Kaufman v. Blazin Wings, Inc.

JUSTIN KAUFMAN, ESQ., as Personal Representative for theWrongful Death Estate of LEONARD P. KUEHL, deceased, Plaintiff, v. BLAZIN WINGS, INC., a Minnesota Corporation d/b/a BUFFALO WILD WINGS,ADAM MORALES, and RAEMOND MATKIN, Defendants.

Civ. No. 20cv1051 MV/JFR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

June 9, 2021

AMENDED PROPOSED FINDINGS AND RECOMMENDATION REGARDING PLAINTIFF'S MOTION TO REMAND

THIS MATTER is before the Court on Plaintiff's Motion to Remand and Memorandum of Points and Authorities in Support ("Motion to Remand"), filed November 3, 2020. Docs. 7, 8. Defendant Blazin Wings, Inc., filed a Response in Opposition on November 17, 2020. Doc. 13. Plaintiff filed a Reply on December 1, 2020. Doc. 15. On February 19, 2021, United States District Judge Martha Vázquez referred Plaintiff's Motion to Remand to the undersigned to issue proposed findings and a recommended disposition. Doc. 25.

On March 22, 2021, the undersigned entered Proposed Findings and Recommended Disposition ("PFRD") finding there was no possibility that Plaintiff could assert a cause of action against Defendants Morales and Matkin inside or outside of the pleadings under which they could possibly prevail and recommending that Plaintiff's Motion to Remand be denied. Doc. 28. On April 5, 2021, Plaintiff timely filed Plaintiff's Objections to Magistrate's Proposed Findings and Recommended Disposition Regarding Plaintiff's Motion to Remand ("Objections"). Doc. 29. Defendant Blazin Wings, Inc., filed a Response in Opposition to Plaintiff's Objections on April 19, 2021. Doc. 30. On April 28, 2021, Plaintiff filed a Motion for Leave to Submit Reply in Support of Objections to Magistrate's Proposed Findings and Recommended Disposition, filed April 28, 2021. Doc. 31. Defendant Blazin Wings, Inc., filed a Response in Opposition on April 12, 2021. Doc. 33.

There being no final judgment in this matter, the undersigned, acting under the Court's inherent authority to reconsider its previous rulings and on Order of Reference from United States District Judge Martha Vázquez to conduct proceedings, see 28 U.S.C. § 636, now recommends, for the reasons stated herein, that Plaintiff's Motion to Remand be GRANTED. See generally Dietz v. Bouldin, 136 S.Ct. 1885, 1891-92 (2016). The Court further recommends that Plaintiff's Motion for Leave to Submit Reply in Support of Objections to Magistrate's Proposed Findings and Recommended Disposition be DENIED AS MOOT.

I. FACTUAL ALLEGATIONS

Defendant Blazin Wings, Inc. ("Blazin Wings") owns and operates the Buffalo Wild Wings located in Las Cruces, New Mexico. Doc. 1-2 at 2. Buffalo Wild Wings sells alcohol under a liquor license issued by the State of New Mexico to Blazin Wings. Doc. 13-1 at 2. Defendants Adam Morales and Raemond Matkin are managers at Buffalo Wild Wings and were acting as co-managers on the night of February 22, 2020. Doc. 1-2 at 2-3. On February 22, 2020, Leonard Kuehl ("Mr. Kuehl") went to Buffalo Wild Wings in Las Cruces to watch televised Ultimate Fighting Championship fights. Doc. 1-2 at 4. Mr. Kuehl remained there for a number of hours during which time he consumed alcohol. Id. Sometime late in the evening, Plaintiff alleges that Mr. Kuehl was so intoxicated that he was exhibiting difficulties with balance and walking and had urinated on himself. Id. Plaintiff states that Defendants Moralesand Matkin assisted in calling a taxicab to transport Mr. Kuehl home, but when the taxicab arrived the driver refused to transport Mr. Kuehl because he was too intoxicated and was soaked in urine. Id. at 5. Plaintiff states that Defendants Morales and Matkin then called an Uber to transport Mr. Kuehl home. Id. However, after doing so, Plaintiff alleges that they left Mr. Kuehl outside the restaurant, alone and unattended, where Mr. Kuehl fell to the ground, hit his head, and suffered massive head trauma. Id. Plaintiff states that Buffalo Wild Wings employee Samantha Garza discovered Mr. Kuehl unconscious on the ground, and called 911 at approximately 11:46 p.m. Id. Plaintiff states that Mr. Kuehl was taken by ambulance to Mountain View Medical Center, where his blood alcohol content at 1:00 a.m. was .28. Id. at 5-6. Plaintiff states that Mr. Kuehl's injuries were such that he required transport to a higher level of care and that Mr. Kuehl received care for three months at various hospitals and acute care inpatient facilities. Id. Plaintiff states that Mr. Kuehl died on May 17, 2020, allegedly as a result of the injuries he sustained on February 22, 2020. Id.

II. PROCEDURAL HISTORY

Plaintiff filed a Complaint for Wrongful Death in First Judicial District Court, State of New Mexico, County of Santa Fe, on August 27, 2020. Doc. 1-2. Plaintiff's Complaint alleges claims against Defendant Blazin Wings of (1) gross negligence resulting in death pursuant to N.M.S.A. 1978, § 60-7A-16 (Liquor Control Act Sale to Intoxicated Persons) and N.M.S.A. 1978, § 41-11-1 ("Dram Shop Act"); (2) gross negligence per se resulting in death pursuant to N.M. Adm. Code 15.10.51.11 (Sales to Intoxicated Persons); and (3) negligence and/or gross negligence - premises liability. Doc. 1-2 at 6-8, 10-12, 12-14. Whether Defendant Blazin Wings is a properly named defendant in this action is not at issue.

Plaintiff's Complaint also alleges a claim of gross negligence resulting in death against Defendants Morales and Matkin. Id. at 8-10. This cause of action states that "[a]s licensed alcohol servers and as managers of Buffalo Wild Wings on the night of February 22, 2020, Defendants Morales and Matkin owed a duty of care to Mr. Kuehl, their patron and business invitee." Id. at 8. Plaintiff alleges that Defendants Morales and Matkin breached their duty of care by (1) serving or allowing the over service of alcohol after Mr. Kuehl was severely and obviously intoxicated; (2) failing to supervise the service of alcohol at Buffalo Wild Wings; (3) allowing Mr. Kuehl to be left standing alone and unattended on the concrete walkway where he was highly susceptible to falling due to his extreme intoxication; and (4) failing to take reasonable measures to ensure Mr. Kuehl's safety on the premises given his extreme intoxication. Id. at 9.

Defendant Blazin Wings timely removed the case to this Court on October 9, 2020, based on diversity jurisdiction and the premise that Plaintiff fraudulently joined Defendants Morales and Matkin. Doc. 1 at 5-7. Plaintiff responded to this removal by filing the Motion to Remand presently before this Court. Doc. 8.

III. LEGAL STANDARD

An action is removable from state court if the federal district court has original jurisdiction over the matter. 28 U.S.C. § 1441(a). Pursuant to 28 U.S.C. § 1332(a), a federal district court possesses original subject-matter jurisdiction over a case when the parties are diverse in citizenship and the amount in controversy exceeds $75,000.00. See Johnson v. Rodrigues, 226 F.3d 1103, 1107 (10^th Cir. 2000). As the party invoking the Court's jurisdiction in this case, Defendant "bear[s] the burden of establishing that the requirements for the exercise of diversity jurisdiction are present." See Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290(10^th Cir. 2001) abrogated on other grounds by Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547 (2014); see also Montoya v. Chao, 296 F.3d 952, 955 (10^th Cir. 2002) ("The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction."). There is a presumption against removal jurisdiction. See Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10^th Cir. 1995); see also Okla. Farm Bureau Mut. Ins. Co. v. JSSJ Corp., 149 F. App'x 775, 778 (10^th Cir. 2005) (unpublished) (explaining that "[g]iven the limited scope of federal jurisdiction, there is a presumption against removal, and courts must deny such jurisdiction if not affirmatively apparent on the record.").

IV. ANALYSIS

In its Notice of Removal, Defendant Blazin Wings does not dispute that Defendants Morales and Matkin are New Mexico residents and that, if properly joined, would defeat federal diversity jurisdiction. Instead, Defendant Blazin Wings argues that the damages Plaintiff seeks arise out of Defendant Blazin Wing's legal obligations as a "licensed purveyor of alcohol," and that the Dram Shop Act provides the sole basis for recovery for claims arising out of the sale and service of alcohol against "licensees," which by definition includes servers and managers. Doc. 1 at 6. Defendant Blazin Wings further argues that any claim for negligent management or supervision against a "licensee" is not recoverable due to operation of the Dram Shop Act. Id. at 6-7. Alternatively, Defendant Blazin Wings argues that Defendants Morales and Matkin are "nominal" defendants and that Court should not consider them for purposes of determining diversity jurisdiction.

In his Motion to Remand, Plaintiff contends that Defendant Blazin Wings has failed to carry its heavy burden of the presumption against removal because they have not conclusively demonstrated that Plaintiff has no possibility of establishing a cause of action against DefendantsMorales and Matkin. Doc. 8 at 6-8. On the one hand, Plaintiff contends that the plain language of the Dram Shop Act allows claims against a licensee and a licensee's agents and servants, and cites case law from other jurisdictions that have declined to insulate employees from civil liability in the face of dram shop statutes. Id. at 9-11, 14-16. On the other hand, Plaintiff contends that even if the Dram Shop Act does not allow claims against employees of licensees, the statutory framework of the Dram Shop Act does not preclude common-law claims against non-licensees who have improperly served alcohol to an intoxicated person. Id. at 11-14, 19-20. Plaintiff contends that legal theories of agency, respondeat superior, joint liability, and vicarious responsibility support separate causes of action against Defendants...