Belmarez v. State of Montana et al

Filing 26

ORDER denying 21 State of Montana's Motion for Relief from Order pursuant to Rule 60(b)(1). Signed by Judge Richard F. Cebull on 4/21/2011. (EMA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION

JOE BELMAREZ,

Case No. CV-10-127-BLG-RFC
Plaintiff,

-vsORDER
STATE OF MONTANA, CITY OF
BILLINGS, MONTANA RAIL
LINK, BNSF RAILWAY
COMPANY AND JOHN DOES 1
THROUGH 10,
Defendants.
Pending before the Court is Defendant State of Montana’s Motion for Relief
from Order pursuant to Rule 60(b)(1) (doc. 21) from this Court’s prior Order
granting Plaintiff’s Motion for Remand (doc. 19). After review and consideration,
the Defendant’s Motion must be denied.
Relying on Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344
(1999), Defendant contends that the thirty-day removal period does not begin to
run until the defendant has been served. Under Mont. Code Ann. § 2-9-313, “in
all actions against the state arising under this chapter, the state must be named the
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defendant and the summons and complaint must be served on the director of the
department of administration in addition to service required by Rule 4D(2)(h),
M.R.Civ.P.” Rule 4D(2)(h) requires that, when serving the State, a copy of the
summons and the complaint shall be served on the Attorney General.
The record reflects that Plaintiff properly served the Defendant’s Director of
the Department of Administration on August 13, 2010. As to service on the
Attorney General, any alleged infirmities were waived by Defendant attorney’s
letter to Plaintiff’s attorney agreeing to “appear on the State’s behalf” once
Plaintiff provided an acknowledgment of service which was received by
Defendant on September 3, 2010. Consequently, this Court concludes that relief
from its prior Order is not appropriate in the instant case.
Moreover, an order remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise. 28 U.S.C. § 1447(d). “This
language has been universally construed to preclude not only appellate review but
also reconsideration by the district court. Once a district court certifies a remand
order to state court it is divested of jurisdiction and can take no further action on
the case.” Seedman v. United States Dist. Court, 837 F.2d 413, 414 (9th Cir.1988);
Whitman v. Raley's Inc., 886 F.2d 1177, 1180 (9th Cir.1989); see also Shapiro v.
Logistec USA Inc., 412 F.3d 307, 312 (2d Cir.2005). Accordingly, this Court
lacks authority to reconsider its remand Order.
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For those reasons, IT IS HEREBY ORDERED that Defendant State of
Montana’s Motion for Relief (Doc. 21) from Order pursuant to Rule 60(b)(1) is
DENIED.
The Clerk of Court shall notify the Parties of the entry of this Order.
DATED this 21st day of April, 2011.

/s/ Richard F. Cebull
RICHARD F. CEBULL
U. S. DISTRICT JUDGE

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