United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Plaintiff's Motion to
Remand, filed April 5, 2019, in which Plaintiff seeks a
remand to state court and an award of attorney's fees and
costs she incurred as a result of the removal. (Doc. 6). VLC
II, LLC d/b/a Vista Hermosa (VLC II) filed a response on May
3, 2019, and Plaintiff filed a reply on June 3, 2019. (Docs.
19 and 22). Having considered Plaintiff's Motion to
Remand, the accompanying briefing, and the Notice of Removal
(Doc. 1), the Court grants the Motion to Remand, including
Plaintiff's request for an award of attorney's fees
and costs. A. Background On February 4, 2019,
Plaintiff filed this employment lawsuit in the First Judicial
District, County of Santa Fe, State of New Mexico. (Doc. 1-1)
at 4-14. Plaintiff sued only Vista Living Communities, LLC
d/b/a Vista Hermosa (Vista Living Communities). Id.
at 4, ¶ 2. “Vista Hermosa” is the name of a
nursing home and/or assisted living facility where Plaintiff
worked. Id. at 5, ¶ 6. Plaintiff served the
complaint on Vista Living Communities, LLC on February 4,
2019. (Doc. 6-5).
March 6, 2019, VLC II, a legal entity separate from Vista
Living Communities, filed the Notice of Removal arguing that
removal is proper based upon federal diversity jurisdiction.
(Doc. 1). VLC II indicated that Plaintiff incorrectly
identified Vista Living Communities as the Defendant.
Id. at 1. VLC II did not obtain consent from Vista
Living Communities to file the Notice of Removal.
filed the Notice of Removal because it believes it is the
proper Defendant. As grounds for that belief, VLC II notes
that it holds the Operator's License for Vista Hermosa,
which states VLC II owns Vista Hermosa. (Doc. 19-2) at 2.
Plaintiff, however, asserts that “this case does not
involve a misnomer, rather an intentional decision to name a
specific legal entity as a defendant.” (Doc. 22) at 5.
Moreover, Plaintiff maintains that Vista Living Communities
is a proper defendant because it could be liable to her under
New Mexico law.
Whether to Remand the Case to State Court a. Does
VLC II have the Authority or Standing to Remove the Case to
correctly asserts that VLC II, a non-Defendant, lacks the
authority or standing to remove the case to federal court. As
District Court Judge James Browning noted in New
Mexico ex rel. Balderas v. Valley Meat Co.,
LLC, the removal statute, 28 U.S.C. § 1446(a),
states that “[a] defendant or defendants” may
remove a case to federal court. 2015 WL 3544288, at *22-23
(D.N.M.), on reconsideration in part sub nom. New Mexico
v. Valley Meat Co., LLC, 2015 WL 9703255 (D.N.M.). In
fact, “[t]he consensus among district courts across the
country is that the term ‘defendant' does not
extend to a non-party having an interest in the
proceedings.” Music v. Clemens, 2018 WL
4705506, *2 (S.D. Ohio), report and recommendation
adopted, 2018 WL 5783694 (S.D. Ohio) (citing New
Mexico ex rel. Balderas, 2015 WL 3544288 at *23);
see also De Jongh v. State Farm Lloyds, 555
Fed.Appx. 435, 437 (5th Cir. 2014) (recognizing that
“non-party, even one that claims to be a real party in
interest, lacks the authority to institute removal
proceedings”). Judge Browning subsequently concluded
that the remover in that case, a non-defendant not named in
the complaint, could not remove the case to federal court.
New Mexico ex rel. Balderas, 2015 WL 3544288 at *23;
see also Music, 2018 WL 4705506 at *3 (concluding
that remover “is not a defendant and therefore lacks
standing to remove”). The Court is persuaded VLC II, as
a non-defendant, lacks standing to remove the case to federal
court notwithstanding any interest VLC II might have in the
case. Consequently, the Court lacks subject matter
jurisdiction over this lawsuit. See Hous. Auth. of City
of Atlanta, Ga. v. Millwood, 472 F.2d 268, 272 (5th Cir.
1973) (holding that district court lacks subject matter
jurisdiction when non-party initiates removal).
Plaintiff, as the master of her complaint, is free to decide
who to sue. De Jongh, 555 Fed.Appx. at 438
(observing that “[g]enerally, federal courts permit
plaintiffs to craft their complaints … includ[ing] a
plaintiff's decision as to which parties to sue”).
The Court cannot ignore Plaintiff's choice to sue Vista
Living Communities. See Id. (holding that district
court lacked authority to disregard plaintiff's choice to
sue named defendant instead of remover). Consequently, even
if the Court believed VLC II is a proper defendant, the Court
cannot simply substitute VLC II as the Defendant in order to
allow this case to remain in federal court. Cf. Id.
(recognizing that “court cannot ‘create removal
jurisdiction based on diversity by substituting
parties'” (citation omitted)).
Does Failure to Obtain Consent from Vista Living Communities
to Remove Constitute a Procedural Defect in the Removal?
assuming VLC II had the authority to remove the case to
federal court, Plaintiff rightly observes that VLC II did not
obtain consent from Vista Living Communities to file the
Notice of Removal. See 28 U.S.C. §
1446(b)(2)(A) (when civil action is removed “all
defendants who have been properly joined and served must join
in or consent to the removal of the action”). This
failure to obtain consent from Vista Living Communities
constitutes a procedural defect in the removal and another
reason to grant the Motion to Remand. See Cornwall v.
Robinson, 654 F.2d 685, 686 (10th Cir. 1981) (holding
that petition for removal was “procedurally
defective” because defendant “did not join in the
petition for removal”); Doe v. Sunflower Farmers
Markets, Inc., 831 F.Supp.2d 1276, 1278 (D.N.M. 2011)
(explaining that under ‘“unanimity rule,' a
failure of all ‘served' defendants to consent in
writing to removal constitutes a procedural defect requiring
foregoing reasons, the Court grants the Motion to Remand and
will remand the case to the First Judicial District, County
of Santa Fe, State of New Mexico.
Whether to Award Plaintiff Attorney's Fees and Costs
Court may award a plaintiff attorney's fees and costs
under 28 U.S.C. § 1447(c): “An order remanding the
case may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of
the removal.” The awarding of attorney's fees and
costs depends on the “reasonableness of the
removal.” Garrett v. Cook, 652 F.3d 1249, 1254
(10th Cir. 2011) (citation and quotation omitted).
“Absent unusual circumstances, ” courts may award
attorney's fees and costs pursuant to Section 1447(c)
“only where the removing party lacked an objectively
reasonable basis for seeking removal.” Id.
(citation omitted). “Conversely, when an objectively
reasonable basis exists, fees should be denied.”
Id. (citation omitted).
New Mexico ex rel. Balderas, Judge Browning found
the “removal objectively unreasonable” where,
like here, “[a] non-Defendant filed the Notice of
Removal, and no Defendant joined in the removal.” 2015
WL 3544288 at *22. Judge Browning correctly explained that
“the case law is unambiguous on” whether a
non-defendant is “statutorily authorized to
removal….” Id. at 26. Moreover, Section
1446(b)(2)(A) unambiguously requires consent of all served
Defendants to remove a matter to federal court. This Court
concludes that VLC II lacked an objectively reasonable basis
for seeking removal because it failed to comply with the
above unambiguous removal law. With careful legal analysis
and attention to the Federal Rules of Civil ...