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Garcia v. Martinez

United States District Court, D. New Mexico

October 23, 2019

VERONICA GARCIA, Plaintiff,
v.
MICHAEL MARTINEZ, ET AL., Defendants.

          MEMORANDUM OPINION AND ORDER

         On May 14, 2019, Plaintiff Veronica Garcia filed a COMPLAINT FOR DAMAGES FOR CIVIL RIGHTS VIOLATIONS, VIOLATIONS OF THE FIRST AMENDMENT, ASSAULT, BATTERY, AND VIOLATIONS OF THE NEW MEXICO CONSTITUTION UNDER THE NEW MEXICO TORT CLAIMS ACT in the First Judicial District Court, County of Santa Fe. See NOTICE OF REMOVAL (Doc. No. 1, Ex. A). On July 15, 2019, Defendants Martinez, Lucero-Ortega, Perez, State of New Mexico (“State”), New Mexico Corrections Department (“NMCD”), and Western New Mexico Correctional Facility (“WNMCF”) filed a Notice of Removal. Id. On August 14, 2019, Plaintiff filed a Motion to Remand alleging untimely filing of Defendants' Notice of Removal. See MOTION TO REMAND (Doc. No. 9). On August 31, 2019, Defendants sought amendment of the Notice of Removal to clarify facts that were originally omitted regarding timeliness of removal. MOTION FOR LEAVE TO AMEND THE NOTICE OF REMOVAL (“Motion for Leave”) (Doc. No. 14). Because the Court finds that Defendant's removal was timely, the Court will deny Plaintiff's MOTION TO REMAND (Doc. No. 9) and will grant Defendants' MOTION FOR LEAVE TO AMEND THE NOTICE OF REMOVAL (Doc. No. 14).

         On September 3, 2019, Defendants also filed a MOTION FOR JUDGMENT ON THE PLEADINGS WITH RESPECT TO COUNTS I-IV (“Motion on Pleadings”) (Doc. No. 15). After considering the briefing and controlling law, the Court will grant Defendants' MOTION FOR JUDGMENT ON THE PLEADINGS WITH RESPECT TO COUNTS I-IV (Doc. No. 15).

         Background

         Plaintiff Garcia is a former inmate at WNMCF, a prison run by NMCD and the State. Compl. at ¶ 1. During periods of Plaintiff's incarceration in 2012 and 2016-2017, Defendant Martinez, a former corrections officer at WNMCF, repeatedly subjected Plaintiff to sexual abuse. Compl. at ¶¶ 18-38. Defendant Martinez was subsequently tried and convicted for the abuse. Compl. at ¶ 14. Defendants do not contest Defendant Martinez' abuse of Plaintiff. See Motion on Pleadings at 3. Defendants Lucero-Ortega and Perez were respectively serving as Warden and Deputy of the facility at the time of the abuse. Compl. at ¶ 4.

         Plaintiff's Complaint alleges, as a result of the abuse, Defendants are liable for: (1) sexual assault under the New Mexico Tort Claims Act (NMTCA); (2) sexual battery under the NMTCA; (3) false imprisonment under the NMTCA; (4) violation of the New Mexico Constitution [unspecified deprivation of rights]; (5) violation of the New Mexico Constitution [premises-liability tort claim]; (6) cruel and unusual punishment under 42 U.S.C. § 1983; (7) First Amendment retaliation under 42 U.S.C. § 1983; and (8) 42 U.S.C. § 1983 Monell damages and injunctive relief.[1]

         Motion to Remand

         Plaintiff Garcia argues that the Court must remand the case under 28 U.S.C § 1447(c) to the First Judicial District Court, County of Santa Fe, because Defendants' Notice of Removal was untimely. See Motion to Remand at 2. Plaintiff Garcia asserts that since she served process on Defendants either June 10 or June 11, 2019, Defendants' July 15, 2019 filing of their Notice of Removal was outside the thirty-day window required by the federal removal statute. 28 U.S.C § 1446(b).[2] Id.

         In response, Defendants contend that the thirty-day removal deadline was not ascertainable at the time of filing, since documentation of the process relating to Defendant NMCD did not have a dated return receipt or a dated delivery confirmation to establish the service date. See RESPONSE TO MOTION TO REMAND (Doc. No. 12) at 2. Defendants also argue that the thirty-day deadline had not run when they filed for removal because Defendants Lucero-Ortega and Perez had not been properly served on the June 10, 2019 date alleged by Plaintiff. Id. at 3. Defendants reason that since Defendants Lucero-Ortega and Perez waived service of process on July 15, 2019, the removal clock started on July 15, 2019. Id. Therefore, Defendants conclude, their July 15, 2019 removal was timely. Id.

         The date of proper service is the heart of this dispute. A notice of removal must “be filed within thirty days after the receipt by the defendant, through service or otherwise of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446. Under the federal removal statutes, “an untimely removal notice constitutes a defect in removal procedure warranting remand.” Armijo v. Flansas, 2017 WL 6001768, at *2 (D.N.M. 2017) (quoting McShares, Inc. v. Barry, 979 F.Supp. 1338, 1341 (D. Kan. 1997)). Courts must strictly construe the removal statutes and resolve doubts against removal. Id. Additionally, the removing party bears the burden of proving removal was proper. Id.

         Service is proper when a plaintiff formally serves a defendant a complaint and summons, when a defendant receives a summons and has knowledge of the complaint, or when a defendant waives service voluntarily. See Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350-51 (1999). Without proper service or a waiver, a court may not exercise power over the defendant. Id. Failure to properly serve a defendant also prevents the removal clock from running. Armijo, 2017 WL 6001768, at *3; see also Jenkins v. MTGLQ Inv'rs, 218 Fed.Appx. 719, 724 (10th Cir. 2007) (finding that a notice of removal was timely where defendant was never properly served, so the thirty-day period for filing a notice of removal never commenced).

         Rule 4 of the Federal Rules of Civil Procedure spells out proper service procedures and includes the option to follow state service of process rules. See Fed. R. Civ. Pro. 4(E)(1). In New Mexico, service may be made by mail that is addressed to the named defendant and signed by the defendant or by the defendant's authorized agent upon receipt. See Rule 1-004(E)(3) NMRA. If this is not accomplished, “service of process may be made by delivering a copy of the process at the actual place of business or employment of the defendant to the person apparently in charge thereof and by mailing a copy of the summons and complaint by first class mail to the defendant at the defendant's last known mailing address and at the defendant's actual place of business or employment.” Rule 1-004(F)(3) NMRA. The federal removal statute also follows the last-served defendant rule, meaning “[e]ach defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal.” 28 U.S.C. § 1446(b)(2)(B). “If defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal.” Id. at § 1446(b)(2)(C).

         Parties do not dispute proper service of Defendants State, WNMCF, or Martinez. Plaintiff personally served Defendant Martinez. See Motion to Remand at 2. Plaintiff properly served Defendants State and WNMCF by mail on June 10, 2019. Id. Plaintiff's proper service of NMCD is ambiguous, given that the USPS tracking for process on NMCD “appears to not have been updated by USPS . . . [though] the return receipt shows a signature for delivery in Santa Fe.” Id. Plaintiff “contacted USPS customer service, who indicated that the [NMCD] address was improperly entered in place of the Santa Fe facility address on June 11, 2019.” Id.; see also Id. Ex. 2 at 2.

         Plaintiff Garcia mailed a copy of the summons and complaint to Defendant Lucero-Ortega on June 5, 2019, addressed care of ‘Western Women's Correctional Facility.' Motion to Remand at 1. According to USPS online tracking, the summons and complaint arrived on June 10, 2019, though the return receipt label does not indicate a date received. Motion to Remand, Ex. B at 19-20. Defendant Lucero-Ortega claims she did not work for WNMCF on June 10th and had stopped working there in January 2019. Response to Motion to Remand, Ex. 2 at 2. Defendant Lucero-Ortega claims she actually received service of process on August 7, 2019 but had already waived service under Rule 1-004 NMRA by filing a waiver on July 15, 2019. Id.

         Similarly, Plaintiff Garcia mailed a copy of the summons and complaint to Defendant Perez on June 5, 2019, at WNMCF. Motion to Remand at 1. According to USPS online tracking, the summons and complaint arrived on June 10, 2019, though the return receipt label does not indicate a date received. Motion to Remand, Ex. 1 at 26-27. Defendant Perez claims he did not work for WNMCF on June 10th, 2019 and had stopped working there in April 2019. Response to Motion to Remand, Ex. C at 2. Defendant Perez claims he never received service of process, but nonetheless waived service under Rule 1-004 NMRA by filing a waiver on July 15, 2019. Id.

         As previously stated, federal courts must strictly construe the removal statutes and resolve all doubts against removal. Fajen v. Found. Reserve Ins. Co., Inc., 683 F.2d 331, 333 (10th Cir. 1982). The lack of a firm date for when Plaintiff served Defendant NMCD should be resolved in favor of Plaintiff, and the Court will consider NMCD properly served by June 11, 2019. However, assuming that the sworn declarations of Defendants Lucero-Ortega and Perez are true, Plaintiff did not properly serve either of them under the New Mexico rules or federal rules before July 25, 2019. The processes were not signed by either Defendant. Instead, the processes for both Defendants Lucero-Ortega and Perez were signed by Pam Lujan, who the Defendants claim was not their authorized agent. See Motion to Remand, Ex. 1 at 19-20; Motion to Remand, Ex. 1 at 26-27.[3] Additionally, Plaintiff did not deliver “a copy of the process at the actual place of business or employment of the defendant to the person apparently in charge thereof and by mailing a copy of the summons and complaint by first class mail to the defendant at the defendant's last known mailing address and at the defendant's actual place of business or employment” under Rule 1-004(F)(3) NMRA. Plaintiff, therefore, did not properly serve Defendants Lucero-Ortega or Perez before July 15, 2019.[4] Because waiver acts as a substitute for service, the removal clock was triggered by Defendants Lucero-Ortega and Perez each filing a waiver of service on July 15, 2019.[5]See Fed. R. Civ. P. 4(4) (“When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver”). Accordingly, Defendants' removal was timely and Plaintiff's Motion to Remand will be denied.

         Motion for Leave to Amend the Notice of Removal

         Defendants' filed their Motion for Leave to clarify facts that were originally omitted regarding timeliness of removal. Because the Motion for Leave does not attempt to amend the substance of the notice or the basic facts underlying jurisdiction, the Court will grant the motion to cure the technical defects.

         A defendant may freely amend a notice of removal within the thirty-day timeframe after service. Pub. Serv. Co. of New Mexico v. Lyons, 1998 WL 36030240, at *1 (D.N.M. 1998). Once the thirty-day period has expired, the defendant may amend the notice of removal to cure procedural and jurisdictional defects, but not to add any substantive allegations. Id. Procedural and jurisdictional defects include alleging residency rather than citizenship under diversity jurisdiction. See Tate v. Acuna, 2018 WL 4375118, at *2 (D.N.M. 2018). Courts should grant leave so as not to “equate imperfect allegations of jurisdiction with the total absence of jurisdictional foundation.” Lyons, 1998 WL 36030240, at *1 (citing Hendrix v. New Amsterdam Cas. Co., 390 F.2d 299, 300 (10th Cir. 1968)). In the Tenth Circuit, technical or procedural defects in the notice of ...


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