Hernandez v. Menlo Logistics, Inc.
| Decision Date | 30 September 2013 |
| Docket Number | No. CIV 12-0907 JB/WPL,CIV 12-0907 JB/WPL |
| Parties | DAVID HERNANDEZ, Plaintiff, v. MENLO LOGISTICS, INC., HEWLETT-PACKARD, CO., TAURUS SOUTHERN INVESTMENTS, LLC D/B/A CLUB DEAL 21, and JOSE ALVAREZ, Defendants. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on the Plaintiff's Motion to Remand and Alternative Request for Jurisdictional Discovery, filed September 26, 2012 (Doc. 12)("Motion to Remand"). The Court conducted a hearing on November 29, 2012. The primary issues are: (i) whether Defendant Menlo Logistics, Inc.'s Notice of Removal to the United States District Court for the District of New Mexico, filed August 27, 2012 (Doc. 1)("Notice of Removal"), Defendant Hewlett-Packard, Co.'s Consent to Removal, filed August 27, 2012 (Doc. 1-2), and Defendant Taurus Southern Investments, LLC d/b/a Club Deal 21's Consent to Removal, filed August 27, 2012 (Doc. 1-3), were untimely; (ii) whether Menlo Logistics failed to comply with the provisions of 28 U.S.C. § 1446(a) when it filed its Notice of Removal, because it did not attach copies of the process it served, and, if so, whether this failure constitutes a ground for remand; and (iii) whether Menlo Logistics and Hewlett-Packard have upheld their burden of demonstrating that they properly removed Plaintiff David Hernandez' Original Complaint for Personal Injury Damages Arising From an on the Job Injury Caused by a Third Party, filed August 27, 2012 (Doc. 1-1)("Complaint"), because Hernandez fraudulently joined Defendant Jose Alvarez to defeatdiversity jurisdiction. If the Court denies the Motion to Remand on all of the foregoing grounds, two alternative primary issues are: (i) whether Hernandez is entitled to jurisdictional discovery to determine if removal was timely, there are defects in the removal procedure, and Alvarez properly was joined; and (ii) whether the removal is barred by 28 U.S.C. § 1445(c), which prohibits removal of "civil action[s] . . . arising under the workmen's compensation laws" of a forum state. The Court will grant the Motion to Remand on the ground that it does not have subject-matter jurisdiction over the claim, because Menlo Logistics and Hewlett-Packard have failed to sustain their burden of demonstrating that Hernandez fraudulently joined Alvarez.
The Court does not agree with Hernandez' argument that Menlo Logistics' Notice of Removal and Hewlett-Packard's and Taurus Southern's consents to removal were untimely and that Federal Rule of Civil Procedure 6(a), which governs the computation of time periods in statutes that do not "specify a method of computing time," does not extend the 30-day deadline for removal established in 28 U.S.C. § 1446(b) from a Sunday to the following Monday. See Motion to Remand ¶ 23 n.2, at 8 (quoting Fed. R. Civ. P. 6(a)). The Court concludes that, contrary to Hernandez' contention, see Motion to Remand ¶ 23 n.2, at 8, the thirty-day time period articulated in § 1446(b) is not a method of computing time, but rather is a time deadline. Accordingly, because § 1446(b) does not contain its own method of computing time, the removal statute is subject to rule 6(a)'s computation procedure. Thus, although the thirty-day deadline for removal set forth in § 1446(b) fell on Sunday, August 26, 2012, that deadline was computed to fall on Monday, August 27, 2012, by virtue of rule 6(a). Accordingly, Menlo Logistics' Notice of Removal, and Hewlett-Packard's and Taurus Southern's accompanying consents to removal, were timely filed.
The Court also does not agree with Hernandez' argument that Menlo Logistics' failure to comply with the requirements of 28 U.S.C. § 1446(a) -- which requires that a notice of removal contain a copy of all process served in an action -- or with the requirements of D.N.M.LR-Civ. 81.1A -- which grants a party twenty-eight days after removal to file the necessary attachments -- constitutes grounds for remand. See Motion to Remand ¶ 26, at 10; Transcript of Hearing at 25:1-6 (taken November 29, 2012)("Tr.")(Isaac).1 The Court concludes that Menlo Logistics' failure to attach the required summonses to the Notice of Removal was a de minimis procedural defect, that Menlo Logistics cured the defect, and that the defect did not prejudice Hernandez or impair the Court's ability to hear the case. Thus, the defect does not merit remand.
The Court agrees with Hernandez' argument that Menlo Logistics and Hewlett-Packard have failed to meet their burden of demonstrating that Hernandez fraudulently joined Alvarez to defeat diversity jurisdiction by establishing that there is no possibility that Hernandez would be able to establish a cause of action against Alvarez. Menlo Logistics and Hewlett-Packard argue that they were special employers of both Hernandez and Alvarez, that the New Mexico Workers' Compensation Act ("NMWCA"), N.M. Stat. Ann. §§ 52-5-1 to 52-5-22, therefore covered them, that Alvarez was Hernandez' co-employee, and that Alvarez therefore also is entitled to immunity from Hernandez' claims under the NMWCA's exclusivity provision. See Defendant Menlo Logistics Inc. and Hewlett Packard, Co.'s Response to Plaintiff's Motion to Remand and Alternative Request for Jurisdictional Discovery, filed Oct. 10, 2012, at 3 (Doc. 18)("Response").
The Court concludes that the Complaint's allegations -- upon which Menlo Logistics andHewlett-Packard solely rely to substantiate their claim of fraudulent joinder -- are not sufficient to establish that Hernandez was the direct or special employee of Menlo Logistics or Hewlett-Packard or that Alvarez was Hernandez' co-employee. Rather, there is a possibility that Hernandez did not have an employment relationship with Menlo Logistics and/or Hewlett-Packard and that, even if Hernandez was a special employee, that Alvarez was not Hernandez' co-employee, because Alvarez was a special employee working for a different direct employer than Hernandez' direct employer or that Alvarez was an independent contractor. In either of these cases, Alvarez would not be considered Hernandez' co-employee, entitled to immunity under the NMWCA, and Menlo Logistics and Hewlett-Packard's argument that the NMWCA's immunity provisions barred Hernandez' claims against Alvarez would fail. The Court also concludes that Menlo Logistics and Hewlett-Packard have failed to demonstrate that the Complaint's allegations indicate that they have complied with the insurance provisions in the NMWCA or that the Complaint's allegations could not possibly fall into the exception to the NMWCA's immunity provisions set forth in Delgado v. Dodge Phelps Chino, Inc., 131 N.M. 272, 34 P.3d 1148 (2001). Thus, Menlo Logistics and Hewlett-Packard have not established that Alvarez is immune pursuant to the NMWCA from Hernandez' claims, which is the basis of their fraudulent joinder contention. Accordingly, the Court grants the Motion to Remand for lack of subject-matter jurisdiction.
The Court denies Hernandez' request for jurisdictional discovery to determine "whether Defendant Menlo's removal was timely and whether there are defects in removal procedure and whether co-defendant Jose Alvarez is properly joined as a defendant in this case," Motion to Remand ¶ 31, at 12, which Hernandez seeks in the event the Court does not grant the Motion toRemand. Because the Court grants the Motion to Remand on the ground that Menlo Logistics and Hewlett-Packard have failed to satisfy their burden of demonstrating that Hernandez joined Alvarez fraudulently for the purpose of defeating diversity jurisdiction, Hernandez' motion in the alternative for jurisdictional discovery is moot.
The Court also denies Hernandez' conditional request to remand the Complaint on the ground that the Complaint constitutes a "'civil action . . . arising under the workmen's compensation laws of [New Mexico]'" within the meaning of 28 U.S.C. § 1445(c). Motion to Remand ¶ 33, at 13 (quoting 28 U.S.C. § 1445(c)). Because the Court does not find that Hernandez' exclusive remedy against Alvarez is pursuant to the NMWCA, Hernandez' alternative motion to remand pursuant to § 1445(c) is moot.
Hernandez alleges in his Complaint that, on or about November 16, 2009, he, while working in the "course and scope of his employment with his employer Spherion Atlantic General Contractors at a job site owned by Defendant Taurus," and while "under the control of Defendant Menlo and Defendant Hewlett," suffered severe, debilitating, and permanent personal injuries when a forklift operated by Alvarez without adequate safety precautions ran over his leg and foot, and severed his foot. See Complaint ¶ 6, at 2. Hernandez asserts that "[o]ne or more of the . . . acts or omissions of Alvarez in the course and scope of his employment with Defendants, constituted negligence, which negligence was the proximate cause of the injuries to Plaintiff." Complaint ¶ 14, at 5.
Hernandez alleges that, at the time of his accident, the "warehouse and the workers inside were under the control of Defendant Menlo and Defendant Hewlett," who "exercised actual andcontractual right of control on the job, including control over safety equipment, materials used on the job, inspection and approval of the work and compliance with OSHA requirements." Complaint ¶ 6, at 2. Hernandez also asserts that the "Defendants Menlo and Hewlett had control over the manner, methods and procedures that the employees, agents, and representatives used in carrying out assigned duties," Complaint ¶ 7, at 3, that Menlo Logistics and Hewlett-Packard "retained contractual and actual control over the entire job regarding procedure, completion time, safety on the job, scheduling of work and authority to specify insurance coverage and other details of the work," Complaint ¶ 7, at 3, and that Menlo Logistics and Hewlett-Packard were "engaged in a joint enterprise" with a "mutual right of control," Complaint ¶ 15, at 5.
Hernandez alleges that ...
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