Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Szuszalski v. Fields

United States District Court, D. New Mexico

November 13, 2019

SHANNON SZUSZALSKI, as personal representative for the ESTATE OF LINDA BARAGIOLA, and SHANNON SZUSZALSKI, individually, Plaintiff,
v.
RUDY FIELDS, SANDOVAL COUNTY, SHERIFF DOUGLAS C. WOOD, and JANET LOPEZ, Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK, SENIOR U.S. DISTRICT JUDGE.

         This 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.

         Ms. 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.

         Plaintiffs 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.

         I. Background

         On 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.)

         On 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.)

         On 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).

         On 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.)

         II. Legal Standards

         A 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. § 1446(b)(1)).

         When 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)).

         “Federal 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.

         III. The County Defendants have met their burden to establish unanimity.

         When 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.

         In 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.)

         The 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 or consent.”

         A. The longstanding circuit split regarding the form of consent

         This 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.[1]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.[2] 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”).

         The 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. 2015) (same).

         In 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.[3] 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 approach.

         B. Statutory interpretation

         1. The statutory text is silent on the required form of consent.

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.