Aranda v. Foamex Int'l

• Citation: 884 F.Supp.2d 1186
• Decision Date: 11 July 2012
• Docket Number: No. CIV 12–0405 JB/ACT.,CIV 12–0405 JB/ACT.
• Parties: Nicholas ARANDA, Plaintiff, v. FOAMEX INTERNATIONAL d/b/a FXI, Inc., Defendant.
• Court: U.S. District Court — District of New Mexico

884 F.Supp.2d 1186

Nicholas ARANDA, Plaintiff,

v.FOAMEX INTERNATIONAL d/b/a FXI, Inc., Defendant.

No. CIV 12–0405 JB/ACT.

United States District Court,

D. New Mexico.

July 11, 2012.

Donald D. Vigil Albuquerque, NM, Josh Ewing, Steven C. Ewing, Ewing & Ewing, P.C., Albuquerque, NM, for Plaintiff.

Benjamin E. Thomas, Travis R. Steele, Sutin, Thayer, & Browne, P.C., Albuquerque, NM, for Defendant.

AMENDED MEMORANDUM OPINION¹

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Plaintiff's Motion to Remand for Lack of Subject Matter Jurisdiction and Defects in Removal Procedure, filed May 17, 2012 (Doc. 7)(“Motion to Remand”). The Court held a hearing on June 26, 2012. The primary issues are: (i) whether Defendant FXI, Inc.² adequately established that the Court has subject-matter jurisdiction over this case; and (ii) whether FXI, Inc. timely filed its Notice of Removal, filed April 17, 2012 (Doc. 1). The Court finds that FXI, Inc. has established, by a preponderance of the evidence, that the amount in controversy exceeds $75,000.00 and that the Court has subject-matter jurisdiction. The Court will, however, remand the case to the Second Judicial District Court, County of Bernalillo, State of New Mexico, because the Notice of Removal was untimely and filed outside of the thirty-day window that Congress established for removal in 28 U.S.C. § 1446(b). Accordingly, the Court will grant the Motion to Remand.

PROCEDURAL BACKGROUND

On December 22, 2011, Plaintiff Nicholas Aranda filed his Complaint to Recover Damages for Personal Injuries in the Second Judicial District Court, County of Bernalillo, State of New Mexico. See Doc. 1 at 6–11 (“Complaint”). Aranda resides in Albuquerque, New Mexico. See Complaint ¶ 1, at 6. He asserts that Foamex International is a Delaware corporation doing business in New Mexico. See Complaint ¶ 2, at 6. Aranda alleges that, on February 24, 2010, he slipped on hydraulic fluid, which had leaked from a forklift that had been improperly repaired, and that the incident caused him to suffer a: (i) torn anterior cruciate ligament; (ii) a lateral meniscus tear; (iii) a grade 4 femoral condral lesion to his right knee; and (iv) a severe contusion to his left knee. See Complaint ¶ 23, at 8. He required surgery on his right knee and medical treatment for both knees. See Complaint ¶ 24, at 8. Aranda asserts that he continues to suffer decreased mobility, permanent pain in his right knee, and a limp when he walks. SeeComplaint ¶ 25, at 8. Aranda asserts three counts against Foamex International: (i) negligence based on Foamex International creating “a dangerous condition by failing to adequately maintain and service its forklifts and failing to allow adequate maintenance and servicing of obvious safety issues”; (ii) premises liability based on Foamex International's alleged failure to use ordinary care to keep the premises safe for Aranda's use; and (iii) failure to provide adequate safety measures and plans based on Foamex International's duty to provide Aranda with a safe place to work. Complaint ¶¶ 10, 37, 41, at 9–10. As relief, Aranda requests actual and punitive damages. See Complaint at 11.

On April 17, 2012, FXI, Inc., which the Complaint improperly named as Foamex International, filed its Notice of Removal. See Doc. 1. FXI, Inc. asserts that Aranda is a New Mexico citizen. See Notice of Removal ¶ 2, at 1. It further asserts that it is a Delaware corporation with its principal place of business in Pennsylvania, making it a citizen of Delaware and Pennsylvania. See Notice of Removal ¶ 2, at 1. It argues that “[t]he substantive allegations of Plaintiff's Complaint indicate that the matter in controversy exceeds $75,000.” Notice of Removal ¶ 3, at 2. FXI, Inc. contends that the Court has original jurisdiction, under 28 U.S.C. § 1332, because the amount in controversy exceeds $75,000.00 and because the suit is between citizens of different states. See Notice of Removal ¶ 4, at 2.

On May 17, 2012, Aranda filed his Motion to Remand. See Doc. 7. He argues that “Foamex International, doing business as FXI, Inc. (‘FXI’) failed to adequately establish the amount in controversy in its Notice of Removal as required by 28 U.S.C. Section 1446.” Motion to Remand at 1. He further asserts that FXI, Inc. filed its Notice of Remand sixty-two days after Aranda served its registered agent, “well outside the time period allowed by 28 U.S.C. § 1446(b).” Motion to Remand at 1. Aranda contends that FXI, Inc. has appointed CT Corporation to act as its agent to accept “any process, notice or demand required or permitted by law to be served upon” the corporation. Motion to Remand at 2. He asserts that, on February 15, 2012, he served CT Corporation with process, and that “[s]ervice was accomplished by certified, return-receipt mail ... in compliance with Rule 1–004(E)(3) and (G)(1) of the New Mexico Rules of Civil Procedure.” Motion to Remand at 2. Aranda represents that, on February 15, 2012, CT Corporation sent a letter to his counsel and to the Second Judicial District Court stating that CT Corporation was returning service, because “Foamex International is not listed in [its] records or the records of the State of NM.” Motion to Remand at 2–3. He contends that, on March 5, 2012, after verifying that CT Corporation is FXI, Inc.'s agent, he filed a Certificate of Service of Process (dated March 5, 2012), filed May 17, 2012 (Doc. 7–1)(“Certificate of Service”), in compliance with N.M.R.A. 1–004(L). Motion to Remand at 3. He asserts that the Certificate of Service explains that service was accomplished on February 5, 2012, that CT Corporation incorrectly returned service to Aranda, and that he would mail service to FXI, Inc.'s local plant and its Delaware office to move the case forward. See Motion to Remand at 3. Aranda represents that, on March 26, 2012, Benjamin Thomas, FXI, Inc.'s counsel, contacted him, said that FXI, Inc. “was happy to accept service of process,” and requested that Aranda's counsel, Josh Ewing, send an acceptance of service request. Motion to Remand at 3 (citing Letter from Josh Ewing to Benjamin Thomas at 8 (not dated), filed May 17, 2012 (Doc. 7–1)(“Ewing Letter”)). Aranda states that, when Mr. Ewing did not send acceptance of service papers, Mr. Thomas field an acceptance of service in state court stating that the date of service was March 22, 2012. See Motion to Remand at 3 (citing Acceptance of Service at 11 (dated April 5, 2012), filed May 17, 2012 (Doc. 7–1)).

Aranda first asserts that FXI, Inc.'s Notice of Removal does not comply with 28 U.S.C. § 1446's amount-in-controversy requirement. See Motion to Remand at 4. He emphasizes that there is a presumption against removal. See Motion to Remand at 4 (citing Laughlin v. Kmart Corp., 50 F.3d 871, 871 (10th Cir.1995)). He argues that FXI, Inc. must establish the amount in controversy by a preponderance of the evidence. See Motion to Remand at 4 (citing McPhail v. Deere & Co., 529 F.3d 947, 953 (10th Cir.2008)). He further asserts that “[a] federal court determines the amount in controversy between parties on the facts as they exist at the time the defendant files a notice of removal.” Motion to Remand at 4 (emphasis in original)(quoting Varela v. Wal–Mart Stores, East, Inc., 86 F.Supp.2d 1109 (D.N.M.2000) (Baldock, J.)). Aranda contends that, because the Complaint did not set forth the amount in controversy, FXI, Inc. needed to affirmatively establish that amount in its Notice of Removal. See Motion to Remand at 4. He argues that FXI, Inc.'s “conclusory allegations” that the Complaint's substantive allegations indicate that the amount in controversy is greater than $75,000.00 are insufficient to establish the amount by a preponderance of the evidence. Motion to Remand at 5. He points out that FXI, Inc. “did not make any attempt to explain why the damages in this case met the amount in controversy.” Motion to Remand at 6 (citing Coca–Cola Bottling of Emporia v. S. Beach Beverage Co., 198 F.Supp.2d 1280 (D.Kan.2002)). Aranda asserts that, instead, “FXI appears to have engaged in some attempt to get [him] to carry its burden and provide a specific monetary damage amount.” Motion to Remand at 6 (citing Letter from Benjamin Thomas to Josh Ewing at 9 (dated April 30, 2012), filed May 17, 2012 (Doc. 7–1)(“Thomas Letter”)). He argues that a defendant may not engage in postremoval attempts to establish jurisdiction. See Motion to Remand at 6 (citing Laughlin v. Kmart Corp., 50 F.3d at 873;Coca–Cola Bottling of Emporia v. S. Beach Beverage Co., 198 F.Supp.2d at 1280;Varela v. Wal–Mart Stores, East, Inc., 86 F.Supp.2d at 1112). He contends that an opinion by the Honorable James A. Parker, Senior United States District Judge, in Hernandez v. Safeco Insurance Company of America, No. Civ. 11–0245, Memorandum Opinion and Order, filed September 8, 2011 (Doc. 33)(Parker, S.J.)(“ Hernandez MOO”), is “directly on point.” Motion to Remand at 6. Aranda asserts that, in the Hernandez MOO, Judge Parker held that the “Tenth Circuit Court of Appeals has consistently held that a court cannot consider post-removal documents in determining the amount in controversy.” Motion to Remand at 7. He notes that Judge Parker held:

Vague and general allegations are simply insufficient for the Court to estimate, without resorting to speculation, what Plaintiff's claimed damages amount to and whether those damages exceed $75,000. Because the FIRST AMENDED COMPLAINT does not suffice to show that the amount in controversy is met, the Defendant should have provided specific facts in the NOTICE OF REMOVAL to demonstrate that Plaintiff's damages exceed $75,000.

Motion to Remand at 8 (citing Hernandez MOO at 9–10). He argues that FXI, Inc. did not, in the Notice of Removal, offer any facts to carry its burden and did not refer to any numerical value. See Motion to Remand at 9.

Aranda next asserts that FXI, Inc. did not file its Notice of Removal...