Petition for Writ of Certiorari — Soto Enterprises, Inc., dba Miracle Delivery Armored Services, Petitioner v. City of Albuquerque, New Mexico

NO. 17-_____

In the Supreme Court of the United States

SOTO ENTERPRISES, INC. d/b/a

MIRACLE DELIVERY ARMORED SERVICES,

Petitioner,

–v–

CITY OF ALBUQUERQUE,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

DAVID M. MIRAZO

COUNSEL FOR PETITIONER

MOUNCE, GREEN, MYERS, SAFI,

PAXSON & GALATZAN

A PROFESSIONAL CORPORATION

P.O. DRAWER 1977

EL PASO, TX 79950-1977

(915) 532-2000

MIRAZO@MGMSG.COM

NOVEMBER 17, 2017

SUPREME COURT PRESS

♦ (888) 958-5705

♦ BOSTON, MASSACHUSETTS

i

QUESTIONS PRESENTED

1. Did the Tenth Circuit err in holding, in conflict

with the Eleventh, Seventh and Fourth Circuits, that

Petitioner waived its right of removal by filing a

partial motion to dismiss in state court minutes before

filing its notice of removal in federal court?

2. Whether, in holding that Petitioner waived its

right of removal by filing a partial motion to dismiss

in state court minutes before filing its notice of

removal in federal court, the Tenth Circuit erred by

creating a new bright-line rule that dramatically

changes federal removal practice and contravenes

the “clear and unequivocal” test followed by other

Circuits?

ii

CORPORATE DISCLOSURE STATEMENT

The Petitioner, Soto Enterprises, Inc. d/b/a Miracle

Delivery Armored Services, has no parent corporation.

No publicly held company has ever owned 10% or

more of its stock.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

CORPORATE DISCLOSURE STATEMENT ............ ii

TABLE OF AUTHORITIES ....................................... v

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

STATUTORY PROVISION INVOLVED ................... 2

INTRODUCTION ....................................................... 2

STATEMENT OF THE CASE .................................... 4

A. District Court’s Decision .................................. 4

B. Tenth Circuit’s Decision .................................. 5

REASONS FOR GRANTING THE PETITION ......... 7

I.

THE DECISION BELOW CONFLICTS WITH

DECISIONS OF THE ELEVENTH, SEVENTH AND

FOURTH CIRCUITS REGARDING WAIVER .............. 8

II. THE TENTH CIRCUIT’S “BRIGHT-LINE RULE”

DIRECTLY CONFLICTS WITH THE PRECEDENT

IN THE MAJORITY OF DISTRICT COURTS IN

OTHER CIRCUITS THAT WAIVER OCCURS

ONLY WHEN IT IS INTENT IS “CLEAR AND

UNEQUIVOCAL” BASED ON THE SPECIFIC FACTS

OF EACH CASE ................................................. 12

CONCLUSION.......................................................... 15

iv

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

Opinion of the Tenth Circuit

(July 25, 2017) .................................................... 1a

Memorandum Opinion and Order and Order of

Remand (April 11, 2016) .................................. 22a

Order of the Tenth Circuit Denying Petition for

Rehearing (August 22, 2017) ........................... 32a

v

TABLE OF AUTHORITIES

TABLE OF AUTHORITIES

CASES

Page

Bank of N.Y. Mellon v. Walnut Place LLC,

819 F.Supp.2d 354 (S.D.N.Y. 2011) ................... 14

Boggs v. Harris,

226 F.Supp.3d 475 (W.D. Pa. 2016) .................. 13

Cogdell v. Wyeth,

366 F.3d 1245 (11th Cir. 2004) ............. 7, 8, 9, 10

Grubb v. Donegal Mut. Ins. Co.,

935 F.2d 57 (4th Cir. 1991) ....................... 7, 8, 11

Hill v. State Farm Mut. Auto. Ins. Co.,

72 F.Supp.2d 1353 (M.D. Fla. 1999) ................. 10

JP Morgan Chase Bank, NA v. Reijtenbagh,

611 F.Supp.2d 389 (S.D.N.Y. 2009) .................... 14

Perez v. Air & Liquid Sys.,

223 F.Supp.3d 756 (S.D. Ill. 2016) .................... 12

Quackenbush v. Allstate Ins. Co.,

517 U.S. 706 (1996) ............................................. 2

Rothner v. Chicago,

879 F.2d 1402 (7th Cir. 1989) ............. 7, 8, 11, 12

Selvaggi v. Prudential Property and Casualty

Ins. Co., 871 F.Supp. 815 (E.D. 1995) ........ 13, 14

Thermtron Prods., Inc. v. Hermansdofer,

423 U.S. 336 (1976) ......................................... 2, 6

Things Remembered, Inc. v. Petrarca,

516 U.S. 124 (1995) ............................................. 2

vi

TABLE OF AUTHORITIES—Continued

Page

Webb v. Harrison,

No. 14-cv-5366 (RJS), 2015 U.S. Dist.

LEXIS 13959 (S.D.N.Y. Feb. 5, 2015) ................. 14

Yusefzadeh v. Nelson, Mullins, Riley &

Scarborough, LLP, 365 F.3d 1244

(11th Cir. 2004) .......................................... passim

STATUTES

28 U.S.C. § 1254(1) ..................................................... 2

28 U.S.C. § 1332 .......................................................... 1

28 U.S.C. § 1441(a) ................................................. 2, 3

JUDICIAL RULES

Fed. R. Civ. P. 81(c) ............................................... 6, 14

New Mexico R. Civ. P. 1-012(B) .................................. 6

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Soto Enterprises, Inc. d/b/a Miracle

Delivery Armored Services respectfully petitions for

a writ of certiorari to review the judgment of the

United States Court of Appeals for the Tenth Circuit.

OPINIONS BELOW

The opinion of the Tenth Circuit is reported at

864 F.3d 1089 and reproduced at App.1a. The Tenth

Circuit’s Order of August 22, 2017, denying Petitioner’s

motion for rehearing en banc, is unreported and

reproduced at App.32a.

The District Court’s decision granting Respondent’s

motion for remand is unpublished, available at City

of Albuquerque v. Soto Enters., No. CIV 16-99 JAP/

WPL, 2016 U.S. Dist. LEXIS 49094 (D.N.M. April 11,

2016), and reproduced at App.22a.

JURISDICTION

Federal subject matter jurisdiction in this case is

based on diversity of citizenship. 28 U.S.C. § 1332.

The Tenth Circuit issued its decision on July 25, 2017

affirming the District Court’s decision to remand the

case to state court. An order denying Petitioner’s timely

petition for rehearing en banc was entered on August

22, 2017. (App.32a). This Court has jurisdiction to

2

review the Tenth Circuit’s decision under 28 U.S.C.

§ 1254(1). This Court also has jurisdiction to review

the order of remand issued by the District Court. See

Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996);

Things Remembered, Inc. v. Petrarca, 516 U.S. 124

(1995); Thermtron Prods., Inc. v. Hermansdofer, 423

U.S. 336 (1976).

STATUTORY PROVISION INVOLVED



28 U.S.C. § 1441(a)

The right of removal to federal court is established

by 28 U.S.C. § 1441(a), which provides in relevant part:

. . . 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.

INTRODUCTION

This case presents important issues affecting

federal removal practice, which are subject to Circuit

splits, arising from the Tenth Circuit’s unprecedented

decision to adopt a new bright-line rule that, in effect,

states that filing any pleading in state court prior to

removal constitutes a waiver of the right of removal

3

under 28 U.S.C. § 1441(a), unless the filing was “compelled” by the state rules.

The decision of the Tenth Circuit is in direct

conflict with decisions in the Eleventh, Seventh and

Fourth Circuits, and is also in conflict with numerous

district court decisions in other Circuits holding that

waiver is to be found only when there is a “clear and

unequivocal” intent to waive the right of removal—

for example, by seeking a ruling on the merits from

the state court and then removing the case when the

ruling from the state court turns out to be adverse to

the removing party.

The Eleventh Circuit goes as far as holding that

the filing of a motion to dismiss in state court prior to

removal does not constitute wavier of the right of

removal as a matter of law. The Seventh and Fourth

Circuits hold that waiver is to be found only in “extreme

circumstances” and initial pleadings in the state case

do not constitute waiver of the right of removal.

Instead of following the decisions of the Eleventh

Circuit, the rule in the Seventh and Fourth Circuits,

or the numerous decisions of the district courts in

other Circuits, the Tenth Circuit fashioned a new

bright-line rule that is arbitrary and not based on the

circumstances and evidence of waiver in each specific

case. The Tenth Circuit’s new rule will effectively

preclude removal in all cases where any pleading is

filed in state court before removal.

These important federal removal practice issues

warrant review by this Court.

4

STATEMENT OF THE CASE

A.

District Court’s Decision

Respondent filed its Complaint for Breach of

Contract, Breach of Implied Covenant of Good Faith

and Fair Dealing, Negligent Supervision and Retention,

Conversion, and Fraud in the Second Judicial District

Court of New Mexico. Petitioner filed two pleadings

in the state court, a Motion to Dismiss in Part the

Respondent’s Complaint at 2:18 p.m., and an Original

Answer to the Respondent’s Complaint, subject to the

Motion to Dismiss, at 2:23 p.m. Minutes later, Petitioner

filed a Notice of Removal in the United States District

Court for the District of New Mexico at 3:38 p.m.

Exactly eighty minutes passed between the filing of

the Partial Motion to Dismiss and the filing of the

Notice of Removal.

Petitioner’s Partial Motion to Dismiss addressed

the Respondent’s tort claims only, not the entire case.

Petitioner did not request a hearing on its Partial

Motion to Dismiss and none was scheduled. No response

or opposition was filed. No other action was taken by

Petitioner during the eighty minutes that Petitioner

appeared in New Mexico state court.

Respondent filed a Motion to Remand the case to

state court based on alleged waiver, and Petitioner

filed a response and opposition to the same. The District

Court granted the Motion to Remand by Order dated

April 11, 2016. (App.22a). The Order remanding the

case was based solely on waiver as a result of the

filing of the partial motion to dismiss in state court.

5

The District Court drew a distinction between motions

to dismiss seeking dismissal on the merits and those

seeking dismissal on procedural grounds, and concluded

that Petitioner’s partial motion to dismiss sought

dismissal on the merits and therefore constituted

wavier of the right of removal. “The Court finds that

a firm rule—treating substantive motions to dismiss

as waivers of the right to remove—is more workable,

better preserves state court resources, and offers the

clearest guidance to defendants contemplating a

potential removal.” (App.30a). Notably, this rationale

is different than the rationale of the Tenth Circuit for

affirming the District Court’s Order.

Petitioner timely perfected its appeal to the

Tenth Circuit Court of Appeals.

B.

Tenth Circuit’s Decision

The Tenth Circuit affirmed the decision of the

District Court and created a new rule and a split

between the Circuits, by concluding that filing a

partial motion to dismiss alone was sufficient to

establish Petitioner’s clear and unequivocal intent to

remain in state court. The Tenth Circuit created the

Circuit split by establishing the following new rule:

When a defendant files a motion to dismiss

seeking disposition, in whole or in part, on

the merits in state court before removing

the case to federal court, it manifests a

“clear and unequivocal” intent to submit the

case to the state court’s jurisdiction, and

thus waives removal. We favor a bright-line

rule to avoid piecemeal litigation that would

distinguish cases based on the length of

6

delay between motions to dismiss and motions

to remove and based on any number of like

considerations. Yet we also recognize that in

limited circumstances, this bright-line rule

can lead to unfair results, so we fashion an

exception as well.

(App.19a). Under the exception, waiver does not occur

when a “state’s procedural rules compel a defendant’s

state-court participation.” Id. The facts of this case do

not establish such intent. Rule 81 of the Federal Rules

of Civil Procedure permits a defendant to file an

answer in state court prior to removal, and Rule 1012 of the New Mexico Rules of Civil Procedure

compels a defendant to file a motion to dismiss before

filing an answer. See Fed. R. Civ. P. 81(c); 1-012(B),

NMRA. Petitioner here merely followed the federal

and state procedural rules. Thus, the Tenth Circuit

erred by designing a new arbitrary bright-line rule

for determining waiver and also erred in the application

of the new rule to the facts of this case.

The Tenth Circuit acknowledged that a “mere hour

and twenty minutes passed” between Petitioner filing

the motion to dismiss (and its answer) and filing the

notice of removal, and that “[Petitioner] never requested

a hearing on its motion to dismiss.” (App.18a).

Inapposite of the law of the majority of the Circuits,

the Tenth Circuit created a bright-line rule that is not

only mistaken as to Petitioner’s intent to remove, but

is also irreconcilable with how the majority of the

Circuits determine whether waiver has occurred. This

Court should grant certiorari to reverse the Tenth

Circuit’s holding in concluding the Petitioner effectively

waived its right to removal and to clarify the appro-

7

priate standard for the lower courts to determine how

waiver can be established and which factors are to be

considered.

REASONS FOR GRANTING THE PETITION

This Court should grant certiorari to resolve the

circuit split made apparent by the Eleventh Circuit

decisions in Yusefzadeh and Cogdell and the Tenth

Circuit’s decision below, which hold that filing a

motion to dismiss on the merits in state court prior to

removal does not constitute waiver of the right of

removal. See Yusefzadeh v. Nelson, Mullins, Riley &

Scarborough, LLP, 365 F.3d 1244, 1246 (11th Cir.

2004); Cogdell v. Wyeth, 366 F.3d 1245, 1246-47 (11th

Cir. 2004). In fact, the District Court conceded that

“issues about whether a defendant has sufficiently

participated in a state court before removal are subject

to differences of opinion and inconsistent application.”

(App.16a).

Also contrary to the Tenth Circuit’s decision

below, the Seventh Circuit and the Fourth Circuit

hold that waiver only occurs in “extreme situations,”

and early pleadings filed in state court do not amount

to waiver. See Grubb v. Donegal Mut. Ins. Co., 935

F.2d 57, 59 (4th Cir. 1991); Rothner v. Chicago, 879

F.2d 1402, 1404 (7th Cir. 1989). Under the approach

set out in Rothner, “a waiver determination involves

a factual and objective inquiry as to the defendant’s

intent to waive” and should only be found in rare and

extreme circumstances. Rothner, 879 F.2d at 1404. In

Grubb, the Fourth Circuit stated, “We are persuaded by

8

this reasoning, and adopt Rothner ’s holding that

although a defendant may yet waive its thirty-day right

to removal by demonstrating a ‘clear and unequivocal’ intent to remain in state court, such a waiver

should only be found in ‘extreme situations.’” Grubb,

935 F.2d at 59.

District courts throughout the country have also

applied the clear and unequivocal standard when

determining waiver, but they do so based on the specific

facts of each case and not based on any bright-line

rule.

This Court has yet to speak directly to the correct

standard for determining waiver of the right of removal.

As a result, what conduct constitutes waiver remains

uncertain and has led to a split among the Circuits.

In fact, only the Tenth Circuit has followed the

interpretation that filing a partial motion to dismiss,

without more, amounts to a waiver of the right of

removal. The Tenth Circuit is in direct conflict with

the Eleventh, Seventh and Fourth Circuits, as well

as with district court decisions of other Circuits

holding that waiver occurs only upon a showing of a

“clear and unequivocal” intent to litigate in state

court based on the specific facts of each case.

Simply put, had this case arisen in the Eleventh,

Seventh or Fourth Circuit, the District Court would

have likely denied Respondent’s motion to remand.

I.

THE DECISION BELOW CONFLICTS WITH DECISIONS

OF THE ELEVENTH, SEVENTH AND FOURTH CIRCUITS

REGARDING WAIVER.

The Tenth Circuit’s decision conflicts with the

Eleventh Circuit’s decision in Yusefzadeh and Cogdell

9

on the issue of whether a motion to dismiss, without

more, constitutes intent to waive removal. Yusefzadeh,

365 F.3d at 1246; Cogdell v. Wyeth, 366 F.3d at 124647.

In Yusefzadeh, the court held that “the filing of a

motion to dismiss in and of itself does not necessarily

constitute a waiver of the defendant’s right to proceed

in the federal forum.” Yusefzadeh, 365 F.3d at 1246.

In Yusefzadeh, the defendant filed two motions to

dismiss in state court alleging lack of jurisdiction and

multiple substantive issues, including the defense of

limitations. Before the state court ruled on either

motion, the defendant removed the case to federal court.

The district court remanded the case sua sponte to the

state court based on waiver, and the defendant

appealed. The Eleventh Circuit held that the two

motions to dismiss did not constitute waiver of the

right of removal and reversed the ruling of the district

court. Id. at 1246-47 (internal citations and quotations

omitted).

A few days later, in an almost identical case, the

Eleventh Circuit followed the holding in Yusefzadeh

and held that a defendant who filed a motion to

dismiss in state court for failure to state a claim

upon which relief can be granted—the same type of

motion filed by Petitioner in this case—did not waive

his right of removal. See Cogdell v. Wyeth, 366 F.3d

at 1246-47.

The Yusefzadeh and Cogdell decisions stand in

stark contrast to the Tenth Circuit holding below. With

respect to the Tenth Circuit’s holding that Petitioner’s

motion to dismiss was seeking an adjudication on the

merits, the Yusefzadeh decision holds that “[w]hether

10

the state court defendant ha[s] waived his right to

remove based on ‘active participation must be made on

a case-by-case basis.’” Yusefzadeh, 365 F.3d at 1246

(quoting Hill v. State Farm Mut. Auto. Ins. Co., 72

F.Supp.2d 1353, 1354 (M.D. Fla. 1999)). The Cogdell

decision holds unequivocally that filing a motion to

dismiss in state court, even on the merits, is not a

waiver of the right of removal, because the defendant

did not “take any additional steps to have the state

court rule on its motion prior to its removal; in

neither case did the state court act on the motion.”

Cogdell, 366 F.3d at 1249. “Thus, as in Yusefzadeh,

we cannot say that the defendant took such ‘substantial

offensive or defensive actions in state court’ that it

waived its right to remove the lawsuit to the district

court.” Id. (quoting Yusefzadeh, 365 F.3d at 1247).

Petitioner’s partial motion to dismiss is indistinguishable and actually seeks less relief from the

state court than the motions filed by the defendants in

Yusefzadeh and Cogdell. As in Yusefzadeh and

Cogdell, Petitioner did not seek a hearing on the

motion, and did not engage in any conduct in state

court that could be considered “substantially offensive

or defensive.” Petitioner was in state court for a little

over an hour, only the time sufficient to electronically

file the state court pleadings, obtain conformed copies

of the pleadings from the state court district clerk,

and electronically file the notice of removal in federal

court. In Yusefzadeh, the Eleventh Circuit recognized

that the defendant had complied with the state court

rule by filing his responsive brief in state court and

then “swiftly” removing to federal court. Yusefzadeh,

365 F.3d at 1246-47. The defendant “did not schedule

a hearing on his motions to dismiss prior to seeking

11

removal and the state court had not ruled on his

motions to dismiss prior to his removing the case.”

Id. at 1247. In those circumstances, the court found

the defendant had not taken “substantial offensive or

defensive actions in state court” and, therefore, had

not waived his removal right.

In similar fashion, Petitioner filed the notice of

removal within a mere eighty minutes of filing the

motion to dismiss, almost concurrently. There was no

waiver under the Eleventh Circuit rule, but there

was waiver under the Tenth Circuit’s newly crafter

rule. This Court should grant this petition to resolve

the split of authority in the two Circuits.

The decision of the Tenth Circuit is also contrary

to the law in the Seventh and Fourth Circuits. The

Fourth Circuit has recognized that waiver should

only be found in “the most extreme circumstances.”

Grubb, 935 F.2d at 59, (“[A] defendant waives its right

to removal only by demonstrating a clear and unequivocal intent to remain in state court, and waiver will

only be found in extreme circumstances.”) (internal

quotations omitted). In Grubb, the Fourth Circuit

held that a defendant who proceeded with a summary

judgment hearing after the case became removable did

not waive its right of removal. Id. at 60-61.

In Rothner, the Seventh Circuit examined the role

of the waiver in the context of the removal statute.

See Rothner, 879 F.2d at 1402. The Seventh Circuit

explained that “a waiver determination involves a

factual and objective inquiry as to the defendant’s

intent to waive” and should only be found in rare and

extreme circumstances. Id. at 1408. Further the

Rothner court concluded that “ . . . while the instances

12

of waiver are now rare and . . . [waivers] occur only

where the parties have fully litigated the merits, an

appellate court is not precluded from reviewing a

remand based on waiver.” Id. at 1416.

Following the Seventh Circuit’s binding precedent

in Rothner, the court in Perez v. Air & Liquid Sys.

Corp. held that a defendant who filed a motion to

dismiss in state court for failure to state a claim and

removed the case to federal court two hours later did

not waive the right of removal. 223 F.Supp.3d 756,

760-61 (S.D. Ill. 2016). In this case, Petitioner’s notice

of removal was filed forty minutes before the notice

of removal in Perez. The holdings in Rothner and Perez

would have been dispositive in favor of Petitioner in

the Seventh Circuit.

The Court should grant certiorari to resolve the

Circuit split between the Tenth and the Eleventh,

Seventh and Fourth Circuits.

II.

THE TENTH CIRCUIT’S “BRIGHT-LINE RULE”

DIRECTLY CONFLICTS WITH THE PRECEDENT IN THE

MAJORITY OF DISTRICT COURTS IN OTHER CIRCUITS

THAT WAIVER OCCURS ONLY WHEN IT IS INTENT IS

“CLEAR AND UNEQUIVOCAL” BASED ON THE SPECIFIC

FACTS OF EACH CASE.

The Tenth Circuit’s promulgation of a bright-line

rule contravenes the clear and unequivocal standard

applied by the majority of district courts in other

Circuits. The inconsistency of the Tenth Circuit’s

bright-line rule approach demonstrates the risk a

defendant takes in taking any action in state court

before removal.

13

For example, in the Third Circuit, waiver of the

right of removal is examined on a case by case basis

and is only found in “extreme” circumstances. “District

courts within the Third Circuit have found that most

actions taken by a defendant prior to removal do not

constitute a clear and unequivocal waiver of the right

to remove.” Boggs v. Harris, 226 F.Supp.3d 475, 482

(W.D. Pa. 2016).

Courts also closely consider the timing of

the defendant’s conduct. It is clear that the

stage the case is in should be and is crucial

when analyzing whether there has been a

waiver of the right to remove. For example,

filing a pleading in the early stages of

litigation may not be as clear and unequivocal

an act as continuing to present evidence in a

trial.

Id. (citations and quotations omitted). The court in

Boggs found that filing a cross-claim, engaging in

discovery, and engaging in alternative dispute resolution proceedings did not amount to a waiver of the

right of removal, because there was no clear and

unequivocal intent to remain in state court. Id. at

487-88.

The holding in Boggs is based in part on the

holding in Selvaggi v. Prudential Property and Casualty

Ins. Co., where the court held that an examination of

the stage of the case or its procedural posture is

warranted and crucial when analyzing whether there

has been a waiver of the right of removal. 871 F.Supp.

815 (D.C. Pa. January 5, 1995). The court concluded

that a defendant had not waived its right of removal

by filing initial pleadings in the state court, and

14

explained: “In prior cases, the district courts have

recognized that while no clear standard has emerged

regarding waiver, the statutory right to removal will

not be lost unless the defendant’s intent to waive is

clear and unequivocal.” Id. at 817.

Similarly, in the Second Circuit, numerous courts

have recognized a defendant may waive the right to

remove an action to federal court only by taking

actions in the state court that clearly and unequivocally

manifest submission to the state court’s jurisdiction.

See e.g., Bank of N.Y. Mellon v. Walnut Place LLC,

819 F.Supp.2d 354 (S.D.N.Y. 2011) (seeking discovery

and a modification of the state court’s scheduling

order did not constitute waiver because waiver must

be clear and unequivocal); JP Morgan Chase Bank, NA

v. Reijtenbagh, 611 F.Supp.2d 389, 389 (S.D.N.Y. 2009)

(waiver must be clear and unequivocal); see also Webb

v. Harrison, No. 14-cv-5366 (RJS), 2015 U.S. Dist.

LEXIS 13959 (S.D.N.Y. Feb. 5, 2015) (unreported opinion) (request for injunctive relief from the state court

did not constitute clear and unequivocal waiver of

right of removal).

This Court should grant certiorari to harmonize

the decisions of the district courts throughout the

country and establish the appropriate standard for

finding waiver of the right of removal. The holding of

the Tenth Circuit effectively means that a defendant

cannot file an answer in state court prior to removal.

This is in direct contradiction to well-established

federal removal practice, as well as the language of

Fed. R. Civ. P. 81(c). A litigant facing the potential of

remand on other grounds—for example, by the subsequent addition of a non-diverse defendant—will waive

15

substantive rights in state court by being precluded

from filing an answer prior to removal. It is of critical

importance that the Tenth Circuit’s decision be

reviewed by this Court.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

DAVID M. MIRAZO

COUNSEL FOR PETITIONER

MOUNCE, GREEN, MYERS, SAFI,

PAXSON & GALATZAN

A PROFESSIONAL CORPORATION

PO DRAWER 1977

EL PASO, TX 79950-1977

(915) 532-2000

MIRAZO@MGMSG.COM

NOVEMBER 17, 2017