United States District Court, D. New Mexico
MICHAEL J. ZAMBRANO, Plaintiff,
THE NEW MEXICO CORRECTIONS DEPARTMENT, CORIZON HEALTH, INC., CORRECTIONS OFFICER LAWRENCE ARTIAGA, CORRECTIONS OFFICER MIKE HOHMAN, SERGEANT MARTIN JARAMILLO, DR. LISA STABER, AND DR. TIMOTHY TRAPP, each in their individual and official capacities. Defendants.
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S
MOTION TO REMAND AND DENYING AS MOOT DEFENDANTS' MOTIONS
MATTER is before the Court on Plaintiff's Motion to
Remand, filed on April 28, 2017 (Doc. 10), Defendants'
Motion to Dismiss Counts I-VII and XI-XV, filed on April 19,
2017 (Doc. 5), and Defendant Hohman's Motion to Dismiss
Counts I-III and XI-XV, filed on May 1, 2017 (Doc. 14).
Having reviewed the relevant pleadings and the applicable
law, the Court finds Plaintiff's Motion is well-taken,
and is therefore GRANTED, and this action is REMANDED to
state court. Additionally, given the Court's remand
order, the Motions to Dismiss are DENIED AS MOOT.
March 17, 2017, Plaintiff Michael J. Zambrano, a former
inmate of the New Mexico Corrections Department (NMCD), filed
an Amended Complaint for Civil Rights Violations and Tort
Claims in the First Judicial District of New Mexico.
See Doc. 1-1. Plaintiff alleges that his rights
under the New Mexico Tort Claims Act, New Mexico common law,
the New Mexico Constitution and the United States
Constitution were violated by NMCD and Corizon Health, Inc.
(Corizon) and their employees because he was the victim of a
“rough ride, ” which caused injuries, and
subsequent negligent health care related to those injuries.
See Id. Plaintiff brought § 1983 claims and New
Mexico state law claims against Defendants related to these
violations. Plaintiff named seven Defendants in total: NMCD,
Corizon, Corrections Officer Lawrence Artiaga, Corrections
Officer Mike Hohman, Sergeant Martin Jaramillo, Dr. Lisa
Staber, and Dr. Timothy Trapp. See id.
the seven Defendants have been served with the Amended
Complaint. On March 22, 2017, Plaintiff served NMCD and
Defendant Artiaga. On March 24, 2017, Plaintiff served
Defendant Hohman. And most recently on March 27, 2017,
Plaintiff served Corizon and Defendant Jaramillo.
See Docs. 10-1, 10-2, 10-3, and 10-5. Defendants Dr.
Staber and Dr. Trapp have not yet been served.
April 17, 2017, NMCD, Artiaga, and Jaramillio filed a joint
Notice of Removal based on Plaintiff's claims arising out
of the United States Constitution. See Doc. 1. On
April 21, 2017, Corizon filed its Notice of Consent to
Removal. Doc. 6. Defendant Hohman submitted his notice of
consent on April 28, 2017. Doc. 13.
“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). A notice
of removal must be filed within thirty days after receipt by
the defendant of a copy of a pleading or other paper from
which it may first be ascertained that the case is one which
is removable. 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). A notice of removal must be filed
within thirty days after receipt of service by the removing
defendant. See 28 U.S.C. §§ 1446(b)(1) and
failure of one defendant to join in the notice renders the
removal notice procedurally defective, which requires that
the district court remand the case.” Brady v.
Lovelace Health Plan, 504 F.Supp.2d 1170, 1172-73
(D.N.M.2007) (quoting Cornwall v. Robinson, 654 F.2d
685, 686 (10th Cir. 1981)). This rule is commonly known as
the “unanimity rule.” See Brady, 504
F.Supp. at 1173.
Court follows the “last-served rule” where
“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.” Sawyer v. USAA
Ins. Co., 839 F.Supp.2d 1189, 1208 (D.N.M. 2012)
(quoting McEntire v. Kmart Corp., No. 09-0567, 2010
WL 553443, at *4 (D.N.M. Feb. 9, 2010)); See also Nieto
v. Univ. of N.M., 727 F.Supp.2d 1176, 1181 (D.N.M. 2010)
(“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.”); Lucero v. Ortiz, 163
F.Supp.3d 920, 931 (D.N.M. 2015) (“The last-served rule
provides that each defendant has a right to remove within
thirty days of service.”). A defendant's consent to
removal is not necessary where he or she has not been served
at the time another defendant filed its notice of removal.
See Sheldon v. Khanal, 502 Fed.Appx. 765 (10th Cir.
courts are courts of limited jurisdiction; thus, there is a
presumption against removal jurisdiction, which the defendant
seeking removal must overcome. See Laughlin v. Kmart
Corp., 50 F.3d 871, 873 (10th Cir. 1995). “It is
well-established that statutes conferring jurisdiction upon
the federal courts, and particularly removal statutes, are to
be narrowly construed in light of our constitutional role as
limited tribunals.” Pritchett v. Office Depot,
Inc., 420 F.3d 1090, 1095 (10th Cir. 2005) (quoting
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.
100, 108-09 (1941); United States ex rel. King v.
Hillcrest Health Ctr., 264 F.3d 1271, 1280 (10th Cir.
2001)). “All doubts are to be resolved against
removal.” Fajen v. Found. Reserve Ins. Co.,
683 F.2d 331, 333 (10th Cir. 1982). “The burden of
establishing subject-matter jurisdiction is on the party
asserting jurisdiction.” Montoya v. Chao, 296
F.3d 952, 955 (10th Cir. 2002).
contends the multiple Defendants in this matter failed to be
unanimous in removal, so the case must be remanded to the
First Judicial District of New Mexico. Plaintiff argues under
the “last-served defendant rule” adopted by this
district, as well as the rule of unanimity, all Defendants
who have been served were required to file written consent to
the removal of this action by April 26, 2017 (thirty-days
after Defendants Corizon and Jaramillo were served on March
27, 2017). Plaintiff states that as of April 28, 2017,
Defendant Hohman had not filed consent to the removal of this
action so the matter must be remanded to state court.
respond that Defendant Hohman consented to removal on April
28, 2017, only eleven days after NMCD Defendants filed the
Notice of Removal. See Docs. 1 and 13. Further,
there is no requirement in 28 U.S.C. § 1446(b)(2)(A)
that when a notice of removal has been filed by one
defendant, the other defendants must join or consent within
thirty days of having been served. The statute that does
contain a thirty-day window, 28 U.S.C. § 1446(b)(2)(B),
applies by its explicit terms to a notice of
removal, not a notice of consent. In this
case, Defendants maintain, NMCD, Artiaga, and Jaramillo
timely filed their Notice of Removal and eleven days later,
Defendant Hohman filed his Notice of Consent to Removal.
See Docs. 1 and 13.
Court finds that the thirty-day removal window runs from the
date the last defendant is served. See Nieto, 727
F.Supp. at 1181. The last-served defendant rule allows each
defendant in a multi-defendant suit thirty days from the date
the last defendant is served to file a notice of removal.
See Moreno v. Taos Cty. Bd. of Comm'rs, 778
F.Supp.2d 1139, 1142 (D.N.M. 2011). See also Doe v.
Sunflower Farmers Markets, Inc., 831 F.Supp.2d 1276,
1279 (D.N.M. 2011) (quotation and quotation marks omitted)
(“Under the last-served-defendant rule, the thirty-day
period for removal begins for a particular defendant on the
date it was served, as long as the previously served
defendants consent…'). The last-served Defendants
here, Corizon and Jaramillo, were served on March 27, ...