May v. Bd. of Cnty. Comm'rs for Cibola Cnty.
| Decision Date | 06 May 2013 |
| Docket Number | No. CIV 12–0676 JB/KBM.,CIV 12–0676 JB/KBM. |
| Citation | 945 F.Supp.2d 1277 |
| Parties | Jennifer MAY, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS FOR CIBOLA COUNTY, Cibola County Sheriff Johnny Valdez, in his official capacity, Cibola County Sheriff's Detective William Marion, in his individual capacity, The Thirteenth Judicial District Attorney's Office and Assistant District Attorney Kristina Faught–Hollar, in her individual capacity, James Reese, and Oliver Reese, Defendants. |
| Court | U.S. District Court — District of New Mexico |
OPINION TEXT STARTS HERE
Carolyn M. “Cammie” Nichols, Brendan K. Egan, Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, Albuquerque, NM, Attorneys for the Plaintiff.
Michael Dickman, Santa Fe, NM, Attorney for Defendants Board of County Commissioners for Cibola County, Johnny Valdez, Cibola County Sheriff, in his official capacity.
James P. Sullivan, Brennan & Sullivan, P.A., Santa Fe, NM, Attorneys for Defendants The Thirteenth Judicial District Attorney's Office and Kristina Faught–Hollar.
William C. Marchiondo, Albuquerque, NM, Attorney for Defendant James Reese.
Jason Bowles, B.J. Crow, Monnica Lynn Garcia, Bowles & Crow, Albuquerque, NM, B.J. Crow, The Crow Law Firm, Roswell, NM, Attorneys for Defendant Oliver Reese.
THIS MATTER comes before the Court on the Plaintiffs' [sic] Motion to Remand, filed July 13, 2012 (Doc. 12)(“Motion to Remand”). The Court held a hearing on November 21, 2012. The primary issues are: (i) whether Defendant James Reese waived his right to removal by filing a motion to dismiss in state court; (ii) whether effective removal requires an affirmative explanation for Defendant William Marion's absence in the Notice of Removal to the United States District Court for the District of New Mexico, filed June 22, 2012 (Doc. 1)(“Notice of Removal”); and (iii) whether the Defendants' failure to provide the Court with a copy of Plaintiff Jennifer May's Response to Defendant James Reese's Motion to Dismiss or, in the Alternative, to Transfer Venue from Santa Fe County to Cibola County, filed in federal court on July 13, 2012 (Doc. 12–1)(“May's Response”), requires remand to state court. The Court will deny the Motion to Remand. The Court concludes that J. Reese did not waive his right to removal by filing a motion to dismiss in state court. Filing a motion to dismiss in state court which asserts that venue is improper is not enough to demonstrate a clear and unequivocal intent to remain in state court. The Court further concludes that an affirmative explanation for Marion's absence in the Notice of Removal is not required to effect removal. Neither the statute nor the United States Court of Appeals for the Tenth Circuit require the Defendants to account in the notice for a defendant who has not yet been served. The Defendants' failure to provide the Court with a copy of May's Response to J. Reese's Motion to Dismiss does not require remand to state court. Under the Tenth Circuit's de minimis standard, the Defendants' failure to provide the Court with May's Response to J. Reese's Motion to Dismiss is a de minimis procedural defect that does not require remand to state court; it is curable, and May cured any defects by providing the Court with a copy of his Response within twenty-eight days.
May and James Reese were married on December 22, 1990, in Albuquerque, New Mexico, and had three children during their marriage. See Complaint for Damages Caused by the Deprivation of Civil Rights and Other Tortious Conduct ¶¶ 14–15, at 5, filed April 17, 2012 in state court, filed in federal court on June 22, 2012 (Doc. 1–2)(“Complaint”). May alleges that she was the victim of J. Reese's ongoing physical, emotional and verbal abuse. See Complaint ¶ 16, at 2. May and James Reese were living in Hawaii during 2005. See Complaint at 6 n. 1. On February 23, 2005, a Hawaii Court entered an Order of Protection against J. Reese on May's behalf. See Complaint ¶ 17, at 5–6. The Order of Protection prohibits J. Reese “from possessing, controlling, or transferring ownership of any firearm, ammunition, firearm permit or license for the duration of this Order or extension thereof.” Complaint ¶ 17, at 6. This Order was amended on March 17, 2005, to reflect that it will expire on March 17, 2055, fifty years after its entry. See Complaint ¶ 17, at 6.
May and J. Reese divorced on May 11, 2005 in Hawaii. See Complaint ¶ 18, at 6. The divorce decree ordered that J. Reese pay $50.00 per child per month (or $150.00 per month in total for their three children) in child support, which is the statutory minimum for someone who is unemployed. See Complaint ¶ 19, at 6. Approximately one year after the divorce, May began child support modification proceedings, because she believed the payment should be higher when J. Reese began working for his father's Uranium mining company. See Complaint ¶ 20, at 6.
On March 19, 2010, May filed a motion for enforcement for child support in arrears in the amount of $3,245.40—the amount determined by the State of Hawaii based on J. Reese's monthly obligations and missed payments. See Complaint ¶ 22, at 7. This motion and Hawaii's month-by-month transaction summary were served on J. Reese via certified mail by the State of New Mexico, Child Support Enforcement Division. See Complaint ¶ 23, at 7. Page four of the five-page transaction summary, however, was not sent to J. Reese, although the New Mexico State District Court received the complete file. See Complaint ¶ 24, at 7. The missing page contained month-by-month payment figures. See Complaint ¶ 24, at 7. J. Reese had access to the State of Hawaii's child support payment history that May possessed. See Complaint ¶ 25, at 7–8.
May alleges that the Defendants used the missing page as a means to conspire against her and have her arrested under false charges of embezzlement and larceny. See Complaint ¶¶ 22–34, at 7–9. According to May, Defendant Detective William Marion swore to an Affidavit for Arrest Warrant alleging that May attempted to use the State of New Mexico to defraud J. Reese, based on the incomplete transaction summary. See Complaint ¶ 27 at 8. May alleges that Defendant Oliver Reese was involved with this conspiracy and reported May to law enforcement. See Complaint ¶¶ 28–29, at 8. May also alleges that Defendant Assistant District Attorney Kristina Faught–Hollar advised Marion that probable cause existed to arrest May. See Complaint ¶ 37, at 10. On July 8, 2010, a warrant was issued for May's arrest alleging harassment and attempted fraud. See Complaint ¶ 40, at 10. May was arrested in Maryland on July 13, 2010. See Complaint ¶ 41, at 10. The Thirteenth Judicial District Attorney's Office subsequently dropped all charges. See Complaint ¶ 42, at 11. J. Reese was arrested on June 27, 2009, and charged in federal court with three counts of possessing firearms while subject to a domestic protection order. See Complaint ¶ 44, at 11.
May filed her case in the First Judicial District Court for the State of New Mexico, County of Santa Fe, New Mexico, on April 17, 2012. See May v. Bd. of Cnty. Comm'rs for Cibola Cnty., Case No. D–101–CV–2012–01079. May alleges that Marion and Faught–Hollar deprived her of her rights under the Fourth and Fourteenth Amendments of the United States Constitution when they “recklessly misrepresented the truth and/or forwarded deliberate falsehoods in obtaining a warrant for Plaintiff's arrest without probable cause.” Complaint ¶ 65, at 17. May states that she is a resident of Columbia, Maryland, and resided in Columbia at the time of the underlying incident. See Complaint ¶ 5, at 2. May asserts that the First Judicial District Court has “original concurrent jurisdiction over Plaintiff's federal claims pursuant to Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980) and Art. VI, ¶ 13 of the Constitution of the States of New Mexico.” Complaint ¶ 1, at 1. She also asserts that the state court has original jurisdiction over her state law claims under New Mexico Tort Claims Act, N.M.S.A.1978, § 41–4–1 to 41–4–27 (“NMTA”), and her state common-law claims. See Complaint ¶ 1, at 1. May contends that venue in the First Judicial District is proper pursuant to N.M.S.A.1978, § 38–3–1(A) & (F), and § 41–4–18(B), “based on the fact that Defendant Thirteenth Judicial District Attorney's Office is a state agency as defined by the New Mexico Tort Claims Act and N.M.S.A.1978, § 41–4–1 et seq.” Complaint ¶ 2, at 2. May's causes of action arise out of her marriage to, and divorce from, J. Reese, and his alleged failure to timely and fully pay child support that the divorce decree ordered him to pay to her. See Complaint ¶¶ 17–22, at 5–7. May alleges that, when the State of New Mexico, Child Support Enforcement Division served her motion for enforcement for child support in arrears on J. Reese, because the motion was missing a page showing the arrears calculations, the Defendants used the missing page as a means to conspire against her and have her arrested under false charges of embezzlement and larceny. See Complaint ¶¶ 22–34, at 7–9.
On June 22, 2012, O. Reese removed this action to federal court. See Notice of Removal¶ 1, at 1. O. Reese asserts that, because May's causes of action include allegations against the Defendants for alleged violations of the Fourth and Fourteenth Amendments, conspiracy to violate civil rights, and municipal and supervisory liability pursuant to 42 U.S.C. § 1983, “[r]emoval is proper because this Court has jurisdiction over this matter pursuant to 42 U.S.C. § 1983.” Notice of Removal ¶¶ 2–3, at 2. O. Reese represents that removal is timely, as his counsel accepted service of May's state court Complaint on May 23, 2012, and thus filed the notice of removal within thirty days. See Notice of Removal ¶ 4, at 2. O. Reese states: ...
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