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Pacheco v. Sparta Insurance Co.

United States District Court, D. Colorado

September 28, 2017

JIMMY B. PACHECO, Plaintiff,
v.
SPARTA INSURANCE COMPANY, a Connecticut corporation, Garnishee/Defendant. SPARTA INSURANCE COMPANY, Plaintiff,
v.
JIMMY PACHECO, U.S. TRANSPORT, INC., and BEGAY BEMEU, Defendants.

          ORDER ON MOTION TO JOIN AND REMAND

          R. Brooke Jackson, United States District Judge.

         The case is before the Court on plaintiff's “Motion to Join Defendants Begay Bemeu and U.S. Transport & Logistics LLC; and for Remand to State Court.” ECF No. 15. The motion is directed only to case 17-cv-1309-RBJ. The motion is denied for the reasons discussed in this order.

         BACKGROUND

         This is an insurance coverage dispute arising out of two motor vehicle accidents and a personal injury lawsuit that was litigated in state court.

         The Underlying Case.

         On February 13, 2017 Jimmy Pacheco was sitting in his car which was temporarily stopped on Interstate Highway 70 in Eagle County, Colorado (or its shoulder) due to an accident on the road ahead when a truck driven by Walter J. Little, Jr. crashed into the rear of Mr. Pacheco's car and injured him. Mr. Pacheco sued Mr. Little and the owner of Little's vehicle, Colorado Petroleum Corporation, in the Denver District Court. Shortly after filing suit, however, Mr. Pacheco amended his complaint to name three other individuals, including one Begay Bemeu, as additional defendants.[1] They apparently were the people involved in the accident that resulted in Mr. Pacheco's stop.

         At the time of the accidents Mr. Bemeu was an employee of a company variously referred to in the pleadings as U.S. Transport, Inc. or U.S. Transport and Logistics LLC and in this order simply as U.S. Transport. It is not disputed that Mr. Bemeu was acting within the scope and course of his employment when the accidents took place. However, U.S. Transport was not joined as a defendant. Mr. Bemeu was served with the amended complaint but did not respond. A default was entered against him, and he did not appear for the February 2017 trial. Ultimately, the jury assigned 20% of the fault to him. On April 4, 2017 the court entered judgment, including prejudgment interest, against Mr. Bemeu in the amount of $304, 976.13.

         Case No. 17-cv-1309-RBJ.

         Shortly after the judgment was entered against Mr. Bemeu, Mr. Pacheco served a writ of garnishment on Sparta Insurance Company. Sparta had issued a liability insurance policy to U.S. Transport. On May 30, 2017 Sparta filed a notice of removal of the garnishment action to federal court, asserting both diversity of citizenship and federal question jurisdiction. ECF No. 1. On June 30, 2017 Mr. Pacheco filed the pending motion to remand the case to state court. ECF No. 15.

         Case No. 17-cv-1511-RBJ.

         On June 21, 2017 Sparta filed a separate federal lawsuit against Mr. Pacheco, Mr. Bemeu and U.S. Transport seeking a declaratory judgment that it has no liability for Mr. Pacheco's judgment against Mr. Bemeu in the underlying case. Jurisdiction was asserted based on diversity of citizenship and federal question grounds. ECF No. 1 in no. 17-cv-1511-RBJ at 2. Sparta then filed a motion in case no. 17-cv-1309 to consolidate the declaratory judgment action with the garnishment action. ECF No. 25 in 17-cv-1309-RBJ. Sparta reported that plaintiff did not oppose consolidation but did oppose consolidation into no. 17-cv-1309. Id. at 25. This meant that plaintiff did not oppose consolidation so long as the case was consolidated into no. 17-cv-1511. However, the practice in this district is to consolidate into the first filed case. Accordingly, that was done without further briefing by the parties. See 7(d) (“Nothing in this rule precludes a judicial officer from ruling on a motion at any time after it is filed.”).

         MOTION TO REMAND

         In the pending motion Mr. Pacheco asserts that Mr. Bemeu and U.S. Transport are indispensable to the resolution of the garnishment issues in case 17-cv-1309-RBJ. ECF No. 15 at 2. He asserts that joining them would destroy diversity of citizenship jurisdiction (because he and, he claims, Mr. Bemeu and U.S. Transport are citizens of Colorado), and that this would rule out joinder under Fed.R.Civ.P. 19(a). But he argues that the court should find that case cannot in equity and good conscience proceed without Mr. Bemeu and U.S. Transport as provided in Fed.R.Civ.P. 19(b). Id. at 2-5. Accordingly, he asks that the case be remanded to the state court under 28 U.S.C. §1447(e). Id. at 2-5. Id. at 8.

         In response Sparta begins by asserting that the motion to remand was untimely. “A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal . . . .” 28 U.S.C. § 1447(c). The motion to remand here was filed on the 31st day after the notice of removal was filed. But generously construed, one could interpret the motion to remand as, in effect, a challenge to this Court's subject matter jurisdiction. Also, neither party addresses whether the 30-day period is ...


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