Carter et al v. UZGlobal LLC et al

Filing 41

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Jerry H. Ritter to DENY 13 Plaintiffs' Motion to Remand. Objections to PF&RD due by 9/13/2024. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (ama)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RASHEEM CARTER, PETER WIRTH
ON BEHALF OF THE ESTATE OF
ERVIN BURTON, DECEASED,
ERVIN BURTON, SR.,
Plaintiffs,
v.

No. 23-cv-01013-MV- JHR

UZGLOBAL LLC DBA FASTPLUS CARGO,
OSMANY HANNA ROLDAN, AMAZON.COM INC.,
AMAZON.COM SERVICES, LLC,
AMAZON LOGISTICS, INC. D/B/A PRIME,
RYDER TRUCK RENTAL INC.,
JACK’S TRUCK REPAIR, INC., A/K/A
JACK’S TRUCK REPAIR LLC,
Defendants.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION TO DENY
PLAINTIFFS’ MOTION TO REMAND [DOC. 13].
THIS MATTER comes before the Court on Plaintiffs Rasheem Carter’s, Peter Wirth’s (on
behalf of the Estate of Ervin Burton, deceased), and Ervin Burton, Sr.’s Motion to Remand, filed
on December 19, 2023. [Doc. 13]. After briefing was completed, the matter was referred to the
Magistrate Judge for a recommended disposition on July 3, 2024. Having reviewed Plaintiffs’
Motion [Doc. 52], Defendants’ responses [Docs. 24–26], and Plaintiffs’ reply [Doc. 32], the record
before the Court, and the relevant law, the undersigned RECOMMENDS that the Motion be
DENIED.
I.

BACKGROUND AND PROCEDURAL FACTS

Plaintiffs filed suit in New Mexico state court for several tort claims, including negligence
and wrongful death. Plaintiffs allege that on October 29, 2022, Carter and Burton were struck by
an “Amazon controlled tractor-trailer” while waiting by Highway 54 outside of Logan, New
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Mexico, for roadside assistance to arrive from Jack’s Truck Repair Inc. (“Jack’s Truck Repair”).
The collision killed Burton and severely injured Carter. Plaintiffs named the following Defendants:
Osmany Hanna Roldan as the tractor-trailer’s driver, UZGlobal LLC as Roldan’s employer, Ryder
Truck Rental Inc. as the owner of the tractor, Amazon.com Inc. and associated companies within
Amazon’s corporate tree (“Amazon Defendants”) 1 as the owner of the trailer, and Jack’s Truck
Repair.
The parties do not dispute the state citizenships of the parties. Wirth is a citizen of New
Mexico, Carter is a citizen of Nevada, and Burton, Sr. is a citizen of Illinois. The Amazon
Defendants are incorporated and have their principal offices in Delaware and Washington
respectively, UZGlobal LLC is a Florida entity with two Floridian members, Ryder Truck Rental
Inc. is a Florida entity, and Roldan is a citizen of Florida. Finally, Jack’s Truck Repair is a New
Mexico corporation. The shared state citizenship of Wirth and Jack’s Truck Repair meant that
federal courts lacked the subject-matter jurisdiction to preside over Plaintiffs’ lawsuit. E.g.,
Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) (28 U.S.C. § 1332(a) only confers federal
jurisdiction to hear a state-law action if the amount in controversy exceeds $75,000 and no two
adverse parties have the same state citizenship).
The state court orally granted a motion to dismiss by Jack’s Truck Repair, ruling that
Plaintiffs had not pleaded a plausible claim against it. However, the state court also said Plaintiffs
could file a motion to file an amended complaint against Jack’s Truck Repair. Based upon a motion
to amend filed in federal court after removal, Plaintiffs’ proposed amended complaint would
elaborate that if Jack’s Truck Repair had departed promptly upon receiving Carter and Burton’s
distress call, Jack’s Truck Repair would have arrived and helped them leave the road before the

1

The “Amazon Defendants” consist of Amazon.com Inc., Amazon.com Services, LLC, and Amazon Logistics, Inc.

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collision. Plaintiffs also allege that Jack’s Truck Repair could have given them additional safety
instructions for waiting roadside that might have reduced the risk of a collision. Prior to the state
court issuing a written order dismissing Jack’s or Plaintiffs filing their motion to amend, the
Amazon Defendants removed the case to the United States District Court for the District of New
Mexico. [Doc. 1]. The Amazon Defendants argued that removal was allowed pursuant to 28 U.S.C.
§ 1446(b)(3) because the state court had dismissed Jack’s Truck Repair from the lawsuit. [Doc. 1,
at 5–8]. Therefore, the suit now enjoyed complete diversity and Plaintiffs’ alleged damages would
satisfy the amount-in-controversy requirement for the Court to exercise subject matter jurisdiction
pursuant to 28 U.S.C. § 1332(a).
II.

BRIEFING SUMMARY

Plaintiffs filed the motion to remand approximately a month later, requesting to remand to
state court. Plaintiffs do not dispute their lawsuit would satisfy the amount-in-controversy
requirement for jurisdiction, nor do they dispute that but for Jack’s Truck Repair the case would
have complete diversity. [See Doc. 13, at 2]. Plaintiffs argue that Defendants nevertheless
improperly removed to federal court in four ways. First, Plaintiffs say, the state court’s oral ruling
did not create a rightto remove because the dismissal of Jack’s Truck Repair was not an effective
order under New Mexico law, and 28 U.S.C. 1446(b)(3) requires a physical writing. [Doc. 13, at
4–6]. Second, Jack’s Truck Repair did not consent to removal, a statutory requirement. [Doc. 13,
at 6–7]. Third, the state court’s ruling gave Plaintiffs the opportunity to amend their original
complaint prior to removal, which opportunity Plaintiffs have now exercised by filing their motion
to amend now before this Court. [Doc. 13, at 7–12]. And fourth, the “voluntary-involuntary rule”
bars removal when the dismissal of the suit’s non-diverse defendant lacked the plaintiff’s assent.
[Doc. 13, at 12–13].

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As to the first argument, Defendants respond that federal law alone governs the issue and
Tenth Circuit precedent supports that an oral order on the record triggers the removal statute. [Doc.
24, at 3–4]; [Doc. 25, at 4–8]. As to the second, Defendants point out that Jack’s Truck Repair did
file consent to removal [Doc. 16] on December 27, 2023. [Doc. 25, at 11]; [Doc. 26, at 2]. As to
the third, Defendants argue that the state court’s invitation to Plaintiffs to motion to file an
amended complaint did not change that the state court fully granted Jack’s Truck Repair’s motion
to dismiss. [Doc. 24, at 7]. And as to the fourth, Defendants point out that the voluntary-involuntary
rule does not apply under the “fraudulent joinder” exception when non-diverse defendants are
dismissed for lack of a cause of action against them. [Doc. 24, at 5–6]; [Doc. 25, at 9–11]; [Doc.
26, at 5–7]. Plaintiffs in reply reiterate that the state court’s oral order is sufficient to permit
removal under state or federal law, Jack’s Truck Repair’s consent was untimely, their claim against
Jack’s Truck Repair does not equate to fraudulent joinder. [See Doc. 32].
III.

STATEMENT OF THE ISSUES

1. Did the New Mexico state court’s oral order granting Jack’s Truck Repair’s motion to dismiss
furnish grounds to remove to federal court under 28 U.S.C. § 1446(b)(3), which states that a
defendant may file a notice of removal when they receive “an amended pleading, motion, order
or other paper from which it may first be ascertained that the case is one which . . . has become
removable”?
2. If so, was Jack’s Truck Repair’s consent for removal necessary?
3. If so, does Plaintiffs’ invitation to file a motion to amend its claim against Jack’s Truck Repair
change the analysis?
4. If not, does the voluntary-involuntary rule otherwise preclude removal in this case?

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IV.

APPLICABLE LAW

Federal courts may exercise subject matter jurisdiction via “diversity jurisdiction,” where
the matter’s amount in controversy exceeds the value of $75,000 and the adverse parties are from
different states. 28 U.S.C. § 1332(a)(1).
A suit satisfies the amount-in-controversy requirement if there are facts or allegations
establishing that a judgment worth more than $75,000 is “‘in play.’” Phelps Oil & Gas, LLC v.
Noble Energy Inc., 5 F.4th 1122, 1126 (10th Cir. 2021) (quoting McPhail v. Deere & Co., 529
F.3d 947, 955 (10th Cir. 2008)). While a party cannot rely on speculative or vague assertions, the
court must look to the “value of the object of the litigation” and only find the amount in controversy
fails to meet the jurisdictional threshold if it is legally certain that any recovery will do so. Phelps,
5 F.4th at 1122; Adams v. Reliance Standard Life Ins. Co., 225 F.3d 1179, 1182 (10th Cir. 2000);
Lovell v. State Farm Mut. Auto Ins. Co., 466 F.3d 893, 897 (10th Cir. 2006). When a case is
removed, a defendant need not assert facts supporting specific dollar amounts unless a plaintiff or
the court disagrees that the suit will likely achieve the amount in controversy. McPhail, 529 F.3d
at 954–57; Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014); but see
Paros Properties LLC v. Colo. Cas. Ins. Co., 835 F.3d 1264, 1269–70 (10th Cir. 2016) (discussing
requirements for proving amount in controversy for removal).
A suit satisfies the diversity requirement if there is complete diversity, meaning no one
plaintiff and one defendant share the same state citizenship. Grynberg v. Kinder Morgan Energy
Partners, L.P., 805 F.3d 901, 905 (10th Cir. 2015) (citing Strawbridge v. Curtiss, 7 U.S. 267
(1806)). When a party is a natural person, their state citizenship is determined by their domicile,
meaning the place in which they reside with an intent to remain indefinitely at the time the lawsuit
was filed. Middleton v. Stephenson, 749 F.3d 1197, 1200 (10th Cir. 2014). A corporate party is

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generally deemed “a citizen of any State by which it has been incorporated and of the State where
it has its principal place of business.” 28 U.S.C. § 1332(c)(1). A “principal place of business”
refers to the site of the corporation’s control, direction, and coordination by its high-level officers,
commonly referred to as its “nerve center.” Hertz Corp v. Friend, 559 U.S. 77, 80 (2010). For
unincorporated businesses like partnerships or limited liability companies, the business shares the
citizenship of each of its members. Siloam Springs Hotel, L.L.C. v. Century Sur. Co., 781 F.3d
1233, 1237–38 (10th Cir. 2015).
If a civil suit filed in state court meets these criteria for diversity jurisdiction, a defendant
may remove the suit to federal court pursuant to 28 U.S.C. §§ 1441 and 1446. Even if a defendant
cannot do so at the outset, 28 U.S.C. § 1446(b)(3) allows a defendant to remove to federal court
within thirty days of receiving clear and unequivocal notice that diversity jurisdiction has become
satisfied thanks to some change in the case, such as a party’s dismissal or an amended pleading.
Akin v. Ashland Chem. Co., 156 F.3d 1030, 1035 (10th Cir. 1998); see also Debry v. Transamerica
Corp., 601 F.2d 480, 489 (10th Cir. 1979) (citing Ardison v. Villa, 248 F.2d 226, 227 (10th Cir.
1957)). The standard saves courts from inquiring into the defendant’s subjective knowledge and
mitigates the risk that defendants will prematurely remove to federal court. Paros Properties, 835
F.3d at 1269.
Regarding the medium through which a defendant must learn of the grounds for removal,
28 U.S.C. § 1446(b)(3) states that the defendant’s opportunity to remove begins when he
“ascertains” grounds from a pleading, motion, order, or “other paper.” Whether “other paper”
means that a physical writing is required has been answered different ways. Relevant here, the
Tenth Circuit held that deposition testimony can be the trigger for a removal window. Huffman v.
Saul Holdings Ltd. P’ship, 194 F.3d 1072, 1078 (10th Cir. 1999). The Tenth Circuit explained that

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to require a physical writing when the required information is available through other equally
reliable sources would allow parties to abuse 28 U.S.C. § 1446(b)(3) on technicalities of form and
clash with its “emphasis on effecting removal as soon as possible.” 2 Huffman, 194 F.3d at 1078
(quoting Golden Apple Mgmt Co. v. GEAC Computs., Inc., 990 F. Supp. 1364, 1368 (M.D. Ala.
1998)). While other circuits have rejected Huffman, it remains good law within the Tenth Circuit.
Compare Dietrich v. Boeing Co., 14 F.4th 1089, 1095 n. 3 (9th Cir. 2021), and Morgan v.
Huntington Ingalls, Inc., 879 F.3d 602, 608 (5th Cir. 2018), with Paros Properties, 835 F.3d at
1268.
However, there are boundaries around the opportunity to remove a case that arises from
dismissal of all non-diverse parties. For example, defendants only get to remove a suit on diversity
grounds after party dismissal if the nondiverse party was voluntarily dismissed, fraudulently
joined, or procedurally misjoined. Parson v. Velasquez, 551 F. Supp. 3d 1085, 1157 (D.N.M. 2021)
(citing Debry, 601 F.2d at 488). “Fraudulent joinder” can be established by a defendant if they
demonstrate, even with all factual disputes and ambiguities resolved against them, that a plaintiff
had “no possibility” of establishing a cause of action against the nondiverse party. Parson, 551 F.
Supp. 3d at 1163–66 (discussing Tenth and Fifth Circuit jurisprudence on fraudulent joinder); BioTec Env’t, LLC v. Adams, 792 F. Supp. 2d 1208, 1216 (D.N.M. 2011); Miller v. Safeco Ins. Co. of
Am., No. 23-cv-00930-KG/JFR, 2024 WL 112771 at *2 (D.N.M. Jan. 10, 2024) (“The mere
possibility of a claim is all that is necessary [to defeat fraudulent joinder].”).
In assessing fraudulent joinder, the court must consider the entire record and “‘determine
the basis of joinder by any means available.’” De La Rosa v. Reliable, Inc., 113 F. Supp. 3d 1135,

28 U.S.C. § 1446(c)(3)(A) also now recognizes that information contained within the record of a state
proceeding is a “paper” for purposes of the amount-in-controversy requirement.
2

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1158 (D.N.M. 2015) (quoting Dodd v. Fawcett Publ’ns, Inc., 329 F.2d 82, 85 (10th Cir. 1964)).
The job of the court is not to make merit determinations that are best left to a state court, but rather
to determine if the claims against the non-diverse party have any chance under the applicable law.
De La Rosa, 113 F. Supp. 3d. at 1160.
V.
A.

DISCUSSION

FIRST ISSUE: Whether the state court’s oral order is sufficient to trigger
Defendants’ ability and window to remove to federal court under 28 U.S.C.
§ 1446(b)(3).

Defendants relied on the state court’s oral order dismissing Jack’s Truck Repair to remove
to federal court. Plaintiffs argue that order was insufficient to act upon for two reasons: first, under
New Mexico law, only a written order would make dismissal effective, meaning Jack’s was still a
party to the case until a written order of dismissal. [Doc. 13, at 4–5]. Second, an oral order does
not meet 28 U.S.C. § 1446(b)(3)’s requirement for a physical writing to notify a defendant that the
case became removable. [Doc. 32, at 4–7]. Defendants argue that federal law exclusively controls
the issue and that the oral order was sufficient under Tenth Circuit precedent to trigger removal.
[Doc. 24, at 3–4]; [Doc. 25, at 4–8].
New Mexico law generally requires, with few exceptions, that a court reduce its order to
writing to be final and effective. State v. Sanders, 1981-NMCA-053, ¶¶ 24–25, 628 P.2d 1134,
1138; State v. Vaughn, 2005-NMCA-076, ¶ 24, 114 P.3d 354, 362; but see State v. Ratchford,
1993-NMSC-024, ¶ 20, 855 P.2d 556, 559 (oral orders are not a nullity). However, the Court
concludes that New Mexico law regarding written orders does not control here. The Court finds
persuasive the decision in PSC Industrial Outsourcing, LP v. Burlington Insurance Company. No.
10-00751 ACK-BMK, 2011 U.S. Dist. LEXIS 50223 (D. Haw. May 10, 2011). In that case, the
defendant argued its window to remove to federal court under 28 U.S.C. § 1446(b)(3) was not

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triggered until the order that made its claim removable was reduced to writing. PSC Industrial,
2011 U.S. Dist. LEXIS 50223 at *22. The Hawaii federal district court disagreed, noting that the
oral order defendant received was definitive and defendant had treated other oral orders as such.
PSC Industrial, 2011 U.S. Dist. LEXIS 50223 at *22. Notably, the district court reached its
conclusion despite a Hawaii state rule requiring orders to be reduced to writing for entry. Haw. R.
Civ. P. 58. Thus, where an argument hinges on the validity of an order’s form rather than its
substance, federal interpretation of 28 U.S.C. § 1446(b)(3) controls whether that order is sufficient
to permit removal. See generally Budinich v. Becton Dickinson and Co., 486 U.S. 196, 198 (1988)
(noting that state law generally supplies the rules of decision in a diversity case unless the
resolution of an issue is governed by federal statute).
Applying 28 U.S.C. §1446(b)(3), the Court would find that an oral order can trigger the
statute’s removal window under Huffman. While Huffman concerned deposition testimony and not
an oral order, it emphasized not discriminating between equally reliable means of obtaining
information to prevent delays and technicalities, an emphasis which is generally applicable to oral
proceedings on the record. Huffman, 194 F.3d at 1078. As an analogous example of the value of
form over substance, the removal statute itself has been amended since Huffman to recognize that
information obtained in the record of a state proceeding constitutes an “other paper” when
removability hinges on the amount in controversy. 28 U.S.C. § 1446(c)(3)(A).
Plaintiffs argue Huffman should still be limited to deposition testimony given the decision
concerned deposition transcripts that don’t have deadlines for production (and thus are subject to
manipulation in ways that written orders are not) [Doc. 32, at 6]. The Court, however, does not
agree that Huffman can be put to the side in these circumstances. The decision’s mention of
transcript deadlines came after a longer discussion of the need for a defendant to assert their right

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to removal without unnecessary delay and for courts to reject bad-faith arguments about the
parties’ knowledge. Huffman, 194 F.3d at 1078. It appears to the Court that the decision discussed
transcript deadlines to exemplify how parties might engage in that kind of conduct. Huffman, 194
F.3d at 1078. Therefore, the Court concludes that the New Mexico state court’s oral order triggered
Defendants’ thirty-day window to remove to federal court under 28 U.S.C. § 1446(b)(3).
B.

SECOND ISSUE: Whether Jack’s Truck Repair’s consent needed to be
timely filed to allow removal to federal court.

Plaintiffs argue removal was procedurally improper because Defendants failed to get Jack’s
Truck Repair’s consent to removal within thirty days. [Doc. 32, at 3–4]; 28 U.S.C. §
1446(b)(2)(A); Zambrano v. N.M. Corr. Dep’t, 256 F. Supp. 3d 1179, 1184 (D.N.M. 2017)
(defendants have thirty days from service of notice of removal to consent to proceed in federal
court). While the parties focus on whether Jack’s Truck Repair consented and whether it was
within thirty days of removal, the consent issue dovetails with whether the state court’s oral order
was sufficient to create the grounds for removal.
28 U.S.C. § 1446(b)(2)(A) requires a defendant removing to federal court based on
diversity jurisdiction to get the consent of “properly joined” defendants. Thus, by the statute’s
plain language, only defendants who remain party to the suit need to give their consent. See Soto
v. Trejo, 685 F. Supp. 3d 1101, 1106 (D.N.M. 2023) (28 U.S.C. §1446 should be interpreted
according to its plain language). It would be an otherwise unreasonable interpretation of 28 U.S.C.
§ 1446(b)(3) to allow a non-party, based on their initial status as a joined defendant, to influence
whether the case gets removed to federal court. See In re McGough, 737 F.3d 1268, 1276 (10th
Cir. 2013) (courts must avoiding interpreting statutes to have absurd outcomes where alternative
interpretations consistent with congressional intent are available); see also Vazquez v. Americano
U.S.A, LLC, 536 F. Supp. 2d 1253, 1258 (D.N.M. 2008) (quoting Getty Oil Corp., a Div. of Texaco,
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Inc. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262 n. 11 (5th Cir. 1988)) (purpose of requiring consent
is to ensure a defendant is bound to the decision to proceed in federal court). Having concluded
that an oral order of dismissal was sufficient under federal law to create the opportunity and trigger
the obligation to effect timely removal, it is incongruous to ignore the order of dismissal in order
to determine whose consent federal law requires.
Therefore, with Jack’s Truck Repair effectively no longer a party to the case, its consent
was not procedurally required for Defendants to remove to federal court.
C.

THIRD ISSUE: Whether Plaintiffs’ leave to file a motion to amend impacts
the propriety of Defendants’ removal to federal court.

Plaintiffs point out that the state court allowed them an opportunity to file a motion to
amend their complaint and revive their claim against Jack’s Truck Repair, and it was only
Defendants’ premature removal that prevented them from doing so. [Doc. 13, at 7]. Plaintiffs later
characterized the state court’s order as giving them leave to file an amended complaint andnot just
a motion to amend. [Doc. 13, at 7]. The Court disagrees that the possibility of an amended
complaint should impact the decision on the present Motion. The proper frame of analysis requires
the Court to look at the suit as it existed at the time of removal. Mach v. Triple D Supply, LLC,
773 F. Supp. 2d 1018, 1030 (D.N.M. 2011) (quoting Levert-St. John, Inc. v. Hartford Steam Boiler
Inspection & Ins. Co., No. CIVA 06-1023, 2006 WL 1875494 at *2 (W.D. La. July 3, 2006)).
Under Rule 1-015 NMRA, a party can only file an amended pleading as of right if no responsive
pleading has been filed first. Defendants, including Jack’s Truck Repair, did file answers in state
court. [Ex. B to Doc. 1, at 41, 57, 75, 96, 115, 184]. Therefore, not only was Jack’s Truck Repair
dismissed as a party at the time of removal, but Plaintiffs no longer held an automatic right to file
an amended complaint reviving its claim against it. Leave to file a motion to amend does not

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guarantee the state court will accept the amended complaint, nor does it suggest that the state court
qualified its ruling granting Jack’s Truck Repair’s motion to dismiss.
D.

FOURTH ISSUE: Whether the voluntary-involuntary rule prohibits removal
in this case despite Jack’s Truck Repair’s dismissal.

Finally, Plaintiffs argue the “voluntary-involuntary” rule prohibits removal in this case
because the state court dismissed Jack’s Truck Repair without Plaintiffs’ assent. [Doc. 13, at 12–
13]. Defendants respond that Plaintiffs’ claim against Jack’s satisfies the fraudulent joinder
exception to that rule, on the grounds that Plaintiffs cannot state a cause of action against Jack’s.
[Doc. 24, at 5–6]; [Doc. 25, at 9–11]; [Doc. 26, at 5–7]. Plaintiffs reply that their claim against
Jack’s can cross the minimal threshold needed to avoid a fraudulent joinder finding. [Doc. 32, at
7–9].
As discussed in the applicable law section, to prove fraudulent joinder Defendants must
demonstrate that Plaintiffs’ claim against Jack’s had no possibility of success. To do so, Jack’s
argues New Mexico does not recognize the “negligent undertaking theory” on which Plaintiffs
rely. [Doc. 26, at 3–4]. Plaintiffs pleaded that Jack’s Truck Repair’s failure to timely provide
roadside assistance to Carter and Burton breached its duty to them and prevented the couple from
being able to leave before the tractor-trailer hit them. [Ex. B to Doc. 1, at 6, 18]; [Ex. E to Doc.
13, at 5–6, 18–19]. 3 Jack’s cites Blake v. Public Service Company of New Mexico, in which the
New Mexico Court of Appeals rejected a negligence claim based on a utility company’s failure to
adequately maintain a streetlight during the night. 2004-NMCA-002, 82 P.3d 960. The appeals
court reasoned that a utility company was not liable just for failing to provide adequate streetlight

Again, the Court notes here that at the time of removal the relevant complaint was Plaintiffs’ original one, not their
proposed amendments. However, the major difference between the two is greater detail. [Ex. B to Doc. 1, at 6, 18];
[Ex. E to Doc. 13, at 5–6, 18–19]. Plaintiffs otherwise rest on the same general theory of negligence against Jack’s
Truck Repair, besides the additional arguments about what safety measures it could have recommended or offered to
Ms. Carter and Mr. Burton. Those additional allegations would not impact the result of the Court’s analysis.

3

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at night, given that there would still be dark even if the utility company had not acted at all. Blake,
2004-NMCA-002, ¶ 26, 82 P.3d at 967.
Plaintiffs respond that their claim does not use the negligent undertaking theory as
articulated in Blake. [Doc. 32, at 9]; Blake, 2004-NMCA-002, ¶ 25, 82 P.3d at 967. Instead,
Plaintiffs argue their claim follows Hovey-Jaramillo v. Liberty Mutual Insurance, 2023-NMCA068, 535 P.3d 747. In Hovey-Jaramillo, the appeals court recognized that service providers must
exercise “ordinary care” when conducting those services, and the failure to do so in a manner
which results in physical harm to the plaintiff is a tort. 2023-NMCA-068, ¶¶ 25–26, 535 P.3d at
753. The appeals court then applied that duty to Liberty Mutual whose employee instructed a client
seeking roadside assistance to exit her car and retrieve her license plate number, resulting in the
client being hit by another driver. Hovey-Jaramillo, 2023-NMCA-068, ¶¶ 2–3, 535 P.3d at 748.
Plaintiffs claim that Liberty Mutual’s instruction to its client to leave her car is comparable to
Jack’s Truck Repair’s lateness, which violated the standard of care for roadside assistance and left
Ms. Carter and Mr. Burton in danger of a collision. [Doc. 13, at 9–11]. In this Court’s view, the
creation of danger by a client’s performance of an affirmative instruction as in Hovey-Jaramillo is
not at all the scenario presented by the pleadings or proposed amended pleadings in this case.
I find that Defendants have shown the elements of fraudulent joinder. Setting aside the
scope of Jack’s Truck Repair’s alleged duty once they agreed to provide roadside service,

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Plaintiffs have not shown that Jack’s alleged conduct may have caused their damages. See
Johnstone v. City of Albuquerque, 2006-NMCA-119, ¶ 20, 145 P.3d 76, 83 (discussing proximate

The Court recognizes the line between causation and duty is often blurred since foreseeability is both an element of
causation and often discussed with duty under New Mexico law. Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 8,
73 P.3d 181, 186; Rodriguez v. Del Sol Shopping Ctr. Assocs., L.P., 2014-NMSC-014, ¶¶ 21–24, 326 P.3d 465, 473–
474 (clarifying difference between duty analysis and breach-of-duty analysis). But whether framed in terms of Jack’s
Truck Repair owing and breaching a duty, or Jack’s Truck Repair causing harm, the lack of a negligence claim here
is still clear.
4

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cause). Causation requires that a defendant’s conduct contributed to a plaintiff’s damages such that
damages would not have occurred without that conduct. Paez v. Burlington N. Santa Fe Ry., 2015NMCA-112, ¶ 14, 362 P.3d 116, 122. Under the fraudulent joinder standard, the Court presumes
as true that Carter and Burton would have avoided the collision if Jack’s left to assist them sooner.
However, Plaintiffs do not allege that Jack’s created a dangerous situation that would not have
been if Jack’s had not undertaken to assist Ms. Carter and Mr. Burton, which is necessary for
liability. See Blake, 2004-NMCA-002, ¶ 26, 82 P.3d at 967; 5 accord Thompson v. Potter, 2012NMCA-014, ¶¶ 25–26, 268 P.3d 57, 64–65.
For example, Plaintiffs do not allege that Jack’s Truck Repair’s lateness forced them to
stop roadside, made their position roadside less safe, helped cause Roldan to crash into Carter and
Burton, or otherwise made their injuries more severe. Cf. Hovey-Jaramillo, 2023-NMCA-068, ¶¶
2–3, 535 P.3d at 748. Jack’s Truck Repair’s role in the causal chain of events, then, was its failure
to intervene in time to keep Carter and Burton from suffering at the hands of other allegedly
responsible parties. New Mexico law does not accept that conduct as negligence without some
basis for special recognition. Thompson, 2012-NMCA-014, ¶ 27, 268 P.3d at 65; see also, e.g.,
Lujan v. N.M. Dep’t of Transp., 2015-NMCA-005, ¶¶ 10, 35–36, 341 P.3d 1, 4, 10 (government
must maintain its highways such that noticed, dangerous conditions are not allowed to persist).
For these reasons, the I conclude that Plaintiffs’ claim against Jack’s Truck Repair had no
possibility of success, and so Defendants could remove to federal court despite the involuntary
dismissal of Jack’s as a party.

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The Court is not persuaded by Plaintiffs’ distinction of Blake. While Blake concerned a distinct type of negligent
undertaking not present in this case, the decision relies multiple times on a Third Circuit opinion that discussed
negligent undertaking as it is argued by Plaintiffs. Turbe v. Government of Virgin Islands, 938 F.2d 427 (3d Cir. 1991).
Turbe analyzed in part Restatement (Second) of Torts §323, which Plaintiffs cited in defense of their original
complaint. [Ex. B. to Doc. 1, at 141]; Turbe, 938 F.2d at 430. Essentially, the causation principle works the same here
as it did in Blake.

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VI.

CONCLUSION

In summary, I propose that the Court find:
1. The state court’s oral order dismissing Jack’s Truck Repair as a party created true diversity
and triggered Defendants’ right to remove to federal court pursuant to 28 U.S.C. §
1446(b)(3);
2. Defendants’ removal was substantively and procedurally proper;
3. Removal is not prohibited by the voluntary-involuntary rule because Plaintiffs did not
plead a possible claim for relief against Jack’s Truck Repair, i.e., Jack’s Truck Repair was
fraudulently joined;
4. Because removal was substantively and procedurally proper, I RECOMMEND Plaintiff’s
Motion to Remand should be DENIED.

Hon. Jerry H. Ritter
United States Magistrate Judge

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE
of a copy of these Proposed Findings and Recommended Disposition, they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party
must file any objections with the Clerk of the District Court within the 14-day period if
that party wants to have appellate review of the proposed findings and recommended
disposition. If no objections are filed, no appellate review will be allowed.

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