Stark–romero v. the Nat'l R.R. Passenger Co. (amtrak)

763 F.Supp.2d 1231

Victoria STARK–ROMERO, Individually and as Personal Representative of the Estate of Fred P. Stark, Plaintiff,andEmilio J. Esquibel and Helen G. Esquibel, Individually and as Co–Personal Representatives of the Estate of Michael S. Esquibel, deceased, Plaintiff–Intervenors,

v.The NATIONAL RAILROAD PASSENGER COMPANY (Amtrak), Burlington Northern Santa Fe Railway Company (BNSF), City of Las Vegas, San Miguel County and New Mexico Department of Transportation, and Ride to Pride at the Barn, L.L.C., Defendants.

No. CIV. 10–0778 JB/RLP.

United States District Court, D. New Mexico.

Jan. 12, 2011.

Philip C. Gaddy, Maria E. Touchet, Gaddy Jaramillo, Albuquerque, NM, for Plaintiff Victoria Stark–Romero and Plaintiff–Intervenors Emilio J. Esquibel and Helen G. Esquibel.James F. Scherr, Scherr & Legate, PLLC, El Paso, TX, Dave E. Romero, Jr., Romero Law Firm, P.A., Las Vegas, NM, for Plaintiff Victoria Stark–Romero.Tony F. Ortiz, Christopher M. Grimmer, Scheuer, Yost & Patterson, P.C., Santa Fe, NM, for Defendant City of Las Vegas.James P. Sullivan, Christina L. Brennan, Brennan & Sullivan, P.A., Santa Fe, NM, Joan M. Waters, Brennan & Sullivan, P.A., Albuquerque, NM, for Defendant San Miguel County.Jerry A. Walz, Alfred D. Creecy, Walz and Associates, Albuquerque, NM, for Defendant New Mexico Department of Transportation.Tim L. Fields, Alex Cameron Walker, Greg L. Gambill, Earl E. DeBrine, Jr., Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM, for Defendant National Railroad Passenger Company.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Plaintiffs' Motion to Remand and Memorandum in Support Thereof, filed September 9, 2010 (Doc. 19) (“Motion to Remand”); and (ii) the Plaintiff and Plaintiff–Intervenors' Motion Requesting That this Matter Be Returned to the Previously Assigned Judge, filed October 10, 2010 (Doc. 32)(“Motion to Return”). The Court held a hearing on November 18, 2010. The primary issues are: (i) whether the Court should transfer the case to the Honorable Martha Vázquez, Chief United States District Judge, who decided the motion to remand in Victoria Stark–Romero v. The National Railroad Passenger Co. (Amtrak), No. CIV 09–0295 MV/RLP (D.N.M.); and (ii) whether the Court should remand the case to the state court. The Court will remand Stark–Romero's claims, because it finds that the Second Notice of Removal removed Stark–Romero's claims in addition to the Esquibels' claims, and because the Court is foreclosed from reconsidering a prior remand determination. The Court finds that the Plaintiff–Intervenors Emilio J. Esquibel's and Helen G. Esquibel's claims are subject to independent removal as a separate civil action, because the Esquibels' claims involve issues that are separate and distinct from Stark–Romero's claims. Because the Court has found that the Esquibels' claims are a separate civil action from Stark–Romero's claims, and because the Court has remanded Stark–Romero's claims, the Court will not reassign this matter to Judge Vázquez. The Court will not remand the Esquibels' claims, because it finds that the Second Notice of Removal did not contain procedural deficiencies, and because it finds that it has federal-question jurisdiction over the Esquibels' claim against Defendant National Railroad Passenger Corporation (“Amtrak”) and supplemental jurisdiction over the Esquibels' claims against Defendants BNSF Railway Company (“BNSF”); the County of San Miguel, New Mexico; the City of Las Vegas, New Mexico; and the New Mexico Department of Transportation (“NMDOT”).

FACTUAL BACKGROUND

The Esquibels' claims against the Defendants relate to a 2009 railroad crossing accident involving their son, Michael Esquibel. See Complaint in Intervention for Wrongful Death and Negligence ¶¶ 8–9, at 3, filed August 19, 2010 (Doc. 1–2)(“Complaint–in–Intervention”). The Esquibels allege that, on January 15, 2009, M. Esquibel approached a railroad crossing. See Complaint–in–Intervention ¶¶ 8, 15, at 3. The Esquibels allege that, because vegetation blocked M. Esquibel's line of sight, he began to cross the tracks without knowing an Amtrak train was approaching. See id. ¶ 17, at 4. The Esquibels allege that the Amtrak train collided with the vehicle M. Esquibel was driving, killing M. Esquibel. See id. ¶ 20, at 6. The Complaint–in–Intervention alleges counts of negligence against Amtrak, BNSF, the City, the County, and the NMDOT. See Complaint Counts I, II, III, IV, V, at 4, 6, 8, 9, 10.

PROCEDURAL BACKGROUND

On February 12, 2009, Stark–Romero filed a Complaint for Wrongful Death and Negligence against Amtrak, BNSF, City of Las Vegas, San Miguel County, the NMDOT, and Ride to Pride at the Barn, LLC, in the Fourth Judicial District Court in San Miguel County. See Stark–Romero v. Nat'l R.R. Passenger Co., No. 09–cv–0295–MV–RLP, Complaint for Wrongful Death and Negligence, filed March 26, 2009 (Doc. 1–1). On March 26, 2009, the Defendants removed the Stark–Romero case to the United States District Court for the District of New Mexico. See Stark–Romero v. Nat'l R.R. Passenger Co., No. 09–cv–0295–MV–RLP, Notice of Removal, filed March 26, 2009 (Doc. 1)(“First Notice of Removal”). The First Notice of Removal asserts that the Court has original jurisdiction over the matter, because jurisdiction exists in federal court under 28 U.S.C. § 1349 for lawsuits against Amtrak. See First Notice of Removal at 2. The First Notice of Removal also states that removal was proper pursuant to 28 U.S.C. § 1331 and potentially the federal officer removal statute, 28 U.S.C. § 1442(A)(1). See First Notice of Removal at 3. Counsel for Amtrak, BNSF, the NMDOT, and the City of Las Vegas signed the pleading; counsel for San Miguel County did not. See First Notice of Removal at 5. Stark–Romero filed a Motion to Remand on April 20, 2009, alleging that the First Notice of Removal was procedurally defective, because it did not establish that all Defendants served at the time of removal consented to the removal, given that San Miguel County did not sign the notice of removal or file an independent consent to removal. See Stark–Romero v. Nat'l R.R. Passenger Co., No. 09–cv–0295–MV–RLP, Motion to Remand and Memorandum in Support Thereof at 4–5, filed April 20, 2009 (Doc. 14)(“Stark–Romero's Motion to Remand”).

On March 31, 2010, Chief Judge Martha Vázquez,¹ issued a Memorandum Opinion and Order, granting Stark–Romero's Motion to Remand. See Stark–Romero v. Nat'l R.R. Passenger Co., No. 09–cv–0295–MV–RLP, Memorandum Opinion and Order Granting Motion to Remand, filed March 31, 2010 (Doc. 96)(“Mar. 31, 2010 MOO”). Chief Judge Vázquez remanded the case because the First Notice of Removal was procedurally deficient. See Mar. 31, 2010 MOO at 10. Chief Judge Vázquez found that the First Notice of Removal was procedurally deficient, because San Miguel County did not sign the First Notice of Removal or file its consent within the required thirty-day period. See Mar. 31, 2010 MOO at 10. Chief Judge Vázquez also stated that she was not convinced that Amtrak and BNSF were duly diligent in their attempts to join all the defendants in the First Notice of Removal. See Mar. 31, 2010 MOO at 10. Although Chief Judge Vázquez remanded the case because of the procedural errors in the Notice of Removal, she also stated that, “even if this Court was not persuaded to remand on the basis of this procedural error, removal is improper on the basis of several other substantive issues.” Mar. 31, 2010 MOO at 10. Chief Judge Vázquez found that the case did not involve a substantial federal question and that, even if it did, “the exercise of jurisdiction by this Court would be optional,” and she would not exercise jurisdiction given the presumption in favor of Stark–Romero's chosen forum and federal courts' limited jurisdiction. Mar. 31, 2010 MOO at 23. When Chief Judge Vázquez issued her opinion, she also ordered Stark–Romero to submit a motion and supporting documentation for reimbursement for fees and costs associated with removal of the case to federal court. Stark–Romero submitted a motion, requesting attorneys' fees and costs from Amtrak and BNSF, see Plaintiff's Motion Requesting Attorneys' Fees and Costs Related to her Motion to Remand, filed April 29, 2010 (Doc. 98), which Amtrak and BNSF opposed, see Defendant Amtrak's and BNSF's Response in Opposition to Plaintiff's Motion Requesting Attorneys' Fees and Costs Related to her Motion to Remand, filed May 17, 2010 (Doc. 99). The issue of attorney's fees and costs is fully briefed and is currently pending before Judge Vázquez. See Notice of Completion of Briefing, filed June 1, 2010 (Doc. 101).

On June 10, 2010, the Esquibels sent an expedited motion to intervene, pursuant to rule 1–024(B) NMRA, to all counsel of record in Stark–Romero's pending state lawsuit. See Expedited Motion to Intervene, filed September 27, 2010 (Doc. 23–2). As grounds for the motion to intervene, the Esquibels stated that their claim and Stark–Romero's claim have common questions of law and fact, and that their claim is “virtually identical” to Stark–Romero's claim. Expedited Motion to Intervene at 1. On July 13, 2010, the Honorable Abigail Aragon, New Mexico District Judge for the Fourth Judicial District, ordered that “Emilio J. Esquibel and Helen G. Esquibel, ... are allowed to intervene in this case for purposes of discovery only and that the Complaint–in–Intervention may be filed in this action and a copy shall be served on each of the defendants as provided in Rule 1–004.” Order on Motion to Intervene at 1–2, filed September 27, 2010 (Doc. 23–3). Judge Aragon further ordered

that the claims of Emilio J. Esquibel and Helen G. Esquibel set forth in the Complaint–in–Intervention shall not be consolidated for trial with the claims of Victoria Stark–Romero set forth in the Complaint for Wrongful Death and Negligence filed February 12, 2009...