Macfarlane v. Millard County et al
MEMORANDUM DECISION- denying 11 Motion to Remand. See Memorandum Decision for details. Signed by Judge David Sam on 8/24/17. (jmr)
UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
TODD MCFARLANE, et al, and JOHN/JANE
MILLARD COUNTY, Body Politic & Political
Subdivision of the State of Utah; DEAN
DRAPER, Millard County Commissioner;
JAMES WITHERS, Millard County
Commissioner; WAYNE JACKSON, Millard
County Commissioner; ALAN ROPER, former
Millard County Commissioner; BONNIE
GEHRE, Millard County Auditor; and
PATRICK FINLINSON, Millard County
Attorney, individually, and in their official
capacities and; JOHN/JANE DOES 1-10,
District Judge David Sam
Before the court is Mr. Macfarlane’s Motion for Remand (Doc. No. 11) which he filed in
response to Defendants’ Notice of Removal (Doc. No. 2), arguing that the removal was untimely.
Under 28 USC § 1446(b), the notice of removal must be filed within 30 days after the defendant
is served. The Tenth Circuit has held that the 30-day period for filing a removal does not run
until the defendant “is able to ascertain intelligently that the requisites of removability are
present,” and such notice must be clear and “unequivocal.” DeBry v. Transamerica Corp., 601
F.2d 480, 489 (10th Cir. 1979); Akin v. Ashland Chem. Co., 156 F.3d 1030, 1036 (10th Cir. 1998).
Mr. Macfarlane filed the original complaint in the underlying state court action on
January 2, 2017, and he advised Defendants in a Millard County Commission meeting on
January 3, 2017 that a lawsuit had been filed with the intention of amending the original
complaint following the anticipated outcome of pending administrative appeals. Defendants
were personally served with the original complaint in state court on May 2, 2017. Later that day,
after all Defendants had been served, Mr. Macfarlane sent Millard County Attorney Pat
Finlinson and UCIP-assigned Attorney Blake Hamilton an email with the Proposed Amended &
Supplemented Complaint attached.
On May 17, 2017, following the administrative appeal hearing on May 16, 2017, Mr.
Macfarlane filed the First Amended & Supplemented Complaint, which was similar to the
Proposed Amended & Supplemented Complaint, but included additional factual allegations
based on the outcome of the hearing. He sent a copy to Defendant’s attorneys via email. The
parties do not dispute that the First Amended Complaint satisfied the clear and unequivocal
notice test in articulating Plaintiff’s removable federal claims.
Defendants filed their Notice of Removal in this court on June 14, 2017. Mr. Macfarlane
filed this Motion for Remand on June 30, 2017, arguing that Notice of Removal was untimely
because the 30-day removal period had expired, based on the May 2, 2017 service of the original
As the Plaintiff noted, “The bottom line, critical question under 42 USC § 1446 is ‘when
was the first date that Defendants received clear and unequivocal notice of removable federal
claims?’” Doc. No. 18 at 5. The 30-day clock does not begin to run until the plaintiff provides
the defendant with “clear and unequivocal notice” that the suit is removable. Paros Properties
LLC v. Colorado Casualty Ins. Co., 835 F.3d 1265, 1269 (10th Cir. 2016) (quoting Akin v.
Ashland Chemical Co., 156 F.3d 1030, 1036 (10th Cir. 1998).
In order to be subject to jurisdiction based upon federal question, and thus removable, a
pleading must present a federal question “on the face of the plaintiff’s properly pleaded
complaint,” otherwise known as the “well-pleaded complaint rule.” Caterpillar Inc. v. Williams,
482 U.S. 386, 392 (1987). In determining whether removal was proper, “the court must limit its
inquiry to whether [the] complaint presents a federal question.” Citimortgage, Inc. v. Herbert,
2016 WL 3014664, *2, No. 2:16-cv-416 (D. Utah May 24, 2016) (quoting Caterpillar, 482 U.S.
at 392). A federal question exists when “federal law creates the cause of action asserted.” Id.
(quoting Gunn v. Milton, 133 S.Ct. 1059, 1064 (2013)). Referencing sources of federal law in a
complaint, but not in the cause of action section, does not satisfy the well-pleaded complaint rule
and does not entitle the pleading to federal question jurisdiction. See Firstenberg v. City of Santa
Fe, 696 F.3d 1018, 1025-26 (10th Cir. 2012).
Although Plaintiff’s original Complaint’s Declaratory Judgment cause of action uses
words and phrases like “unconstitutional,” and “fundamental Due Process,” it is unclear which of
the long list of state and federal laws referenced in the Legal Basis section are being invoked,
especially since the Plaintiff asserted that he intended to amend to include other federal claims
referenced in the section but never pled as a cause of action. It was not until Mr. Macfarlane
amended his complaint to add claims clearly of a federal nature that the case was removable, and
this occurred when he filed his Amended Complaint.
Mr. Macfarlane also argues that Defendants received notice when he emailed a copy of
the Proposed Amended Complaint to attorneys Pat Finlinson and Blake Hamilton on May 2,
2017. The court is not persuaded. The court agrees with the reasoning of the New Mexico
District Court in a similar situation in Zamora v. Wells Fargo Home Mortgage, 831 F.Supp.2d
1284 (D.N.M. 2011). In that case, the defendants removed the case based upon federal question
jurisdiction. Id. at 1298. In reviewing the removal, the court sua sponte found that it lacked
subject matter jurisdiction over the removed case because the federal questions identified in the
Notice of Removal were not found in the plaintiff’s “live pleadings” but rather in a “proposed
Supplemental Complaint.” Id. The court explained that “[a] proposed pleading has no effect on
the claims asserted in a case until the judge approves the pleading for filing.” Id. “While a
proposed pleading might inform a defendant that it will soon have a chance to remove once the
state court approved the pleading for filing, a defendant cannot properly remove a case
containing no claims over which a court has subject matter jurisdiction.” Id.
In this case, the live pleading was Plaintiff’s original Complaint, which did not clearly
assert any federal question claims on its face. As in Zamora, the Proposed Amended Complaint
at best notified Defendants that they would have an opportunity to remove if Plaintiff actually
filed the document. Until the document was filed on May 17, 2017, the case was not removable.
This court finds that the Defendants received clear and unequivocal notice when the
Amended Complaint was filed on May 17, 2017; therefore the Defendants’ Notice of Removal
was timely. For the above reasons and good cause appearing, Plaintiff(s)’ Motion for Remand
(Doc. No. 11) is hereby DENIED. So ordered.
DATED this 24th day of August, 2017.
BY THE COURT:
United States District Judge
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