Ortiz et al v. New Mexico Department of Cultural Affairs et al

Filing 20

ORDER TO SHOW CAUSE by Magistrate Judge William P. Lynch. Show Cause Response due by 4/7/2017. (mej)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

HENRY ORTIZ and SOFIE ORTIZ,
Plaintiffs,
v.

16-cv-1396 JB/WPL

NEW MEXICO DEPARTMENT OF
CULTURAL AFFAIRS, NEW MEXICO
MUSEUM OF NATURAL HISTORY,
NEW MEXICO GEOLOGICAL SOCIETY,
ADRIAN HUNT, PHILLIP HUBER,
SPENCER LUCAS, KAYE TOOLSON,
PHIL BIRCHEFF, D. BARID, K. KEITZEL,
ALLEN LERNER, and TOMAS ROMERO,
Defendants.
ORDER TO SHOW CAUSE
Civil actions arising under the Constitution, laws, or treaties of the United States may be
filed in the first instance, or removed to, federal district court. 28 U.S.C. §§ 1331, 1446. Civil
actions may be removed by a defendant or defendanta upon the filing of a notice of removal. The
notice of removal
shall be filed within 30 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, or within 30 days after the service of
summons upon the defendant if such initial pleading has then been filed in court
and is not required to be served on the defendant, whichever period is shorter.
28 U.S.C. § 1446(b)(1). “Each 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.” § 1446(b)(2)(B).

The party seeking removal bears the burden of establishing that removal is proper.
McPhail v. Deere & Co., 529 F.3d 947, 953 (10th Cir. 2008) (“[A]ccording to this and most
other courts, the defendant is required to prove jurisdictional facts by a ‘preponderance of the
evidence.’”); Chavez v. Kincaid, 15 F. Supp. 2d 1118, 1119 (D.N.M. 1998) (“Defendant, as the
party asserting jurisdiction, has the burden of proving all jurisdictional facts and of establishing a
right to removal.”). “Failure of a removing party to comply with the express procedural
requirements for removal renders removal defective and justifies a remand.” Ortiz v. New
Mexico Dep’t of Cultural Affairs, No. 16-cv-773 KG/LF, Doc. 29 at 2-3 (D.N.M. Aug. 31, 2016)
(unpublished) (citing Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d 1072, 1077 (10th Cir.
1999); Zamora v. Wells Fargo Home Mortage, 831 F. Supp. 2d 1284, 1289 (D.N.M. 2011)).
The Notice of Removal in this case was filed on December 23, 2016. (Doc. 1.) The
Notice of Removal states that individual defendant Spencer Lucas filed an entry of appearance in
the underlying state action on November 23, 2016, and individual defendant Kaye Toolson filed
an entry of appearance on November 28, 2016. (Id. at 2.) No mention is made of when the
individual defendants were served, which is the critical inquiry in this matter.
No later than April 7, 2017, Defendants will provide proof of service for Defendants
Lucas and Toolson and show cause why this case should not be remanded for failure to comply
with the requirements of § 1446.
IT IS SO ORDERED.
_________________________
William P. Lynch
United States Magistrate Judge

A true copy of this order was served
on the date of entry--via mail or electronic
means--to counsel of record and any pro se
party as they are shown on the Court’s docket.