United States District Court, D. Montana, Great Falls Division
ROBERT KOVACK and CONNIE DARKO, as personal representatives of the Estate of Shelby Rae Kovack, Plaintiffs,
FORD MOTOR COMPANY; TRW AUTOMOTIVE, LLC., TRW VEHICLE SAFETY SYSTEMS, INC.; FORD MOTOR CREDIT COMPANY, LLC; and BISON MOTOR CO., Defendants.
FINDINGS AND RECOMMENDATION TO REMAND CASE TO MONTANA DISTRICT COURT
KEITH STRONG, Magistrate Judge.
Defendants contend this court has diversity jurisdiction because a Montana statute precludes Plaintiff's claims against the only in-state defendant. Plaintiffs disagree. The crux of the dispute is whether the statute at issue immunizes a car dealership from strict products liability or merely ensures their right to indemnity. Defendants have not shown that Montana has definitively resolved the question in their favor. Therefore Plaintiffs have at a least a chance of success on the claim and are entitled to remand.
Defendants properly removed this case pursuant to 28 U.S.C. §§ 1441(a) and 1446. If this court has subject matter jurisdiction, it arises from U.S.C. § 1332, on the basis of diversity of the parties. However, diversity is disputed. It is discussed in the remainder this Order. No basis for federal jurisdiction except for diversity has been asserted. No party has disputed personal jurisdiction, which appears to exist over all parties because they reside in Montana or have done substantial business in the state. Fed.R.Civ.P. 4(k)(1)(A); Mont. R. Civ. P. 4(b).
Plaintiffs filed the Complaint in Montana's Eighth Judicial District, Cascade County. Defendants removed, asserting diversity jurisdiction. Plaintiffs filed a Motion to Remand, Doc. 16. The motion is fully briefed. Docs. 17, 23, 24.
The party seeking removal has the burden to establish removal is proper. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). A defendant seeking removal to the federal court is entitled to present facts showing joinder of a resident defendant to be fraudulent. Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998).
The presence of a fraudulently joined defendant will not defeat removal on diversity grounds. Id. "Fraudulent joinder" is a term of art; joinder of a resident defendant is fraudulent if the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state. Id.
To establish fraudulent joinder, the defendant must demonstrate that the plaintiff failed to assert a valid state law claim against the resident defendant. Id. The failure must be obvious according to the settled rules of the state. Id. If there is a possibility that a state court would find that the complaint states a cause of action against the resident defendant, the federal court must find that the joinder was proper and remand the case to the state court. Hunter v. Phillip Morris USA, 582 F.3d 1039, 1046 (9th Cir. 2009).
Shelby Kovack was killed when the 2001 Ford Explorer she was driving rolled in August 2012. Her parents are suing on behalf of her estate. They allege Defendants are liable under negligence and strict liability theories. Doc. 10.
Ms. Kovacks's mother purchased the vehicle from another individual in 2011. That individual bought the vehicle from Bison Motors in 2002. Plaintiffs allege strict products liability and negligence claims. Bison Motors is ...