United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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.
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).
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.
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.
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). Id.
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.
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.
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).
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 §
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.
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.
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.
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. 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. 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.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.
for Leave to Amend the Notice of Removal
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.
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 ...