Nieto v. Univ. of N.M.

Citation727 F.Supp.2d 1176
Decision Date20 May 2010
Docket NumberNo. CIV 08-0465 JB/RLP,CIV 08-0465 JB/RLP
PartiesPaul NIETO, Plaintiff, v. UNIVERSITY OF NEW MEXICO, Defendant.
CourtU.S. District Court — District of New Mexico

Gilbert J. Vigil, Christina A. Vigil, Law Office of Gilbert J. Vigil, Albuquerque, NM, for Plaintiff.

John S. Stiff, Ann Louise Keith, John S. Stiff & Associates, LLC, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Defendant's Brief on Federal Court Jurisdiction, filed April 26, 2010 (Doc. 14)("Defendant's Brief"); and (ii) Letter from Gilbert J. Vigil and Christine Vigil to the Court (dated April 26, 2010), filed April 26, 2010 (Doc. 15) ("Plaintiff's Letter"). The Court held a hearing on April 30, 2010. The primary issue is whether Defendant University of New Mexico ("UNM") may properly remove a dismissed case from state court to federal court. Because the Court concludes that there is a case or controversy between the parties, and because the Court concludes that a dismissed case may still be, under certain circumstances, a "civil action" for purposes of 28 U.S.C. § 1441(b), the Court will not dismiss or remand the case. Rather, the Court will retain jurisdiction. Because, however, the Court takes the case as it finds it, it will enter final judgment on the state-court judge's dismissal for want of prosecution unless Plaintiff Paul Nieto files a motion to reinstate or motion for relief from judgment under rule 60(b) within ten days of the entry of this order.

PROCEDURAL BACKGROUND

On January 12, 2007, the Equal Employment Opportunity Commission ("EEOC") issued its Dismissal and Notice of Rights. See Defendant's Brief at 1. On April 13, 2007, Nieto filed a Notice of Appeal of the Dismissal and Notice of Rights by the Equal Employment Opportunity Commission, and a Complaint of Damages, in the Second Judicial Court, Bernalillo County, State of New Mexico. See Notice of Removal ¶ 1, at 1, filed May 12, 2008 (Doc. 1); Plaintiff's Letter at 1; Notice of Appeal and Complaint for Damages, filed May 12, 2008 (Doc. 1-1)("Complaint").

On March 13, 2008, New Mexico District Judge Linda Vanzi-now a judge on the Court of Appeals of New Mexico-dismissed Nieto's Complaint for lack of prosecution. See Defendant's Brief at 3. The parties agree that Nieto served UNM's counsel with a copy of the summons and Complaint in this action on April 11, 2008-almost a full months after the trial court dismissed Nieto's Complaint. See Plaintiff's Letter at 1; Defendant's Brief at 3. Nieto filed a motion to reinstate in the state trial court on April 14, 2008. Judge Vanzi denied the motion to reinstate on May 9, 2008 because Nieto failed to appear for the motion hearing. See Plaintiff's Letter at 1. On May 12, 2008-after Judge Vanzi dismissed Nieto's suit for want of prosecution and after she denied his motion to reinstate, but within 30 days of the day Nieto served UNM 1-UNMfiled its notice of removal pursuant to 28 U.S.C. §§ 1441 and 1446. See Notice of Removal ¶¶ 2-3, at 1.2

On June 6, 2008, Nieto filed a notice of appeal to the Court of Appeals of New Mexico. On May 26, 2009, the Court of Appeals of New Mexico issued a Memorandum Opinion and Order, followed by a Judgment by Mandate, which stated that the Court of Appeals' jurisdiction was suspended by UNM's filing of a Notice of Removal. See Defendant's Brief at 3. There is, therefore, nothing moving forward in state court.

On April 2, 2010, the Court held a rule 16 scheduling conference. The Court expressed its concern whether it had jurisdiction over an action that has been removed after it was dismissed for want of prosecution and after a motion to re-instate has been denied. The Court noted that, from a review of the parties' Joint Status Report and Provisional Discovery Plan, filed March 31, 2010 (Doc. 10), that the only one who had any concern about the Court's jurisdiction was the Court. Indeed, at the initial scheduling conference, the parties both asserted that they believed the Court had subject-matter jurisdiction. The Court nevertheless requested that the parties each send a letter or brief to the Court explaining why they believe the Court has jurisdiction over the matter.

On April 26, 2010, UNM submitted a brief explaining why it believes the Court has jurisdiction over the case. On the same day, Nieto filed a letter brief explaining-for the first time-why, in his view, the Court lacks subject-matter jurisdiction. At the hearing, Christina Vigil, Nieto's attorney, stated that she would like to have her letter brief treated as a motion to remand, and UNM did not oppose this request. Ms. Vigil also conceded that, because of the timing of her motion, she had waived all procedural arguments for remand and was only arguing that the Court lacks subject-matter jurisdiction.3 See Transcript of Hearing at 4:2-6:25 (taken April 30, 2010)("Tr.")(Court, Vigil).4 The Court now resolves the motion.

RELEVANT LAW OF REMOVAL PROCEDURES

A defendant may remove "any civil action brought in a State court of which the district courts of the United States have original jurisdiction" 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). The right to remove is a statutory right, and thus removing defendants must carefully follow all statutory requirements. See Bonadeo v. Lujan, No. CIV 08-0812 JB/ACT, 2009 WL 1324119, at *9-10 (D.N.M. Apr. 30, 2009) (Browning, J.).Removal statutes are strictly construed, and ambiguities should be resolved in favor of remand. See Shamrock Oil & Gas v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Fajen v. Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir.1982). Doubtful cases are resolved in favor of remand because "there is a presumption against removal jurisdiction." Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.1995) (citation omitted). On the other hand, strict construction and a presumption against Congressionally allowed removal should not become a judicial hostility toward removal cases. See Bonadeo v. Lujan, 2009 WL 1324119, at *12 ("Strict construction does not mean judicial hostility toward removal.").

Section 1446 of Title 28 of the United States Code governs the procedure for removal. See 28 U.S.C. § 1446(b). It demands that "[t]he notice of removal ... be filed within thirty days after the receipt by the defendant ... of a copy of the initial pleading ... or ... after the service of summons ... if such initial pleading has then been filed in court and is not required to be served ..., whichever period is shorter." 28 U.S.C. 1446(b). Furthermore, at least in cases in which the complaint was not removable as initially filed, a defendant must make any diversity-based removal within one year of the commencement of the action. See 28 U.S.C. § 1446(b). The requirement that a defendant timely file the notice of removal is mandatory, though it is not jurisdictional. See Bonadeo v. Lujan, 2009 WL 1324119, at *6 (citing McCain v. Cahoj, 794 F.Supp. 1061, 1062 (D.Kan.1992)). As the Court has recently recognized, there is a split amongst courts whether this thirty-day removal window runs from the date the first defendant is served-the "first-served" rule-or the date the last-served defendant is served-the "last-served" rule.

Neither the Supreme Court nor the United States Court of Appeals for the Tenth Circuit ... has spoken on whether, in a case of more than one defendant, the thirty-day clock for removal begins to run when the first defendant is served or when the last defendant is served. There appears ... to be a split among the other federal courts on this issue....
A majority of judges in the District of New Mexico support the traditional view that the thirty-day removal period begins to run when service of process is accomplished on the first-served defendant. This rule is referred to as the "first-served rule." This Court, however, has concluded that the more modern, "last-served" rule is more in harmony with the language of the removal statute, and is a more fair and workable rule. Under that rule, the clock begins running on each defendant to either remove a case or join a removal petition when that defendant receives formal service of process.

McEntire v. Kmart Corp., No. CIV 09-0567 JB/LAM, 2010 WL 553443, at *4 (D.N.M. Feb. 9, 2010) (Browning, J.)(internal citations and quotes omitted). The Court follows the last-served rule.

If a defendant removes a matter to federal court, the plaintiff may challenge the removal by filing a motion to remand in federal district court. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 69, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996). The procedure for motions to remand is governed primarily by 28 U.S.C. § 1447. Grounds for remand include a lack of subject-matter jurisdiction, see 28 U.S.C. § 1447(c), or a defect in the removal procedure, see Bonadeo v. Lujan, 2009 WL 1324119, at *6 (citing McShares, Inc. v. Barry, 979 F.Supp. 1338, 1341 (D.Kan.1997)). A defect in the removal notice or any "[f]ailureto comply with the requirements of § 1446(b) constitutes a 'defect in removal procedure.' " Page v. City of Southfield, 45 F.3d 128, 131 (6th Cir.1995) (citing In re Cont'l Cas. Co., 29 F.3d 292, 294 (7th Cir.1994)). Under 28 U.S.C. § 1447(c), "[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)." 28 U.S.C. § 1447(c).

REMOVAL TO FEDERAL COURT AFTER JUDGMENT

There is some disagreement whether a defendant may remove a case to federal court after the state trial court has dismissed the state-court action, but before the expiration of the defendant's time for removal under the applicable removal statute. This situation rarely arises, because it is uncommon that a judge will dispose of a case before the defendant's thirty-day...

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