United States District Court, D. New Mexico
DENNIS B. NELSON, Plaintiff,
CITY OF LAS VEGAS, Defendant.
MEMORANDUM OPINION AND ORDER OF REMAND
case is before the Court on Plaintiff's Motion to Remand
and Request for Attorney's Fees [Doc. 9]. The question
raised by the motion is whether a defendant who fails to
remove a case after the plaintiff has pled a federal claim,
but instead opts to litigate and file a motion for summary
judgment in state court, may have a second opportunity to
remove after the plaintiff amends his complaint to include a
request for certification of a collective action based on
different facts and at the risk of a larger damage award
against the defendant. After reviewing the motion, response,
reply, and relevant authorities and precedents, the Court
concludes that the right to removal cannot be revived under
the circumstances presented here. As a result, the motion to
remand will be granted.
AND PROCEDURAL BACKGROUND
September 4, 2015, Plaintiff Dennis Nelson
(“Nelson”) filed his original, pro se complaint
against his former employer, Defendant City of Las Vegas
(“the City”) in the Fourth Judicial District
Court, County of San Miguel, State of New Mexico. See
Complaint, Doc. 4-1, Ex. 3 at 8 of 51. Nelson alleged that
the City violated the Fair Labor Standards Act
(“FLSA”) by failing to properly pay him and other
police officers for overtime. Id., Ex. 3 at 10 of
51. The complaint asserts these allegations, but does not
purport to make a claim on behalf of anyone besides Nelson.
The City filed an answer to the complaint, see Doc. 4-2, Ex.
34 at 32 of 50, as well as a “motion for judgment on
the pleadings for failure to state a claim upon which relief
can be granted, ” see Defendants' Motion for
Judgment on the Pleadings, Doc. 4-3, Ex. 46 at 9 of 47, in
which it sought dismissal of Nelson's FLSA claims. Then
Nelson retained counsel, who moved to consolidate
Nelson's FLSA case with a whistleblower complaint Nelson
had filed pro se against the City on May 27, 2016.
28, 2017, the state court granted the motion to consolidate.
See Doc. 4-3., Ex. 50 at 23 of 47. That same day, Nelson
filed a motion for leave to file an amended complaint. Doc.
4-3, Ex. 51, at 26 of 47. The state court granted that motion
as well. Doc. 4-3, Ex. 52 at 45 of 47. On August 30, 2017,
Nelson filed his amended complaint, Doc. 4-4, Ex. 53 at 1 of
34, which reasserted Nelson's FLSA claim but set forth no
new federal cause of action. The amended complaint did add a
request that the court certify a class action for
Nelson's New Mexico Minimum Wage Act claim, as well as a
collective action for his federal FLSA claim and his breach
of contract claim. Id. On September 8, 2017, the
City filed its Notice of Removal [Doc. 1] in this federal
district court. The City's notice of removal does not set
forth the procedural history of this case and states merely
that this Court has original, federal question jurisdiction
under 29 U.S.C. § 216(b) and 28 U.S.C. § 1331 over
Nelson's FLSA claim and supplemental jurisdiction over
his state law claims. Id. It appears that the
parties have not conducted discovery or litigation on the
merits of the amended complaint.
October 4, 2017, Nelson filed his motion to remand and
request for attorney's fees. Doc. 9.
may remove a civil action to federal court where the district
court would have original jurisdiction over the case.
Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d
1072, 1076 (10th Cir. 1999) (quoting Caterpillar Inc. v.
Lewis, 519 U.S. 61, 68 (1996)). Nonetheless, a
presumption against removal jurisdiction exists, and federal
courts “are to ... narrowly [construe removal statutes]
in light of our constitutional role as limited
tribunals.” Pritchett v. Office Depot, Inc.,
420 F.3d 1090, 1095 (10th Cir. 2005)(citing 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 defendant seeking to remove an action to federal court
bears the burden of establishing the district court's
subject-matter jurisdiction over the case. See Montoya v.
Chao, 296 F.3d 952, 955 (10th Cir. 2002).
the well-pleaded complaint rule, “a suit arises under
federal law ‘only when the plaintiff's statement of
his own cause of action shows that it is based' on
federal law.” Devon Energy Prod. Co. v. Mosaic
Potash Carlsbad, Inc., 693 F.3d 1195, 1202 (10th Cir.
2012) (citations omitted). Thus, a federal defense, for
instance, typically cannot satisfy the well-pleaded complaint
rule, and thus cannot create federal question jurisdiction.
Id. at 1204. “[T]hough a federal cause of
action is not a necessary predicate for federal-question
jurisdiction, a federal question apparent on the face of the
well-pleaded complaint is indispensable.” Nielsen
v. Archdiocese of Denver, 413 F.Supp.2d 1181, 1185 (D.
Colo. 2006) (citing Rice v. Office of Servicemembers'
Group Life Ins., 260 F.3d 1240, 1245 (10th Cir. 2001)).
civil actions, 28 U.S.C. § 1446(b) generally controls
the time for removing cases from a state court to a federal
court. It requires that the notice of removal of a civil
action or proceeding 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 the action or proceeding is based, or
within 30 days after the service of the summons upon the
defendant when the initial pleading has been filed in state
court and is not required to be served on the defendant,
whichever period is shorter. “The purpose of the
provision is to prescribe a uniform time frame, at the
beginning of immediately removable actions, within which
removal will be effected. The goal is early resolution of the
court system in which the case will be heard.” 14B Fed.
Prac. & Proc. Juris. § 3731 (4th ed.). Failure to
file notice of the removal within the time set forth in
§ 1446(b) constitutes a defect in removal procedure,
warranting a remand. Huffman, 194 F.3d at 1077.
right to remove a case to federal court may be waived by not
acting within the statutory removal deadlines. See
Huffman, 194 F.3d 1072, 1077 (10th Cir. 1999). In
addition, a defendant waives removal by taking some
substantial offensive or defensive action in the state court
action-which includes filing a motion to dismiss or a motion
for summary judgment- indicating a willingness to litigate in
that tribunal before filing a notice of removal with the
federal court. City of Albuquerque v. Soto Enters.,
Inc., 864 F.3d 1089, 1098 (10th Cir. 2017).
argues that the City's removal of the case in September
of 2017 is untimely, as it was clear from the face of the
original complaint-filed two years earlier in September of
2015-that Nelson was bringing a claim under the FLSA. This is
further supported, Nelson argues, by the fact that the City
filed a motion in state court arguing that his FLSA claims
were not cognizable, thereby litigating the merits of the
federal claim in state court. Nelson contends that having
waived its opportunity to remove the case at the outset, the
City may not get a “second bite at the apple” at
a later stage of the case. In response, the City contends
that the amended complaint is so different from the original
that it constitutes an entirely new claim, and that under the
revival exception, it should have a second opportunity to
Comparing the Original and Amended Complaints
recognizing that it did not remove the case in a timely
fashion with regard to the federal question appearing on the
face of the original complaint, the City argues that its
right to remove to federal court was “revived” by
the filing of Nelson's amended complaint, which it
contends “so changed the character of the litigation as
to make it a substantially new suit.” Doc. 10 at 1 and
2. This fundamental change, the City argues, stems from the
fact that Nelson added a collective action component to his