United States District Court, D. New Mexico
SHANNON SZUSZALSKI, as personal representative for the ESTATE OF LINDA BARAGIOLA, and SHANNON SZUSZALSKI, individually, Plaintiff,
RUDY FIELDS, SANDOVAL COUNTY, SHERIFF DOUGLAS C. WOOD, and JANET LOPEZ, Defendants.
MEMORANDUM OPINION AND ORDER
C. BRACK, SENIOR U.S. DISTRICT JUDGE.
lawsuit arises out of the tragic death of Ms. Linda
Baragiola, who was a close friend and neighbor of Defendant
Janet Lopez. At Ms. Lopez's request, Ms. Baragiola went
onto Ms. Lopez's property to check on her dogs after her
home's security alarm was triggered. Law enforcement
officials also arrived at the home and questioned Ms.
Baragiola. As Ms. Baragiola was walking home, Defendant Rudy
Fields, a law enforcement officer who was preparing to
respond to a non-emergency call, backed his police vehicle
into Ms. Baragiola and ran her over.
Shannon Szuszalski, on behalf of herself and as personal
representative of the Estate of Ms. Baragiola (Plaintiffs),
filed a lawsuit against Ms. Lopez, Mr. Fields, the Sandoval
County Board of Commissioners (Sandoval County), and Sheriff
Douglas Wood in state court. Mr. Fields, Sandoval County, and
Sheriff Wood (the County Defendants) removed the lawsuit to
federal court pursuant to 28 U.S.C. §§ 1331 and
1441(c). In their notice of removal, they stated that Ms.
Lopez consented to the removal, but Ms. Lopez did not sign
the notice. She did, however, file a motion to dismiss, a
jury trial demand, a separate notice of consent, and a brief
opposing Plaintiffs' motion to remand.
now contend that this case should be remanded because Ms.
Lopez did not independently and unambiguously consent to
removal, either by joining the Notice of Removal or by filing
her consent within 30 days of the date she was served. The
Court finds that the County Defendants' indication of Ms.
Lopez's consent, coupled with her own filings in federal
court, are sufficient to establish unanimous and timely
consent to removal. Accordingly, the Court will deny
Plaintiffs' motion to remand.
January 25, 2019, Plaintiffs filed their original lawsuit in
the Thirteenth Judicial District Court of New Mexico,
bringing claims under the New Mexico Constitution and the New
Mexico Tort Claims Act (NMTCA). (Doc. 1-A-1.) Plaintiffs
properly served Mr. Fields, Sandoval County, and Ms. Lopez on
February 21, 2019, and Sheriff Wood on February 27, 2019.
(See Docs. 1-A-2; 15-1.) On March 6, 2019,
Plaintiffs filed an Amended Complaint and added new claims
under the United States Constitution and 42 U.S.C. §
1983; Defendants received electronic notice the same day.
(See Docs. 1-A-3 (Am. Compl.); 1-A-4.)
March 18, 2019, Ms. Lopez filed a Peremptory Election to
Excuse Judge in the state court lawsuit. (See Doc.
1-A-5 at 4.) On the same day, counsel for Ms. Lopez emailed
counsel for Plaintiffs and asked for an extension of the due
date to the discovery requests Plaintiffs had served on her.
(See Docs. 15 at 3; 15-2.) On March 19, 2019, the
Clerk of the District court filed a Notice of Judge
Assignment, assigning State District Judge John F. Davis to
Plaintiffs' state lawsuit. (See Doc. 15-3 at 1.)
Later that afternoon, Ms. Lopez filed a motion to dismiss in
lieu of an answer. (See id.; see also Doc.
1-A-5 at 6-15.)
March 21, 2019, the County Defendants, who are all
represented by the same attorney, removed the lawsuit to this
Court. (Doc. 1.) In the Notice of Removal, the County
Defendants asserted that Ms. Lopez, who is represented by a
different attorney, consented to removal on March 19, 2019.
(Id. at 3.) Ms. Lopez's attorney did not sign
the Notice of Removal. (See id.) After the case was
removed to this Court, Ms. Lopez filed an Amended Motion to
Dismiss (Doc. 4) and a jury trial demand (Doc. 6).
April 17, 2019, Plaintiffs' attorney emailed counsel for
Defendants to request their position on Plaintiffs'
proposed motion to remand. (See Docs. 15 at 5;
15-5.) That afternoon, Ms. Lopez filed a Notice of Consent to
Removal to Federal Court. (Doc. 12.) Plaintiffs' filed
their motion to remand on April 19, 2019. (Doc. 15.)
defendant may remove a civil action from state to federal
court if the action “satisfies the requirements for
original federal jurisdiction . . . .” Padilla v.
Am. Modern Home Ins. Co., 282 F.Supp.3d 1234, 1250
(D.N.M. 2017) (citing 28 U.S.C. § 1441(a); Huffman
v. Saul Holdings LP, 194 F.3d 1072, 1076 (10th Cir.
1999)). A defendant must file the notice of removal
“within thirty days after receipt by the defendant of a
copy of a pleading or other paper from which it may first be
ascertained that the case is one which is removable.”
Zambrano v. N.M. Corr. Dep't, 256 F.Supp.3d
1179, 1181 (D.N.M. 2017) (citing 28 U.S.C. §
the plaintiff names and serves multiple defendants, all
defendants “must join in or consent to the removal of
the action.” 28 U.S.C. § 1446(b)(2)(A). A
plaintiff may move to remand the case to state court on the
basis of a defect in the removal process, including a failure
of all defendants to consent to removal. Padilla,
282 F.Supp.3d at 1251, 1254-55. The rule that all defendants
must consent to removal “is commonly known as the
‘unanimity rule.'” Zambrano, 256
F.Supp.3d at 1181 (citing Brady v. Lovelace Health
Plan, 504 F.Supp.2d 1170, 1173 (D.N.M. 2007)).
courts are courts of limited jurisdiction; thus, there is a
presumption against removal jurisdiction, which the defendant
seeking removal must overcome.” Id. at 1182
(citing Laughlin v. Kmart Corp., 50 F.3d 871, 873
(10th Cir. 1995), abrogated on other grounds by Dart
Cherokee Basin Op. Co. LLC v. Owens, 574 U.S. 81
(2014)). “All doubts are to be resolved against
removal.” Id. (quoting Fajen v. Found.
Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982)).
The removing defendant bears the burden of establishing
subject-matter jurisdiction. Id.
The County Defendants have met their burden to establish
Plaintiffs filed their Amended Complaint on March 6, 2019,
with new federal constitutional and statutory claims, their
civil action became removable pursuant to the Court's
federal question jurisdiction. 28 U.S.C. § 1331. The
County Defendants timely removed the lawsuit on March 21,
2019. See 28 U.S.C. § 1446(b)(1). The parties
agree that under the relevant statutory framework, all
then-properly served defendants were required to consent to
removal. See 28 U.S.C. §§
1446(b)(2)(A)-(B). The parties do not agree on the form
of or time frame for that consent.
their Notice of Removal, the County Defendants stated that
“all defendants, including Defendant Janet Lopez, . . .
consent to removal of this case. Counsel for Ms. Lopez
provided her consent on March 19, 2019.” (Doc. 1 at 3.)
Plaintiffs argue that this assertion of Ms. Lopez's
consent, without more, is insufficient to establish
unanimity. (Doc. 15 at 8-12.) Both the County Defendants and
Ms. Lopez oppose Plaintiffs' motion and argue that one
defendant's assertion of another defendant's consent
is sufficient. (Docs. 25; 26.)
relevant portion of the removal statute provides: “When
a civil action is removed solely under section 1441(a),
all defendants who have been properly joined and
served must join in or consent to the
removal of the action.” Id. §
1446(b)(2)(A) (emphasis added). The first part of the
parties' dispute centers on the meaning of “join in
The longstanding circuit split regarding the form of
issue is not novel-there is a decades-old circuit split
regarding how codefendants must consent to removal. Three
circuits-the Second, Fifth, and Seventh-have found that all
defendants must file independent and unambiguous notice that
they consent to removal, generally either by signing the
notice of removal itself or by filing a clear, separate
consent later.Pietrangelo v. Alvas Corp., 686
F.3d 62, 66 (2d Cir. 2012) (finding non-removing defendants
had sufficiently expressed consent by sending letters to the
court within the 30-day removal period); Roe v.
O'Donohue, 38 F.3d 298, 301 (7th Cir. 1994),
abrogated on other grounds by Murphy Bros. v. Michetti
Pipe Stringing, Inc., 526 U.S. 344 (1999) (finding that
each defendant must give consent to removal in writing);
Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d
1254, 1262 n.11 (5th Cir. 1988) (finding each defendant must
file timely written indication of consent). Four circuits-the
Fourth, Sixth, Eighth, and Ninth-have found that the removing
defendant may “vouch” for the consent of the
non-removing defendants, though in the Fourth, Eighth, and
Ninth Circuit cases, the non-removing defendants later filed
something-a notice of consent or a motion or brief indicating
a willingness to litigate in the federal forum-indicating
consent. Mayo v. Bd. of Educ. of Prince
George's Cty., 713 F.3d 735, 740-42 (4th Cir. 2013)
(finding that removing defendant may unambiguously represent
the non-removing defendants' consent to removal by
signing the notice of removal pursuant to Federal Rule of
Civil Procedure 11; the non-removing defendants need not file
anything further); Christiansen v. W. Branch Cmty. Sch.
Dist., 674 F.3d 927, 932-33 (8th Cir. 2012) (removing
defendant's indication of consent in notice of removal
was sufficient where non-removing defendant neither signed
the notice of removal nor filed a separate consent to
removal, but instead filed a motion to dismiss shortly after
removal, indicating a willingness to litigate in the federal
forum); Harper v. AutoAlliance Int'l, Inc., 392
F.3d 195, 201- 02 (6th Cir. 2004) (even assuming that
removing defendants' indication of consent in the notice
of removal on behalf of a codefendant, signed pursuant to
Rule 11, was insufficient to satisfy rule of unanimity,
consent was clear and unanimity satisfied when codefendant
filed an answer and an opposition to the plaintiff's
motion to remand); Proctor v. Vishay Intertechnology
Inc., 584 F.3d 1208, 1224-25 (9th Cir. 2009) (adopting
Sixth Circuit's position where non-removing defendant
filed written notice of joinder “well outside the
thirty-day window for removal”).
Tenth Circuit has not spoken to this issue and there is a
split of authority amongst the district courts in the Tenth
Circuit, as well as within the District of New Mexico.
Several courts have found that independent and unambiguous
consent is required. See, e.g.,
Schueller v. Cty. of Valencia, No. CV 16-01287
SCY/WPL, 2017 WL 3172781, at *3 (D.N.M. May 24, 2017)
(Yarbrough, J.); Padilla v. Dollar Gen. Corp., CV
14-0544 MV/WPL, 2014 WL 12789008, at *3 (D.N.M. Aug. 24,
2014) (Lynch, J.); State Farm Fire & Cas. Co. v.
Dunn-Edwards Corp., 728 F.Supp.2d 1273, 1277 (D.N.M.
2010) (Black, J.); Vasquez v. Americano U.S.A., LLC,
536 F.Supp.2d 1253, 1258 (D.N.M. 2008) (Johnson, J.);
Beasley v. Progressive Nw. Ins. Co., No.
14-2543-JAR-GLR, 2015 WL 630566, at *4 (D. Kan. Feb. 12,
2015); Kozel v. Okla. Dep't of Pub. Safety, No.
CIV-12-274-FHS, 2012 WL 3101403, at *2 (E.D. Okla. July 30,
2012); Jarvis v. FHP of Utah, Inc., 874 F.Supp.
1253, 1254 (D. Utah 1995). And at least two judges in this
circuit have found that the removing defendant may vouch for
the non-removing defendants. See, e.g.,
Tresco, Inc. v. Cont'l Cas. Co., 727 F.Supp.2d
1243, 1255 (D.N.M. 2010) (Browning, J.) (finding that
removing defendant may indicate the non-removing
defendant's consent in the notice of removal, and the
non-removing defendant need not sign the notice or file any
further written confirmation); Bruning v. City of
Guthrie, Okla., 101 F.Supp.3d 1142, 1144-47 (W.D. Okla.
short, this issue is still an open question in the Tenth
Circuit with well-supported reasoning on both sides. The
Court notes, however, that the tide appears to be turning
since the 2011 amendments to the removal
statute. The circuit court decisions in
Plaintiffs' favor (Getty, Roe, and
Pietrangelo) were based on the statute before the
2011 amendments, while two of the four circuit court
decisions in Defendants' favor (Griffioen and
Mayo) are based on the current version of the
statute. The Court now turns to the reasoning behind each
The statutory text is silent on the required form of
Court begins its analysis with the text of the removal
statute. See Parson v. Johnson & Johnson, 749
F.3d 879, 887 (10th Cir. 2014). “Although plaintiffs
argue that removal statutes should be strictly construed
against removal, this principle of construction does not
defeat the general principle of statutory construction that
terms used in a statute should be given their plain
meaning.” Id. (citing Miss. ex rel. Hood
v. AU Optronics Corp., 571 U.S. 161, 172-73 (2014)). The
relevant text requires “all defendants who have been
properly joined and served [to] join in or consent to the
removal of the action.” 28 U.S.C. § 1446(b)(2)(A).
The statute does not define what constitutes
“joining” or “consenting, ” and the