United States District Court, D. Colorado
ORDER REJECTING THE JUNE 13, 2018 RECOMMENDATION OF
MAGISTRATE JUDGE AND REMANDING THIS ACTION TO STATE
WILLIAM J. MARTINEZ UNITED STATES DISTRICT JUDGE
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,
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).
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.
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.)
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.)
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.)
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
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.
Law of Fraudulent Joinder
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, ...