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United States v. Carrillo

United States District Court, D. New Mexico

April 30, 2019

STATE OF NEW MEXICO ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, MARIA MORALES, DIEDRE MALLON, SHONDREA PERDUE, ASHLEY WILLIAMS, FNU CASATO, CYNTHIA TESSMAN, SASHA INMAN, RANEA RICHARDS CHARNEY, JULIE PARRA, WILLIAM PARNELL, and MARY DARKANGELES, Plaintiffs, [1]
v.
DESTINEE CARRILLO, Defendant.

          Cynthia Tessman Davis & Pierce, PC Attorneys for Plaintiff Children, Youth and Families Department

          Destinee Carrillo Albuquerque, Defendant pro se

          MEMORANDUM OPINION AND ORDER OF REMAND

         THIS MATTER comes before the Court on the Defendant's Notice of Removal, filed January 17, 2019 (Doc. 1)(“Removal Notice”). Defendant Destinee Carrillo appears pro se. For the reasons set out below, the Court will remand the case for lack of subject-matter jurisdiction.

         PROCEDURAL BACKGROUND

         Carrillo filed her Removal Notice on a form “Civil Rights Complaint Pursuant to 42 U.S.C. § 1983.” Carrillo states: “I am requesting that my pending case with state jurisdiction to be removed and heard before a judge in federal court. The State of NM CYFD is not abiding by their own procedures or state law.” Removal Notice at 2. The remainder of the Removal Notice alleges facts related to the state court case, and asserts federal constitutional and federal and state statutory violations. See Removal Notice at 2-6. The Removal Notice does not: (i) allege a federal question on the face of the underlying complaint; (ii) identify the state court from which the case has been removed; (iii) indicate that the Removal Notice was filed within thirty days from the date when the case qualifies for federal jurisdiction; (iv) contain a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon Carrillo; or (v) indicate that Carrillo gave written notice of the removal to all adverse parties and filed a copy of the Removal Notice with the clerk of the state court.

         LAW REGARDING REMOVAL

         “If a civil action filed in state court satisfies the requirements for original federal jurisdiction, the defendant may invoke 28 U.S.C. § 1441(a) to remove the action to the federal district court ‘embracing the place where such action is pending.'” Thompson v. Intel Corp., No. CIV 12-0620 JB/LFG, 2012 WL 3860748, at *4 (D.N.M. Aug. 27, 2012)(Browning, J.)(quoting 28 U.S.C. § 1441(a)). See Huffman v. Saul Holdings Ltd. P'ship., 194 F.3d 1072, 1076 (10th Cir. 1999). Defendants may remove a civil action to federal court where the district court would have original jurisdiction over the case based upon diversity of citizenship. See Huffman v. Saul Holdings Ltd. P'ship., 194 F.3d at 1076 (citing Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996)). Nonetheless, federal courts “are to . . . narrowly [construe removal statutes] in light of our constitutional role as limited tribunals.” Pritchett v. Office Depot, Inc., 404 F.3d 1090, 1095 (10th Cir. 2005)(citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941)). See 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).

         1. The Presumption Against Removal.

         Federal courts are courts of limited jurisdiction; thus, there is some measure of a presumption against removal jurisdiction which the defendant seeking removal must overcome. See Fajen v. Found. Reserve Ins. Co., 683 F.2d at 333; Bonadeo v. Lujan, No. CIV-08-0812 JB/ACT, 2009 WL 1324119, *4 (D.N.M. April 30, 2009)(Browning, J.)(“Removal statutes are strictly construed, and ambiguities should be resolved in favor of remand.”). The Supreme Court of the United States of America recently clarified that a defendant seeking removal to federal court need only include in the notice of removal a plausible allegation that the amount in controversy exceeds the jurisdictional threshold. See Dart Cherokee Basin Operating Co. v. Owens, 135 S.Ct. 547, 554 (2014). When contested, the defendant seeking removal must establish that federal court jurisdiction is proper “by a preponderance of the evidence.” McPhail v. Deere & Co., 529 F.3d 947, 953 (10th Cir. 2008). See also Bonadeo v. Lujan, 2009 WL 1324119, at *4 (“As the removing party, the defendant bears the burden of proving all jurisdictional facts and of establishing a right to removal.”).

         2. Procedural Requirements for Removal.

         Section 1446 of Title 28 of the United States Code governs the procedure for removal. “Because removal is entirely a statutory right, the relevant procedures to effect removal must be followed.” Thompson v. Intel Corp., 2012 WL 3860748, at *5. A removal that does not comply with the express statutory requirements is defective, and the case must be remanded to state court. See Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d at 1077. See also Chavez v. Kincaid, 15 F.Supp.2d 1118, 1119 (D.N.M. 1998)(Campos, J.)(“The [r]ight to remove a case that was originally in state court to federal court is purely statutory, not constitutional.”).

         Section 1446(a) of Title 28 of the United States Code provides that a party seeking removal of a matter to federal court shall file a notice of removal in the district and division where the state action is pending, “containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.” 28 U.S.C. § 1446(a). Such notice of removal is proper if filed within thirty days from the date when the case qualifies for federal jurisdiction. See 28 U.S.C. § 1446(b); Caterpillar Inc. v. Lewis, 519 U.S. at 68-69. The United States Court of Appeals for the Tenth Circuit has further elaborated that, for the thirty-day period to begin to run, “this court requires clear and unequivocal notice from the [initial] pleading itself” that federal jurisdiction is available. Akin v. Ashland Chem. Co., 156 F.3d 1030, 1036 (10th Cir. 1998). The Tenth Circuit specifically disagrees with “cases from other jurisdictions which impose a duty to investigate and determine removability where the initial pleading indicates that the right to remove may exist.” Akin v. Ashland Chem. Co., 156 F.3d at 1036.

         LAW REGARDING RULE 12(h)(3) AND SUBJECT-MATTER JURISDICTION

         It is a fundamental precept of American law that the federal courts are “courts of limited jurisdiction.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). Federal courts “possess only that power authorized by [the] Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Among the powers that Congress has bestowed upon the courts is the power to hear controversies arising under federal law -- federal- question jurisdiction ...


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