Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nelson v. City of Las Vegas

United States District Court, D. New Mexico

July 18, 2018

DENNIS B. NELSON, Plaintiff,


         This 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.


         On 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.

         On July 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.

         On October 4, 2017, Nelson filed his motion to remand and request for attorney's fees. Doc. 9.


         Defendants 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).

         Under 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)).

         In 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.

         The 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).


         Nelson 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 remove.

         I. Comparing the Original and Amended Complaints

         Apparently 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.