Romero v. Knee et al

Filing 18

MEMORANDUM OPINION AND ORDER by Sr. District Judge Robert C. Brack Granting 9 First MOTION to Remand Defendant Eric Knee's Motion to Remand. Case remanded to The First Judicial District Court, County of Santa Fe, New Mexico. (jjs)

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

DONALD ROMERO, as parent and
next friend of N.R., a minor child,
Plaintiff,
v.

No. CV 1:17-1273 RB-KBM

ERIC KNEE, THE CITY OF SANTA FE,
JOHN DOE #1, JOHN DOE #2, JOHN DOE #3,
JOHN DOE #4, and OTHER YET-TO-BE IDENTIFIED
EMPLOYEES OR FORMER EMPLOYEES OF THE
CITY OF SANTA FE,
Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiffs decide in which forum—state or federal—to file their cases, but defendants
have the ability to remove certain types of cases from state to federal court. To remove an action,
though, all defendants who had been properly joined and served at the time of removal must
agree to move to the federal forum. If a single defendant does not assent to removal—for any
reason, or no reason—the action will remain in state court.
Defendant City of Santa Fe (the City) removed this case from state to federal court
without obtaining the consent of co-defendant Eric Knee, who was a properly-served defendant
at the time of removal. The City did not obtain Mr. Knee’s consent because Plaintiff Donald
Romero did not file proof of service as required by state law, so the City did not know that Mr.
Knee was a properly-served defendant whose consent it needed. Regardless of the City’s reason,
however, the fact remains that a properly-served defendant at the time of removal did not, and
does not, consent to removal. As such, the Court grants Mr. Knee’s motion to remand (Doc. 9).

BACKGROUND
Mr. Romero brought suit in state court on behalf of his minor son, N.R., against Mr.
Knee, the City, and other unidentified defendants for a sexual assault that occurred at a
swimming pool. The City was served with the complaint on December 13, 2017, and Mr. Knee
was served with the complaint on December 15, 2017. (Doc. 15 at 1.) Mr. Romero did not file
proof of service, however, so the state court record did not reflect that he had been properly
served. (See Doc. 14 at 8.)
Five days after Mr. Knee was served, the City removed the action to this Court. (Doc. 15
at 1.) Though federal law requires the City to obtain the consent of all properly-served codefendants before removing an action to federal court, see 28 U.S.C. § 1446(b)(2)(A), the City,
relying on the state court record, did not know that Mr. Knee had been served and thus did not
seek his consent.
After the action had been removed, Mr. Knee filed an answer to Mr. Romero’s complaint.
(Doc. 6.) And two weeks after filing his answer, Mr. Knee sought remand to state court, arguing
that removal was defective because the City had failed to secure his consent as required.
DISCUSSION
I. Mr. Knee did not consent to removal or waive his right to seek remand by filing his
answer in this court.
Before delving into the merits, a preliminary question is whether Mr. Knee can object to
removal and seek remand. Noting that Mr. Knee filed an answer before seeking remand, the City
argues that Mr. Knee’s answer constituted consent to the federal forum. (Doc. 14 at 7.) The
City’s argument can also be framed in terms of waiver—Mr. Knee waived his right to seek
remand by filing his answer in federal court.

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Procedural defects in removal—like failing to secure the consent of all defendants—can
be waived. Vill. Apartments Co., L.P. v. Asset Shelters Grp., Inc., No. 1:07-CV-817 MCA/RLP,
2008 WL 11414603, at *2 (D.N.M. Apr. 29, 2008) (citing Payne ex rel. Estate of Calzada v.
Brake, 439 F.3d 198, 203 (4th Cir. 2006)). Waiver can be found where a party takes affirmative
action in district court. Vill. Apartments, 2008 WL 11414603, at *3 (citing Lanier v. Am. Bd. of
Endodontics, 843 F.2d 901, 904 (6th Cir. 1988)). There is no bright line delineating how much
affirmative action is enough to constitute waiver, but an important consideration is the nature and
extent of the action, keeping in mind principles of fairness and whether the action evinces
consent to the federal forum. See id. Ultimately, “[a] district court has broad discretion in
deciding whether a party waived its right to object to procedural irregularities.” Lanier, 843 F.2d
at 904.
In a case outside this district, a court found waiver of the right to seek remand when the
party seeking remand “entered into stipulations, filed requests for discovery, sought to amend her
complaint, filed a new lawsuit . . . in the federal court, demanded trial by jury, and proceeded
with discovery” before seeking remand. Id. at 905. On the other hand, in a case in this district
where the party seeking remand filed counter- and cross-claims in federal court, the court held
that such action was insufficient to constitute waiver. Vill. Apartments, 2008 WL 11414603, at
*3. And in another case in this district, the court ruled that a party’s “willingness to proceed
before a magistrate and filing of a corporate disclosure statement” did not amount to consent to
removal and were not enough to waive the right to remand. See State Farm Fire & Cas. Co. v.
Dunn-Edwards Corp., 728 F. Supp. 2d 1273, 1278 n.19 (D.N.M. 2010).
In this case, Mr. Knee filed an answer in this Court in which he responded to factual
allegations, was silent on the issue of remand, and included a cursory statement asking the Court

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to dismiss the complaint. (Doc. 6 at 1–6.) Responding to factual allegations and including a brief
statement seeking dismissal is par-for-the-course in a party’s answer. Mr. Knee did not file a
motion to dismiss or include sufficient briefing to create a realistic chance that the Court would
dismiss the complaint based solely on his answer. In light of these examples of how other courts
have judged affirmative actions in this context, Mr. Knee’s answer appears to be less affirmative
and more defensive in nature. Additionally, Mr. Knee’s answer did not trigger more briefing by
the parties unrelated to remand, so there is no concern that a remand would waste the parties’ or
Court’s efforts. And Mr. Knee’s filing for remand came before any adverse merits ruling by this
Court, so remand would not give Mr. Knee two bites at the proverbial apple. See United States v.
Nacchio, 555 F.3d 1234, 1253 (10th Cir. 2009) (“Courts are not disposed to allow litigants to
have two or more bites at the proverbial apple.”) For these reasons, the Court finds that Mr.
Knee’s answer did not evince consent to removal or cause him to waive his objection to removal.
II. Mr. Knee’s objection defeats removal by preventing satisfaction of the unanimity rule.
Having determined that Mr. Knee may object to removal, the Court examines Mr. Knee’s
objection: that the City’s removal is defective because it failed to secure his consent to removal.
“Often called the ‘unanimity rule,’ a failure of all ‘served’ defendants to consent in writing to
removal constitutes a procedural defect requiring remand.” Doe v. Sunflower Farmers Markets,
Inc., 831 F. Supp. 2d 1276, 1278 (D.N.M. 2011).
In response to Mr. Knee’s objection, the City contends that Mr. Knee was not a properlyserved defendant at the time of removal because Mr. Romero did not promptly file proof of
service with the state court. (Doc. 14 at 8.) And because Mr. Romero did not file proof of
service, the City continues, there was no way to tell from the state court record whether Mr.
Knee had been served. (See id. at 4–7.) Citing a previous case before this Court, Doe v.

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Sunflower Farmers Markets, the City argues that a removing defendant has no obligation to look
past the state court record in complying with the unanimity rule. (See id. at 4–5.)
Turning first to the issue of whether Mr. Knee was properly served, the Court notes that,
as this case was filed in New Mexico state court, New Mexico’s procedural rules govern the
initial service of process. See Knight v. Mooring Capital Fund, LLC, 749 F.3d 1180, 1184 (10th
Cir. 2014) (looking to state service-of-process rules). Under New Mexico’s Procedural Rules, it
is the party obtaining service—a confusingly-worded way to reference the plaintiff—who is
responsible for filing proof of service with the state court. N.M.R.A. Rule 1-004(L) (“The party
obtaining service of process or that party’s agent shall promptly file proof of service.”). But
failure to file proof of service does not invalidate service of process. Id. (“Failure to make proof
of service shall not affect the validity of service.”)
Apart from the fact that Mr. Romero did not file proof of service, the City has no other
complaints about service to Mr. Knee. Since failure to file proof of service does not invalidate
service under New Mexico law, the Court will treat Mr. Knee as a properly-served defendant at
the time of removal—any other result would allow the plaintiff to deprive a properly-served
defendant of his right to veto removal by failing to file proof of service.
Moving to the City’s argument that it does not need to look further than the state court
record, the Court examines Sunflower Farmers Markets, on which the City relies. In Sunflower,
two defendants removed the case without obtaining consent from a third defendant, for whom
proof of service was not filed. Sunflower Farmers Markets, 831 F. Supp. 2d at 1278. The
plaintiff argued that the omission of the third defendant from the notice of removal rendered
removal defective. Id. The Court rejected the plaintiff’s argument, ruling that the removing
defendants did not need to look past the state court record to determine whose consent they

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needed. Id. at 1279–80. Applying Sunflower to the present facts, it would appear that the City did
not need Mr. Knee’s consent to remove, because there was no proof of service to Mr. Knee, and
the City did not need to look past the state court record.
But closer inspection reveals that Sunflower is distinguishable in at least two ways. In
Sunflower, the plaintiff could not make the case that the ignored defendant had been properly
served. Id. at 1279 (“Plaintiff does not cite any decision, much less binding authority, that holds
Defendant Garcia qualified as a “served” defendant under the circumstances of this case.”) And
in Sunflower, it was the plaintiff who sought remand. Id. at 1278. There was no evidence in
Sunflower that a defendant objected to removal. In contrast, the party that seeks remand here is
the defendant who was omitted from the notice of removal. As Congress requires “all defendants
who have been properly joined and served” to consent to removal, and as Mr. Knee was a
properly-served defendant at the time of removal, it was Mr. Knee’s prerogative to defeat
removal by withholding his consent.
In the end, the question is not whether the removing defendant did everything it could to
obtain consent, but whether all properly-served defendants consent to removal. If all defendants
consent, then courts have been willing to forgive minor procedural defects, especially when the
procedural defect was not the fault of the removing defendant. See Branch v. Attorney for You,
No. L:15-CV-1087-RAJ, 2016 WL 7437140, at *2 (D.N.M. Feb. 11, 2016) (holding that remand
was not required when the removing defendant omitted another properly-served defendant from
the notice of removal because he did not know the omitted defendant had been served, and the
omitted defendant later consented to removal). If fewer than all defendants consent to removal,
however, removal is not appropriate, regardless of the fact that the removing defendant tried its
best to obtain consent. Because Mr. Knee was a properly-served defendant at the time of

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removal, and did not and does not consent to removal, the unanimity rule is not satisfied. The
Court thus grants Mr. Knee’s motion to remand.
III. The Court rejects both parties’ request for fees.
Both parties asked for attorney’s fees and costs. (Docs. 14 at 8; 15 at 6–7.) The Court
summarily rejects the City’s perfunctory, unexplained request for fees.
As for Mr. Knee, he requests fees because he feels that the City had no reasonable basis
for removing the case in the first place, and that it had no reasonable basis for fighting remand
once he made his lack of consent to removal clear. (See Doc. 15 at 6–7.) “An order remanding
the case may require payment of just costs and any actual expenses, including attorney fees,
incurred as a result of the removal.” 28 U.S.C. § 1447(c). “Absent unusual circumstances, courts
may award attorney’s fees under § 1447(c) only where the removing party lacked an objectively
reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141
(2005). The City had a reasonable basis for seeking removal because the state court record
disclosed no other defendant whom the City needed to consult before removing. And the City
reasonably defended its removal: for example, the City had a reasonable waiver argument
because whether Mr. Knee waived his remand argument by filing his answer was up to the
Court’s discretion, given the contents of the answer. Accordingly, the Court denies Mr. Knee’s
request for fees.

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CONCLUSION
For the reasons given, the Court grants Mr. Knee’s motion to remand (Doc. 9) and
remands the case to the First Judicial District, County of Santa Fe, State of New Mexico. The
Court rejects both parties’ fee requests.

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

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