United States District Court, D. New Mexico
JEFFREY R. SWANSON, Plaintiff,
JSR TRUCKING INC. and VOLVO GROUP NORTH AMERICA LLC, Defendants.
PROPOSED FINDINGS AND RECOMMENDED
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE.
MATTER comes before me pursuant to the Court's Order of
Reference (doc. 20), referring Plaintiff's Motion to
Remand (doc. 12) and the attendant briefing (docs. 14, 18) to
me for analysis, proposed findings, and recommended
disposition. Having reviewed all relevant materials and
applicable case law, I recommend that the Court GRANT
Plaintiff's Motion for the following reasons.
case stems from Plaintiff's alleged fall from the side
stairs of a Volvo semi- tractor trailer in Santa Rosa, New
Mexico, during a stop along Plaintiff's route as an
independent contractor for JSR Trucking Inc. (“JSR
Trucking”). Doc. 3-1. Plaintiff filed his Complaint
against Volvo Group North America LLC (“Volvo”)
and JSR Trucking in New Mexico's First Judicial District
on November 30, 2018. Id. In his Complaint,
Plaintiff asserted a negligence claim against JSR Trucking,
and claims for strict products liability, negligence, breach
of implied warranty of merchantability, and punitive damages
against Volvo. Id.
Volvo timely removed the case to federal court on January 22,
2019.Doc. 3. The Notice of Removal states that
this Court has diversity jurisdiction under 28 U.S.C. §
1332 and § 1441 because the parties in this action are
citizens of different states and the amount in controversy
exceeds $75, 000. Id. at 2-3.
to the removal, JSR Trucking was properly served through the
New Mexico Secretary of State on December 19, 2018. Doc. 12-3
at 10; doc. 12-4 at 2. It has not answered or otherwise
appeared in the state court or this Court, nor has it
consented to the removal.
February 20, 2019, Plaintiff filed the instant Motion to
Remand. Doc. 12. Briefing was complete on April 10,
2019. Doc. 18.
Standard of Review
if removal is based on federal diversity jurisdiction,
removal is proper only where all properly joined and served
defendants consent to removal. See Harvey v. Ute Indian
Tribe of the Uintah and Ouray Reservation, 797 F.3d 800,
805 (10th Cir. 2015) (quoting § 1446(b)(2)(A)). To
remove a case based on diversity, the removing party bears
the burden of proving removal is proper by a preponderance of
the evidence. See Martin v. Franklin Capital Corp.,
251 F.3d 1284, 1290 (10th Cir. 2001) (abrogated on other
grounds in Dart Cherokee Basin Operating Co., LLC v.
Owens, 574 U.S. 81 (2014)). Moreover, “[r]emoval
statutes are to be strictly construed, and all doubts are to
be resolved against removal.” Fajen v. Found.
Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir.1982);
see also Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994).
are two types of improperly removed cases: those in which the
federal court has no subject matter jurisdiction and those
with defects in the removal procedure itself.”
Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d
1072, 1076 (10th Cir. 1999) (citation omitted). The parties
do not dispute that the Court has subject matter jurisdiction
in this case, see generally docs. 12, 14, 18,
because the requirements for diversity jurisdiction have been
met. Rather, their dispute concerns the second basis: whether
removal procedure was defective.
procedure is governed by 28 U.S.C. § 1466. “The
failure to comply with the express statutory requirements
for removal can fairly be said to render the removal
‘defective' and justify a remand.”
Id. at 1077 (quoting Snapper, Inc. v.
Redan, 171 F.3d 1249, 1253 (11th Cir.1999)). The Tenth
Circuit recognizes three grounds for remanding a case due to
defects in removal procedure: “(1) noncompliance with
the time limits provided in § 1446(b); (2) noncompliance
with the unanimity requirements in § 1446(b)(2)(A); and
(3) noncompliance with the forum-defendant rule in §
1441(b), which forbids removal when a defendant is a citizen
of the forum state.” City of Albuquerque v. Soto
Enterprises, Inc., 864 F.3d 1089, 1094-95 (10th Cir.
2017). Plaintiff contends that removal was defective on the
second ground, namely, because Defendant Volvo failed to
comply with the unanimity requirements in §
1446(b)(2)(A). See generally docs. 12, 18. As a
result, he argues that the case should be remanded to the
First Judicial District. Id.
the unanimity requirements of § 1446(b)(2)(A), if a case
is removed based solely on federal diversity jurisdiction,
“all defendants who have been properly joined and
served must join in or consent to the removal of the
action.” Harvey, 797 F.3d at 805 (quoting
§ 1446(b)(2)(A)); see also Knight v. Mooring Capital
Fund, LLC, 749 F.3d 1180, 1183-84 (10th Cir. 2014)
(quotation omitted) (“consent [to removal] is
required…of defendants who have been properly joined
and served”); Romero v. Knee, 2018 WL 3966275,
at *2 (D.N.M. Aug. 17, 2018) (slip copy) (quoting Doe v.
Sunflower Farmers Markets, Inc., 831 F.Supp.2d 1276,
1278 (D.N.M. 2011)) (“Often called the ‘unanimity
rule,' a failure of all ‘served' defendants to
consent in writing to removal constitutes a procedural defect
requiring remand.”). Here, Defendant JSR Trucking did
not join in or consent to the removal of the action.
failure to consent is not necessarily fatal. This Court has
previously recognized two exceptions under which ...