Durlak v. Home Depot U.S.A., Inc. et al

Filing 23

REPORT & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re denying 9 MOTION to Remand for Improper Removal, by Magistrate Judge Michael J. Watanabe on 6/13/2018. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-02276-WJM-MJW
SHARON DURLAK,
Plaintiff,
v.
HOME DEPOT U.S.A., INC., and
NICHOLAS SCHIATTA,
Defendants.

REPORT & RECOMMENDATION ON PLAINTIFF’S MOTION TO REMAND FOR
IMPROPER REMOVAL (Docket No. 9)
Michael J. Watanabe
United States Magistrate Judge
This case is before the Court pursuant to a memorandum (Docket No. 20)
referring the subject motion (Docket No. 9) entered by Judge William J. Martinez on
December 5, 2017. Now before the Court is Plaintiff’s Motion to Remand for Improper
Removal (Docket No. 9). The Court has carefully considered the motion, the Response
(Docket No. 14), and the Reply (Docket No. 21). The Court has taken judicial notice of
the Court’s file and has considered the applicable Federal Rules of Civil Procedure and
case law. The Court now being fully informed makes the following findings of fact,
conclusions of law, and recommendation.
Background
Plaintiff filed this case against Defendants in the District Court for the City and
County of Denver. Defendant Home Depot U.S.A., Inc. (“Home Depot”) removed the
suit to this Court on September 20, 2017, arguing that, while Plaintiff and Defendant

Schiatta are citizens of Colorado, Defendant Schiatta was improperly joined as a
Defendant to defeat diversity jurisdiction. (Docket No. 1 at 4.) After removal, Plaintiff
filed the instant motion seeking remand (Docket No. 9). Plaintiff argues that her
allegations against Defendant Schiatta were not fraudulent and, as a result, this Court
lacks jurisdiction over this suit.
Analysis
To be removable, a civil action must satisfy the requirements for federal
jurisdiction. 28 U.S.C. § 1441(a). “It is well-established that statutes conferring
jurisdiction upon the federal courts, and particularly removal statutes, are to be narrowly
construed in light of [the courts’] constitutional role as limited tribunals.” Pritchett v.
Office Depot, Inc., 420 F.3d 1090, 1095 (10th Cir. 2005). The presumption is therefore
“against removal jurisdiction.” Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.
1995), abrogated on other grounds by Dart Cherokee Basin Operating Co., LLC v.
Owens, ––– U.S. ––––, 135 S.Ct. 547, 554, 190 L.Ed.2d 495 (2014) (“a defendant’s
notice of removal need include only a plausible allegation that the amount in
controversy exceeds the jurisdictional threshold.”). Where there exist uncertainties
regarding the Court’s jurisdiction, the uncertainties are resolved in favor of remand.
Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290 (10th Cir. 2001), abrogated on
other grounds by Dart Cherokee Basin Operating Co., LLC, ––– U.S. ––––, 135 S.Ct.
547, 554, 190 L.Ed.2d 495 (2014) (same). “The party invoking federal jurisdiction has
the burden to establish that it is proper, and there is a presumption against its
existence.” Salzer v. SSM Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th Cir.
2014) (internal quotation marks omitted).

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In Dutcher v. Matheson, the Tenth Circuit examined fraudulent joinder and
explained:
To establish [fraudulent] joinder, the removing party must demonstrate
either: (1) actual fraud in the pleading of jurisdictional facts, or (2) inability
of the plaintiff to establish a cause of action against the non-diverse party
in state court. The defendant seeking removal bears a heavy burden of
proving fraudulent joinder, and all factual and legal issues must be
resolved in favor of the plaintiff.
733 F.3d 980, 988 (10th Cir. 2013) (internal quotation marks and citations omitted,
modification in original). Here, the dispute centers on the second option: the parties
dispute whether Plaintiff can establish a cause of action against Defendant Schiatta in
state court. Defendant Home Depot argues that “[t]here is no reasonable basis to
believe the Plaintiff may succeed in her sole claim against . . .Defendant Schiatta.”
(Docket No. 14 at 3.)
To succeed in such an argument, Defendant Home Depot must establish “that
there is no possibility that [Plaintiff] would be able to establish a cause of action against
[Schiatta] in state court.” Montano v. Allstate Indem., No. 99-2225, 2000 WL 525592, at
*1 (10th Cir. Apr. 14, 2000) (quoting Hart v. Bayer Corp., 199 F.3d 239, 246 (5th Cir.
2000)). Indeed, after resolving “all disputed questions of fact and all ambiguities in the
controlling law in favor of the non-removing party,” the Court should deny a fraudulent
joinder assertion if there is “any possibility of recovery against the party whose joinder is
questioned.” Id. Thus, while a court is not compelled to believe whatever the plaintiff
says in the complaint, and indeed can go behind the complaint to determine whether
joinder is a “sham or fraudulent device to prevent removal,” a claim “which can be
dismissed only after an intricate analysis of state law is not so wholly insubstantial and
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frivolous that it may be disregarded for purposes of diversity jurisdiction.” Brazell v.
Waite, 525 F.App’x 878, 881 (10th Cir. 2013) (quoting Smoot v. Chicago, Rock Island
and Pac. R.R. Co., 378 F. 2d 879, 881-82 (10th Cir. 1967); Batoff v. State Farm Ins.
Co., 977 F.2d 848, 853 (3d Cir. 1992)).
Plaintiff asserts one claim for negligence against Defendant Schiatta (Docket No.
5 ¶¶ 31-35). Defendant Home Depot argues that because Plaintiff alleges that
Defendant Schiatta was negligent on Defendant Home Depot’s property in the course of
his employment, the Colorado Premises Liability Act (“PLA”) is implicated and Plaintiff’s
only remedy is against the landowner---Defendant Home Depot. As a result, Defendant
Home Depot maintains that Plaintiff cannot establish a negligence cause of action
against Defendant Schiatta.
In Colorado, a claim is a premises liability claim, and thus subject to the PLA
when (a) the plaintiff’s injury occurred while on the landowner’s real property, and (b)
the alleged injury occurred by reason of the property’s condition or as a result of
activities conducted or circumstances existing on the property. Larrieu v. Best Buy
Stores, L.P., 303 P.3d 558, 559 (Colo. 2013). Here, Plaintiff alleges that she was injured
in the wood cutting area of the Home Depot store located at 1200 Mayberry Drive in
Highlands Ranch, Colorado. (Docket No. 5 ¶¶ 8-9, 11-12.) She further alleges that she
“was injured when . . . Defendant Schiatta dropped a large panel of wood/MDF on
Plaintiff’s foot . . . .” (Id. ¶¶ 12-13). Plaintiff also alleges that “Defendant Schiatta was
negligent when he ‘failed to exercise that degree of care which a reasonably careful
person would use under the same of similar circumstances, as an agent/employee of
Defendant Home Depot, when he dropped the wood/MDF panel on Plaintiff’s foot.” (Id.

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¶ 17) (citation and internal quotation marks omitted). Further, Plaintiff specifically alleges
that Defendant Home Depot was a “landowner” as defined by Colo. Rev. Stat. § 13-21115(5)(b) (Id. ¶ 19). Plaintiff argues that the Court must engage in a fact-specific, caseby-case inquiry to determine whether “alleged injury occurred by reason of the
property’s condition or as a result of activities conducted or circumstances existing on
the property,” Larrieu, 303 P.3d at 559. (Docket No. 21 at 5). However, Plaintiff’s own
allegations make clear that that is exactly what occurred. She alleges that Defendant
Schiatta’s activities on Defendant Home Depot’s property as an employee of Defendant
Home Depot caused her injury. The Court need not engage in an “intricate analysis”
(Docket No. 21 at 5) in order to determine if these factual allegations implicate the PLA.
It is clear that they do. As the Colorado Supreme Court made clear in Larrieu, the PLA
is not implicated by “any tort that happens to occur on another's property,” Larrieu, 303
P.3d at 563. However, the statute is implicated by “conditions, activities, and
circumstances on the property that the landowner is liable for in its legal capacity as a
landowner.” Id. Specifically, as discussed above, the statute is implicated when “(a) the
plaintiff’s alleged injury occurred while on the landowner’s real property; and (b) the
alleged injury occurred by reason of the property’s condition or as a result of activities
conducted or circumstances existing on the property.” Id. Plaintiff’s negligence claim
against Defendant Schiatta is based on an injury that occurred at Home Depot by a
Home Depot employee who was engaged in the activities of his employment.
Recommendation
For the foregoing reasons, it is hereby RECOMMENDED that Plaintiff’s Motion to
Remand for Improper Removal (Docket No. 9) be DENIED.

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NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review of both factual and legal questions.
Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse,
91 F.3d 1411, 1412-13 (10th Cir. 1996).
Date:

June 13, 2018
Denver, Colorado

s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge

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