United States District Court, D. Arizona
Honorable Cindy K. Jorgenson United States District Judge
commenced this action against multiple Defendants, including
MTC Financial and its agent Amanda Alcantara, in Arizona
state court. See Doc. 1-1 (stating various counts
related to an allegedly unlawful foreclosure). Defendants
then filed to remove the case to this Court; claiming that
the only non-diverse defendant - Amanda Alcantara - was
“fraudulently joined, ” therefore “complete
diversity” exists for purposes of federal jurisdiction.
See Doc. 1 at pg. 5; see also, Roth v
Allstate, 17-CV-587 (D. Ariz., Feb. 7, 2018) (“A
federal court only possesses jurisdiction pursuant to 28
U.S.C. § 1332 if ‘complete diversity'
has now filed a motion to remand asserting that the Complaint
alleges a “possible” claim against Alcantara and
that Defendants failed to properly remove the case.
See Doc. 20 (claiming that Defendants have not
overcome the “heavy burden” of demonstrating that
Alcantara was “fraudulently” named in the
Complaint). The Court has also received and considered
Defendants' motions in opposition, and Plaintiff's
replys thereto. See Docs. 25, 27, 29, and 30.
person is fraudulently joined 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.” See IDS Prop. Cas. Ins. Co. v.
Gambrell, 913 F.Supp.2d 748, 752 (D. Ariz. 2012)
(quoting McCabe v. Gen. Foods Corp., 811 F.2d 1336
(9th Cir. 1987)).
resolve uncertainty in favor of remand, and can only retain
jurisdiction if a plaintiff has no reasonable possibility of
a claim against the non-diverse defendant. Id.
(holding that “there is a presumption against removal
[and] the defendant has the burden of establishing that
removal is proper and thus that fraudulent joinder
Defendants provide no extrinsic evidence that Plaintiff
specifically named Alcantara as a defendant simply for the
fraudulent purpose of defeating diversity jurisdiction.
See generally, Docs. 25 & 27. Rather, Defendants
argue that Plaintiff has failed to adequately allege a
plausible claim for relief against Alcantara based on state
law. Id. (relying on analysis that turns on the
correct interpretation of state law).
the standard for whether a defendant was “fraudulently
joined” is less than the “plausibility”
standard for adjudicating a motion to dismiss. See Diaz
v. Allstate Ins. Grp., 185 F.R.D. 581, 586 (C.D. Cal.
1998) (“merely showing that an action is likely to be
dismissed against that defendant does not demonstrate
fraudulent joinder”). And in Arizona, an agent can be
independently liable for actions taken within the scope of
their responsibilities. See Griffith v. Faltz, 162
Ariz. 599, 600-01 (Ct. App. 1990) (“It is
well-established law that an agent will not be excused from
responsibility for tortious conduct [when] acting for [a]
principal.”); see also, 4801 E. Washington
St. Holdings, LLC, acting ex rel. CW Capital Asset Mgmt. LLC
v. Breakwater Equity Partners LLC, 2015 WL 1859057, at
*8 (D. Ariz. Apr. 23, 2015) (finding, under Arizona law,
“whether an agent is acting on [their] own behalf or
for another is immaterial to [personal] liability”)
Plaintiff has stated a possible tort claim against Alcantara
as the individual who executed various - allegedly fraudulent
- documents as Defendant MTC's Arizona agent.
See Doc. 1-1 at pgs. 12 & 22 (alleging a
violation of A.R.S. § 33-420(A) and “aiding and
abetting”). While the merits of this claim are not
certain, it is possible that Alcantara could face personal
liability for her actions on behalf of MTC. See, e.g.,
Wells Fargo Bank v. Arizona Laborers, Teamsters & Cement
Masons Local No. 395 Pension Tr. Fund, 201 Ariz. 474,
485 (2002) (“Arizona recognizes aiding and abetting as
embodied in Restatement § 876(b), that a person who aids
and abets a tortfeasor is [themselves] liable for the
resulting harm to a third person”).
IT IS ORDERED that Plaintiff's motion (Doc. 20) is
FURTHER ORDERED that this action is REMANDED to Pima County
FURTHER ORDERED that all pending motions (Docs. 7, 8, 9, and
11) are TERMINATED on CM/ECF as “moot.” IT IS
FURTHER ORDERED that the Clerk of the Court enter judgment
closing this civil action, and mail a certified copy of this
Order to Pima County Superior Court.
See further, Boyer v. Snap-on
913 F.2d 108, 111 (3d Cir. 1990)
(explaining that, when adjudicating a motion to remand, a
“district court must resolve all contested issues of
substantive fact in favor of the plaintiff and must resolve
any uncertainties as to the current state of ...