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Lugo v. Qwest Corporation

United States District Court, D. Arizona

February 14, 2014

ARMANDO LUGO, JR., and TRACEY VOLLBERG, Plaintiffs,
v.
QWEST CORPORATION dba CENTURYLINK QC, et al., Defendants.

ORDER

CINDY K. JORGENSON, District Judge.

Pending before the Court are the Motions to Dismiss (Docs. 5 and 21) and the Motion to Remand (Doc. 16). The parties presented oral argument to the Court on January 27, 2014.

Factual and Procedural Background

On July 12, 2013, Armando Lugo, Jr. And Tracey Vollberg, surviving natural parents of a deceased juvenile ("JML") (collectively, "Plaintiffs") filed a Complaint in the Pima County Superior Court. The Complaint alleges gross negligence against Qwest Corporation d/b/a CenturyLink QC, Qwest Communications Company LLC dba CenturyLink QCC, Century Link, Inc. (collectively "CenturyLink"), Diana Voss ("Voss") and John Doe Voss, and Cassidian Communications, Inc. ("Cassidian") (collectively "Defendants).

As a basis for their claim, Plaintiffs allege CenturyLink agreed to undertake and successfully complete the Cassidian Vesta Meridian E911 Installation Project (the "Project") for the City of Tucson ("Tucson"). Part of the Project was the redesign of the multiple trunk group 911 network. CenturyLink and Cassidian agreed jointly to coordinate and be responsible for computer programming for the Project. Voss served as the manager of the Project.

Plaintiffs allege Defendants knew or had reason to know the accuracy of the computer programming (including the accuracy of the trunk line labeling) was essential to the proper functioning of the Automatic Location Information/Automatic Number Information ("ALI/ANI") feature of the Tucson's 911 system, errors would cause the ALI/ANI feature of the 911 system to malfunction or function only intermittently, and malfunctions would create an unreasonable risk of bodily injury to others as well as the high probability that substantial harm would result. Plaintiffs allege that one or more of the trunk lines were mislabeled, resulting in ALI/ANI information not reaching the computer screens of the Tucson 911 call takers.

Plaintiffs further allege the modified 911 system was brought online on May 25, 2011. Several different types of problems arose, including the ALI/ANI information being intermittently dropped from 911 calls. The malfunction was reported to Voss on May 27, 2011.

Plaintiffs also allege JML was taken to the Continent Urgent Care Center ("the Center") on June 1, 2011, when she suffered an asthma attack. Personnel from the Center called 911. The 911 call was routed through a mislabeled trunk line, resulting in the caller's address not appearing on the 911 call taker's computer screen. The ambulance was dispatched to an incorrect address, delaying the EMT's and paramedics from arriving to provide the care needed by JML.

Plaintiffs allege JML died as a direct and proximate consequence of Defendants' gross negligence in mislabeling the trunk line and failing to correct the error in time to save JML's life.

Defendants CenturyLink and Voss removed the action to this Court on October 18, 2013. They also filed a Motion to Dismiss (Doc. 5). In their Motion to Dismiss, CenturyLink and Voss assert the claims are time barred and that the Vosses are fraudulently joined for the purpose of defeating diversity. A response (Doc. 17) and a reply (Doc. 26) have been filed.

On November 15, 2013, Plaintiffs filed a Motion to Remand (Doc. 16). A response (Doc. 25) and a reply (Doc. 29) have been filed.

On November 22, 2013, Defendant Cassidian filed a Motion to Dismiss (Doc. 21) and a Request for Judicial Notice (Doc. 22). Cassidian asserts the claims are time barred, Cassidian is protected by qualified immunity, Cassidian did not cause Plaintiffs' loss, and Plaintiffs are estopped from claiming Cassidian caused JML's death. A response (Doc. 28) and a reply (Doc. 30) have been filed.

Oral argument was presented to the Court on January 27, 2014. At that time, the Court granted Cassidian's Request for Judicial Notice (Doc. 22). The Court judicially notices the February 6, 2012, Complaint, the June 21, 2013, Motion in Limine # 3, Evidence Related to the City's Non-Party-At-Fault Allegations Should be Excluded, and the July 9, 2013, Notice of Settlement filed in Lugo v. City of Tucson, in the Pima County Superior Court, Case No. C20120758. The Court also takes judicial notice of news articles, as summarized by Plaintiffs:

In a local news story from July 26, 2011-less than two years from filing the Complaint-it was reported that CenturyLink's official position was that all problems had been resolved during the installation procedure, and "in no case was public safety jeopardized." (KGUN9, 911 Glitches: Tucson Councilman Calls B.S. On Qwest Statement, July 26, 2011, Exhibit A) In a later news story, from August 9, 2011, it was reported that CenturyLink's position was that the problems were "administrative and procedural issues, " and the solution was training and procedures. (KGUN9, Tucson Council Airs 911 Troubles, Aug. 9, 2011, Exhibit B)

Response to Cassidian Motion to Dismiss, Doc. 17, p. 7.

Motion to Remand (Doc. 16)

Defendants CenturyLink and Voss removed this action asserting Voss had been fraudulently joined for the purpose of defeating diversity. Plaintiffs assert, however, that the Complaint states a valid claim against Voss under Arizona law as her negligence was a cause-in-fact of JML's death.

Federal courts are courts of limited jurisdiction. U.S. Const. art. III. As such, there exists a "strong presumption' against removal jurisdiction [which] means that the defendant always has the burden of establishing that removal is proper." Gaus v. Miles, Inc. 980 F.2d 564, 566 (9th Cir. 1992) (citations omitted); see also Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). Further, the removal statute is to be strictly construed against removal jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941). Additionally, "[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus, 980 F.2d at 566.

"Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). A parties' right to removal is further limited in cases where the district court's jurisdiction is founded on diversity. 28 U.S.C. § 1441(b). Diversity actions are "removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b). This axiom is commonly referred to as the "forum defendant rule."

The Ninth Circuit described the purpose of the forum defendant rule stating, "Removal based on diversity jurisdiction is intended to protect out-of-state defendants from possible prejudices in state court.... The need for such protection is absent, however, in cases where the defendant is a citizen of the state in which the case is brought." Lively v. Wild Oats, 946 F.3d 933, 940 (9th Cir. 2006). "Thus, the overarching purpose of the forum defendant rule is to prevent certain cases properly brought in state court from ending up in federal court." Standing v. Watson Pharmaceuticals, Inc., 2009 WL 842211, *3 (C.D. Cal. Mar. 26, 2009). "Congress added the properly joined and served' requirement in order to prevent a plaintiff from blocking removal by joining as a defendant a resident party against whom it does not intend to proceed, and whom it does not even serve." Sullivan v. Novartis Pharmaceuticals Corp., 575 F.Supp.2d 640, 645 (D. N.J. 2008). Apparently, Congress added the language to combat the problem of "fraudulent joinder." Id.

As the Sullivan court noted "the fact that the legislative history is all but silent on the issue [of the "joined and served" language] suggests that Congress did not intend to address a novel concern or fundamentally change the nature of, or narrow the scope of the rule. Indeed, the very lack of discussion in the legislative history strongly suggests that Congress intended nothing more than to bolster the already existing efforts of lower federal courts to prevent improper joinder." Sullivan, 575 F.Supp.2d at 645. Furthermore, where the purpose of the statute is to prevent gamesmanship by plaintiffs, it is difficult to comprehend why it should be allowed to promote gamesmanship by defendants. See Standing, 2009 WL 842211 at *4.

The fraudulent joinder of a party may be established in one of two ways: (1) the defendant may facially attack plaintiff's complaint by showing the inability of the plaintiff to establish a cause of action against the non-diverse defendant based on the plaintiff's allegations or (2) the defendant may attempt to disprove jurisdictional facts alleged in the plaintiff's pleadings. See Hunter v. Philip Morris USA, 582 F.3d 1039, ...


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