United States District Court, D. New Mexico
DONALD ROMERO, as parent and next friend of N.R., a minor child, Plaintiff,
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
C. BRACK SENIOR U.S. DISTRICT JUDGE
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.
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).
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
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.
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.
Mr. Knee did not consent to removal or waive his right to
seek remand by filing his answer in this court.
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.
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.
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).
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
Mr. Knee's objection defeats removal by preventing