Newman et al v. VFS US LLC et al

Filing 28

ORDER granting 13 plaintiffs' Motion to Remand and remanding this case to the District Court of Oklahoma County, State of Oklahoma (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 4/16/2018. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JIM NEWMAN and
WHITNEY NEWMAN,
Plaintiffs,
vs.
VFS US LLC,
a Foreign Limited Liability Company,
VOLVO FINANCIAL SERVICES,
a foreign company,
VOLVO CAR FINANCIAL SERVICES
U.S., LLC, a foreign company d/b/a
Volvo Financial Services,
BRUCKNER TRUCK SALES, INC.,
a foreign company,
DEBRA R. HASTON, an individual,
Defendants.

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Case No. CIV-17-907-M

ORDER
Before the Court is plaintiffs’ Motion to Remand, filed September 22, 2017. On October
13, 2017, defendants VFS US LLC and Volvo Financial Services (“VFS”) filed their response,
and on October 20, 2017, plaintiffs filed their reply. Based upon the parties’ submissions, the
Court makes its determination.
On June 30, 2017, plaintiffs filed the instant action in the District Court of Oklahoma
County, State of Oklahoma. On July 25, 2017, plaintiffs filed their First Amended Petition. On
August 23, 2017, VFS removed this action to this Court on the basis of diversity jurisdiction under
28 U.S.C. § 1332. Plaintiffs now move this Court to remand this action to state court pursuant to
28 U.S.C. § 1447.
Plaintiffs assert that VFS has failed to meet its burden to prove diversity jurisdiction.
Specifically, plaintiffs contend that defendant Debra R. Haston is not a diverse party, as both

plaintiffs and Ms. Haston are citizens of Oklahoma. VFS asserts that plaintiffs’ motion to remand
fails under the express terms of the forum defendant rule, as set forth in 28 U.S.C. § 1441(b)(2).
VFS further asserts that Ms. Haston was fraudulently joined in an effort to prevent removal.
The forum defendant rule provides:
A civil action otherwise removable solely on the basis of the
jurisdiction under section 1332(a) of this title may not be removed
if any of the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is brought.
28 U.S.C. § 1441(b)(2) (emphasis added). Thus, an action must be otherwise removable prior to
any application of the forum defendant rule. The Court, therefore, will first determine whether
this action was otherwise removable – whether this Court has diversity jurisdiction.
Removal statutes are strictly construed and all doubts about the correctness of removal are
resolved in favor of remand. Fajen v. Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982).
When a non-diverse party has been joined as a defendant, then in the absence of a federal question,
the removing defendant may avoid remand only by demonstrating fraudulent joinder. Batoff v.
State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992). The party asserting fraudulent joinder
carries a heavy burden in making this showing. Batoff, 977 F.2d at 851; Montano v. Allstate
Indem., No. 99-2225, 2000 WL 525592, at *1 (10th Cir. April 14, 2000).
“Joinder is fraudulent where there is no reasonable basis in fact or colorable ground
supporting the claim against the joined defendant, or no real intention in good faith to prosecute
the action against the defendants or seek a joint judgment.” Batoff, 977 F.2d at 851 (internal
quotations and citations omitted). If there is even a possibility that a state court would find the
complaint states a cause of action against the non-diverse defendant, the federal court must find
joinder was proper and remand the case to state court. Batoff, 977 F.2d at 851; Montano, 2000
WL 525592, at *1. In determining fraudulent joinder claims, the court must resolve all disputed
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questions of fact and any uncertainties as to the current state of controlling substantive law in favor
of the non-removing party. Batoff, 977 F.2d at 852; Montano, 2000 WL 525592, at *1.
In the instant action, plaintiffs allege a claim and seek damages against Ms. Haston for
falsely notarizing or creating plaintiffs’ signatures and creating liability for plaintiffs. See First
Amended Petition at ¶ 9 and prayer. Under Oklahoma law,
[a] notary has the duty of determining “either from personal
knowledge or from satisfactory evidence, that the person appearing
before the officer and making the acknowledgment is the person
whose true signature is on the instrument.” 49 O.S.1991 § 113.
Failure to perform that duty gives rise to a cause of action in tort.
State Nat’l Bank v. Mee, 136 P. 758, 39 Okla. 775 (1913).
Szczepka v. Weaver, 942 P.2d 247, 249 (Okla. Civ. App.1997).
Having reviewed plaintiffs’ First Amended Petition, the Court finds that an Oklahoma
court would find that plaintiffs have stated a claim against Ms. Haston. Further, the Court finds
that VFS has not shown that plaintiffs have no real intention in good faith to prosecute their claim
against Ms. Haston. Ms. Haston has now been served and has filed an answer. Accordingly, the
Court finds that Ms. Haston is not fraudulently joined and that this Court, therefore, does not have
diversity jurisdiction in this case and this action should be remanded to the state court.
For the reasons set forth above, the Court GRANTS plaintiffs’ Motion to Remand [docket
no. 13] and REMANDS this case to the District Court of Oklahoma County, State of Oklahoma.
IT IS SO ORDERED this 16th day of April, 2018.

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