May v. Board of County Commissioners
945 F. Supp. 2d 1277
D.N.M.2013Background
- May v. Board of County Commissioners for Cibola County involves May and J. Reese’s federal civil rights and related claims arising from alleged misconduct by state officials; May removed the case to federal court in June 2012, and May filed a Motion to Remand in July 2012.
- The central questions are whether Reese waived removal rights by a state-court motion to dismiss, whether Marion’s absence needed an affirmative removal-explanation in the Notice of Removal, and whether failure to provide May’s Response to Reese’s Motion to Dismiss required remand.
- May alleges Fourth/Fourteenth Amendment violations, conspiracy to deprive civil rights, and NMTA-based/state-law claims against Reese, Marion, Faught-Hollar, and others, arising from a 2010-2012 sequence including a Hawaii Order of Protection and related enforcement actions.
- Defendants removed claiming federal-question jurisdiction under 42 U.S.C. § 1983; Marion had not been served at removal, but later consented.
- The Court held a hearing and applied a de minimis standard, concluding Reese did not waive removal, no affirmative removal-absence explanation was required, and failure to attach May’s Response was curable; remand was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Reese waived removal by filing a state-court motion to dismiss. | May argues waiver via clear intent to remain in state court. | Reese’s motion targeted venue rather than merits; last-served rule preserves removal rights. | No waiver; motion to dismiss is not per se a clear intent to stay. |
| Whether the Notice of Removal must affirmatively explain Marion’s absence. | Absent/ unserved Marion required explanation to satisfy unanimity. | Statute does not require explanation for unserved defendants; unanimity can be achieved later. | Not required; absence need not be explained in the Notice. |
| Whether failure to provide May's Response to Reese’s Motion to Dismiss requires remand. | Defect in removal procedure should trigger remand under strict construction. | De minimis defect; cured when May later supplied the response within 28 days. | No remand; defect deemed de minimis and curable. |
Key Cases Cited
- Caterpillar Inc. v. Lewis, 519 U.S. 61 (U.S. 1996) (defect in removal cured if jurisdiction existed; jurisdiction not defeated by procedural defect)
- Laughlin v. Kmart Corp., 50 F.3d 871 (10th Cir. 1995) (removal is strictly construed; consider jurisdictional facts pre-removal)
- Akin v. Ashland Chem. Co., 156 F.3d 1030 (10th Cir. 1998) (one defendant not served may still remove; need adequate notice of removal rights)
- Brady v. Lovelace Health Plan, 504 F. Supp. 2d 1170 (D.N.M. 2007) (unserved defendants need not join; removal can be upheld without all joiners)
- Washington v. Harris, 2011 WL 2174942 (D. Kan. 2011) (minor defects in removal notices may not require remand; focus on jurisdictional existence)
- Countryman v. Farmers Ins. Exch., 639 F.3d 1272 (10th Cir. 2011) (de minimis defect in removal process curable; 2012 amendment adopted last-served rule)
- Tresco, Inc. v. Cont’l Cas. Co., 727 F. Supp. 2d 1243 (D.N.M. 2010) (rejects extra procedural hurdles for removal; supports de minimis approach)
- Zamora v. Wells Fargo Home Mortg., 831 F. Supp. 2d 1291 (D.N.M. 2011) (waiver of removal by clear intent to stay; extreme situations note)
- Chavez v. Kincaid, 15 F. Supp. 2d 1118 (D.N.M. 1998) (waiver based on motion to dismiss and merits-focused conduct)