IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
KRISTINA COLEMAN, LISA FALCONE,
and VERONICA WHITE,
No. 13-CV-533 MCA/KBM
HOSPITAL, LLC, a New Mexico limited
liability company, and TIM GONZALES,
MEMORANDUM OPINION AND ORDER
is before the Court on Plaintiffs’
Motion for Remand.
Having considered the parties' submissions, the relevant law, and otherwise being fully
advised in the premises, the Court
the Motion. This matter will be remanded to
the Second Judicial District Court, County of Bernalillo, State of New Mexico.
Plaintiffs filed a previous (separate) civil cause of action solely against Defendant
Albuquerque-AMG Specialty Hospital, LLC, (hereafter, AMG) in the Second Judicial
District Court in Bernalillo County, New Mexico, in March of 2013.
See Coleman v.
Albuquerque-AMG Specialty Hospital, LLC,
No. 13-CV-428 LH/LFG (Document 1-1).
Filings from the previous action are not in the record, however, the Court “may
take judicial notice of public records, including district court filings.”
Guttman v. Khalsa
669 F.3d 1101, 1127 n.5 (10th Cir. 2012).
Plaintiffs’ claims in this first action were “Retaliatory Demotion” of Plaintiff White and
“Retaliatory Discharge” of Plaintiffs Coleman and Falcone.
(Document 1-1). Defendant
AMG, a citizen of Louisiana [Doc. 1, ¶ 7], removed the previous case to this Court based on
(Document 1). The day after AMG removed the case, Plaintiffs
voluntarily dismissed the action without prejudice pursuant to Federal Rule of Civil
The present case
Subsequently, and again in the Second Judicial District Court of New Mexico,
Plaintiffs filed this lawsuit. [Doc. 1-1] They allege the same causes of action against AMG,
but also include as a named Defendant, Tim Gonzales, a citizen of New Mexico and the Plant
Operations Manager for AMG. Plaintiffs assert a claim against Gonzales for “Intentional
Interference with Prospective Economic Advantage.” [Doc. 1, ¶ 8; Doc. 1-1, ¶¶ 22, 32-35]
On June 7, 2013, Defendants removed this second lawsuit to this Court. [Doc. 1] Defendants
contend that Plaintiffs fraudulently joined Mr. Gonzales to avoid removal. [Doc. 1, ¶ 8]
Plaintiffs filed the present
Motion to Remand
. [Doc. 9] They do not dispute that the
jurisdictional amount required for diversity jurisdiction is present. [Doc. 9, p. 2] However,
they argue that diversity of citizenship is absent because Mr. Gonzales is a citizen of New
Mexico and each of the Plaintiffs are citizens of New Mexico. [Doc. 9, pp. 2-3; Doc. 1, ¶ 8]
Further, they assert that Defendants failed to meet their high burden of establishing
fraudulent joinder, including a showing that Plaintiffs have no viable claim against Mr.
Gonzales. [Doc. 9, p. 2] For the reasons discussed below, the Court remands this action.
Federal law provides that the United States District Courts have original jurisdiction
over all civil actions where the matter in controversy exceeds the sum or value of $75,000
and is between citizens of different states.
28 U.S.C. § 1332(a). Diversity jurisdiction
depends on all parties to one side of the case having a different citizenship from all parties
to the opposing side.
Lincoln Prop. Co. v. Roche
, 546 U.S. 81, 89 (2005). An action initially
brought in a state court may be removed to a federal district court pursuant to the authority
set forth in 28 U.S.C. § 1441, which states, in pertinent part:
Except as otherwise expressly provided by Act of Congress, any 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). Removal statutes are strictly construed, and any doubts about the
propriety of removal are resolved in favor of remand.
Pritchett v. Office Depot, Inc.
F.3d 1090, 1097 (10th Cir. 2005). When removal is challenged, the burden rests with the
removing party to prove that jurisdiction exists.
Dutcher v. Matheson
, __ F.3d __, No. 12-
4150, 2013 WL 4212362, at *3 (10th Cir. August 13, 2013).
Here, as Mr. Gonzales and Plaintiffs are all New Mexico citizens, the Court must
remand this case unless Defendants establish that Mr. Gonzales has been fraudulently joined.
“To establish [fraudulent] joinder, the removing party must demonstrate either:
(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the
plaintiff to establish a cause of action against the non-diverse party in state
Cuevas v. BAC Home Loan Servicing, LP
, 648 F.3d 242, 249 (5th
Cir.2011). “The defendant seeking removal bears a heavy burden of proving
fraudulent joinder, and all factual and legal issues must be resolved in favor of
Pampillonia v. RJR Nabisco, Inc.
, 138 F.3d 459, 461 (2d
, 2013 WL 4212362, at *5. A defendant has a higher burden to meet in establishing
fraudulent joinder than in moving to dismiss under Federal Rule of Civil Procedure 12(b)(6);
a Rule 12(b)(6) analysis “entails the kind of merits determination that, absent fraudulent
joinder, should be left to the state court where the action was commenced.”
, No. 99-2225, 2000 WL 525592, at *2 (10th Cir. April 14, 2000)
(unpublished decision) (citation omitted). Accordingly, “remand is required if any one of
the claims against the non-diverse defendant . . . is possibly viable.”
“While issues of liability may not ordinarily be determined on a motion to remand,
it is well settled that upon allegations of fraudulent joinder designed to prevent removal,
federal courts may look beyond the pleadings to determine if the joinder, although fair on its
face, is a sham or fraudulent device to prevent removal.”
Smoot v. Chicago, Rock Island &
Pac. R.R. Co.
, 378 F.2d 879, 881-82 (10th Cir. 1967). Thus, “upon specific allegations of
fraudulent joinder the court may pierce the pleadings . . . consider the entire record, and
determine the basis of joinder by any means available.”
Dodd v. Fawcett Publ’n, Inc.
F.2d 82, 85 (10th Cir. 1964) (citations omitted).
Here, Defendants do not assert that there was actual fraud in the pleading of the
jurisdictional facts, but argue only that Plaintiffs cannot establish a cause of action against
the resident Defendant, Mr. Gonzales. Accordingly, Defendants must show either that (1)
no cause of action has been stated against Defendant Gonzales, or that (2) “though a cause
of action be stated, . . . in fact no cause of action exists.”
(citations omitted). In
considering whether no cause of action exists, the federal court will not “pre-try . . . doubtful
issues of fact to determine removability; the issue must be capable of summary determination
and be proven with complete certainty.”
, 378 F.2d at 882.
First, the Court considers whether Plaintiffs have stated a cause of action against Mr.
Gonzales. Factually, Plaintiffs allege that Plaintiff Coleman reported a locked exit door to
the fire marshal, who inspected the premises, spoke with Plaintiffs White and Falcone, and
then issued a warning to AMG.
[Doc. 1-1, ¶¶ 8-12] After the fire inspector left, Mr.
Gonzales, cursing, vowed to Plaintiff White that if he was getting written up, so was she.
[Doc. 1-1, ¶ 22] Similarly, he told Plaintiff Coleman, “If I’m going down, you’re all going
down!” [Doc. 1-1, ¶ 23] In addition, one of the Plaintiffs’ declarations states,
Mr. Gonzales also stated “I’ve already called [CEO Elizabeth Reese] and you’re all in
trouble. I’m writing you all up.” [Doc. 9-1, p. 3, ¶ 8]
As to the cause of action, Plaintiffs’ Complaint includes a section entitled “COUNT
III INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE
(DEFENDANT GONZALES ONLY).” [Doc. 1-1, p. 5] This Count incorporates the
preceding allegations and also states:
33. Defendant Gonzales’s acts of interfering with Plaintiffs’ existing and
prospective economic relations with AMG through improper means, as
described above, were solely intended to harm Plaintiffs and constitute
intentional interference with prospective economic advantage for which
Defendant Gonzales is liable.
34. Because Defendant Gonzales interfered with Plaintiffs’ advantageous
economic relationship with AMG, Plaintiffs Coleman and Falcone were
unable to continue their advantageous economic relationships with AMG,
when they otherwise would have.
Because Defendant Gonzales interfered with Plaintiff White’s
advantageous economic relationship with AMG, Plaintiff White was unable
to continue her advantageous economic relationship with AMG to the extent
that she previously enjoyed, when she otherwise would have.
[Doc. 1-1, p. 5]
Under New Mexico common law, “[t]he tort of interference with prospective
contractual relations is well recognized.”
M & M Rental Tools, Inc. v. Milchem, Inc.
P.2d 241, 244 (N.M. App. 1980). “In discussions of [interference with contractual relations]
terms such as ‘economic expectancies’ and ‘prospective advantage’ have been used.”
“The general rule [is] that one who, without justification or privilege to
do so, induces a third person not to perform a contract with another is liable for the harm
caused by his action.”
Zarr v. Washington Tru Solutions, LLC
, 208 P.3d 919, 921 (N.M.
App. 2009) (internal quotation marks, citation and ellipses omitted). The tort encompasses
both interference with prospective and existing contractual relationships.
employment relationship is at-will, any claim of intentional interference with that
relationship is treated as interference with a prospective employment relationship.”
923. A plaintiff is required “to prove that the defendant used improper means or acted with
an improper motive intended solely to harm the plaintiff.”
at 921-22 (internal quotation
marks omitted). “What may qualify as ‘improper means’ depends to some degree on context
and can include, but is not limited to predatory behavior, violence, threats or intimidation,
deceit or misrepresentation, bribery, economic pressure, unfounded litigation, defamation,
unlawful conduct, and perhaps violation of business ethics and customs.”
at 922. New
Mexico recognizes the tort of intentional interference with economic relations, and the Court
concludes that Plaintiffs have stated a cause of action against Mr. Gonzales for intentional
interference with economic relations.
Defendants further argue that Plaintiffs have failed to establish a cause of action
against Mr. Gonzales, for two reasons.
[Doc. 10, pp. 3-5] First, they argue that Plaintiffs
have not alleged any interference by improper means. [Doc. 10, p. 4] Plaintiffs disagree, and
list a plethora of threats made by Mr. Gonzales to the Plaintiffs which they contend
constituted improper means. [Doc. 13, pp. 2-4] Some of the threats were stated in the
complaint, but most were stated in the declarations of two of the Plaintiffs, which Plaintiffs
attached to their
Motion for Remand
. [Docs. 13, pp. 3-4; Doc. 9-1, pp. 1-4] Defendants
concede that the Court may pierce the veil of the complaint and consider the declarations.
[Doc. 10, p. 5] Keeping in mind that “all factual and legal issues must be resolved in favor
of the plaintiff,” the Court concludes that Defendants have not met their burden of showing
that Plaintiffs fraudulently joined Mr. Gonzales under the improper means prong of the tort
of intentional interference with contractual relations.
, 2013 WL 4212362, at *5
(internal quotation marks and citation omitted). Plaintiffs’ allegations, coupled with their
statements in the declarations, demonstrate that there is a potentially viable claim that Mr.
Gonzales’ actions interfered with Plaintiffs’ employment relationships through improper
means, potentially including threats or intimidation, deceit or misrepresentation, or violation
of business ethics and customs.
, 208 P. 3d at 922 (describing various facts which may
prove improper means). As stated in
[W]e cannot hold that [the resident defendants] were fraudulently joined.
However, that does not mean that the plaintiffs have stated a valid claim
against [them]. Or even that [the resident defendants] are not somehow
fraudulently joined. But the defendants needed to clear a high hurdle to prove
something they have yet to prove, i.e. fraudulent joinder.
, 2013 WL 4212362, at *7.
Plaintiffs have also pleaded a potentially viable cause of action that Mr. Gonzales
acted with improper motive solely to harm Plaintiffs in interfering with Plaintiffs’ contractual
relations. Defendants argue that Plaintiffs have failed to allege or offer evidence of any
actual interference, arguing that “conspicuously absent from Plaintiffs’ affidavits is any
indication that anything Mr. Gonzales did actually interfered with prospective economic
relations that Plaintiffs had with their employer.” [Doc. 10, p. 5] The Court is not persuaded.
Again, keeping in mind that the Court resolves all factual and legal issues in Plaintiffs’ favor,
the Court concludes that the adverse actions taken against Plaintiffs by their employer shortly
after the report of the blocked exit, coupled with Mr. Gonzales’ alleged threats, including
(but not limited to) “you’re all going down!” defeat Defendants’ argument.
WL 4212362, at *5. Further, piercing the veil of the complaint, one declaration makes it
clear that Mr. Gonzales claimed to have “called [the CEO] and you’re all in trouble.” [Doc.
9-1, p. 3, ¶ 8] Thus, Defendants have not met their burden of showing that Plaintiffs have
stated no possibly viable claim against Mr. Gonzales for interference with contractual
relations based on improper motivation solely to harm Plaintiffs.
Finally, Defendants argue that the plainest evidence of fraudulent joinder in this case
is exhibited in the procedural history of the case, i.e., that Plaintiffs initially sued only AMG,
and after the case was removed, Plaintiffs dismissed the case but immediately refiled, adding
Mr. Gonzales. In making this argument Defendants cite
Wodka v. Integrated Partnerships,
, 2001 WL 1029460 (N.D. Tex. August 24, 2001) (unpublished decision).
[Doc. 10, p.
2-3] While the Court recognizes the similar procedural posture of
nonetheless both distinguishable and not persuasive. First, while Defendants cite
the proposition that the procedural history supports a conclusion of improper joinder, the
Court does not agree that the
Court’s analysis supports this “implication.” [Doc. 10,
p. 3] In
, a terminated employee first sued only his employer, in state court, alleging
breach of his employment contract.
at *1. Once the employer removed the case, the
plaintiff dismissed, but then refiled the same cause of action, again in state court, added a co-
worker, and alleged the co-worker tortiously interfered with his employment contract.
Relying on Texas law,
the court concluded that the co-worker was fraudulently joined
because the plaintiff had “not adduced evidence that [the co-worker] acted
for his own
In addition, the Court notes a potential distinction between the burden of proof in
an intentional interference with contractual relations case under Texas law and under New
, 2001 WL 1029460
at *2 (“Under Texas law, because a
corporate officer’s acts on the corporation’s behalf usually are deemed corporate acts, a
plaintiff must show that the agent acted solely in his own interests.” (Internal quotation
marks, bracket and citations omitted))
with M & M Rental Tools, Inc.
, 612 P.2d at 245,
247 (“[P]laintiff has the burden of proving the interference was improper
evidence has been introduced, defendant has the burden of proving any privilege relied
on.”). Not only does New Mexico law control, but the Court must also resolve all
questions of law in the non-removing party’s favor.
, 2013 WL 4212362, at * 5.
Thus, the Court cannot hold Plaintiffs to the same burden of proof as applied in
benefit or that he conducted himself so contrary to [the employer’s] interests that he could
have been motivated by personal interest.”
at *2. In the present case, however,
based on the pleadings and the declarations before the Court, Defendants have not shown that
Plaintiffs have no potentially viable cause of action that Mr. Gonzales acted with improper
motive solely to harm Plaintiffs in interfering with their employment relations. In particular,
the following statement by Mr. Gonzales may evince such motive: “Sh** rolls down hill,
if I go down you all go down with me. I’ve already called [CEO Elizabeth Rees] and you’re
all in trouble. I’m writing you all up.” [Doc. 9-1, p. 3, ¶ 8] Again, this does not mean that
Plaintiffs have “stated a valid claim,” which this Court expressly declines to consider, but
Plaintiffs have stated a potentially viable claim, and thus Defendants have not met their
heavy burden to prove fraudulent joinder.
, 2013 WL 4212362, at *7.
Defendants failed to demonstrate that Mr. Gonzales was fraudulently joined as a party.
As such, complete diversity between all Defendants and all Plaintiffs is lacking in this case
and this matter must be remanded to state court for want of subject matter jurisdiction.
IT IS THEREFORE ORDERED
Motion for Remand
[Doc. 9] is
and this case is remanded to the Second Judicial District Court, County of
Bernalillo, State of New Mexico.
day of October, 2013, in Albuquerque, New Mexico.
THE HONORABLE M. CHRISTINA ARMIJO
Chief Judge, United States District Court