Mexico ex rel. Balderas v. Valley Meat Co.

• Decision Date: 20 May 2015
• Docket Number: No. CIV 14-1100 JB/KBM,CIV 14-1100 JB/KBM
• Parties: STATE OF NEW MEXICO ex rel. HECTOR H. BALDERAS, Attorney General, State of New Mexico, Plaintiff, v. VALLEY MEAT COMPANY, LLC; RICARDO DE LOS SANTOS; MOUNTAIN VIEW PACKING, LLC; and DAIRYLAND PACKING, LLC, Defendants.
• Court: U.S. District Court — District of New Mexico

STATE OF NEW MEXICO ex rel. HECTOR H. BALDERAS,Attorney General, State of New Mexico,¹ Plaintiff, v. VALLEY MEAT COMPANY, LLC; RICARDO DE LOS SANTOS;

MOUNTAIN VIEW PACKING, LLC;

and DAIRYLAND PACKING, LLC, Defendants.

No. CIV 14-1100 JB/KBM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

May 20, 2015

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on Plaintiff State of New Mexico's Motion to Remand and for Costs, and Memorandum in Support, filed December 12, 2014 (Doc. 9) ("Motion"). The Court held a hearing on January 20, 2015. The primary issues are: (i) whether Plaintiff State of New Mexico violated D.N.M. LR-Civ. 7.1(a)'s meet-and-confer requirement when it requested consent less than three hours before filing the Motion and declined to provide the opposing party with a copy of the Motion; (ii) whether a non-Defendant, D'Allende Meats, LLC, can remove a case from state court to federal court without any Defendant's consent;(iii) whether the Court has subject-matter jurisdiction over this case, where the jurisdictional basis asserted in the Notice of Removal, filed December 4, 2014 (Doc. 2) -- civil-rights jurisdiction -- lacks a sound basis in the case's facts, and D'Allende Meats' ad hoc jurisdictional basis -- federal-question jurisdiction -- consists of vague assertions of federal field preemption and the dormant Commerce Clause; and (iv) whether, if the Court remands this case, it should also impose costs and fees against D'Allende Meats. As to the first issue, the Court concludes that the State of New Mexico complied with D.N.M. LR-Civ. 7.1(a), and, even if it had not, the Court would be unable to deny the Motion as a sanction for noncompliance, because the Court lacks subject-matter jurisdiction over the case. As to the second issue, the removal is procedurally defective, both because a non-Defendant filed it, and because no Defendant joined in or consented to the removal -- let alone all of them, as the statute requires. As to the third issue, this case does not fall within original federal subject-matter jurisdiction. Federal-question jurisdiction, which is the jurisdictional basis upon which D'Allende Meats relied in opposing the Motion, is not present: this case does not implicate the dormant Commerce Clause, and D'Allende Meats has not established that the regulations of the United States Department of Agriculture ("USDA") preempt any of the State of New Mexico's state-law claims. Even if federal-question jurisdiction were present, that basis is not the basis of removal that D'Allende Meats asserted in its Notice of Removal, and removers may not change their preselected jurisdictional basis in response to a motion to remand. The Notice of Removal's asserted jurisdictional basis -- civil-rights jurisdiction -- is baseless, as even D'Allende Meats now concedes. As to the fourth issue, the Court will assess costs and fees against D'Allende Meats, because its removal was objectively unreasonable. The Court will thus grant the Motion, remandthis case to state court, and order D'Allende Meats to pay the State of New Mexico's just costs and actual expenses, including attorneys' fees.

FACTUAL BACKGROUND

The Defendants own and operate a cattle slaughterhouse in Roswell, New Mexico. See Complaint ¶¶ 2-12, at 1-3, filed in state court December 19, 2013, filed in federal court December 12, 2014 (Doc. 2-2). They ceased operations in April, 2012, but they plan to reopen "in the imminent future." Complaint ¶ 14, at 3. When they reopen, however, they plan to slaughter horses -- rather than cattle -- and they plan to slaughter them for the purpose of human consumption. See Complaint ¶ 14, at 3. The State of New Mexico alleges that the Defendants committed numerous violations of environmental and health regulations even when they were slaughtering cattle, and that horses present much greater health concerns than cattle when their slaughter is done under poor sanitary conditions. See Complaint ¶¶ 15-32, at 3-8.

Horse slaughter for human consumption has not occurred anywhere in the United States of America in the last six years. See Complaint ¶ 46, at 13. Defendant Valley Meat Company, LLC, filed suit against the USDA, however, and, on June 28, 2013, the USDA issued Valley Meat a "grant of inspection" permitting it to begin slaughtering horses. Complaint ¶ 48, at 13. On July 2, 2013, a group of individuals and nonprofit organizations filed suit in federal court against the USDA, demanding that it rescind its earlier decision; the State of New Mexico intervened in that suit on behalf of the plaintiffs, with the stated purpose of protecting New Mexico's groundwater and public health. See Complaint ¶¶ 49-50, at 14. The plaintiffs in that case were ultimately unsuccessful, and their suit was ultimately dismissed. See Complaint ¶ 51, at 14.

PROCEDURAL BACKGROUND

The State of New Mexico filed this suit in First Judicial District Court, County of Santa Fe, State of New Mexico, on December 19, 2013. See Complaint at 1. It alleges four causes of action, each of which arises under New Mexico law. See Complaint ¶¶ 58-104, at 15-24. First, it alleges violations of the New Mexico Food Act, N.M. Stat. Ann. §§ 25-2-1 to -20. See Complaint ¶¶ 58-72, at 15-18. Second, it alleges violations of the New Mexico Unfair Practices Act, N.M. Stat. Ann. §§ 57-12-1 to -26. See Complaint ¶¶ 73-89, at 18-21. Third, it alleges violations of the New Mexico Water Quality Act, N.M. Stat. Ann. §§ 74-6-1 to -17. See Complaint ¶¶ 90-98, at 21-23. Fourth, it alleges common-law public nuisance. See Complaint ¶¶ 99-104, at 23-24.

Just under a year after filing, D'Allende Meats removed this case to federal court. See Notice of Removal at 1. D'Allende Meats describes itself as a "Defendant" in the Notice of Removal, but it is not named as a Defendant in the Complaint. See Complaint ¶¶ 1-10, at 1-3. It says that, when it filed the removal, the state court was in the process of entertaining an "Expedited Motion seeking to enjoin non-party D'Allende (a wholly separate Texas company that had acquired Defendant's premises)." Notice of Removal ¶ 2, at 1.² D'Allende Meats attached a copy of this motion to its Notice of Removal. See Plaintiff State of New Mexico's Expedited Motion to Enforce and Modify Preliminary Injunction, filed in state court December 2, 2014, filed in federal court December 4, 2014 (Doc. 2-3)("Expedited Motion"). The Expedited Motion's preliminary statement summarizes its content:

Just a few months ago, Defendants represented to the Court that they "are not operating and have no plans or ability to operate a horse processing facility," and on that asserted basis urged the Court to dismiss the State of New Mexico's claims as moot. Before the ink on their motion was dry, Defendants reneged on that representation. While insisting to the Court that they no longer have involvement or interest in commercial horse slaughter, Defendants simultaneously were busy creating a new shell company, through which they applied for the very same permits to conduct commercial horse slaughter that they had withdrawn only a few weeks earlier.

Those recent actions by Defendants, in concert with three non-parties -- the new shell company, D'Allende Meats, LLC, and its principals Jose Hernandez and Ryoichi Okubo -- necessitate this motion to enforce and to modify the Court's January 17, 2014 Order Granting Preliminary Injunction ("Preliminary Injunction") enjoining Defendants from pursuing horse slaughter. At a minimum, Defendants' actions are an effort to evade the Court's order; at worst, they represent an attempt by Defendants to perpetrate a fraud on the Court. In either event, the Court can and should enforce the Preliminary Injunction against the non-parties with whom Defendants are colluding (the "Affiliates") to bring commercial horse slaughter to New Mexico. In addition, the Preliminary Injunction should be modified to make clear that Defendants and their Affiliates may not undertake preparatory steps that, if completed, will necessarily result in a violation of the Preliminary Injunction.

The State files this motion on an expedited basis, see Local Rule 1-306(I), due to the demonstrated risk that Defendants and the Affiliates will continue their efforts to circumvent the Preliminary Injunction absent judicial intervention.

As required by Rule 1-007.1(C) NMRA, the undersigned requested opposing counsel's position on this motion, who responded in relevant part with a series of threats:

You are abusing the Attorney General's authority and this is absolutely malicious abuse of process. You lied to the Court in your supplemental notice. These individuals you are naming are not Valley Meat Company. If you file this we will add it to our Motion to Strike and for Sanctions. Please also be on Notice that we will be seeking sanctions against you personally, the state should not have to pay for your malfeasance. Further this should also be treated as Notice that if you file this we will file an action for malicious abuse of process against the Attorney General's Office you are potentially incurring liability by abusing the process. By the time the dust settles General King will have only succeeded in handing off a bucket of liability to General Balderas. This is truly bad form at the 11th hour.

Expedited Motion at 1-3. D'Allende Meats argues that it is not a shell company of Valley Meat and that the two companies are entirely distinct. See Notice of Removal ¶ 5, at 2. It argues that federal subject-matter jurisdiction exists under 28 U.S.C. §§ 1443 and 1446, i.e., civil-rights jurisdiction and removal jurisdiction. See Notice of Removal at 1.

The State of New Mexico moved to remand eight days after removal. See Motion at 1. First, it argues that D'Allende Meats lacks "standing" to remove, because it is not a Defendant in the case. Motion at 6-8. It points out that the text of both §§ 1443 and 1446 limits the power of removal to "'defendant[s],'"...