Mach v. Triple D Supply Llc
| Decision Date | 28 February 2011 |
| Docket Number | No. CIV 10–1073 JB/GBW.,CIV 10–1073 JB/GBW. |
| Citation | 773 F.Supp.2d 1018 |
| Court | U.S. District Court — District of New Mexico |
| Parties | Julie MACH, as Personal Representative of the Estate of Louis Dwayne Mach, III, Deceased; Julie Mach, individually and as next Friend of Jewel Mach, a Minor Child, Louis Mach, a Minor Child, Karlton Mach, a Minor Child, and Ivan Mach, a Minor Child, Plaintiffs,v.TRIPLE D SUPPLY, LLC; Donald R. Doak, Individually; Great American Insurance Company, d/b/a Great American E & S Insurance Company, Defendants,andTriple D Supply, LLC, Donald R. Doak, Individually, Counterclaimants,v.Julie Mach, as Personal Representative of the Estate of Louis Dwayne Mach, III, Deceased; Julie Mach, Individually and as next Friend of Jewel Mach, a Minor Child, Louis Mach, a Minor Child, Karlton Mach, a Minor Child, and Ivan Mach, a Minor Child, Counterdefendants,andTriple Supply, LLC, Donald R. Doak, Individually, Crossclaimants,v.Great American Insurance Company, d/b/a Great American E & S Insurance Company, Crossdefendant,v.Triple D Supply, LLC, Donald R. Doak, Individually, Third–Party Plaintiffs,v.Wilshire Insurance Company, Third–Party Defendant. |
OPINION TEXT STARTS HERE
Jeffrey G. Wigington, David L. Rumley, Joseph M. Dunn, Dennis L. Richard, Wigington Rumley Dunn, L.L.P., San Antonio, TX, for Plaintiffs.Carl Green, Bruce Koehler, Jose C. Vega, Mounce, Green, Myers, Safi, Paxson & Galatzan, P.C., El Paso, TX, E. Roger Yarbro, Yarbro & Associates, P.A., Albuquerque, NM, for Defendants Triple D Supply, LLC and Donald L. Doak.Steven Vogel, Albuquerque, NM, for Counterclaimants, Crossclaimants and Third–Party Plaintiffs Triple D Supply, LLC and Donald L. Doak.Steven Plitt, Kunz, Plitt, Hyland, Demlong & Kleifield, Phoenix, AZ, William P. Gralow, Lisa Entress Pullen, Civerolo, Gralow, Hill & Curtis, PA, Albuquerque, NM, for Cross–Defendant Great American Insurance Company.Alfred “Al” L. Green, Jr., Emily Francke, Butt, Thornton & Baehr, P.C., Albuquerque, NM, for Third–Party Defendant Wilshire Insurance Company.
THIS MATTER comes before the Court on: (i) the Plaintiff's Motion to Remand—Opposed, filed November 13, 2010 (Doc. 8); and (ii) Third Party Plaintiffs, Triple D Supply, L.L.C. and Donald Doak's Motion to Remand, filed November 24, 2010 (Doc. 22). The Court held a hearing on February 22, 2010. The primary issues are: (i) whether Defendant/CrossClaimants/Third Party Plaintiffs Triple D Supply L.L.C. and Donald Doak's Cross–Claims are a separate civil action under 28 U.S.C. § 1441(a); (ii) whether Defendant/Cross–Defendant Great American Insurance Company, d/b/a Great American E & S Insurance Company (“Great American”) is time barred from removing this case from state court under 28 U.S.C. § 1446(b); (iii) whether, as a Cross–Defendant, Great American, is permitted to remove this action 28 U.S.C. § 1441(a); and (iv) whether the Court should award to costs and fees associated with the motions. Because the Cross–Claims are not separate civil actions, Great American is time barred from removing this case, and because Great American, as a Cross–Defendant, is not permitted to remove this case, the Court grants the motions in part and denies the motions in part. The Court remands this case to the District Court of Dona Ana County, Third Judicial District, New Mexico. The Court will not award fees and costs.
J. Mach, individually, as Personal Representative of the Estate of Louis Dwayne Mach, III, Deceased, and as next Friend of minor children Jewel Mach, Louis Mach, Karlton Mach, and Ivan Mach (“Mach Plaintiffs”). The Mach Plaintiffs are a residents of Warren, Ohio. Triple D Supply is a domestic for-profit limited liability company registered and doing business in New Mexico. 1 Doak is a manager of Triple D Supply and a resident of New Mexico. Great American is a for-profit corporation, incorporated in Ohio and doing business in New Mexico. Third–Party Defendant/Crossdefendant Wilshire Insurance Company (“Wilshire”) is an insurance company doing business in the state of New Mexico.
On July 31, 2009, the Mach Plaintiffs filed their Complaint for Wrongful Death and Personal Injury in cause number CV 09–1990 in the District Court of Dona Ana County, Third Judicial District. On August 4, 2010, The Honorable Jerald A. Valentine, New Mexico District Court Judge, filed his Order Granting Plaintiffs' Unopposed Motion for Leave to File Amended Complaint, see Doc. 10–8, at 33, and the Mach Plaintiffs filed their First Amended Complaint for Wrongful Death, Personal Injury, Bad Faith Insurance Company Practices and Breach of the Duty of Good Faith and Fair Dealing, see Doc. 10–8, at 7 (“FAC”). The FAC named Great American as a Defendant. The Mach Plaintiffs brought, among others, claims against Great American for breach the duty of good faith and fair dealing. See FAC ¶¶ 5.1–5.3, at 8. On September 2, 2010, the Mach Plaintiffs served a summons and the FAC on Great American through the New Mexico Public Regulation Commission. See Letter from John Franchini, Superintendent of Insurance, to Great American Insurance Company of New York (dated September 2, 2010), filed December 8, 2010 (Doc. 29–1, at 1); Summons, filed December 8, 2010 (Doc. 29–1, at 2).
On September 7, 2010, the Cross–Claimants—Triple D Supply and Doak—filed their Answer, Counterclaim, Cross Claim and Third–Party Complaint for Declaratory Judgment and Breach of Contract in state court. See Doc. 10–2, at 11 (“Cross–Claimants' Complaint”). The Cross–Claimants brought Cross–Claims against Great American and Third–Party Claims against Wilshire for declaratory relief, breach of insurance contracts, and insurance bad faith & breach of fiduciary duties, and violation of the New Mexico Insurance Code, N.M.S.A.1978, NMSA 1978, §§ 59A–16–1 to 59A–16–30, violation of the New Mexico Unfair Practices Act, NMSA 1978, §§ 57–12–1 to 57–12–30. See Cross–Claimants' Complaint Count I–V, at 4–8.
On October 12, 2010, Great American filed in state court its Motion to Dismiss Allegations in Plaintiffs' First Amended Complaint. See Doc. 22–1, at 5. On November 12, 2010, Great American filed in federal court its Notice of Removal of Action Under 28 U.S.C. Section 1443 By Cross/ Third Party Defendant. See Doc. 1 (“Notice of Removal”). Great American removed based on diversity jurisdiction. See Notice of Removal ¶ 11, at 4.
On November 19, 2010, the Mach Plaintiffs filed their Motion to Remand—Opposed, requesting that the Court remand this case to the District Court of Dona Ana County, Third Judicial District. See Doc. 8. The Mach Plaintiffs contend that Great American cannot remove this case, because it is time barred under 28 U.S.C. § 1446(b), all Defendants did not timely consent to removal, and Great American as a Cross–Defendant and as Third–Party Defendant is not a “defendant” within the meaning of 28 U.S.C. § 1441(a) who can remove this case. The Mach Plaintiffs request that the Court remand the case to state court, and award them just costs and actual expenses, including attorney fees. On November 24, 2010, the Cross–Claimants filed their Motion to Remand. See Doc 22 (“Cross–Claimants' Motion”). The Cross–Claimants adopt the Mach Plaintiffs's Motion to Remand, and further contend that Great American consented to state court jurisdiction and waived its right to remove when Great American filed its motion to dismiss in that forum. The Cross–Claimants request that the Court remand the case to state court and afford them “such other and further relief the Court deems appropriate.” Cross–Claimants' Motion at 4–5.
On December 3, 2010, Great American filed its Response Opposing Mach Plaintiffs' Motion to Remand. See Doc. 28. Great American contends that, as Third–Party Defendant, it qualifies as a “defendant” who may remove a diversity case to federal court under 28 U.S.C. § 1441(a). Great American further contends that the Cross–Claims are separate from the underlying action, and 28 U.S.C. § 1446's requirements should be analyzed based on the Cross–Claimants' filing of the Cross–Claims, and not on the Mach Plaintiffs action. Accordingly, Great American contends, its removal is timely and Wilshire—the only other Defendants to the Cross–Claimants' claims—consented. On December 8, 2010, Great American filed its Response Opposing Third–Party Plaintiffs Triple D Supply LLC's and Donald Doak's Motion to Remand. See Doc. 29. Great American contends that it did not waive its right to remove when it filed its motion to dismiss in state court, because the ancillary wrongful death claim that had been pending before the Cross–Claims was not removable.
On December 15, 2010, the Cross–Claimants filed their Reply in Support of Third Party Plaintiffs, Triple D Supply, L.L.C. and Donald Doak's Motion to Remand. See Doc. 31. The Cross–Claimants assert that their Cross–Claims are not separate civil actions, but they are intricately interwoven with the other claims in this lawsuit. The Cross–Claimants assert that, in the state court, it was mandatory that they bring their Cross–Claims. See Foundation Reserve v. Mullenix, 97 N.M. 618, 620, 642 P.2d 604, 606 (1982).
Section 1441 of Title 28 of the United States Code states:
[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). A federal district court has original jurisdiction if Article III's justiciability requirements are met, see Lee v. Am. Nat'l Ins. Co., 260 F.3d 997, 1002–05 (9th Cir.2001), cert. denied, 535 U.S. 928, 122 S.Ct. 1299, 152 L.Ed.2d 211 (2002), and the case involves a federal question or diversity of citizenship, see Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, ...
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