Vigil Sanchez v. Walgreens Family of Companies et al

Filing 51

MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales denying 8 Motion to Remand. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JANET VIGIL SANCHEZ,
Plaintiff,
vs.
Civ. No. 17-1168 KG/LF
WALGREENS FAMILY OF COMPANIES,
WALGREEN CO., WALGREEN
HASTINGS CO., WALGREENS STORE
NO. 3367, SDG8011 HARPER, LLC, and
JOHN DOE,
Defendants.
MEMORANDUM OPINION AND ORDER
The matter is before the Court on Plaintiff’s Motion to Remand and Memorandum in
Support of Motion to Remand (collectively, Motion to Remand), filed on December 28, 2017.
(Docs. 8 and 9). The Motion to Remand is fully briefed. (Docs. 11 and 15). On June 15, 2018,
the Court held a telephonic hearing at which Matthew Thomas Tucker appeared for Plaintiff and
Alex Cameron Walker appeared on behalf of Defendants. Having considered the Motion to
Remand, the briefing, the arguments of counsel, and the applicable law, and for the reasons
stated on the record at the June 15, 2018, telephonic hearing, the Court denies the Motion to
Remand.
I.

Procedural Background
Plaintiff originally filed her complaint for negligence on October 12, 2017, in the Second

Judicial District Court, State of New Mexico, D-202-CV-2017-07289, and named Walgreens
Family of Companies, et al., and store manager, Matthew Delgado, as Defendants. On
November 28, 2017, Defendants filed their Notice of Removal, (Doc. 1), asserting diversity
subject matter jurisdiction and asserting that while Delgado is a non-diverse party, Plaintiff

fraudulently joined Delgado in the original complaint. A month later, Plaintiff filed her Motion
to Remand based on lack of diversity of citizenship.
In their response to the Motion to Remand, Defendants attached an affidavit from
Delgado attesting that while he is employed by Walgreens as a Pharmacy Manager, he did not
work at the Walgreen’s location on the date Plaintiff alleges to have been injured, and that he did
not become the store manager until a later date. (Doc. 11-1).
Plaintiff maintains in her reply that even if Delgado was not the store manager, the Court
should allow her to amend her complaint to add the actual store manager, against whom she can
establish a “possibly viable claim.” Plaintiff claims that such a mistaken joinder of Delgado was
not fraudulent and that, therefore, there is no diversity of citizenship to support federal diversity
subject matter jurisdiction.
After the parties fully briefed the Motion to Remand, Plaintiff filed an unopposed motion
to dismiss the claims against Delgado, (Doc. 44), which the Court granted. Accordingly, the
Court entered an order dismissing Delgado from the lawsuit. (Doc. 45).
II.

Analysis
A. Diversity Jurisdiction
“Any civil action brought in a State court of which the district courts of the United States

have original jurisdiction, may be removed by the defendant … to the district court of the United
States for the district … embracing the place where such action is pending.” 28 U.S.C. §
1441(a); Dutcher v. Matheson, 733 F.3d 980, 984 (10th Cir. 2013). A federal court has
jurisdiction over a civil matter “where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interests and costs, and is between … citizens of different States….” 28
U.S.C. § 1332(a). Defendants assert the amount in controversy in this case exceeds $75,000, and

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Plaintiff does not contest that assertion. Based on my own review of the complaint and the
positions of the parties, I find that the amount in controversy exceeds $75,000.
The remaining jurisdictional question stemming from section 1332(a) is whether there is
complete diversity in this case and, if not, whether this Court, nevertheless, has subject matter
jurisdiction. I find first that complete diversity in this case is lacking. Specifically, Delgado is a
citizen of New Mexico as is Plaintiff.
As an initial matter, Defendants argue that Plaintiff’s Motion to Remand is now moot.
Defendants contend that because the amount in controversy exceeds $75,000 and the Court
dismissed Delgado from this suit, complete diversity of citizenship exists at this time, thereby
mooting the Motion to Remand. Even so, when analyzing removal jurisdiction, the Court
considers the complaint as it existed at the time of removal. And here, when Defendants filed
their Notice of Removal, Delgado was a non-diverse party. (Doc. 1-1) at ¶ 8. Therefore, the
Court considers whether, at the time this matter was removed, diversity subject matter
jurisdiction was proper.
B. Fraudulent Joinder
A defendant may remove a case to federal court based on diversity subject matter
jurisdiction, but absent complete diversity of citizenship, when the plaintiff joined a non-diverse
party in the state action in order to defeat federal subject matter jurisdiction. See Am. Nat’l Bank
& Trust Co. v. Bic Corp., 931 F.2d 1411, 1412 (10th Cir. 1991) (stating, “[i]f . . . plaintiffs joined
the Oklahoma residents without good faith, defendant may remove on the grounds of fraudulent
joinder”). In fact, Defendants assert that Plaintiff fraudulently joined Delgado.
“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

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action against the non-diverse party in state court.” Dutcher, 733 F.3d at 988 (quoting Cuevas v.
BAC Home Loans Servicing, LP, 648 F.3d 242, 249 (5th Cir. 2011)). “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.” Id. (quoting Pampillonia v. RJR Nabisco, Inc., 138 F.3d
459, 461 (2d Cir. 1998)).
Defendants do not argue the existence of actual fraud. Rather, and to the extent there is a
difference, Defendants argue Plaintiff joined Delgado simply to destroy complete diversity. The
Court need not consider actual fraud and will focus on the second prong of the fraudulent joinder
test. For this purpose, the Court considers the analysis by the Honorable James Browning in
McGrath v. City of Albuquerque, 2015 WL 4994735 (D.N.M.), helpful:
[T]he test is “whether the defendant has demonstrated that there is no possibility of
recovery by the plaintiff against an in-state defendant, which stated differently means that
there is no reasonable basis for the district court to predict that the plaintiff might be able
to recover against an in-state defendant. If there is no reasonable basis of recovery, then
the court can conclude that the plaintiff’s decision to join in the in-state defendant was
indeed improper, unless that showing compels the dismissal of all defendants.”
Id. at *19 (emphasis added) (citing Dutcher, 733 F.3d at 988 and quoting Cuevas, 648 F.3d at
249). As such, the defendant seeking removal must overcome a presumption against removal.
Id. at *12. The standard to establish fraudulent joinder “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 commenced.”
Montano v. Allstate Indemnity Co., 211 F.3d 1278, 2000 WL 525592, at *2 (quoted in McGrath,
2015 WL 4994735, at *17).
As discussed above, Defendants have tendered Delgado’s affidavit in which he attests
that he was not employed at the Walgreens location at issue and on the date Plaintiff alleges to
have been injured. Plaintiff has offered no evidence to rebut this affidavit. In addition, my
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review of Plaintiff’s complaint and the allegations relating to Delgado fail to establish a
reasonable basis for this Court to predict that Plaintiff might recover against Delgado. Based on
the foregoing, I have determined that Plaintiff fraudulently joined Delgado in this matter. As a
result, I conclude, based on the original complaint that diversity subject matter jurisdiction was
proper on the date of removal.
IT IS, THEREFORE, ORDERED that the Motion to Remand (Doc. 8) is denied.

_______________________________
UNITED STATES DISTRICT JUDGE

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