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Armijo v. Flansas

United States District Court, D. New Mexico

December 4, 2017



         THIS 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.


         Beginning 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.

         Plaintiff 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

         Plaintiff 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.

         The 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.

         The 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).

         After 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.[1] 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, 2017.


         A 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).

         “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) (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.

         I. Service Was Not Proper under New Mexico Law, thus the Removal Period Was Not Triggered.

         Plaintiff 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 ...

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