United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S
MOTION TO REMAND
MATTER comes before the Court upon Plaintiff's Motion for
Remand to State Court and for Attorney Fees (hereinafter the
“Motion”), filed September 3, 2017 (Doc.
9). Having reviewed the parties' briefs and
applicable law, the Court finds that Plaintiff's motion
is not well-taken and, therefore, is denied.
in November 2013, Plaintiff was placed on probation and
parole, and placed at the New Mexico Women's Recovery
Academy (the “Facility”). She is suing Defendant
under 42 U.S.C. § 1983 for violating her constitutional
rights. Defendant was a probation officer employed by the New
Mexico Department of Corrections, and supervised residents at
the Facility. Defendant allegedly sexually assaulted
Plaintiff from June 2014 to September 2014. Defendant
resigned in November of 2014 after the New Mexico Department
of Corrections had begun an internal investigation.
filed her complaint in state court on April 28, 2017. In the
Motion, Plaintiff admits that she was unable to serve the
summons and complaint on Defendant. However, she served the
New Mexico Attorney General on May 9, 2017. On June 8, 2017,
New Mexico's Risk Management Department emailed the
complaint to Attorney Nancy Long of the firm of Long, Komer
& Associates, P.A. as proposed counsel. Attorney Long
then performed a conflicts check. Attorney Long was hired for
Defendant by the State of New Mexico. On June 22, 2017,
Attorney Long acting on behalf of the Defendant filed the
necessary pleadings in order to remove this case to federal
court. It is undisputed that she was unable to get in contact
with Defendant until well after the briefing on this motion
to remand was complete. The summons was addressed as follows:
Erlinda Flansas c/o Office of the Attorney General Litigation
Division PO Drawer 1508 Santa Fe, NM 87504
seeks to remand this case to state court on the ground that
removal was untimely. The motion to remove was filed on June
22, 2017, 44 days after the summons and complaint was served
on the attorney general. In the Motion, Plaintiff admits not
serving Defendant prior to removal, but appears to argue that
service on the attorney general, combined with Ms. Long's
receipt of the complaint, is sufficient to trigger the
removal period under 28 U.S.C. § 1446(b). Defendant
contends that serving only the attorney general is improper;
therefore, the thirty day removal period had not yet run.
Court asked the parties to submit supplemental briefs on
whether Ms. Long appropriately removed this case, when she
was apparently not in contact with the Defendant and could
not obtain her authorization or consent (Doc.
22). The parties submitted their briefs on October
30, 2017 (Docs. 24, 25). Ms. Long also filed
a Certificate of Coverage issued by the State of New Mexico,
which provided that the Public Liability Fund would pay the
liabilities for covered parties for certain covered claims.
The Certificate further provided that the Director of New
Mexico's Risk Management Division has the right to
control the defense or settlement of a covered claim.
Court was notified that new developments in the case may moot
out some issues that were set for hearing. On November 30,
2017, the Court ordered the parties to submit a joint status
report identifying by specific reference to docket number and
page number which issues were moot, and which issues still
remained (Doc. 34).
briefing on the motion to remand was complete, Defendant
contacted her counsel and is now aware of her legal
representation representation and that this case was removed
to federal court. According to the joint status report,
Defendant received a copy of the complaint by mail, but there
was no assertion that she was served via mail, or when she
was served. Ms. Long executed a waiver of service on
Defendant's behalf on November 29, 2017. Plaintiff filed
this waiver of service on the docket on December 1, 2017
(Doc. 35). The Court takes this as an
admission that service was not completed until November 29,
notice of removal must be filed within “thirty days
after 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)
(emphasis added). A defect in the removal procedure is one of
two grounds for remand specified in 28 U.S.C. § 1447(c).
An untimely removal notice constitutes a defect in removal
procedure warranting remand. McShares, Inc. v.
Barry, 979 F.Supp. 1338, 1341 (D. Kan. 1997).
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)
(citations omitted). “Courts should interpret the
removal statute narrowly and presume that the plaintiff may
choose his or her forum.” Doe v. Allied-Signal,
Inc., 985 F.2d 908, 911 (7th Cir. 1993). “[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,
979 F.Supp. at 1342.
Service Was Not Proper under New Mexico Law, thus the Removal
Period Was Not Triggered.
admits that Defendant was not personally before this case was
removed to federal court. SeeDoc. 9, p.
1. It does not appear that any of the service rules
on an individual were followed. See, e.g., Rule
1-004(F) NMRA; Edmonds v. Martinez,146 N.M. 753,
215 P.3d 62, 66 (N.M. Ct. App. 2009) (failure to employ all