Paschall v. Frietz

• Decision Date: 21 May 2020
• Docket Number: No. 20-cv-221 WJ/GBW,20-cv-221 WJ/GBW
• Citation: 461 F.Supp.3d 1145
• Parties: James PASCHALL, Plaintiff, v. Captain James FRIETZ, Officer Jacqueline Hernandez, and New Mexico State Police, Defendants.
• Court: U.S. District Court — District of New Mexico

461 F.Supp.3d 1145

James PASCHALL, Plaintiff,

v.Captain James FRIETZ, Officer Jacqueline Hernandez, and New Mexico State Police, Defendants.

No. 20-cv-221 WJ/GBW

United States District Court, D. New Mexico.

Filed May 21, 2020

John L. Granberg, Granberg Law Office, El Paso, TX, for Plaintiff.

Cody R. Rogers, Mark D. Standridge, Jarmie & Rogers, P.C., Las Cruces, NM, for Defendants.

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO REMAND, DENYING PLAINTIFF'S REQUEST FOR ATTORNEY'S FEES AND DENYING WITHOUT PREJUDICE DEFENDANTS’ REQUEST FOR FEES

WILLIAM P. JOHNSON, CHIEF UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on Plaintiff's Motion to Remand, filed April 7, 2020 (Doc. 10 ). Having reviewed the parties’ pleadings and the applicable law, the Court finds that Plaintiff's motion is not well-taken and, therefore, is denied.

BACKGROUND

On July 26, 2019, Plaintiff filed a complaint in the Third Judicial District Court, County of Dona Ana in Las Cruces, New Mexico, alleging that Defendants violated his rights under "the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and under the laws of the State of New Mexico." Doc. 1-1 ("the Complaint"). Defendants removed the case to federal court on March 11, 2020 based on federal question jurisdiction.

The Complaint describes a rather strange turn of events. Plaintiff alleges that on July 25, 2017, he showed up for an appointment he had made with the New Mexico State Police ("NMSP") office in Las Cruces for a "level 3 VIN inspection" as part of registration renewal for a 2007 Ford F-450 truck, as directed by the New Mexico Department of Motor Vehicles office in Las Cruces. Plaintiff claims that Defendants falsely imprisoned him by preventing him from leaving the station for eight hours even after he presented all the necessary documentation to the officers proving that he was the bona fide purchaser of the truck. Compl., ¶¶ 9-16. Plaintiff was eventually told he was free to go but that his truck had to stay another 72 hours, after which he could return to retrieve the vehicle. When Plaintiff returned for the truck, Defendant Frietz told him he was keeping the truck "for his department" and that Plaintiff would "never see his vehicle again." Compl. ¶¶ 16-18. Defendants allowed Plaintiff to drive the Ford back to his home to unload his personal belongings from the truck. Defendant Hernandez and other officers, wearing New Mexico State Police uniforms and driving marked patrol units, drove with Plaintiff to his residence located in El Paso, Texas. Hernandez entered Plaintiff's residence without his consent and used her lapel camera to record scenes from inside the home. Plaintiff asserts that Hernandez and her colleagues were operating outside of their jurisdiction. Compl., ¶2.

Plaintiff seeks remand of the case on the ground that all parties had actual notice by October 24, 2019 and so Defendant's removal on March 11, 2020 is untimely under the 30-day window for removal under 28 U.S.C. § 1446(b)(1). Defendants contend that Plaintiff failed to complete service on all three Defendants until February 10, 2020 and thus removal on March 11, 2020 was timely.

DISCUSSION

"[T]here is a presumption against removal jurisdiction." Laughlin v. Kmart Corp. , 50 F.3d 871, 873 (10th Cir. 1995). "The removing party has the burden to show that removal was properly accomplished." McShares, Inc. v. Barry , 979 F. Supp. 1338, 1342 (D. Kan. 1997). Under Section 1446(b)(1), Title 28, United States Code :

The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

An untimely removal notice constitutes a defect in removal procedure warranting remand. McShares, Inc. , 979 F. Supp. at 1341.

In the past, courts have held that formal service was not required to begin the 30–day period. Furness v. Mills , No. 2:12-CV-00256 DN, 2013 WL 3995258, at *1 (D. Utah Aug. 5, 2013), as corrected (Aug. 9, 2013). However, in Murphy Bros. v. Michetti Pipe Stringing, Inc. , the United States Supreme Court stated unambiguously that the thirty day time limit for removal does not begin to run until after formal service of the complaint is made, despite the plain language of the statute ("through service or otherwise"). 526 U.S. 344, 351, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999).¹ In that case, the court held that a defendant's time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, "through service or otherwise," after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service. 526 U.S. at 348, 119 S.Ct. 1322 ("Unless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights.").

I. Removal is Timely Under 28 U.S.C. § 1447

Plaintiff contends that both individual defendants received actual notice by personal service on each of them, and that the "state agency" (referring to NMSP) received "actual notice by receipt by the head of the Las Cruces office of the New Mexico State Police." Doc. 10 at 2. The exhibits attached to the Notice of Removal indicate that Defendant Frietz was personally served a copy of the summons and complaint on September 27, 2019 (Doc. 1-2 at 13) and Defendant Hernandez was personally served a copy of the summons and complaint on October 25, 2019 (id. at 17).² Plaintiff explains that "a second copy of the summons and complaint was delivered to Captain James Frietz, the person in charge of the Las Cruces office of the New Mexico State Police on September 27, 2019," obviously intending for that process to suffice as service on NMSP. (Doc. 10 at 1). On the return of service for "New Mexico State Police, Defendant," the process server checked a box indicating that "James Fritze" [sic], "Captain of NMSP" was provided a copy of the summons and complaint. Doc. 1-2 at 21. Based on these returns, Plaintiff claims that all parties had "actual notice" by late October 2019, making the March 11, 2020 Notice of Removal untimely by several months.

On February 10, 2020, Plaintiff mailed a copy of the Summons to the New Mexico Attorney General's Office regarding this litigation. Doc. 1-2 at 47-49. Defendants claim that Plaintiff mailed the summons but not the complaint. See Ex. C (Doc. 12-3 at 1) (internal memorandum, forwarded to the General Counsel to the New Mexico Attorney General by the Litigation Division). However, the Affidavit of Service signed by Plaintiff's process server states that he served a "Summons with a copy of Complaint, Jury Demand and Order Requiring Scheduling Reports" on the Office of the Attorney General in Santa Fe on February 10, 2020 and that it was "signed for...." Doc. 1-2 at 49.

Defendants contend that NMSP has never been served in accordance with state law and that service on the individual defendants was incomplete until February 10, 2020.

A. Service on NMSP Was Not Timely or Complete

Plaintiff admits that NMSP is a state agency ("[t]he New Mexico State Police is an agency of the State of New Mexico." Doc. 1-1, ¶8 (Compl.). The NMSP is a division of the New Mexico Department of Public Safety ("DPS"), which in turn is an executive cabinet department of the State of New Mexico. NMSA 1978, § 9-19-4 and § 9-19-4(A) (2015) ; see also Roybal-Mack v. New Mexico Dep't of Pub. Safety , 286 F. Supp. 3d 1226, 1238 (D.N.M. 2017) (noting that DPS was statutorily created in the "executive branch" of state government, with various subdivisions within that department, including the NMSP). The administrative head of the department is the Secretary of Public Safety, who serves in the Governor's executive cabinet. NMSA 1978, § 9-19-5(A) (1987). The current Secretary of Public Safety for the State of New Mexico is Mark R. Shea.³

Under Fed. R. Civ. P 4(j), a state or local government entity that is subject to suit must be served by (a) delivering a copy of the summons and of the complaint to its chief executive officer or (b) serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant. Because this case originated in New Mexico state court, New Mexico rules of service apply, namely: NMSA 1978, § 38-1-17 (1970) and Rule 1-004(H) NMRA.

To serve NMSP, which is an agency of the state, service must be made on "the head of the branch, agency, bureau, department, commission or institution and on the attorney general." Section 38-1-17(C) (emphasis added).⁴ Service of process "on the Attorney General, agency, bureau, department or head thereof" may be made by handing a copy of the summons and complaint to him personally or to his receptionist, or to his head or chief operating officer. Section 38-1-17(H) ; Rule 1-004(H)(1)(e) NMRA. A cabinet secretary , a department, bureau, agency or commission director or executive secretary "shall be considered as the chief operating officer," see NMRA 1-004(H)(1)(e) (emphasis added), and an executive secretary is also "considered as the head," see § 38-1-17(H).

Plaintiff did not serve Cabinet Secretary Shea with process for NMSP at DPS's central office in Santa Fe under any of the options set out by New Mexico's statutes and rules. Nor does Plaintiff argue otherwise, since he has not filed a reply to Defendants’ motion to remand. See D.N.M.LR-Civ. 7.1(b) (failure to serve a reply in support of a motion within the time prescribed for doing so constitutes consent that briefing on the motion is...