United States District Court, D. New Mexico
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, 
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
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.
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.
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).
The Presumption Against Removal.
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
Procedural Requirements for Removal.
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.”).
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.
REGARDING RULE 12(h)(3) AND SUBJECT-MATTER
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 ...