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Romero v. Knee

United States District Court, D. New Mexico

August 17, 2018

DONALD ROMERO, as parent and next friend of N.R., a minor child, Plaintiff,
v.
ERIC KNEE, THE CITY OF SANTA FE, JOHN DOE #1, JOHN DOE #2, JOHN DOE #3, JOHN DOE #4, and OTHER YET-TO-BE IDENTIFIED EMPLOYEES OR FORMER EMPLOYEES OF THE CITY OF SANTA FE, Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK SENIOR U.S. DISTRICT JUDGE

         Plaintiffs decide in which forum-state or federal-to file their cases, but defendants have the ability to remove certain types of cases from state to federal court. To remove an action, though, all defendants who had been properly joined and served at the time of removal must agree to move to the federal forum. If a single defendant does not assent to removal-for any reason, or no reason-the action will remain in state court.

         Defendant City of Santa Fe (the City) removed this case from state to federal court without obtaining the consent of co-defendant Eric Knee, who was a properly-served defendant at the time of removal. The City did not obtain Mr. Knee's consent because Plaintiff Donald Romero did not file proof of service as required by state law, so the City did not know that Mr. Knee was a properly-served defendant whose consent it needed. Regardless of the City's reason, however, the fact remains that a properly-served defendant at the time of removal did not, and does not, consent to removal. As such, the Court grants Mr. Knee's motion to remand (Doc. 9).

         BACKGROUND

         Mr. Romero brought suit in state court on behalf of his minor son, N.R., against Mr. Knee, the City, and other unidentified defendants for a sexual assault that occurred at a swimming pool. The City was served with the complaint on December 13, 2017, and Mr. Knee was served with the complaint on December 15, 2017. (Doc. 15 at 1.) Mr. Romero did not file proof of service, however, so the state court record did not reflect that he had been properly served. (See Doc. 14 at 8.)

         Five days after Mr. Knee was served, the City removed the action to this Court. (Doc. 15 at 1.) Though federal law requires the City to obtain the consent of all properly-served co-defendants before removing an action to federal court, see 28 U.S.C. § 1446(b)(2)(A), the City, relying on the state court record, did not know that Mr. Knee had been served and thus did not seek his consent.

         After the action had been removed, Mr. Knee filed an answer to Mr. Romero's complaint. (Doc. 6.) And two weeks after filing his answer, Mr. Knee sought remand to state court, arguing that removal was defective because the City had failed to secure his consent as required.

         DISCUSSION

         I. Mr. Knee did not consent to removal or waive his right to seek remand by filing his answer in this court.

         Before delving into the merits, a preliminary question is whether Mr. Knee can object to removal and seek remand. Noting that Mr. Knee filed an answer before seeking remand, the City argues that Mr. Knee's answer constituted consent to the federal forum. (Doc. 14 at 7.) The City's argument can also be framed in terms of waiver-Mr. Knee waived his right to seek remand by filing his answer in federal court.

         Procedural defects in removal-like failing to secure the consent of all defendants-can be waived. Vill. Apartments Co., L.P. v. Asset Shelters Grp., Inc., No. 1:07-CV-817 MCA/RLP, 2008 WL 11414603, at *2 (D.N.M. Apr. 29, 2008) (citing Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198, 203 (4th Cir. 2006)). Waiver can be found where a party takes affirmative action in district court. Vill. Apartments, 2008 WL 11414603, at *3 (citing Lanier v. Am. Bd. of Endodontics, 843 F.2d 901, 904 (6th Cir. 1988)). There is no bright line delineating how much affirmative action is enough to constitute waiver, but an important consideration is the nature and extent of the action, keeping in mind principles of fairness and whether the action evinces consent to the federal forum. See Id. Ultimately, “[a] district court has broad discretion in deciding whether a party waived its right to object to procedural irregularities.” Lanier, 843 F.2d at 904.

         In a case outside this district, a court found waiver of the right to seek remand when the party seeking remand “entered into stipulations, filed requests for discovery, sought to amend her complaint, filed a new lawsuit . . . in the federal court, demanded trial by jury, and proceeded with discovery” before seeking remand. Id. at 905. On the other hand, in a case in this district where the party seeking remand filed counter- and cross-claims in federal court, the court held that such action was insufficient to constitute waiver. Vill. Apartments, 2008 WL 11414603, at *3. And in another case in this district, the court ruled that a party's “willingness to proceed before a magistrate and filing of a corporate disclosure statement” did not amount to consent to removal and were not enough to waive the right to remand. See State Farm Fire & Cas. Co. v. Dunn-Edwards Corp., 728 F.Supp.2d 1273, 1278 n.19 (D.N.M. 2010).

         In this case, Mr. Knee filed an answer in this Court in which he responded to factual allegations, was silent on the issue of remand, and included a cursory statement asking the Court to dismiss the complaint. (Doc. 6 at 1-6.) Responding to factual allegations and including a brief statement seeking dismissal is par-for-the-course in a party's answer. Mr. Knee did not file a motion to dismiss or include sufficient briefing to create a realistic chance that the Court would dismiss the complaint based solely on his answer. In light of these examples of how other courts have judged affirmative actions in this context, Mr. Knee's answer appears to be less affirmative and more defensive in nature. Additionally, Mr. Knee's answer did not trigger more briefing by the parties unrelated to remand, so there is no concern that a remand would waste the parties' or Court's efforts. And Mr. Knee's filing for remand came before any adverse merits ruling by this Court, so remand would not give Mr. Knee two bites at the proverbial apple. See United States v. Nacchio, 555 F.3d 1234, 1253 (10th Cir. 2009) (“Courts are not disposed to allow litigants to have two or more bites at the proverbial apple.”) For these reasons, the Court finds that Mr. Knee's answer did not evince consent to removal or cause him to waive his objection to removal.

         II. Mr. Knee's objection defeats removal by preventing ...


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