United States District Court, D. Utah, Central Division
SAM, UNITED STATES DISTRICT JUDGE.
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).
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
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.
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 complaint.
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).
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.” Citi mortgage, 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
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
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 plaintiffs “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.
case, the live pleading was Plaintiffs 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.
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,