David Rockwell, et al v. Coram Specialty Infusion Services, Inc., et al.

Filing 19

MEMORANDUM OPINION AND ORDER by District Judge M. Christina Armijo granting 10 MOTION to Remand to State Court and Brief in Support. (kg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

DAVID ROCKWELL and
AMANDA GALE SALAZAR,
Plaintiffs,
v.

No. 17cv1185 MCA/KBM

CORAM SPECIALTY INFUSION
SERVICES, INC., a Foreign Corporation,
and KELLY COWAN, an individual,
Defendants.

MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiffs’ Motion to Remand and Brief in
Support [Doc. 10]. The Court has considered the parties’ submissions and the relevant
law, and is otherwise fully informed. For the following reasons, the Court GRANTS
Plaintiffs’ Motion.
I.

Background
Plaintiffs David Rockwell and Amanda Gale Salazar (Plaintiffs) filed a complaint

in the First Judicial District Court against their employer, Coram Specialty Infusion
Services, Inc. (Coram), and another Coram employee, Kelly Cowan (Cowan;
collectively, Defendants).

[Doc. 1-2]

In the Complaint, Plaintiffs assert claims of

retaliatory discharge against Coram and tortious interference with contractual relations
against Cowan. [Doc. 1-2] Plaintiffs state that they are residents of New Mexico and

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allege that Defendant Cowan is also a New Mexico resident. [Doc. 1-2, ¶¶ 1, 2, 5]
Defendants removed the matter to this Court, invoking this Court’s jurisdiction under 28
U.S.C. § 1332(a). They provided an affidavit stating that Coram is a limited liability
company whose only member is a corporation incorporated in Delaware with its principal
place of business in Rhode Island. [Doc. 1-3] See Americold Realty Trust v. Conagra
Foods, Inc., 136 S. Ct. 1012, 1015 (2016) (affirming the Tenth Circuit’s holding that “the
citizenship of any ‘non-corporate artificial entity’ is determined by considering all of the
entity’s ‘members,’ which include, at minimum, its shareholders.” (internal quotation
marks and citation omitted)); 28 U.S.C. § 1332(c)(1) (stating that “a corporation shall be
deemed to be a citizen of every State and foreign state by which it has been incorporated
and of the State or foreign state where it has its principal place of business.”). The parties
do not dispute that, while Defendant Coram is a foreign entity, Defendant Cowan is not,
and, therefore, complete diversity is not present here. [Doc. 1, ¶ 5; Doc. 10, pg. 1] In the
Notice of Removal, Defendants argued that although all of the parties are not diverse, as
required under 28 U.S.C. § 1332(a), this Court should nevertheless exercise jurisdiction
because Defendant Cowan was joined solely to defeat removal, i.e., fraudulently joined.1
[Doc. 1] Plaintiffs now move for remand, contending that they have a viable claim
against Defendant Cowan and that this Court lacks jurisdiction over their Complaint.
[Doc. 10]

1

Plaintiffs do not dispute Defendants’ assertion that the amount in controversy exceeds
$75,000. [Doc. 1, ¶¶ 15-22; Doc. 10]
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II.

Discussion
Federal law provides that the United States District Courts have original

jurisdiction over all civil actions where the matter in controversy exceeds the sum or
value of $75,000 and is between citizens of different states. See 28 U.S.C. § 1332(a).
Diversity jurisdiction depends upon all parties to one side of the case having a different
citizenship from all parties to the opposing side. See City of Neodesha v. BP Corp. N.
Am., 355 F.Supp.2d 1182, 1185 (D. Kan. 2005).
An action initially brought in a state court may be removed to a federal district
court pursuant to the authority set forth in 28 U.S.C. § 1441, which states, in pertinent
part, that
[e]xcept as otherwise expressly provided by Act of Congress, 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 or the
defendants, to the district court of the United States for the district and
division embracing the place where such action is pending.
28 U.S.C. § 1441(a).
“‘Removal statutes are strictly construed, and any doubts about the propriety of
removal are resolved in favor of remand.’” See City of Neodesha, 355 F.Supp.2d at 1185
(quoting Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3rd Cir.1990)). When
removal is challenged, the burden rests with the removing party to prove that the federal
district court has original jurisdiction. City of Neodesha, 355 F.Supp.2d at 1185.
In some instances, where the parties are not diverse, a removing party may
nevertheless assert diversity jurisdiction on the ground that a non-diverse party was
fraudulently joined. Our Tenth Circuit has explained that
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[u]pon specific allegations of fraudulent joinder the court may pierce the
pleadings, consider the entire record, and determine the basis of joinder by
any means available. The joinder of a resident defendant against whom no
cause of action is stated is patent sham and though a cause of action be
stated, the joinder is similarly fraudulent if in fact no cause of action exists.
This does not mean that the federal court will 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.
Dodd v. Fawcett Publications, Inc., 329 F.2d 82, 85 (10th Cir. 1964) (citations omitted);
see Nerad v. AstraZeneca Pharm., Inc., 203 F. App’x 911, 913 (10th Cir. 2006)
(unpublished2) (stating that “[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 that the pleadings are
deceptive. Thus, in cases where fraudulent joinder is claimed, we have directed courts to
pierce the pleadings, consider the entire record, and determine the basis of joinder by any
means available.” (internal quotation marks and citation omitted)). The party asserting
fraudulent joinder bears a “heavy burden” inasmuch as that party “‘must demonstrate that
there is no possibility that the non-removing party would be able to establish a cause of
action against the joined party in state court.’” See Montano v. Allstate Indem., 211 F.3d
1278, *1-2 (10th Cir. 2000) (unpublished) (alterations omitted) (quoting Hart v. Bayer
Corp, 199 F.3d 239, 246 (5th Cir. 2000)). “This standard is more exacting than that for
dismissing a claim under Fed. R. Civ. P. 12(b)(6); indeed, the latter entails the kind of

2

Pursuant to Rule 32.1(A) of the Federal Rules of Appellate Procedure for the Tenth
Circuit, “[u]npublished decisions are not precedential, but may be cited for their
persuasive value.”
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merits determination that, absent fraudulent joinder, should be left to the state court
where the action was commenced.” Montano, 211 F.3d at *2.
After initially resolving all disputed questions of fact and all ambiguities in the
controlling law in favor of the non-removing party, the Court’s task is “then to determine
whether that party has any possibility of recovery against the party whose joinder is
questioned.” Id. at * 1 (internal quotation marks and citation omitted). “[R]emand is
required if any one of the claims against the non-diverse defendant . . . is possibly
viable.” Id. at * 2 (citing Green v. Amerada Hess Corp., 707 F.2d 201, 206 (5th Cir.
1983)). The Court examines state law to determine whether any of Plaintiffs’ claims are
“possibly viable.” Montano, 211 F.3d at *2; see Hart, 199 F.3d at 246 (“To prove their
allegation of fraudulent joinder [removing parties] must demonstrate that there is no
possibility that [plaintiff] would be able to establish a cause of action against them in
state court.” (alteration in original) (internal quotation marks and citation omitted)).
The tort at issue here—interference with contractual relations—is “well
recognized” in New Mexico law. M & M Rental Tools, Inc. v. Milchem, Inc., 1980NMCA-072, ¶ 14, 612 P.2d 241.

“The general rule [is] that one who, without

justification or privilege to do so, induces a third person not to perform a contract with
another is liable for the harm caused by his action.” Zarr v. Washington Tru Solutions,
LLC, 2009-NMCA-050, ¶ 6, 208 P.3d 919 (internal quotation marks, citation and
alteration omitted); see M & M Rental Tools, Inc., 1980-NMCA-072, ¶ 20 (adopting the

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Restatement of Torts 2d, § 766B definition of the tort3).

The tort encompasses

interference with both prospective and existing contractual relationships. Zarr, 2009NMCA-050, ¶ 6. “When an employment relationship is at-will, any claim of intentional
interference with that relationship is treated as interference with a prospective
employment relationship.” Id. ¶ 17. To prevail on this claim, a plaintiff is required
“prove that [the defendant] took action that persuaded [a third party] to break its
commitment to [the plaintiff], and that [the defendant] accomplished this either with an
improper motive or through improper means.” Fikes v. Furst, 2003-NMSC-033, ¶ 20, 81
P.3d 545; see Zarr, 2009-NMCA-050, ¶ 6 (internal quotation marks omitted). “What
may qualify as ‘improper means’ depends to some degree on context and can include, but
is not limited to predatory behavior, violence, threats or intimidation, deceit or
misrepresentation, bribery, economic pressure, unfounded litigation, defamation,
unlawful conduct, and perhaps violation of business ethics and customs.” Zarr, 2009NMCA-050, ¶ 11.
Here, Plaintiffs alleged in their Complaint that
53. Plaintiffs were employed by Defendant Coram pursuant to an impliedin-fact contract for employment at will.
...

3

“One who intentionally and improperly interferes with another’s prospective contractual
relation (except a contract to marry) is subject to liability to the other for the pecuniary
harm resulting from loss of the benefits of the relation, whether the interference consists
of (a) inducing or otherwise causing a third person not to enter into or continue the
prospective relation or (b) preventing the other from acquiring or continuing the
prospective relation.”
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55. Defendant Cowan interfered with Plaintiffs’ employment by Defendant
Coram by improper means and for improper motives, including by making
false and malicious complaints about Plaintiffs to Plaintiffs’ superiors
thereby causing the termination of Plaintiffs under false pretenses and for
false reasons when the actual reasons for the terminations were wrongful
and unlawful.
56. Defendant Cowan acted solely to harm Plaintiffs and not to further any
legitimate business interests of Defendant Coram.
57. Defendant Cowan’s interference was intentional. She knew or should
have known that her actions were improper and that they would result in
harm to Plaintiffs.
58. Defendant Cowan’s wrongful interference with Plaintiffs’ employment
with Defendant Coram resulted in Plaintiffs’ termination and caused
Plaintiffs harm in the form of pecuniary losses.
[Doc. 1-2] They further allege that “Defendant Cowan was employed by Defendant
Coram as Territory Sales Manager with responsibility over Coram’s sales in New
Mexico.” [Doc. 1-2, ¶ 5] Plaintiffs also made several allegations to the effect that
Defendant Cowan objected to their failure to enroll certain patients. For example, they
allege that when they refused to enroll patients “without proper physician orders
indicating the medical necessity and appropriateness of the therapy,” Defendant Cowan
and others told them they were being “roadblocks.” [Doc. 1-2, ¶ 14] Plaintiffs also
allege that Defendant Cowan instructed “referral sources . . . not to include any history of
intravenous drug use” when conveying patient history, even though such use might
indicate that the patient was inappropriate for infusion therapy.

[Doc. 1-2, ¶ 24]

Plaintiffs state that these practices violated guidelines and regulations applicable to
medical care, including in some cases Coram’s own policies. [Doc. 1-2, ¶¶ 12, 13, 16,
18, 26, 28] Plaintiffs maintain that, when Plaintiffs complained about the latter practice

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to Rockwell’s supervisor, she reported that “sales personnel” had complained about
Rockwell and Salazar “obstructing the expansion of Coram’s business by establishing
roadblocks to enrolling patients.” [Doc. 1-2, ¶ 32]
In addition, in Rockwell’s affidavit, which Plaintiffs attach to their Motion to
Remand, Rockwell alleges that:
6. On a frequent basis, me or my staff were provided with inaccurate
information by Defendant Cowan regarding the status of a patient [which]
resulted in delays in enrolling patients and providing them with infusion
services.
7. I received frequent communications from my superiors criticizing my
performance and that of my staff as a result of this inaccurate information
provided by Defendant Cowan. I know that Defendant Cowan blamed me
and my staff, including Amanda Salazar, for the delays because my
superiors frequently told me that Defendant Cowan was the source of the
inaccurate information that was being used to blame me and my staff for
delays.
8. I was frequently told by my superiors that it was my fault that a patient
had not been enrolled yet or that patient care had been delayed and that the
patient was not home yet. In fact, I was frequently yelled at by my
superiors on the basis of this false information provided by Defendant
Cowan.
9. In providing enrollment information for patients, Defendant Cowan
would frequently leave [out] vital information that was needed to assess
properly the needs of the patient and to treat the patient properly. For
example, on numerous occasions, Defendant Cowan left out information
regarding intravenous drug abuse by a patient or she stated that it was an
issue in the past. However, I had my staff check with treating physicians or
nurses with knowledge of the patients and in a number of cases discovered
that the information provided by Defendant Cowan was false and that the
patient had been using drugs up to the time they were admitted to the
hospital. A patient’s current intravenous drug use is a critical piece of
information that is required to make a valid assessment of the
appropriateness of infusion therapy for a patient. In many cases it will
disqualify the patient from infusion therapy.

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10. On at least one occasion I was criticized by a superior for having the
highest level of drug abuse “no starts” (i.e. patients referred by sales who
we were unable to service due to current intravenous drug use) in the region
and was told that sales, meaning Defendant Cowan, was stating that I was
refusing to enroll qualified patients referred by sales. I explained the
situation, but was told to make patient enrollments happen.
11. On numerous occasions Defendant Cowan and employees under her
supervision attempted to cause Albuquerque Branch employees to enroll
patients and proceed with treatment of them on the basis of physician
orders entered in a hospital database, to which we did not have access. . . . .
12. Although my nursing and pharmacy staff were correct that under the
circumstances the physician orders needed to be signed, Defendant Cowan
persisted in raising the issues with my superiors and I received a number of
calls from my superiors accusing me of creating unnecessary requirements
and being a “roadblock” to the sales staff.
...
17. Mr. Owen’s expression that me and my team were already
“blackballed” appeared to color his view of me and the view of me by my
direct supervisor as a productive and efficient Branch Manager. In the six
months preceding my termination I received at least thirty phone calls from
my direct supervisor passing along complaints made about me by
Defendant Cowan, which my supervisor appeared to accept as legitimate
because she told me that I needed to change. None of the complaints were
legitimate and all appeared to be based on false allegations from Defendant
Cowan. Many related to my insistence that applicable regulations and
medical standards be followed.
18. Prior to my termination, my direct supervisor gave me a “final” verbal
warning indicating that I was a “roadblock” to the sales team, including
Defendant Cowan. This was false and appeared to me to be based on many
of the false allegations made about me to my superiors by Defendant
Cowan.
[Doc. 10-1] Considering the allegations in the Complaint and affidavit, and indulging all
inferences in Plaintiffs’ favor, the Court finds that the allegations “demonstrate that there
is a potentially viable claim that [Defendant Cowan’s] actions interfered with Plaintiffs’

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employment relationships through improper means, potentially including . . . deceit or
misrepresentation, [and/or] violation of business ethics and customs.”

Coleman v.

Albuquerque-AMG Specialty Hosp., LLC, No. 13-CV-533 MCA/KBM, 2013 WL
12328916, at *3 (D.N.M. Oct. 24, 2013). Since the Court concludes that there is a
possibility that Plaintiffs have a viable claim for interference with contractual relations
based on improper means, it is not necessary to examine whether they also have a
possible claim under the improper motive prong. See Montano, 211 F.3d at *2 (stating
that “remand is required if any one of the claims against the non-diverse defendant . . . is
possibly viable”); Sanders v. SMI-ABQ Assets, LLC, No. 15-CV-01145 RB/LF, 2016 WL
6780350, at *5 (D.N.M. Mar. 22, 2016) (stating that “[t]he issue for the Court to consider
is whether there is a reasonable basis to believe [the p]laintiff might succeed in at least
one claim against [the defendant]”).
In their Reply, Defendants first argue that the Court’s analysis of fraudulent
joinder should resemble the analysis used to determine whether a plaintiff has stated a
claim under Fed. R. Civ. P. 12(b)(6). [Doc. 15] They argue that Plaintiffs’ Complaint is
insufficient on its face to state a claim for tortious interference with contractual relations
against Defendant Cowan, and, therefore, Cowan was fraudulently joined. [Doc. 15] In
support, Defendants rely on Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392 (5th Cir.
2013). However, even if Mumfrey supports Defendants’ position, the Court sees no need
to examine an out-of-jurisdiction case when it is clear from the Tenth Circuit cases cited
above that this Court may look beyond the Complaint to determine whether Plaintiffs
have a “possibly viable” claim against Defendant Cowan. Dodd, 329 F.2d at 85 (stating
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that “[u]pon specific allegations of fraudulent joinder the court may pierce the pleadings,
. . . consider the entire record, and determine the basis of joinder by any means
available”); see Nerad, 203 F. App’x at 913 (stating that the Tenth Circuit has directed
district courts to consider the entire record when determining whether a party has been
fraudulently joined); accord Coleman, 2013 WL 12328916, at *3 (considering both the
allegations in the complaint and in declarations by the plaintiffs attached to the motion to
remand).
Next, Defendants argue that, even if the Court considers “extrinsic evidence”
beyond the Complaint, Rockwell’s affidavit does not establish a cause of action against
Cowan because it does not dispute that the termination decision was made by Tim Owen,
Rockwell’s supervisor, rather than Defendant Cowan. [Doc. 15] They point to affidavits
by Owen and Defendant Cowan stating that only Owen made the decision to terminate
Rockwell, that the termination was based on Rockwell’s “insubordinate conduct” and that
Defendant Cowan “had no authority to participate in, and did not participate in, the
termination decision.” [Doc. 15; Doc. 1-4; Doc. 1-5] None of these assertions renders
Plaintiffs’ claim impossible. First, the tort does not require the tortfeasor’s participation
in a termination decision. Rather, the heart of the claim is “action [by the tortfeasor] that
persuaded [a third party] to break its commitment to [the plaintiff].” Fikes, 2003NMSC-033, ¶ 20 (emphasis added). The gist of Plaintiffs’ allegations—that Defendant
Cowan’s complaints about them persuaded Owen to terminate Rockwell’s employment
and caused Salazar’s constructive discharge—is consistent with the tort. Moreover,
Owen’s statements as to the reason he decided to terminate Rockwell merely raise a fact
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question as to the true impetus for the termination; they do not constitute an undisputed
fact showing that Plaintiffs’ claim is impossible. See City of Carlsbad v. I&W, Inc., No.
CV 12-080 BB-CG, 2012 WL 12931286, at *5 (D.N.M. May 15, 2012) (holding that the
defendants had not shown with “complete certainty” that the plaintiffs could not prevail
where the central issue “remain[ed] a question of fact best left for a jury to decide”).
Defendants have not met their “heavy burden” to demonstrate that Plaintiffs
fraudulently joined Defendant Cowan to defeat federal jurisdiction based on diversity of
the parties. Montano, 211 F.3d at *1-2 (internal quotation marks and citation omitted).
Hence, the matter must be remanded to the First Judicial District Court.
III.

Conclusion
For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion to Remand and

Brief in Support [Doc. 10].
IT IS FURTHER ORDERED that, in view of the lack of diversity of the parties,
this Court lacks jurisdiction, and this action is REMANDED to the First Judicial District
Court of New Mexico.
SO ORDERED this 2nd day of April, 2018.

M. CHRISTINA ARMIJO
United States District Judge

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