Hernandez v. Chevron U.S.A., Inc., CIV 17-1083 JB/GBW

• Decision Date: 30 August 2018
• Docket Number: No. CIV 17-1083 JB/GBW,CIV 17-1083 JB/GBW
• Citation: 347 F.Supp.3d 921
• Parties: Raul HERNANDEZ, Plaintiff, v. CHEVRON U.S.A., INC.; Airswift Holdings Limited and Grand Isle Shipyard, Inc., Defendants.
• Court: U.S. District Court — District of New Mexico

347 F.Supp.3d 921

Raul HERNANDEZ, Plaintiff,

v.CHEVRON U.S.A., INC.; Airswift Holdings Limited and Grand Isle Shipyard, Inc., Defendants.

No. CIV 17-1083 JB/GBW

United States District Court, D. New Mexico.

Filed August 30, 2018

Joseph G. Isaac, Scherr and Legate, PLLC, El Paso, Texas, Attorney for the Plaintiff.

Jennifer G. Anderson, Megan Muirhead, Elizabeth Ann Martinez, Modrall Sperling Roehl Harris & Sisk, P.A., Albuquerque, New Mexico, Attorneys for the Defendant Chevron U.S.A., Inc.

Richard A. Bonner, Joseph Austin, Kemp Smith LLP, El Paso, Texas and Eric W. Kristiansen, Cody T. Vasut, Baker Hostetler, LLP, Houston, Texas, Attorneys for Defendant Airswift Holdings Limited.

David W. Bunting, Rodey, Dickason, Sloan, Akin & Robb P.A., Albuquerque, New Mexico, Attorney for Grand Isle Shipyard, Inc.

MEMORANDUM OPINION AND ORDER ¹

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) Defendant Airswift Holdings Limited's Motion to Dismiss for Lack of Personal Jurisdiction and Brief in Support, filed November 8, 2017 (Doc. 7)("Motion"); (ii) the Plaintiffs' Motion to Stay Ruling Pending Jurisdictional Discovery on Defendant Airswift Holdings Limited's Motion to Dismiss for Lack of Personal Jurisdiction (Doc. 7), filed November 22, 2017 (Doc. 15)("Motion to Stay"); (iii) Plaintiffs' Motion to Remand, filed November 30, 2017 (Doc. 17)("Motion to Remand"); and (iv) Plaintiff's Opposed Motion for Leave to File First Amended Complaint to Add Swift Technical Services, L.L.C. as an Additional Party, and to Remand Pursuant to 28 U.S.C. § 1447(e), filed November 30, 2017 (Doc. 18)("Motion to Amend"). The Court held a hearing on August 13, 2018. The primary issues are: (i) whether Defendant Airswift Holdings Limited has minimum contacts with New Mexico; (ii) whether Hernandez is diverse from Defendants Chevron U.S.A., Inc. and Grand Isle Shipyard, Inc.; and (iii) whether the Court should allow Hernandez to amend Plaintiff's Original Complaint for Personal Injuries, (First Judicial District Court, County of Santa Fe, State of New Mexico), filed September 6, 2017, filed in federal court on November 1, 2017 (Doc. 1-6)("Complaint") to add Swift Technical Services, L.L.C. as a defendant, which would destroy complete diversity if it previously existed. The Court concludes that (i) Airswift Holdings lacks minimum contacts with New Mexico; (ii) all plaintiffs were diverse from all defendants at the time of removal; and (iii) Hernandez may amend his complaint to add Swift Technical. Accordingly, the Court grants the Motion, denies the Motion to Stay, denies the Motion to Remand, and grants the Motion to Amend. Because the Court has permitted joinder of a non-diverse Defendant, the Court's jurisdiction has been destroyed, so it will remand the case to the First Judicial District Court, County of Santa Fe, State of New Mexico. See 28 U.S.C. § 1447(e).

FACTUAL BACKGROUND

The Court takes its facts from the Complaint. The Court provides these facts for background. It does not adopt them as the truth, and it recognizes that the facts are largely Hernandez' version of events.

Hernandez is a contract laborer working under Chevron U.S.A. and its agent's -- Airswift Holdings -- employ. See Complaint ¶ 7, at 2. On December 3, 2015, Hernandez was working on a Chevron, U.S.A. plant located near Lovington, New Mexico. See Complaint ¶¶ 6-7, at 2. On that day, Chevron U.S.A. and Airswift Holdings ordered Hernandez to clean an unlit, "completely dark" tank vessel that was filled with "sludge" and "unsafe levels of chemical and toxic vapors." Complaint ¶¶ 7, 9, at 2-3. As a result of the tank vessel's conditions, Hernandez slipped and fell, sustaining "serious bodily injuries." Complaint ¶ 21, at 4.

PROCEDURAL BACKGROUND

Hernandez sues Chevron U.S.A. and Airswift Holdings for negligence, asserting that they breached their duty of care in at least twenty-five different ways, including: (i) failing to provide proper safety equipment; (ii) failing to install adequate lighting inside the tank; (iii) failing to warn Hernandez of dangers; (iv) failing to establish and enforce safety rules and regulations; (v) failing to inspect; and (vi) failing to adequately train, educate, or provide instructions to its employees. See Complaint ¶ 30, at 5-6. Hernandez also sues Grand Isle, should it be determined that Hernandez was an employee of Grand Isle, for Willful Conduct and Gross Negligence, asserting that the risk of danger to Hernandez "was extremely great," because of the "confined work space[ ]" in which he worked. Complaint ¶ 40, at 9. See id. ¶ 41, at 9. Hernandez requests compensatory and punitive damages, fees, recoverable court costs, and pre- and post-judgment interest. See Complaint ¶ 46, at 11

Airswift Holdings removes the case on the basis of diversity jurisdiction. See Notice of Removal ¶ 8, at 3, filed November 1, 2017 (Doc. 1)("Notice of Removal").² Airswift Holdings contends that there is diversity jurisdiction, because: (i) citizenship is diverse -- Hernandez is a Texas citizen, whereas Airswift Holdings, Chevron U.S.A., and Grand Isle are, respectively, United Kingdom, Pennsylvania, and Louisiana citizens; and (ii) the compensatory and punitive damages, and fees requested exceed $75,000.00. See Notice of Removal ¶¶ 8-14, at 3-4. Chevron U.S.A. and Grand Isle consent to removal. See Notice of Consent to Notice of Removal at 1, filed November 1, 2017 (Doc. 2); Defendant Grand Isle Shipyard, Inc.'s Consent to Removal to Federal Court at 1, filed November 1, 2017 (Doc. 3).

1. The Motion.

Airswift Holdings moves to dismiss for lack of personal jurisdiction. See Motion at 1. Airswift Holdings argues that there is no general personal jurisdiction, because "Airswift is not incorporated in New Mexico, does not do business in New Mexico, does not own property in New Mexico, does not pay taxes in New Mexico, and does not have a bank account in New Mexico." Motion at 4-5. Airswift Holdings argues that it is not subject to specific personal jurisdiction, because it lacks minimum contacts with New Mexico. See Motion at 5. According to Airswift Holdings, "the only basis for specific jurisdiction articulated by Plaintiff is that, on information and belief, Airswift provided services or materials at Chevron's Buckeye CO2 Plant near Lovington, New Mexico." Motion at 5. Airswift Holdings contends that such an allegation is "not supported by any facts." Motion at 5. Specifically, it argues that specific personal jurisdiction is lacking, because Airswift Holdings: (i) does not employ Hernandez; (ii) does not provide any services or materials to Chevron's Buckeye CO2 plant; and (iii) has no contractual relationship with Chevron U.S.A. or Grand Isle. See Motion at 5 (citing Declaration of Peter Searle ¶¶ 4-5, at 1-2 (executed November 7, 2017), filed November 8, 2017 (Doc. 7-1)("Searle Decl.") ). Finally, Airswift Holdings argues that none of its employees were working at that plant in 2015 or 2016. See Motion at 5 (citing Searle Decl. ¶ 6, at 2). Accordingly, Airswift Holdings requests that Court dismiss Hernandez' claims against it for lack of personal jurisdiction. See Motion at 6.

2. Motion to Stay.

Hernandez moves the Court to stay its ruling on the Motion pending jurisdictional discovery. See Motion to Stay at 1. He argues that the stay is appropriate so that Hernandez can uncover Airswift Holdings' relationship with its related entity, Swift Technical, a Texas L.L.C., which, according to Hernandez, had employees or agents at the Lovington plant who were involved in negligent conduct that gives rise to Hernandez' injuries. See Motion to Stay at 1, 5 (citing Notice of Denial of Compensability/Liability and Refusal to Pay Benefits at 1 (dated November 8, 2017), filed November 22, 2017 (Doc. 15)("Denial Notice") ). Hernandez asserts that a stay to conduct jurisdictional discovery is appropriate "when the existing record is inadequate," but a "plaintiff's jurisdictional allegations may be supported through discovery." Motion to Stay at 5 (citing Trintec Indus. v. Pedre Promotional Prods., 395 F.3d 1275, 1283 (Fed. Cir. 2005) ). Hernandez asserts that discovery will show that Airswift Holdings is a "multi-billion dollar corporation" that has injected its products into New Mexico. Motion to Stay at 8. According to Hernandez, such a showing will demonstrate that personal jurisdiction is proper. See Motion to Stay at 8.

3. Motion to Remand.

Hernandez moves to remand to state court for lack of subject-matter jurisdiction. See Motion to Remand at 1. He contends that Airswift Holdings does not carry its removal burden, because it does not present any evidence to contest the Complaint's allegations that Grand Isle's principal place of business is in Odessa, Texas, and that Airswift Holdings' principal place of business is Houston, Texas. See Motion to Remand at 7 ("It simply alleges, without any evidence, that Plaintiff is mistaken."). Hernandez concludes that, because Airswift Holdings did not present sufficient evidence to rebut the Complaint's allegations, remand to state court is required. See Motion to Remand at 8.

Hernandez also argues that removal is untimely. See Motion to Remand at 9. He argues that, because removal was more than thirty days after Chevron U.S.A. and Grand Isle received the Complaint, the Court should remand the case. See Motion to Remand at 9. Hernandez argues that the evidence does not support Airswift Holdings' argument to the contrary, that Airswift Holdings did not receive the Complaint until October 2, 2017, as the state court record shows that the Complaint was served on Airswift Holdings on September 11, 2017. See Motion to Remand at 9-10. Accordingly, Hernandez asks the Court to remand the case. See Motion to Remand at 11.

4. Motion to Amend.

Hernandez moves to amend the Complaint to add Swift Technical Services, L.L.C. as a defendant. See Motion to Amend at 1. He argues that, should the Court grant the amendment,...