Soto v. Trejo
| Docket Number | 1:22-CV-00740 DHU/LF |
| Decision Date | 02 August 2023 |
| Parties | SALVADOR SOTO, Plaintiff, v. ISMAEL TREJO, Executive Director of the New Mexico Racing Commission, in his individual capacity; LEASA JOHNSON, Investigator for the New Mexico Racing Commission, in her individual capacity; THE BOARD OF STEWARDS OF RUIDOSO DOWNS, in their individual capacities; VIOLET SMITH, Steward, in her individual capacity; THE BOARD OF STEWARDS AT ZIA PARK, in their individual capacities; and RON WALKER, Steward, in his individual capacity, Defendants. |
| Court | U.S. District Court — District of New Mexico |
Before the Court is Plaintiff's Motion to Remand and For Costs and Memorandum in Support (“Motion”) (Doc. 10). Having considered the parties' briefing and the applicable law, the Court finds the Motion is not well-taken and is therefore DENIED.
The facts relevant to the Motion are, in large part, uncontested. Plaintiff filed this lawsuit in New Mexico District Court on May 18, 2020. (Doc. 1-3 at 1-34). In his original complaint Plaintiff brought claims under 42 U.S.C. § 1983 against the New Mexico Racing Commission, Ismael Trejo (in his official capacity), Leasa Johnson (in her official capacity) the Board of Stewards of Ruidoso Downs (in their official capacities), and the Board of Stewards at Zia Park (in their official capacities) (hereinafter collectively referred to as the “original defendants”). See id. There is no dispute that each of the original defendants were properly served in accordance with the State of New Mexico Rules of Civil Procedure and that none of them sought to remove the action to federal court pursuant to 28 U.S.C. §1446(b) within thirty days of receipt of the original complaint.
In state court, Plaintiff filed a motion for judgment on the pleadings, to which the original defendants responded. (Doc. 1-3 at 41-44, 45-48). Plaintiff also noticed the deposition of a witness and served written discovery requests upon the original defendants. See Motion at 4. According to Plaintiff, the original defendants participated in the deposition of the witness and responded to the written discovery requests propounded by Plaintiff. See id. On September 2, 2022, the original defendants filed a motion to dismiss the action pursuant to New Mexico Rule of Civil Procedure 1-012(B)(6) NMRA, arguing that Plaintiff could not bring his claim for damages under 42 U.S.C. § 1983 against state agencies and state employees in their official capacity. (Doc. 1-3 at 130-135). In response to the issues raised in the dispositive motion, Plaintiff filed an amended complaint in the state action. (Doc. 1-3 at 213-270). In his amended complaint, Plaintiff removed the New Mexico Racing Commission as a defendant and stated causes of action against the remaining original defendants in their individual, rather than official capacities. (Doc. 1-3 at 213). Plaintiff also added two new defendants - Violet Smith, in her individual capacity, and Ron Walker, in his individual capacity, and asserted federal claims against both of them. See id. Just as there is no dispute that the original defendants did not remove this action within the time frame allowed by the federal removal statute, the parties do not contest that the newly added defendants, Violet Smith and Ron Walker, timely filed their Notice of Removal after being served with the amended complaint. (Doc.1). The original defendants each consented to the removal. (Doc. 1 at 4).
Plaintiff now moves the Court to remand the action back to state court, arguing that the removal of this action by Defendants Smith and Walker was improper for several reasons. First, Plaintiff takes the position that even though he brings federal claims against these newly added defendants under the federal civil rights act, 42 U.S.C. § 1983, the Notice of Removal by these defendants was untimely, requiring remand in this case. Motion at 9-10. According to Plaintiff, because the original defendants did not remove within thirty days after service of Plaintiff's original complaint, “the time for removal has . . . expired for both [the] original Defendants and any new defendants.” Id. Relying on Elisa C. v. New Mexico Dep't of Health, 1:05-CV-209 BB/WDS (D.N.M. June 28, 2005), a 2005 decision from this district, Plaintiff argues that the thirty-day period for removal began when the first defendant was served and that subsequently added defendants do not have a right to remove. See id. at 12. Citing to a number of decisions from this district, including Carlton v. City of Albuquerque, No. 1:03-CV-1018 MV/RLP (D.N.M. Jan. 30, 2004), Meraz v. Lee, No. 1:03-CV-424 WJ/KBM (D.N.M. June 17, 2003), and Starko, Inc. v. New Mexico Human Svcs. Dep't, No 1:01-CV-268 JP/WWD (D.N.M. June 21, 2001), Plaintiff asserts that this “first-served” rule applies and the thirty-day removal period under 28 U.S.C. § 1446(b) is not reviewed or extended by the addition of new defendants especially when federal claims already exist in the case. Motion at 11. Moreover, states Plaintiff, as determined in Starko, because the original defendants in this matter failed to remove the action initially, even though the case was removable at that time, they could not consent to removal two years later after participating in state court litigation. See id. at 12.
Defendants respond by arguing that when the new defendants were added in the amended pleading after the time for removal by the original defendants had expired, the new defendants had thirty days from the time they were served with the amended complaint to remove the case to federal court, which they did. Defendants' Response to Motion to Remand at 4 (Doc. 14) (“Response”). Defendants take the position that the Court should not apply the “first-served defendant” rule advocated by Plaintiff, but rather the “last-served defendant” rule which provides that a later served defendant has 30 days from the time it receives the complaint (or amended complaint) to remove an action to federal court even if earlier named defendants did not choose to remove. See id. at 3-5. According to Defendants, the “last-served defendant” rule is the better approach because not allowing a later served defendant to remove “would inequitably deprive it of its removal rights.” id. at 3 (quoting Fitzgerald v. Bestway Servs., 264. Supp. 2d 1311, 131617 (N.D. Ala. 2003)). Moreover, assert Defendants, in Elevario v. Hernandez, No. 10-cv-0015 RB/WDS, 2010 U.S. Dist. LEXIS 155392 (D.N.M. April 30, 2010), a court in this district applied the “last-served defendant” rule in denying remand, noting that the United States Supreme Court had “relaxe[d]d [its] prior strict constructionist approach to removal statutes.” id. at *5 (citing Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 244, 348 (1999)). Thus, state Defendants, the removal by the newly added defendants was timely and proper and therefore the Court should deny the motion to remand and Plaintiff's request for fees.
In reply, Plaintiff states that Defendants ignore the plain language of 28 U.S.C. § 1446(b), which provides that only when an action is not removable initially may a defendant seek to remove more than 30 days after service. Reply in Support of Plaintiff's Motion to Remand at 1-2 (Doc. 17). In this case, points out Plaintiff, the original complaint was removable and yet the original defendants chose not to remove within 30 days of service. See id. at 3. According to Plaintiff, the original defendants could not have consented to the removal in this action because they waived that right by participating in the State court action. See id. Finally, Plaintiff acknowledges the holding in Elevario, but argues that this matter is more closely analogous to the case in Starko, where the Court found the “first-served defendant” rule more applicable in a case where the first-served defendants waived their right to remove the case and then, years later, an amended complaint adding additional defendants was filed. See id. at 4.
This Court has original jurisdiction over claims brought pursuant to 42 U.S.C. § 1983. See 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States”). Generally, pursuant to the federal removal statute, “any civil action brought in a State Court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, 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 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.” 28 U.S.C. §1446(b). “When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A).
“[B]ecause the jurisdiction of federal courts is limited, there is a presumption against our jurisdiction, and the party invoking federal jurisdiction bears the burden of proof.” Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012 1016 (10th Cir. 2013). “Removal statutes are to be strictly construed, [ ] and all doubts are to be resolved against removal.” Fajen v. Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107-09 (1941)). A...
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