Garcia v. Transport Logistic Corporation et al
ORDER DENYING 10 Motion to Remand to State Court by Magistrate Judge Gregory J. Fouratt. (kdj)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
OSCAR D. GARCIA,
Civ. No. 17-1032 GJF/CG
TRANSPORT LOGISTICS CORP., et al.,
ORDER DENYING REMAND
THIS MATTER is before the Court on Plaintiff’s “Opposed Motion to Remand and
Memorandum in Support” (“Motion”) filed on October 19, 2017. ECF No. 10. Defendant Jose
Arrellano (“Defendant Arrellano”) responded on November 1, 2017. ECF No. 14. The next day,
Defendant Transport Logistics Corporation d/b/a Regio Express (“Defendant TLC/Regio”) filed
its “Joinder and Adoption of Co-Defendant Jose Arrellano’s Response [ECF No. 14] to
Plaintiff’s Motion for Remand.” ECF No. 16. Plaintiff replied on November 14, 2017. ECF
No. 18. The Court, having reviewed the record, the parties’ briefing, and current law, finds that
Plaintiff’s Motion is not well taken and must therefore be DENIED.
On December 29, 2016, Plaintiff, as personal representative of the estate of Jose Eduardo
Garcia Rodriguez (“the decedent”), filed suit in the Twelfth Judicial District Court in Lincoln
County, New Mexico, alleging counts of wrongful death and negligence against Defendants.
Def. Arrellano’s Notice of Removal (“Notice”), Ex. A at 1, ECF No. 1. Plaintiff alleges that on
February 15, 2016, the decedent was traveling from Roswell, New Mexico, to Ruidoso, New
Mexico, when Defendant Jose Arrellano, who was traveling in the opposite direction, negligently
struck and killed him with his tractor trailer in the center lane of US Highway 70. Id., Ex. A at 2.
Plaintiff further contends that at the time of the incident, Defendant Arrellano was acting within
the course and scope of his employment with Defendant TLC/Regio. Id. Under the theory of
vicarious liability, Plaintiff advances demands against Defendant Arrellano and Defendant
TLC/Regio (collectively, “Defendants”), for: (1) the award of compensatory damages and
consequential damages in an amount to be determined at trial; (2) punitive damages in an amount
to be determined at trial; and (3) costs and attorney fees. Id., Ex. A at 4. In accordance with
Rule 1-008(A)(3) of the New Mexico Rules of Civil Procedure for the District Courts, Plaintiff’s
complaint alleged no specific monetary amount of damages. See NMRA 1-008(A)(3) (2017)
(“Unless it is a necessary allegation of the complaint, the complaint shall not contain an
allegation for damages in any specific monetary amount.”).
On October 13, 2017, Defendant Arrellano removed this case to federal court and
Defendant TLC/Regio separately filed its consent to removal. ECF Nos. 1, 5. In his Notice,
Defendant Arrellano admits that he and Defendant TLC/Regio answered Plaintiff’s state court
complaint on February 21, 2017. Def. Arrellano’s Notice 2. Nevertheless, he asserts that “[o]n
September 13, 2017, Plaintiff identified an amount [of damages] for the first time, triggering 28
U.S.C. § 1446(b)(1), giving the Defendants thirty (30) days from receipt of the demand to file a
notice of removal.” Id. at 2. That identification came through an email, which reads in relevant
One last thing occurred to me; if it turns out there is really just the one
$1,000,000.00 policy, I think we would just make a demand for it. Even with
some comparative fault on the part of Jose, the value of the case exceeds
$1,000,000.00 many times over; there probably wouldn’t be much to mediate if
there’s really just a [one million dollar] policy.
Id., Ex. D. Based on that email of September 13, 2017, Defendant Arrellano initiated removal.
See ECF No. 1; 28 U.S.C. § 1446(b)(1) (2012).
Plaintiff urges the Court to remand the instant matter to state court, arguing that removal
is untimely. Plaintiff contends that his state complaint was sufficient to put Defendants on notice
that the removal requirements were met as to diversity and amount in controversy, and
consequently, the thirty-day period for Defendants to remove was triggered upon the filing of the
complaint. See Pl.’s Mot. 5-6, ECF No. 10.
Defendants respond that Plaintiff’s Complaint is ambiguous as to the amount of damages
sought. Def. Arrellano’s Resp. 2, ECF No. 14. Defendants further argue that because Plaintiff’s
intention to seek an amount in excess of the jurisdictional minimum of $75,000 was not made
unambiguously clear until September 13, 2017, the period for initiating removal was not
triggered until that date.
“A case originally filed in state court may be removed to [this] court if, but only if,
‘federal subject-matter jurisdiction would exist over the claim.’” Firstenberg v. City of Santa Fe,
696 F.3d 1018, 1023 (10th Cir. 2012) (citation omitted). “[A]ny 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) (2012).
A case may be removed to federal court on the basis of a federal question, i.e., “an action
arising under the Constitution, laws, or treaties of the United States.” Id. § 1331. In addition, a
case may be removed on the basis of diversity jurisdiction. The federal district court “shall have
original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value
of $75,000 . . . and is between citizens of different States.” Id. § 1332(a)(1).
Title 28, United States Code, Section 1446 governs the procedure to remove an action to
federal court. It states in pertinent part that “[a] defendant or defendants desiring to remove any
civil action from a State court shall file in the district court of the United States . . . a short and
plain statement of the grounds for removal, together with a copy of all process, pleadings, and
orders served upon such defendant or defendants in such action.” Id. § 1446(a). The statute
further directs that:
within 30 days after receipt by the defendant, through service or otherwise, of a
copy of the initial pleading setting forth the claim for relief upon which such
action or proceeding is based, or within 30 days after the service of summons
upon the defendant if such initial pleading has then been filed in court and is not
required to be served on the defendant, whichever period is shorter.
Id. § 1446(b)(1). However, “if the case stated by the initial pleading is not removable,” the
defendant must remove the action to federal court “within 30 days after receipt . . . of a copy of
an amended pleading, motion, order or other paper from which it may first be ascertained that the
case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3).
The question before this Court is when Defendants could first ascertain that this case was
properly removable. See id. Or, put another way, did the thirty day deadline to file the notice of
removal begin to run with the filing of Plaintiff’s state court complaint or upon defense counsel’s
receipt of Plaintiff’s demand email on September 13, 2017? Based on Tenth Circuit precedent,
the Court concludes the latter to be true.
In reaching this decision, the Court recognizes that the Tenth Circuit is “very strict in
assessing whether the grounds for removal are ascertainable” and that there must be “a specific
allegation that damages exceed the federal jurisdictional amount of $75,000.” Paros Props. LLC
v. Colo. Cas. Ins. Co., 835 F.3d 1264, 1269 (10th Cir. 2016). “The 30-day clock does not begin
to run until the plaintiff provides the defendant with ‘clear and unequivocal notice’ that the suit is
removable.” Id. (citing Akin v. Ashland Chem. Co., 156 F.3d 1030, 1036 (10th Cir. 1998)). In
Paros, the Tenth Circuit discussed a number of court decisions where the complaint or “other
paper” did not provide unequivocal notice of the right to remove and/or where the pertinent
allegations consisted of generalities. See id. The Paros Court noted that the use of ambiguous
language in those pleadings left the defendant to “only guess as to whether the claim exceeded
$75,000.” Id. at 1269-70.
Just as in Paros, the Defendants in the instant matter were left to guess whether the
instant claim exceeded $75,000 until the transmission of Plaintiff’s counsel’s email, or “other
paper,” on September 13, 2017. Although Plaintiff would now have this Court consider the
amount in controversy to be facially apparent based on non-precedential cases from outside this
Circuit and the undeniably serious nature of the claims themselves, see Pl.’s Mot. 4-5, Tenth
Circuit precedent disallows the Court from doing so, just as it disallowed Defendants to infer a
removable amount in controversy unless and until “a specific allegation” of damages exceeding
$75,000 was made. See Paros, 835 F.3d at 1269.
Here, the grounds for removal only became ascertainable through clear and unequivocal
notice when Defendants’ counsel received Plaintiff’s counsel’s email on September 13, 2017.
Defendant Arrellano’s notice, filed thirty days later on October 13, 2017, was timely, and this
case is now properly before the U.S. District Court.
For the reasons articulated above, the Court HEREBY DENIES Plaintiff’s “Opposed
Motion to Remand and Memorandum in Support” [ECF No. 10].
IT IS SO ORDERED.
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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