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Durlak v. Home Depot U.S.A., Inc.

United States District Court, D. Colorado

July 26, 2018




         This matter is before the Court on Plaintiff Sharon Durlak's Motion to Remand for Improper Removal (the "Motion"). (ECF No. 9.) The Court received a June 13, 2018 report and recommendation (the "Recommendation") by (now retired) U.S. Magistrate Judge Michael J. Watanabe that the Motion be denied and the action remain in federal court. (ECF No. 23.) Plaintiff timely filed an objection to the Recommendation (ECF No. 24) and Defendant Home Depot responded to the objection (ECF No. 25). The Court has reviewed the Recommendation, Plaintiff's objection, Home Depot's response, as well as the parties' pre-Recommendation briefing (ECF Nos. 9, 14, 21).

         For the reasons explained below, the Court concludes that Defendant Nicholas Schiatta was not fraudulently joined as a defendant in this action and thus there is not complete diversity between the parties. As such, this Court did not have original jurisdiction over this matter at the time it was filed, see 28 U.S.C. § 1332(a), and removal to this Court was not proper. See Id. § 1441(a) (removal is proper where federal court has original jurisdiction over a case). Accordingly, remand of this case is required. 28 U.S.C. § 1447(c); see Hale v. MasterSoft Int'l Pty. Ltd., 93 F.Supp.2d 1108, 1114 (D. Colo. 2000).

         I. BACKGROUND

         The following factual summary is drawn from Plaintiff's Complaint. (ECF No. 5.) Citations to ECF page numbers are to the page number in the ECF header, which does not always match the document's internal pagination. On a motion to remand, disputes of fact are resolved in favor of the non-removing party. See Frontier Airlines, Inc. v. United Air Lines, Inc., 758 F.Supp. 1399, 1405 (D. Colo. 1989). Here, the parties do not dispute the basic facts.

         Plaintiff visited a Home Depot store at 1200 Mayberry Drive, Highlands Ranch, Colorado, 80129 (the "Property") on September 5, 2015. (ECF No. 5 ¶ 8.) Plaintiff alleges that Home Depot is the landowner of the Property. (Id. ¶ 19.) While on the Property, Plaintiff intended to purchase several wood/MDF panels each weighing about 17 pounds, placed several panels on a lumber cart, and pushed the cart with panels to the cutting area of the lumber department. (Id. ¶¶ 9-10.) Schiatta began to remove the panels from the cart and dropped a panel on Plaintiff's foot at the first metatarsophalangeal joint ("MTP") on the metatarsal head. (Id. ¶¶ 11-13.) The injury caused Plaintiff great pain and ultimately resulted in a bone spur on Plaintiff's MTP and Plaintiff developing hallux rigidus. (Id. ¶¶ 13-15.) Plaintiff required surgery. (Id. ¶ 15.)

         Plaintiff filed a civil action in state court alleging three claims against Home Depot, namely violation of the Colorado Premises Liability Act ("PLA"), Colo. Rev. Stat § 13-21-115, negligence under respondeat superior, and direct negligence, as well as a single claim of common law negligence against Schiatta. Plaintiff and Schiatta are citizens of Colorado. (Id. ¶¶ 1, 4.) Home Depot is a resident of Georgia and Delaware. (Id. ¶3; ECFNo. 1 ¶ 7.)

         Home Depot filed a Notice of Removal in federal court claiming that Plaintiff had fraudulently joined Schiatta to destroy diversity jurisdiction and that this Court thus had jurisdiction to hear the dispute. (ECF No. 1.)


         When a magistrate judge issues a recommended outcome on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge "determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3); see also Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) ("De novo review is statutorily and constitutionally required when written objections to a magistrate's report are timely filed with the district court."). An objection to a recommendation is properly made if it is filed within fourteen days of the recommendation. United States v. One Parcel of Real Property Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). An objection must also be sufficiently specific such that it "enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute." Id. (quoting Thomas v. Am, 474 U.S. 140, 147 (1985)). In conducting its review, "[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions." Id.

         Motions to remand are final decisions or dispositive actions, and thus review of a magistrate judge's recommendation on a motion to remand falls under Rule 72(b). First Union Mortg. Corp. v. Smith, 229 F.3d 992, 996 (10th Cir. 2000). Here, Plaintiff seeks remand of her action to state court. Judge Watanabe recommended denying the Motion, and Plaintiff timely filed her Objection under Rule 72(b)(2). (ECF Nos. 23, 24.) Plaintiff's objections are sufficiently specific to focus the Court's attention on the matters in dispute. Thus, the Court will review the Motion de novo.

         III. ANALYSIS

         A. Law of Fraudulent Joinder

         Jurisdictional issues must be addressed at the beginning of every case and, if jurisdiction is found to be lacking, the case or claim comes to an immediate end. In re Franklin Savings Corp.,385 F.3d 1279, 1286 (10th Cir. 2004). Federal district courts have jurisdiction over all civil actions in which the amount in controversy exceeds $75, 000 and complete diversity exists between the parties. 28 U.S.C. § 1332(a). "The party invoking federal jurisdiction bears the burden of establishing such jurisdiction as a threshold matter" and must prove jurisdiction by a preponderance of the evidence. Radii v. Sanborn W. Camps, Inc.,384 F.3d 1220, 1224 (10th Cir. 2004); Middleton v. Stephenson,749 F.3d 1197, 1200 (10th Cir. 2014). When a case is originally filed in state court, ...

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