Nevada General Insurance Company v. Anaya et al
MEMORANDUM OPINION AND ORDER granting 63 MOTION to Dismiss Defendant Michelle Provencid aka Michelle Baca by Chief Judge M. Christina Armijo. Michelle Provencio terminated. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
NEVADA GENERAL INSURANCE CO.,
No. 15-cv-165 MCA/KBM
ARTHUR ANAYA, et al.,
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff Nevada General Insurance
Company’s Motion to Dismiss the Defendant Michelle Provencio a/k/a Michelle Baca1
[Doc. 63]. None of the defendants responded to Plaintiff’s Motion. The Court has
considered the parties’ submissions and the relevant law, and is otherwise fully informed.
For the following reasons, the Court GRANTS Plaintiff’s Motion.
Plaintiff alleges the following facts in its First Amended Complaint. [Doc. 7]
20. Upon information and belief, on or about, August 25, 2014, Defendant
Daniel Romero beat his girlfriend, Defendant Michelle Provencio, and then
he kidnapped her using a 2000 Chevrolet Malibu.
21. The 2000 Chevrolet Malibu was owned by Defendant Abelino Romero
and insured through Plaintiff Nevada General, policy number 0295010
(hereafter “The Policy”). Certified copy of that policy booklet attached
hereto as “Exhibit. A”.
For purposes of this Memorandum Opinion and Order, the Court will refer to
Defendant Provencio/Baca as “Defendant Provencio.”
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22. Upon information and belief, Defendant Daniel Romero was using the
2000 Chevrolet Malibu without the permission of Defendant Abelino
23. Upon information and belief, Defendant Michelle Provencio was able
to send a text message to a family member regarding her situation, and that
family member was then able to contact the Defendant Albuquerque Police
Department (APD) with a description of the 2000 Chevrolet Malibu.
24. Upon information and belief, Defendant Daniel Romero was driving
the 2000 Chevrolet Malibu at a high rate of speed while evading APD
25. Defendant Daniel Romero was driving westbound on Avenida de
Ceaser Chavez when a spike belt was placed in Defendant Daniel Romero’s
path by an APD officer.
26. Defendant Daniel Romero swerved around the spike belt, and lost
control of the 2000 Chevrolet Malibu crossing into the eastbound lanes of
Avenida de Ceaser Chavez.
27. Defendant Daniel Romero struck multiple cars in the eastbound lanes
of Avenida de Ceaser Chavez, ultimately causing a five-car collision
(hereafter “The Incident”).
The circumstances leading to the present Motion are set out in this Court’s order
entered on August 7, 2017 [Doc. 60]. In sum, the Court found that it did “not have
sufficient evidence from which to determine that there is complete diversity between
Plaintiff and Defendants, as is required for subject matter jurisdiction over this matter”
because it was unclear from Plaintiff’s filings whether Defendant Provencio was a citizen
of New Mexico. [Doc. 60] The Court therefore ordered Plaintiff to “show cause in
writing . . . why this matter should not be dismissed for lack of subject matter
jurisdiction.” [Doc. 60] In response, Plaintiff filed the present Motion, stating that
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“Plaintiff is unable to satisfy [the Court’s request to demonstrate that Defendant
Provencio is a citizen of New Mexico] and thus moves for her dismissal.”2 [Doc. 63]
Federal Rule of Civil Procedure 19 governs joinder of parties in these
(a) Persons Required to Be Joined if Feasible.
(1) Required Party. A person who is subject to service of process and
whose joinder will not deprive the court of subject-matter jurisdiction must
be joined as a party if:
(A) in that person’s absence, the court cannot accord complete relief among
existing parties; or
(B) that person claims an interest relating to the subject of the action and is
so situated that disposing of the action in the person’s absence may:
(i) as a practical matter impair or impede the person’s ability to protect the
(ii) leave an existing party subject to a substantial risk of incurring double,
multiple, or otherwise inconsistent obligations because of the interest.
(b) When Joinder Is Not Feasible. If a person who is required to be joined if
feasible cannot be joined, the court must determine whether, in equity and
good conscience, the action should proceed among the existing parties or
should be dismissed. The factors for the court to consider include:
(1) the extent to which a judgment rendered in the person’s absence might
prejudice that person or the existing parties;
Meanwhile, on December 1, 2016, Plaintiff moved the Court to permit service by
publication pursuant to Fed. R. Civ. P. 4(e)( l ) and Rule 1-0040) NMRA as to Defendant
Michelle Provencio. [Doc. 54] The Court granted permission for service by publication
on December 19, 2016. [Doc. 56] An affidavit of publication was filed on March 16,
2017, showing that publication ran through March 3, 2017. [Doc. 59]
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(2) the extent to which any prejudice could be lessened or avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the person’s absence would be
(4) whether the plaintiff would have an adequate remedy if the action were
dismissed for nonjoinder.
Fed. R. Civ. P. 19.
Plaintiff acknowledges that, as a passenger in the insured vehicle, Defendant
Provencio has an interest in this declaratory judgment action for determination of
coverage. [Doc. 63] However, Plaintiff argues, Defendant Provencio’s absence would
not prevent complete relief for the remaining parties under Rule 19(a)(1)(A). Moreover,
Plaintiff asserts that, although Defendant Provencio has an interest, resolution of the
matter would not impair her interest or expose Plaintiff to multiple obligations. [Doc. 63]
Generally, “all interested parties should be joined in a declaratory judgment action
whenever possible.” State Farm Mut. Auto. Ins. Co. v. Mid-Continent Cas. Co., 518 F.2d
292, 296 (10th Cir. 1975). However, joinder in declaratory judgment actions is governed
by Rule 19. Id. at 294. In addition, declaratory judgment is not binding against those not
joined as parties. Id. at 295. Hence, the Court must determine 1) whether Defendant
Provencio is required to be joined if feasible under Rule 19(a) and, if so, whether the
action may fairly proceed in her absence under Rule 19(b).
The Court finds the following:
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1). Defendant Provencio, as an alleged passenger in the insured vehicle, is an
interested party to this declaratory judgment action for determination of coverage;
2). Dismissal of Defendant Provencio will not impair the ability of the remaining
defendants to protect their rights;
3). Because a judgment in this matter would not be binding on her, dismissal of
Defendant Provencio will not impair her ability to seek coverage in a separate suit. Id.
(stating that “[a]s a practical matter, a determination would not impair or impede [the
non-party’s] ability to protect his interest” and that he “could relitigate this matter, and
we believe any interest he has could be protected then”);
The risk that dismissal of Defendant Provencio will expose Plaintiff to
multiple obligations is low because 1) the present suit seeks only a determination of
coverage under the policy covering the 2000 Chevrolet Malibu, and 2) although
Defendant Provencio might institute a separate suit for coverage, the outcome of that suit
will be a determination of coverage only as to Defendant Provencio. See id. (noting that,
in assessing the risk of multiple obligations, the courts “are required to look to practical
possibilities more than theoretical possibilities in considering possible prejudice to
parties” (internal quotation marks and citation omitted)).
Provencio has shown no interest in the present lawsuit in spite of Plaintiff’s efforts to
locate and serve her, including through service by publication. See id. (stating that the
risk of multiple obligation was low because, inter alia, the non-party there “had shown no
interest or concern with the litigation”); RFF Family P’ship, LP v. Link Dev., LLC, 849 F.
Supp. 2d 131, 137 (D. Mass. 2012) (“A court should nevertheless hesitate to require a
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party to remain in a declaratory judgment action if that party is only tangentially involved
with the controversy at issue and does not wish to be caught up in the litigation.”). [See
Doc. 56, pg. 6-9]
5). Dismissal of Defendant Provencio will preserve diversity jurisdiction in this
Court. See Lenon v. St. Paul Mercury Ins. Co., 136 F.3d 1365, 1371 (10th Cir. 1998)
(“[I]t is well-settled that [Fed. R. Civ. P.] 21 invests district courts with authority to allow
a dispensable nondiverse party to be dropped at any time [to preserve diversity
jurisdiction], even after judgment has been rendered.” (quoting Newman–Green, Inc. v.
Alfonzo–Larrain, 490 U.S. 826, 832 (1989)).
Based on the foregoing findings, the Court further finds that Defendant Provencio
is not a party required to be joined if feasible under Rule 19(a). Therefore, there is no
need to address Rule 19(b).
Consequently, Plaintiff’s Motion will be granted.
For the foregoing reasons, the Court GRANTS Plaintiff’s Motion to Dismiss the
Defendant Michelle Provencio a/k/a Michelle Baca [Doc. 63].
SO ORDERED this 30th day of November, 2017.
M. CHRISTINA ARMIJO
Chief United States District Judge
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