiffs, to file a response brief, not to exceed five pages excluding the certificate
of service, addressing why the action should be brought in the names of the various
estates as opposed to the names of their respective personal representatives; and

3.

By Friday, February 7, 2014, the parties shall file a response brief, not to exceed
ten pages excluding the certificate of service, addressing whether diversity
jurisdiction will be destroyed upon the substitution of the parties.

DATED this 23rd day of January, 2014.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

3