United States District Court, D. Colorado
JIMMY B. PACHECO, Plaintiff,
SPARTA INSURANCE COMPANY, a Connecticut corporation, Garnishee/Defendant. SPARTA INSURANCE COMPANY, Plaintiff,
JIMMY PACHECO, U.S. TRANSPORT, INC., and BEGAY BEMEU, Defendants.
ORDER ON MOTION TO JOIN AND REMAND
Brooke Jackson, United States District Judge.
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.
an insurance coverage dispute arising out of two motor
vehicle accidents and a personal injury lawsuit that was
litigated in state court.
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. They apparently were the people involved
in the accident that resulted in Mr. Pacheco's stop.
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
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.
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
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.
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 ...