Zambrano v. New Mexico Corrections Department et al

Filing 23

MEMORANDUM OPINION AND ORDER by District Judge William P. Johnson GRANTING 10 Plaintiff's Motion to Remand and DENYING AS MOOT 5 Defendants' Motion to Dismiss Counts IVII and XIXV and 14 Defendant Hohmans Motion to Dismiss Counts IIII and XIXV. (mag)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MICHAEL J. ZAMBRANO,
Plaintiff,
v.

Case No. 17-cv-459 WJ-KBM

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

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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).

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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 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

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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 (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

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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 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
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Defendant Corizon asks the Court to add a three-day extension under Fed. R. Civ. P. 6(d) and Rule 1-006 NMRA,
which allow for an additional three days to a period in which a party must act after service of pleadings. If the Court
gave Defendants an additional three days, Defendant Hohman’s consent to removal would have been timely because
the thirty-day deadline would have fallen on May 1, 2017. The Court will not add an additional three days to this
time period to account for service of process by mailbecause under the plain reading of New Mexico’s procedural
rule governing service of the original complaint, which applies here since this Court did not have jurisdiction at the
time Defendants were served with the complaint, service of process by mail or commercial courier service is
considered complete upon the date of receipt. See Rule 1-004 NMRA. Moreover, other courts that have considered
the issue have refused to enlarge the thirty-day window contained in 28 U.S.C. § 1446(b)(1) based on Rule 6(d).
See DerMargosian v. Arpin America Moving Systems, LLC, 2013 WL 787091, at *1 (N.D. Tex. 2013) (“ Rule 6(d)
does not extend the 30-day removal period prescribed in § 1446(b)(1).”); Knight v. J.I.T. Packaging, Inc., 2008 WL
4981081, at *2–3 (N.D. Ohio 2008) (collecting cases and concluding “the majority have determined that Rule 6(d)
does not extend the thirty-day removal period of section 1446(b)”); Ramos v. Quien, 631 F. Supp. 2d 601, 608–09
(E.D. Pa. 2008); Daniel v. United Wis. Life Ins. Co., 84 F. Supp. 2d 1353, 1356 (N.D. Ala. 2000); Flora v. LG Elecs.
U.S.A., Inc., No. 13-CV-13362, 2013 WL 4805693, at *1 (E.D. Mich. Sept. 9, 2013) (“The ‘three extra days’ added
in some circumstances by Fed. R. Civ. P. 6(d) do not extend the 30–day removal period when, as in the present case,
that period begins to run from service of process.”).

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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 here was incurably flawed, so
this case must be remanded. Defendants were required to obtain unanimous consent to removal
from each served Defendant no later than the date on which the last-served Defendants (Corizon
and Jaramillo) had to file a notice of removal, in order for removal to be effective. The Court
finds unanimous consent was required by April 26, 2017, which was thirty days after the last
Defendants were served. By its terms, 28 U.S.C. § 1446(b)(2)(A) requires each properly-served
defendant to join in or consent to removal. Section 1446(b)(2)(A) does not appear to contain a
time limitation. Section 1446(b)(2)(B) does contain a time window, giving each defendant thirty
days after receipt of the initial pleading or summons to file a notice of removal.
The Tenth Circuit has not definitively addressed whether the last-served defendant rule
and the rule of unanimity require that all served defendants consent to removal within thirty days
of service upon the later-served defendant. It is clear that under those rules, a defendant has

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thirty days to file a notice of removal within thirty days of service on the last-served defendant,
but it is much less clear whether consent to such removal must be effectuated within this thirtyday window, or whether a notice of consent may be filed at any time, as Defendants insist.
Compare McDaniel v. Loya, 304 F.R.D. 617, 626 (D.N.M. 2015) (quoting Kiro v. Moore, 229
F.R.D. 228, 230–32 (D.N.M. 2005) (“After the notice of removal is filed, all state-court
proceedings are automatically stayed, and the other defendants in the case—if not all defendants
joined in the removal—have thirty days to consent to the removal of the action”), with Vasquez
v. Americano U.S.A., LLC, 536 F. Supp. 2d 1253, 1258 (D.N.M. 2008) (“Instead, each defendant
must independently and unambiguously file notice of its consent to join in the removal within the
thirty-day period”), and Bonadeo v. Lujan, 2009 WL 1324119, at *5–6, 2009 U.S. Dist. LEXIS
45672, at *15 (citation omitted) (“Remand is required if all of the defendants fail to consent to
the petition for removal within thirty days of being served”).
Defendant Hohman did not consent to removal within thirty days of service on the lastserved Defendants, which he freely admits. Rather, he argues there is no deadline by which a
defendant must consent to a timely removed case. He states that removal was proper because he
consented eleven days after the notice of removal was filed, even though it was more than 30
days after service on the last-served defendant. Defendants claim 28 U.S.C. § 1446(b) contains a
thirty-day window only for filing a notice of removal, but not for filing a notice of consent to
removal, so a defendant essentially may consent to a notice of removal at any time. This
proposition is untenable at best, because the Court can easily foresee a situation where a plaintiff
would not discern whether removal was properly effectuated until after the plaintiff’s thirty-day
window to move to remand the case had elapsed under 28 U.S.C. § 1447(c)2, wholly depriving

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28 U.S.C. § 1447(c) provides that a motion to remand a case on a basis other than lack of subject matter
jurisdiction must be made within thirty days after the filing of the notice of removal.

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the plaintiff of the ability to move to remand a case. The same result would occur even if the
Court imposed the thirty-day deadline from the date the notice of removal was filed because, in
that situation, a plaintiff would still not learn whether all defendants had properly consented to
removal until the same day that the plaintiff had to file its motion to remand. Essentially, the
plaintiff would have waived any defects in the removal procedure because the plaintiff did not
discover the defects until it was too late. The Court will not endorse such an illogical result.
The Court reads the various cases submitted by the parties, as well as the structure of 28
U.S.C. § 1446(b), to stand for the proposition that when there are multiple defendants, all served
defendants must consent to removal within thirty days from when the last defendant was served.
Other jurisdictions are in accord with this reasoning. See, e.g., Hurt v. D.C., 869 F. Supp. 2d 84,
86 (D.D.C. 2012) (emphasis in original) (“Nonetheless, removal to federal court additionally
requires a timely demonstration of consent from all served defendants within thirty days of
service of the complaint, under the widely recognized “rule of unanimity.”); Fellhauer v. City of
Geneva, 673 F. Supp. 1445, 1447 (N.D. Ill. 1987) (emphasis in original) (“This means that each
defendant must communicate his consent to the court, either orally or in writing, within the
thirty-day period.”).
U.S. District Judge James O. Browning has explained that “[r]emand is required if all of
the defendants fail to consent to the petition for removal within the thirty-day period.” Bonadeo,
2009 WL 1324119, at *6. Judge Browning recognized that the issue of filing a notice of removal
is closely related, though somewhat distinct, from the timing of the notice of consent to such
removal. The Judge aptly described the issue as follows:
This question, however, is closely tied with the operation of the right to removal.
In situations where all defendants are simultaneously served, it follows from the
rule of unanimity that, because the notice of removal must be filed within thirty
days, and because all defendants must join it, there is an effective thirty-day
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deadline to consent to removal. If one defendant fails to consent within the thirty
days, removal is destroyed because there is no unanimity.”
Id., at *13. Although the Defendants here were not simultaneously served, following Judge
Browning’s reasoning from Bonadeo as well as the last-served defendant rule and the rule of
unanimity, the Court concludes that all Defendants in this matter were required to file their
notices of consent thirty days from when the last Defendants were served with process.
The Court will briefly address Defendants’ remaining arguments. Defendants contend
that even if the removal procedure here was flawed, it constituted excusable neglect. However,
none of the cases Defendants rely on deal with the situation here where one defendant fails to
consent to a notice of removal. In Sheldon, 502 F. App’x at 770, the Tenth Circuit held the
removing defendant’s failure to attach required state-court documents to its notice of removal
was procedural defect that could be cured, either before or after 30–day removal period. The
Court in Sheldon did not address, even tangentially, the rule of unanimity in the context of a
removing defendant missing a statutory deadline.
Next, the Court is not convinced by Defendants’ argument that removal was proper
strictly looking to the text of 28 U.S.C. § 1446(b)(2)(C). That section provides: “If defendants
are served at different times, and a later-served defendant files a notice of removal, any earlierserved defendant may consent to the removal even though that earlier-served defendant did not
previously initiate or consent to removal.” The Court certainly does not disagree that such a
procedure is permitted by statute, however there is no provision in § 1446(b)(2)(C) that states a
defendant may consent to a removal at any time after the notice of removal is filed, and
Defendants have not directed the Court to any case law standing for the proposition that §
1446(b)(2)(C) authorizes a defendant to consent to removal at any time when the defendant has
not complied with the thirty-day deadline contained in § 1446(b)(2)(B).
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The Court has significant doubts as to whether the removal procedure was properly
effectuated in this case, so the matter must be resolved in favor of remand. See Fajen, 683 F.2d
at 333 (“Removal statutes are to be strictly construed, and all doubts are to be resolved against
removal.”) Indeed, there is a presumption against removal, and the Court must deny federal
jurisdiction if not affirmatively apparent on the record. Okla. Farm Bureau Mut. Ins. Co. v. JSSJ
Corp., 149 Fed.Appx. 775, 778 (10th Cir. 2005); Laughlin, 50 F.3d at 873.
CONCLUSION
Under the last-served defendant rule, the rule of unanimity, and 28 U.S.C. § 1446(b),
Defendants were required to obtain unanimous consent to removal from each served Defendant
no later than the date on which the last-served Defendants had to file a notice of removal, in
order for removal to be effective. The Court finds unanimous consent was required by April 26,
2017, which was thirty days after the last Defendants were served. Defendant Hohman did not
consent to removal until two days after this thirty-day window, on April 28, 2017. Based on the
foregoing, the Court concludes that Defendant Hohman did not timely give consent to removal
and, therefore, removal is procedurally defective.3 Accordingly, Plaintiff’s Motion to Remand
(Doc. 10) shall be GRANTED and the case is remanded to the First Judicial District Court, State
of New Mexico, County of Santa Fe. Defendants’ Motion to Dismiss Counts I–VII and XI–XV
(Doc. 5) and Defendant Hohman’s Motion to Dismiss Counts I–III and XI–XV (Doc. 14) are
DENIED AS MOOT.
SO ORDERED
____________________________________
UNITED STATES DISTRICT JUDGE
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The result here begs the question of what would happen in the event Defendants Drs. Staber and Trapp are
eventually properly served. If Plaintiff eventually serves Drs. Staber and Trapp, they could file a notice of removal,
and the earlier-served Defendants could presumably join or consent to removal within thirty days of service of
process on Drs. Staber and Trapp pursuant to 28 U.S.C. § 1446(b)(2).

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