Zambrano v. New Mex. Corr. Dep't, Corizon Health, Inc.

256 F.Supp.3d 1179

Michael J. ZAMBRANO, Plaintiff,

v.The NEW MEXICO CORRECTIONS DEPARTMENT, Corizon Health, Inc., Corrections Officer Lawrence Artiaga, Corrections Officer Mike Hohman, Sergeant Martin Jaramillo, Dr. Lisa Staber, and Dr. Timothy Trapp, each in their individual and official capacities. Defendants.

Case No. 17-cv-459 WJ-KBM.

United States District Court, D. New Mexico.

Signed June 1, 2017

Leon F Howard, III, The Law Office of Lucero & Howard, LLC, Rachel E Higgins, Rachel E Higgins Attorney at Law, Albuquerque, NM, for Plaintiff

Michael Dickman, Law Office of Michael Dickman, Santa Fe, NM, John A. Armijo, Nicole M Charlebois, Joseph A. Turner, Chapman and Charlebois, PC, Albuquerque, NM, for Defendants

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO REMAND AND DENYING AS MOOT DEFENDANTS' MOTIONS TO DISMISS

William P. Johnson, UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court on Plaintiff's Motion to Remand, filed on April 28, 2017 (Doc. 10 ), Defendants' Motion to Dismiss Counts I–VII and XI–XV, filed on April 19, 2017 (Doc. 5 ), and Defendant Hohman's Motion to Dismiss Counts I–III and XI–XV, filed on May 1, 2017 (Doc. 14 ). Having reviewed the relevant pleadings and the applicable law, the Court finds Plaintiff's Motion is well-taken, and is therefore GRANTED, and this action is REMANDED to state court. Additionally, given the Court's remand order, the Motions to Dismiss are DENIED AS MOOT.

BACKGROUND

On March 17, 2017, Plaintiff Michael J. Zambrano, a former inmate of the New Mexico Corrections Department (NMCD), filed an Amended Complaint for Civil Rights Violations and Tort Claims in the First Judicial District of New Mexico. See Doc. 1–1. Plaintiff alleges that his rights under the New Mexico Tort Claims Act, New Mexico common law, the New Mexico Constitution and the United States Constitution were violated by NMCD and Corizon Health, Inc. (Corizon) and their employees because he was the victim of a "rough ride," which caused injuries, and subsequent negligent health care related to those injuries. See id. Plaintiff brought § 1983 claims and New Mexico state law claims against Defendants related to these violations. Plaintiff named seven Defendants in total: NMCD, Corizon, Corrections Officer Lawrence Artiaga, Corrections Officer Mike Hohman, Sergeant Martin Jaramillo, Dr. Lisa Staber, and Dr. Timothy Trapp. See id.

Five of the seven Defendants have been served with the Amended Complaint. On March 22, 2017, Plaintiff served NMCD and Defendant Artiaga. On March 24, 2017, Plaintiff served Defendant Hohman. And most recently on March 27, 2017, Plaintiff served Corizon and Defendant Jaramillo. See Docs. 10–1, 10–2, 10–3, and 10–5. Defendants Dr. Staber and Dr. Trapp have not yet been served.

On April 17, 2017, NMCD, Artiaga, and Jaramillio filed a joint Notice of Removal based on Plaintiff's claims arising out of the United States Constitution. See Doc. 1. On April 21, 2017, Corizon filed its Notice of Consent to Removal. Doc. 6. Defendant Hohman submitted his notice of consent on April 28, 2017. Doc. 13.

LEGAL STANDARDS

Generally, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). A notice of removal must be filed 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. 28 U.S.C. § 1446(b). "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." 28 U.S.C. § 1446(b)(2)(A). A notice of removal must be filed within thirty days after receipt of service by the removing defendant. See 28 U.S.C. §§ 1446(b)(1) and 1446(b)(2)(B).

"The failure of one defendant to join in the notice renders the removal notice procedurally defective, which requires that the district court remand the case." Brady v. Lovelace Health Plan , 504 F.Supp.2d 1170, 1172–73 (D.N.M.2007) (quoting Cornwall v. Robinson , 654 F.2d 685, 686 (10th Cir. 1981) ). This rule is commonly known as the "unanimity rule." See Brady , 504 F.Supp.2d at 1173.

The Court follows the "last-served rule" where "the clock begins running on each defendant to either remove a case or join a removal petition when that defendant receives formal service of process." Sawyer v. USAA Ins. Co. , 839 F.Supp.2d 1189, 1208 (D.N.M. 2012) (quoting McEntire v. Kmart Corp. , No. 09-0567, 2010 WL 553443, at *4 (D.N.M. Feb. 9, 2010) ); See also Nieto v. Univ. of N.M. , 727 F.Supp.2d 1176, 1181 (D.N.M. 2010) ("This Court, however, has concluded that the more modern, ‘last-served’ rule is more in harmony with the language of the removal statute, and is a more fair and workable rule."); Lucero v. Ortiz , 163 F.Supp.3d 920, 931 (D.N.M. 2015) ("The last-served rule provides that each defendant has a right to remove within thirty days of service."). A defendant's consent to removal is not necessary where he or she has not been served at the time another defendant filed its notice of removal. See Sheldon v. Khanal , 502 Fed.Appx. 765 (10th Cir. 2012).

Federal courts are courts of limited jurisdiction; thus, there is a presumption against removal jurisdiction, which the defendant seeking removal must overcome. See Laughlin v. Kmart Corp. , 50 F.3d 871, 873 (10th Cir. 1995). "It is well-established that statutes conferring jurisdiction upon the federal courts, and particularly removal statutes, are to be narrowly construed in light of our constitutional role as limited tribunals." Pritchett v. Office Depot, Inc. , 420 F.3d 1090, 1095 (10th Cir. 2005) (quoting Shamrock Oil & Gas Corp. v. Sheets , 313 U.S. 100, 108–09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941) ; United States ex rel. King v. Hillcrest Health Ctr. , 264 F.3d 1271, 1280 (10th Cir. 2001) ). "All doubts are to be resolved against removal." Fajen v. Found. Reserve Ins. Co. , 683 F.2d 331, 333 (10th Cir. 1982). "The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction." Montoya v. Chao , 296 F.3d 952, 955 (10th Cir. 2002).

DISCUSSION

Plaintiff contends the multiple Defendants in this matter failed to be unanimous in removal, so the case must be remanded to the First Judicial District of New Mexico. Plaintiff argues under the "last-served defendant rule" adopted by this district, as well as the rule of unanimity, all Defendants who have been served were required to file written consent to the removal of this action by April 26, 2017 (thirty-days after Defendants Corizon and Jaramillo were served on March 27, 2017). Plaintiff states that as of April 28, 2017, Defendant Hohman had not filed consent to the removal of this action so the matter must be remanded to state court.

Defendants respond that Defendant Hohman consented to removal on April 28, 2017, only eleven days after NMCD Defendants filed the Notice of Removal. See Docs. 1 and 13. Further, there is no requirement in 28 U.S.C. § 1446(b)(2)(A) that when a notice of removal has been filed by one defendant, the other defendants must join or consent within thirty days of having been served. The statute that does contain a thirty-day window, 28 U.S.C. § 1446(b)(2)(B), applies by its explicit terms to a notice of removal , not a notice of consent . In this case, Defendants maintain, NMCD, Artiaga, and Jaramillo timely filed their Notice of Removal and eleven days later, Defendant Hohman filed his Notice of Consent to Removal. See Docs. 1 and 13.

The Court finds that the thirty-day removal window runs from the date the last defendant is served. See Nieto , 727 F.Supp.2d at 1181. The last-served defendant rule allows each defendant in a multi-defendant suit thirty days from the date the last defendant is served to file a notice of removal. See Moreno v. Taos Cty. Bd. of Comm'rs , 778 F.Supp.2d 1139, 1142 (D.N.M. 2011). See also Doe v. Sunflower Farmers Markets, Inc. , 831 F.Supp.2d 1276, 1279 (D.N.M. 2011) (quotation and quotation marks omitted) ("Under the last-served-defendant rule, the thirty-day period for removal begins for a particular defendant on the date it was served, as long as the previously served defendants consent...'). The last-served Defendants here, Corizon and Jaramillo, were served on March 27, 2017. Thus, Defendants had until thirty days later, April 26, 2017, in which to remove the case to federal court.¹ The Notice of Removal was timely filed on April 17, 2017, which the parties do not dispute.

Instead, what the dispute hinges upon is whether Defendant Hohman was required to consent to removal within thirty days from service of process on the last Defendants, or whether his consent was required within thirty days of the date the Notice of Removal was filed. Plaintiff argues Defendant Hohman must have consented by April 26, 2017, within thirty days of service upon Defendants Corizon and Jaramillo (as the last-served Defendants), while Defendants argue consent to removal was proper because it was within thirty days of the timely Notice of Removal, which was filed on April 17, 2017. In other words, Defendants contend § 1446(b)(2) applies by its terms to a notice of removal, not a consent. Plaintiff disagrees and argues that remand is required when all Defendants fail to consent to removal within thirty-days of the last Defendant being served. Defendants state that Hohman's consent to removal was proper because it was filed only 11 days after the notice of removal, but Plaintiff counters that removal was improper because Hohman did not consent within thirty days of service upon the later-served Defendants, so his untimely consent rendered the removal procedurally flawed.

The Court agrees with Plaintiff that the removal procedure...