MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Plaintiff's Motion to Remand— Opposed, filed November 13, 2010 (Doc. 8); and (ii) Third Party Plaintiffs, Triple D Supply, L.L.C. and Donald Doak's Motion to Remand, filed November 24, 2010 (Doc. 22). The Court held a hearing on February 22, 2010. The primary issues are: (i) whether Defendant/CrossClaimants/Third Party Plaintiffs Triple D Supply L.L.C. and Donald Doak's Cross-Claims are a separate civil action under 28 U.S.C. § 1441(a); (ii) whether Defendant/Cross-Defendant Great American Insurance Company, d/b/a Great American E & S Insurance Company ("Great American") is time barred from removing this case from state court under 28 U.S.C. § 1446(b); (iii) whether, as a Cross-Defendant, Great American, is permitted to remove this action 28 U.S.C. § 1441(a); and (iv) whether the Court should award to costs and fees associated with the motions. Because the Cross-Claims are not separate civil actions, Great American is time barred from removing this case, and because Great American, as a Cross-Defendant, is not permitted to remove this case, the Court grants the motions in part and denies the motions in part. The Court remands this case to the District Court of Dona Ana County, Third Judicial District, New Mexico. The Court will not award fees and costs.

FACTUAL BACKGROUND

J. Mach, individually, as Personal Representative of the Estate of Louis Dwayne Mach, III, Deceased, and as next Friend of minor children Jewel Mach, Louis Mach, Karlton Mach, and Ivan Mach ("Mach Plaintiffs"). The Mach Plaintiffs are a residents of Warren, Ohio. Triple D Supply is a domestic for-profit limited liability company registered and doing business in New Mexico.1 Doak is a manager of Triple D Supply and a resident of New Mexico. Great American is a for-profit corporation, incorporated in Ohio and doing business in New Mexico. Third-Party Defendant/Crossdefendant Wilshire Insurance Company ("Wilshire") is an insurance company doing business in the state of New Mexico.

PROCEDURAL BACKGROUND

On July 31, 2009, the Mach Plaintiffs filed their Complaint for Wrongful Death and Personal Injury in cause number CV 09-1990 in the District Court of Dona Ana County, Third Judicial District. On August 4, 2010, The Honorable Jerald A. Valentine, New Mexico District Court Judge, filed his Order Granting Plaintiffs' Unopposed Motion for Leave to File Amended Complaint, see Doc. 10-8, at 33, and the Mach Plaintiffs filed their First Amended Complaint for Wrongful Death, Personal Injury, Bad Faith Insurance Company Practices and Breach of the Duty of Good Faith and Fair Dealing, see Doc. 10-8, at 7 ("FAC"). The FAC named Great American as a Defendant. The Mach Plaintiffs brought, among others, claims against Great American for breach the duty of good faith and fair dealing. See FAC ¶¶ 5.1-5.3, at 8. On September 2, 2010, the Mach Plaintiffs served a summons and the FAC on Great American through the New Mexico Public Regulation Commission. See Letter from John Franchini, Superintendent of Insurance, to Great American Insurance Company of New York (dated September 2, 2010), filed December 8, 2010 (Doc. 29-1, at 1); Summons, filed December 8, 2010 (Doc. 29-1, at 2).

On September 7, 2010, the Cross-Claimants—Triple D Supply and Doak—filed their Answer, Counterclaim, Cross Claim and Third-Party Complaint for Declaratory Judgment and Breach of Contract in state court. See Doc. 10-2, at 11 ("Cross-Claimants' Complaint"). The Cross-Claimants brought Cross-Claims against Great American and Third-Party Claims against Wilshire for declaratory relief, breach of insurance contracts, and insurance bad faith & breach of fiduciary duties, and violation of the New Mexico Insurance Code, N.M.S.A. 1978, NMSA 1978, §§ 59A-16-1 to 59A-16-30, violation of the New Mexico Unfair Practices Act, NMSA 1978, §§ 57-12-1 to 57-12-30. See Cross-Claimants' Complaint Count I-V, at 4-8.

On October 12, 2010, Great American filed in state court its Motion to Dismiss Allegations in Plaintiffs' First Amended Complaint. See Doc. 22-1, at 5. On November 12, 2010, Great American filed in federal court its Notice of Removal of Action Under 28 U.S.C. Section 1443 By Cross/Third Party Defendant. See Doc. 1 ("Notice of Removal"). Great American removed based on diversity jurisdiction. See Notice of Removal ¶ 11, at 4.

On November 19, 2010, the Mach Plaintiffs filed their Motion to Remand—Opposed, requesting that the Court remand this case to the District Court of Dona Ana County, Third Judicial District. See Doc. 8. The Mach Plaintiffs contend that Great American cannot remove this case, because it is time barred under 28 U.S.C. § 1446(b), all Defendants did not timely consent to removal, and Great American as a Cross-Defendant and as Third-Party Defendant is not a "defendant" within the meaning of 28 U.S.C. § 1441(a) who can remove this case. The Mach Plaintiffs request that the Court remand the case to state court, and award them just costs and actual expenses, including attorney fees. On November 24, 2010, the Cross-Claimants filed their Motion to Remand. See Doc 22 ("Cross-Claimants' Motion"). The Cross-Claimants adopt the Mach Plaintiffs's Motion to Remand, and further contend that Great American consented to state court jurisdiction and waived its right to remove when Great American filed its motion to dismiss in that forum. The Cross-Claimants request that the Court remand the case to state court and afford them "such other and further relief the Court deems appropriate." Cross-Claimants' Motion at 4-5.

On December 3, 2010, Great American filed its Response Opposing Mach Plaintiffs' Motion to Remand. See Doc. 28. Great American contends that, as Third-Party Defendant, it qualifies as a "defendant" who may remove a diversity case to federal court under 28 U.S.C. § 1441(a). Great American further contends that the Cross-Claims are separate from the underlying action, and 28 U.S.C. § 1446's requirements should be analyzed based on the Cross-Claimants' filing of the Cross-Claims, and not on the Mach Plaintiffs action. Accordingly, Great American contends, its removal is timely and Wilshire— the only other Defendants to the Cross-Claimants' claims—consented. On December 8, 2010, Great American filed its Response Opposing Third-Party Plaintiffs Triple D Supply LLC's and Donald Doak's Motion to Remand. See Doc. 29. Great American contends that it did not waive its right to remove when it filed its motion to dismiss in state court, because the ancillary wrongful death claim that had been pending before the Cross-Claims was not removable.

On December 15, 2010, the Cross-Claimants filed their Reply in Support of Third Party Plaintiffs, Triple D Supply, L.L.C. and Donald Doak's Motion to Remand. See Doc. 31. The Cross-Claimants assert that their Cross-Claims are not separate civil actions, but they are intricately interwoven with the other claims in this lawsuit. The Cross-Claimants assert that, in the state court, it was mandatory that they bring their Cross-Claims. See Foundation Reserve v. Mullenix, 97 N.M. 618, 620, 642 P.2d 604, 606 (1982).

RELEVANT LAW REGARDING REMOVAL

Section 1441 of Title 28 of the United States Code states:

28 U.S.C. § 1441(a). A federal district court has original jurisdiction if Article III's justiciability requirements are met, see Lee v. Am. Nat'l Ins. Co., 260 F.3d 997, 1002-05 (9th Cir.2001), cert. denied, 535 U.S. 928, 122 S.Ct. 1299, 152 L.Ed.2d 211 (2002), and the case involves a federal question or diversity of citizenship, see Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). A court has diversity jurisdiction if there is complete diversity of citizenship between plaintiffs and defendants, and the amount in controversy exceeds $75,000.00. See 28 U.S.C. § 1332(a).

1. The Presumption Against Removal.

There is a presumption against removal jurisdiction. See Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995). Moreover, "[i]t is well-established that statutes conferring jurisdiction upon the federal courts, and particularly removal statutes, are to be narrowly construed in light of [their] constitutional role as limited tribunals." Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1094-95 (10th Cir.2005). "Removal statutes are to be strictly construed, and all doubts are to be resolved against removal." Fajen v. Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir.1982). The removing party bears the burden of establishing the requirements for federal jurisdiction. See Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290 (10th Cir.2001); Bonadeo v. Lujan, No. CIV 08-0812, 2009 WL 1324119, at *4 (D.N.M. Apr. 30, 2009)(Browning, J.)("Removal statutes are strictly construed, and ambiguities should be resolved in favor of remand.").

The removing defendant bears the burden of establishing that removal is proper. See McPhail v. Deere & Co., 529 F.3d 947, 953 (10th Cir.2008)("[A]ccording to this and most other courts, the defendant is required to prove jurisdictional facts by a `preponderance of the evidence'"); Bonadeo v. Lujan, 2009 WL 1324119, at *4 ("As the removing party, the defendant bears the burden of proving `all jurisdictional facts and of establishing a right to removal.'" (quoting Chavez v. Kincaid, 15 F.Supp.2d at 1119)). The Tenth Circuit has explained that, "[g]iven the limited scope of federal jurisdiction, there is a presumption against removal, and courts must deny such jurisdiction if not affirmatively apparent on the record." Okla. Farm Bureau Mut. Ins. Co. v. JSSJ Corp., 149 Fed.Appx. 775, 778 (10th Cir.2005).

2. Removable Actions.

Section 1441 of Title 28 of the United States Code states that "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." 28 U.S.C. § 1441(a). "[T]he statute does not define the term `civil action' . . . [,]" Levert-St. John, Inc. v. Hartford Steam Boiler Inspection & Ins. Co., No. CIVA 06-1023, 2006 WL 1875494, at *1 (W.D.La. July 3, 2006), but federal courts have broadly construed the term, see 14B C. Wright, A. Miller, E. Cooper, R. Freer, J. Stainman, C. Struve, & V. Amark, Federal Practice & Procedure Jurisdiction § 3721, at 28 (4th ed. 2009 & Supp. 2010).

For example, federal courts have found that garnishment proceedings subsequent to court judgments, and actions to compel arbitration or to confirm or vacate an arbitration award, are considered civil actions within the meaning of the federal removal statute. In London & Lancashire Indemnity Co. of America v. Courtney, 106 F.2d 277 (10th Cir.1939), the Tenth Circuit addressed a defendant's petition for removal of a garnishment proceeding after judgment had been entered in the underlying proceeding. See 106 F.2d at 279. The Tenth Circuit held that the garnishment could be removed because it was "wholly separable from the issues" in the underlying judgment:

106 F.2d at 283-84 (internal citations omitted).

In Adriaenssens v. Allstate Ins. Co., 258 F.2d 888 (10th Cir.1958), the Tenth Circuit applied its decision in London & Lancashire Indemnity Co. of America v. Courtney to hold that judgment creditors' actions to recover upon motor vehicle liability policy for unsatisfied state court judgment against motorist may be removed. Approximately five years after a state court entered judgment for the plaintiffs, they instituted separate actions in state court against Allstate Insurance Company to recover "upon a policy of liability insurance issued to [the defendant]." 258 F.2d at 889. The actions were removed to the United States District Court for the Northern District of Oklahoma upon diversity grounds. See 258 F.2d at 889. In each case, judgment was entered denying recovery on the policy, and each plaintiff appealed the case. See 258 F.2d at 889. The cases were submitted to the Tenth Circuit on a "single record." 258 F.2d at 889. The plaintiffs challenged the jurisdiction of the district court to "entertain the actions on removal." 258 F.2d at 889. The Tenth Circuit found the district court had jurisdiction over the actions on removal, stating:

258 F.2d at 889-90.

Federal courts have analogized to garnishment proceedings to determine whether petitions-in-intervention or bad faith claims brought after judgment is entered in the underlying case are removable separate civil actions. In Davenport v. Hamilton, Brown, & Babst, LLC, 624 F.Supp.2d 542 (M.D.La.2008), the United States District Court for the Middle District of Louisiana denied the plaintiffs-in-intervention's motion to remand their petition-in-intervention. See 624 F.Supp.2d at 543. In Davenport v. Hamilton, Brown & Babst, LLC, the plaintiffs filed a state-court class action, and a class action settlement was approved. See 624 F.Supp.2d at 543. The state court issued a judgment, which included an award of attorneys' fees to class counsel to be paid by the defendant. See 624 F.Supp.2d at 543. "Because the attorneys could not agree on the distribution of the attorneys' fees," the plaintiffs-in-intervention filed a petition of intervention in the state-court class action, naming a law firm and two of its attorneys as defendants, and seeking an allocation by the state court of the attorneys' fees awarded in the judgment. 624 F.Supp.2d at 543-44. The defendants removed the case, and the plaintiffs-in-intervention filed a motion to remand, arguing that their petition of intervention was not a new suit. See 624 F.Supp.2d at 544. The district court stated:

624 F.Supp.2d at 546 (footnotes omitted).

In Nungesser v. Bryant, No. 07-1285-WEB, 2007 WL 4374022 (D.Kan. Dec. 7, 2007), the United States District Court for the District of Kansas addressed whether a defendant's bad faith claim against his liability insurer was part of the same civil action as the plaintiff's tort action against the defendant. See 2007 WL 4374022, at *5. The district court analogized to cases that discussed whether garnishment proceedings were distinct civil actions, stating:

2007 WL 4374022, at *6-7 (footnote omitted).

Professors Charles Wright and Arthur Miller have noted, however, that there are limitations on what can be considered a civil action:

14B C. Wright & A. Miller, supra § 3721, at 34-36 (footnotes omitted). See Lawrence v. Morgan's La. & T.R. & S.S. Co., 121 U.S. 634, 637, 7 S.Ct. 1013, 30 L.Ed. 1018 (1887)(remanding suit to enjoin sale of land pending in state court); Bondurant v. Watson, 103 U.S. 281, 287, 26 L.Ed. 447 (1880)(affirming removal where the case "could not be called incidental or auxiliary to the original case[;] it was a new and independent controversy between other parties"); Barrow v. Hunton, 99 U.S. 80, 83, 25 L.Ed. 407 (1878)(remanding proceeding to annul judgment on ground of irregularities, because "the proceeding to procure nullity of the former judgment in such a case . . . is not in its nature a separate suit . . . [;] it is a supplementary proceeding so connected with the original suit as to form an incident to it, and substantially a continuation of it"); First Nat. Bank v. Turnbull & Co., 83 U.S. (16 Wall.) 190, 195, 21 L.Ed. 296 (1872)("Conceding it to be a suit, and not essentially a motion, we think it was merely auxiliary to the original action, a graft upon it, and not an independent and separate litigation."); West v. Aurora City, 73 U.S. (6 Wall.) 139, 141, 18 L.Ed. 819 (1868)(holding that a counterclaim remaining in the state court after a plaintiff had dismissed his complaint was not an independent suit within the meaning of section 12 of the Judiciary Act of 1789);2 Fed. Sav. and Loan Ins. Corp. v. Quinn, 419 F.2d 1014, 1018-19 (7th Cir.1969)("Under the general removal statute, . . . only independent suits are removable . . . . [A] counterclaim, in the sense of a responsive pleading which raises litigable issues beyond the scope of the pleading to which it is directed, is not removable."); Adriaenssens v. Allstate Ins. Co., 258 F.2d at 889-90 (addressing the argument that the garnishment action was merely a supplemental proceeding not subject to removal); Richmond v. Allstate Ins. Co., 624 F.Supp. 235, 236 (E.D.Pa. 1985)("A suit which is merely ancillary or supplemental to another action cannot be removed from a state court to a federal court.") (citing W. Med. Props. Corp. v. Denver Opportunity, Inc., 482 F.Supp. 1205, 1207 (D.Colo.1980)(collecting cases)); W. Med. Props. Corp. v. Denver Opportunity, Inc., 482 F.Supp. at 1207 ("It is a well settled rule that a suit which is merely ancillary or supplemental to another action cannot be removed from a state court to a federal court." (citations omitted)).

14B C. Wright & A. Miller, supra § 3721, at 36 (footnotes omitted). As the Honorable J.M. Love, United States District Judge, stated in Buford v. Strother, 10 F. 406 (C.C.D.Iowa 1881):

10 F. at 407-08.

In Levert-St. John, Inc. v. Hartford Steam Boiler Inspection & Insurance Co., the United States District Court for the Western District of Louisiana addressed whether it should remand the defendant's "purported removal of only a third party claim, rather than the entire action." 2006 WL 1875494, at * 1. The district court relied on Black's Law Dictionary's definition of "civil action," stating that it understood the term to refer to "the entirety of a litigation, in which any number of different claims may be asserted by the various parties thereto." 2006 WL 1875494, at * 1 (citing Black's Law Dictionary 31 (8th ed. 2004))(defining "action" as "a civil or criminal judicial proceeding"). The Western District of Louisiana also discussed Professors Wright and Miller's declaration that there is a judge-made limitation under which judges will not remove that ancillary proceedings separately from the main claim. See 2006 WL 1875494, at * 1-2. The district court stated: "Thus, this Court's independent research has reinforced the proposition that removal of only selected claims from a state court action is not permitted, and has yielded no support for the defendant's theory of partial removal." 2006 WL 1875494, at *2.

2006 WL 1875494, at *2.

Professors Wright and Miller also recognize that, recently, federal courts have stated that federal law governs the question whether a proceeding is removable, but that federal courts can consider the state's characterization of the proceeding.

14B C. Wright & A. Miller, supra § 3721, at 36-37 (footnotes omitted). In Stoll v. Hawkeye Cas. Co. of Des Moines, Iowa, 185 F.2d 96 (8th Cir.1950), the United States Court of Appeals for the Eighth Circuit stated that "[t]he question whether a civil action is removable and has been properly removed is one for the consideration of the federal court and is not controlled by State law." 185 F.2d at 99 (citations omitted). Four years later, the Supreme Court of the United States stated that a state statute's "procedural provisions cannot control the privilege o[f] removal granted by the federal statute." Chicago, R.I. & P.R. Co. v. Stude, 346 U.S. 574, 580, 74 S.Ct. 290, 98 L.Ed. 317 (1954) (citation omitted). More recently, the District Court for the District of Kansas has stated:

Nungesser v. Bryant, 2007 WL 4374022, at *6.

3. Procedural Requirements for Removal.

Section 1446 of Title 28 of the United States Code governs the procedure for removal. Because removal is entirely a statutory right, the relevant procedures to effect removal must be followed. See Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985). "The failure to comply with these express statutory requirements for removal can fairly be said to render the removal `defective' and justify a remand." Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d 1072, 1077 (10th Cir.1999)(quoting Snapper, Inc. v. Redan, 171 F.3d 1249, 1253 (11th Cir.1999)). See Bonadeo v. Lujan, 2009 WL 1324119, at *4; Chavez v. Kincaid, 15 F.Supp.2d 1118, 1119 (D.N.M.1998)(Campos, J.)("The right to remove a case that was originally in state court to federal court is purely statutory, not constitutional.").

Pursuant to 28 U.S.C. § 1446(a),

28 U.S.C. § 1446(a). 28 U.S.C. § 1446(a) has been interpreted as requiring all defendants to join in a removal petition. See Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 620, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002)(citing 28 U.S.C. § 1446(a) and Chicago, R.I. & P.R. Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 44 L.Ed. 1055 (1900)); Akin v. Ashland Chem. Co., 156 F.3d 1030, 1034-35 (10th Cir.1998); Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir.1981)("A co-defendant... did not join in the petition for removal and the petition was thus procedurally defective."); 16 J. Moore, Moore's Federal Practice, § 107.11[1][c], at 107-36-37 (3d ed. 2006)("Because the right of removal is jointly held by all the defendants, the failure of one defendant to join in the notice precludes removal. This rule requires that there be some timely written indication from each served defendant ... that the defendant has actually consented to removal.").

Section 1446 specifies timing requirements for removal. See 28 U.S.C. § 1446(b). "In a case not originally removable, a defendant who receives a pleading or other paper indicating the postcommencement satisfaction of federal jurisdictional requirements—for example, by reason of the dismissal of a nondiverse party—may remove the case to federal court within 30 days of receiving such information. § 1446(b)." Caterpillar Inc. v. Lewis, 519 U.S. 61, 68-69, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996). "Under § 1446(b), the removal period does not begin until the defendant is able `to intelligently ascertain removability so that in his petition for removal he can make a simple and short statement of the facts.'" Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d at 1077 (quoting DeBry v. Transamerica Corp., 601 F.2d 480, 489 (10th Cir.1979)). "No case, however, may be removed from state to federal court based on diversity of citizenship `more than 1 year after commencement of the action.'" Caterpillar Inc. v. Lewis, 519 U.S. at 69, 117 S.Ct. 467 (quoting 28 U.S.C. § 1446(b)). Section 1446(b) provides:

28 U.S.C. § 1446(b). "Generally, the second paragraph of § 1446(b) is designed to allow a defendant to remove a state action when it was not originally removable as stated by the plaintiff's initial complaint in the state court, but has become removable....'" O'Bryan v. Chandler, 496 F.2d at 408 (citations omitted). The requirement that a defendant timely file the notice of removal is mandatory, though it is not jurisdictional. See United States ex rel. Walker v. Gunn, 511 F.2d 1024, 1026 (9th Cir.1975)("[T]he statute, insofar as the time for removal is concerned, is imperative and mandatory, must be strictly complied with, and is to be narrowly construed."); Bonadeo v. Lujan, 2009 WL 1324119, at *6 (citing McCain v. Cahoj, 794 F.Supp. 1061, 1062 (D.Kan.1992)).

In Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999), the Supreme Court held that informal service based on a "courtesy copy" of the file-stamped complaint did not start the thirty-day period. See 526 U.S. at 347-48, 119 S.Ct. 1322. Before this ruling, many federal courts had ruled that the defendant's receipt of a courtesy copy of the complaint initiated the statutory thirty-day period to remove. See 14C C. Wright & A. Miller, supra § 3731. In Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., the Supreme Court addressed whether a named defendant "must be officially summoned to appear in the action before the time to remove begins to run[,][o]r, may the 30-day period start earlier, on the named defendant's receipt, before service of official process, of a `courtesy copy' of the filed complaint faxed by counsel for the plaintiff." 526 U.S. at 347, 119 S.Ct. 1322. The Supreme Court read the removal provisions in light "of a bedrock principle: An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court's authority, by formal process." 526 U.S. at 347, 119 S.Ct. 1322. The Supreme Court held that "a named defendant's time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, `through service or otherwise,' after and apart from service of the summons, but not mere receipt of the complaint unattended by any formal service." 526 U.S. at 347-48, 119 S.Ct. 1322. The Supreme Court recognized that service of process is "fundamental to any procedural imposition on a named defendant." 526 U.S. at 350, 119 S.Ct. 1322. Absent service of process, a court "ordinarily may not exercise power over a party the complaint names as defendant." 526 U.S. at 350, 119 S.Ct. 1322 (citations omitted). The Supreme Court found that, when Congress enacted 28 U.S.C. § 1446(b), it did not "endeavor to break away from the traditional understanding." 526 U.S. at 352, 119 S.Ct. 1322.

526 U.S. at 352-53, 119 S.Ct. 1322 (footnotes omitted).

4. Waiver of Right to Remove.

The right to remove may be waived. See Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d at 1077 (noting that a defendant who does not act within the statutory removal deadlines waives its right to remove the action to federal court). Cf. Akin v. Ashland Chem. Co., 156 F.3d 1030, 1036 & n. 7 (10th Cir.1998)(ruling, in response to assertion made in motion to remand that one of the defendants had waived its right to removal by moving for summary judgment in state court, "that a defendant who actively invokes the jurisdiction of the state court and interposes a defense in that forum is not barred from the right to removal in the absence of adequate notice of the right to remove," and applying the principle, after plaintiff amended her complaint in federal court, that "once [the] plaintiff decided to take advantage of his involuntary presence in federal court to add a federal claim to his complaint he was bound to remain there" (internal quotation marks omitted)).

Courts have held that, once a claim for enforcement of a federal right has been made in state tribunals, a defendant waives its right to removal by "demonstrating a `clear and unequivocal' intent to remain in state court." Grubb v. Donegal Mut. Ins. Co., 935 F.2d 57, 59 (4th Cir.1991)(citing Rothner v. City of Chicago, 879 F.2d 1402 (7th Cir.1989)). See Aqualon v. Mac Equip., Inc., 149 F.3d 262, 264 (4th Cir.1998). Courts have found a clear intent to remain in state court may be shown by taking "substantial defensive action" before removal, Aqualon v. Mac Equip., Inc., 149 F.3d 262, 264 (4th Cir. 1998), or by seeking a final determination on the merits of the case before removal, see Wolfe v. Wal-Mart Corp., 133 F.Supp.2d 889, 893 (N.D.W.Va.2001)(holding that filing a motion for summary judgment in state court constituted waiver). As the United States District Court for the Western District of Virginia stated in Sayre Enter., Inc. v. Allstate Insurance Co., 448 F.Supp.2d 733 (W.D.Va.2006):

448 F.Supp.2d at 735. See Haynes v. Gasoline Marketers, Inc., 184 F.R.D. 414, 416 (M.D.Ala.1999)(finding the defendant did not waive its right to remove, because filing an answer in state court was not a manifestation of clear and unequivocal intent to litigate on the merits in state court); Chavez v. Kincaid, 15 F.Supp.2d 1118, 1125 (D.N.M.1998)(Campos, J.)(finding waiver of right to remove when defendant served discovery requests, made a motion to dismiss, and scheduled a hearing on the motion after it should have ascertained its removal right but before it filed its notice of removal). As to the timing of waiver, a defendant can waive the right to remove only by litigating after the case actually becomes removable. See 28 U.S.C. § 1446(b); Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. at 347-48, 119 S.Ct. 1322.

5. Removal by Cross-Defendants and Third-Party Defendants under 28 U.S.C. § 1441(a).

Plaintiff/cross-defendants may not remove cases under 28 U.S.C. § 1441(a). See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941)(interpreting the provision allowing an action to be removed "by the defendant or defendants" in former removal statute 28 U.S.C. § 71 as precluding a plaintiff/cross-defendant from removing an action on the basis of a counterclaim). In Shamrock Oil & Gas Corp. v. Sheets, the Supreme Court considered the question "whether the suit in which [a] counterclaim is filed is one removable by the [original] plaintiff to the federal district court," under 28 U.S.C. § 71-28 28 U.S.C. § 1441(a)'s statutory predecessor—which provided that an action "may be removed by the defendant or defendants therein to the district court of the United States for the proper district." Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. at 102, 105 n. 1, 61 S.Ct. 868. After the defendant filed a breach of contract "counterclaim or cross-action against" the original plaintiff, the original plaintiff sought to remove the case. 313 U.S. at 102-03, 61 S.Ct. 868. The Supreme Court affirmed the United States Court of Appeals for the Fifth Circuit's holding that, as a cross-defendant, "the plaintiff in the state court was not a `defendant' within the meaning of [the removal statute], and so was not entitled to remove the cause under that section, which in terms authorizes the removal of a suit subject to its provisions only `by the defendant or defendants therein.'" 313 U.S. at 103, 61 S.Ct. 868.

The Supreme Court noted that, between 1875 and 1887, the removal statute allowed "either party" to remove the suit to federal court, but that Congress "narrow[ed] the federal jurisdiction on removal" by amending the statute in 1887 to allow removal only "by the `defendant or defendants' in the suit." 313 U.S. at 104-05, 107, 61 S.Ct. 868. The Court further noted that, under federalist principles, interpretations of removal statutes "call[ ] for ... strict construction." 313 U.S. at 108, 61 S.Ct. 868 ("Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined." (quoting Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 78 L.Ed. 1248 (1934))(other citations and internal quotation marks omitted)). Accordingly, the Supreme Court held that the plaintiff/cross-defendant against whom the original defendant had filed a counterclaim could not remove the case to federal court. See 313 U.S. at 108-09, 61 S.Ct. 868.

Courts have consistently interpreted the Supreme Court's holding in Shamrock Oil & Gas Corp. v. Sheets as establishing that only original defendants are "[a] defendant or defendants" under 28 U.S.C. § 1441(a), precluding cross-defendants and third-party defendants from removing cases. See, e.g., Palisades Collections LLC v. Shorts, 552 F.3d 327, 333-34 (4th Cir.2008)("Counter-defendants, like third-party defendants, are certainly not defendants against whom the original plaintiff asserts claims; [t]hus, we easily conclude that an additional counter-defendant is not a `defendant' for purposes of § 1441(a)." (citations omitted)); Progressive W. Ins. Co. v. Preciado, 479 F.3d 1014, 1017 (9th Cir.2007)(recognizing "Shamrock's longstanding rule that a plaintiff/cross-defendant cannot remove an action to federal court"); First Nat. Bank of Pulaski v. Curry, 301 F.3d 456, 462 (6th Cir.2002)("We hold that third-party defendants are not `defendants' for purposes of § 1441(a)."); Cross Country Bank v. McGraw, 321 F.Supp.2d 816, 821-22 (S.D.W.Va.2004)(noting that district courts within the Fourth Circuit have adopted the majority rule that "a third-party defendant is distinct from `the defendant or defendants' who are permitted to remove cases pursuant to 28 U.S.C. § 1441(a)"); Galen-Med, Inc. v. Owens, 41 F.Supp.2d 611, 614 (W.D.Va.1999)("The majority view, that third-party defendants are not `defendants' for purposes of removal under 28 U.S.C. § 1441(a), is the better rule."); Hayduk v. UPS, 930 F.Supp. 584, 590 (S.D.Fla.1996)("Nearly every court that has considered the question whether third-parties may remove under § 1441(a) has determined that they may not."); NCO Fin. Sys., Inc. v. Yari, 422 F.Supp.2d 1237, 1239-40 (D.Col.2006); Menninger Clinic Inc. v. Schilly, No. 92-4104, 1992 WL 373927, at *1-2 (D.Kan. November 23, 1992); Radio Shack Franchise Dep't v. Williams, 804 F.Supp. 151, 152-53 (D.Kan. 1992); Elkhart Co-op Equity Exch. v. Day, 716 F.Supp. 1384, 1385, 1387 (D.Kan.1989); Garnas v. Am. Farm Equip. Co., 502 F.Supp. 349, 351 n. 7 (D.N.D.1980)(holding that a third-party defendant a plaintiff/counter-defendant impleads cannot remove, because the third-party defendant is not a defendant within the meaning of § 1441); Croy v. Buckeye Int'l, Inc., 483 F.Supp. 402, 406 (D.Md.1979)("The overwhelming weight of authority indicates that a third party defendant is not entitled to removal of an entire case to federal court under 28 U.S.C. § 1441(a)."); Manternach v. Jones County Farm Serv. Co., 156 F.Supp. 574, 577 (N.D.Iowa 1957)(noting that courts "are not in disagreement as to the non-removability of a third-party claim [under § 1441(a)]"). Cf. Wiatt v. State Farm Ins. Companies, 560 F.Supp.2d 1068, 1077 (D.N.M.2007)(Browning, J.)("The Tenth Circuit has not spoken definitively on the propriety of third-party removal. It is therefore an open question in this circuit whether a third-party defendant, who the plaintiff impleaded, may remove a case." (citations omitted)).

In Palisades Collections LLC v. Shorts, the United States Court of Appeals for the Fourth Circuit held that a counter-defendant may not remove under § 1441(a). The Fourth Circuit stated: "For more than fifty years, courts applying Shamrock Oil have consistently refused to grant removal power under § 1441(a) to third-party defendants—parties who are not the original plaintiffs...." Palisades Collections LLC v. Shorts, 552 F.3d at 333. The Fourth Circuit stated:

Palisades Collections LLC v. Shorts, 552 F.3d at 333-34.

Similarly, courts have interpreted the Supreme Court's holding in Shamrock Oil & Gas Corp. v. Sheets as precluding third-party defendants from removing cases under 28 U.S.C. § 1441(a). In First National Bank of Pulaski v. Curry, the United States Court of Appeals for the Sixth Circuit addressed this issue and noted that the majority position, which leading treatises support, is that third-party defendants are not "defendants" for purposes of § 1441(a):

301 F.3d at 461-62. The Sixth Circuit joined the majority position, holding that third-party defendants may not remove cases under 28 U.S.C. § 1441(a), because "third-party defendants are not `defendants' for purposes of § 1441(a)." The Sixth Circuit reasoned:

First Nat. Bank of Pulaski v. Curry, 301 F.3d at 461-62.

In Progressive West Insurance Co. v. Preciado, the United States Court of Appeals for the Ninth Circuit asserted that Shamrock Oil & Gas Corp. v. Sheets continues to preclude plaintiff/cross-defendants from removing cases. The Ninth Circuit rejected the argument that the Class Action Fairness Act ("CAFA"), Pub. L. No. 109-2, § 5, 119 Stat. 12 "create[d] an exception to Shamrock's longstanding rule that a plaintiff/cross-defendant cannot remove an action to federal court." 479 F.3d at 1017. The Ninth Circuit reasoned that CAFA's removal provision allows removal in accordance with 28 U.S.C. § 1446.

Progressive W. Ins. Co. v. Preciado, 479 F.3d at 1017-18.

Removal by third-party defendants is often attempted under 28 U.S.C. § 1441(c). See, e.g., NCO Fin. Sys., Inc. v. Yari, 422 F.Supp.2d at 1239-40; Radio Shack Franchise Dep't v. Williams, 804 F.Supp. at 152-53. Section 1441(c) provides:

28 U.S.C. § 1441(c). In 1990, Congress amended this statute to substitute the phrase "within the jurisdiction conferred by section 1331 of this title" for "which would be removable if sued upon alone." 28 U.S.C. § 1441, 1990 Amendments. Section 1441(c) in its current form, therefore, applies only to situations in which a federal-questions claim is joined to one or more non-removable claims; it does not apply to cases in which removal is based solely on diversity jurisdiction. See First Nat. Bank of Pulaski v. Curry, 301 F.3d at 467.

LAW REGARDING REMAND

28 U.S.C. § 1447 governs remand after removal. Section 1447(c) states:

28 U.S.C. § 1447(a). See Miller v. Lambeth, 443 F.3d 757, 759 (10th Cir. 2006)("The statutory provision[ ] governing remands of cases removed to federal court [is] 28 U.S.C. § 1447(c)...."); RMP Consulting Group, Inc. v. Datronic Rental Corp., No. 98-5062, 1999 WL 617690, at *4 (10th Cir.1999)(applying 28 U.S.C. § 1447(a)).

ANALYSIS

The Mach Plaintiffs request that the Court remand this matter to the District Court of Dona Ana County, in which they originally filed this case. The Mach Plaintiffs advance three grounds for remand: (i) the removal is fatally defective, because Great American has violated 28 U.S.C. § 1446(b) in that a case may not be removed on the basis of jurisdiction conferred by 28 U.S.C. § 1332 more than one year after commencement of the action; (ii) the removal is fatally defective, because the other Defendants—the Cross-Claimants—did not consent to removal within the thirty-day limitation period set forth in 28 U.S.C. § 1446(a); and (iii) Great American, as Cross Defendant and Third-Party Defendant, is not a "defendant" under 28 U.S.C. § 1441(a). Cross-Claimants adopt these arguments, and further argue that Great American has submitted to state court jurisdiction by entering an appearance and filing a motion to dismiss in state court.

Great American responds that the Cross-Claimants' Cross-Claims are "a separate action," Response to Mach Plaintiffs at 4, and that Great American seeks to remove only the Cross-Claims, asserting "that this Court may exercise supplemental jurisdiction over the wrongful death claims brought by the Mach Plaintiffs," Response to Mach Plaintiffs at 8. Great American argues that the timing of 28 U.S.C. § 1446(b)'s procedural requirements are based on the filing of the Cross-Claims and are not based on the Plaintiffs' Complaint. Accordingly, Great American contends that it removed the Cross-Claims within one year of their filing and sought the consent of Third-Party Defendant Wilshire.

The Court grants the motions to remand. The Cross-Claims are incidental and supplemental to the Mach Plaintiffs' Claims. Moreover, Great American wears two hats in this case, and under neither is it able to remove this case. As a Defendant in this action, Great American is outside the one-year window from the commencement of the action in which it may seek removal. As Cross-Defendant, Great American has no right to remove this case. The Court therefore grants the Mach Plaintiffs' and Cross-Plaintiffs' motions to remand.

I. THE CROSS-CLAIMS ARE NOT A SEPARATE CIVIL ACTION.

Great American contends that the Cross-Claims are a separate civil action under 28 U.S.C. § 1441(a), and that it may separate and remove the Cross-Claims. Great American further asserts that, if the Court allows Great American to remove the Cross-Claims, the Court may exercise supplemental jurisdiction over the remaining claims under 28 U.S.C. § 1. See Response to Mach Plaintiffs at 8 ("[T]his Court may exercise supplemental jurisdiction over the wrongful death claims brought by the Mach Plaintiffs."). The Mach Plaintiffs and Cross-Claimants contend that the Cross-Claims are supplemental and incidental to the Mach Plaintiffs' Claims. The Court agrees that the Cross-Claims are supplemental and incidental to the Mach Plaintiffs' Claims, and therefore part of the same civil action under 28 U.S.C. § 1441(a).

Section 1441(a) provides:

28 U.S.C. § 1441(a).

It is not enough for Great American to show that the Cross-Claims are "separate and independent claim[s] or cause[s] of action," the standard that applies under 28 U.S.C. § 1441(c). 28 U.S.C. § 1441(c) provides:

28 U.S.C. § 1441(c). Section 1331 provides for federal question subject-matter jurisdiction. See 28 U.S.C. § 1331. In 1990, Congress amended 28 U.S.C. § 1441(c) to substitute the phrase "within the jurisdiction conferred by section 1331 of this title" for "which would be removable if sued upon alone." 28 U.S.C. § 1441, 1990 Amendments. Section 1441(c) in its current form, therefore, applies only to situations in which a federal questions claim is joined to one or more non-removable claims; it does not apply to cases in which removal is based solely on diversity jurisdiction. See First Nat. Bank of Pulaski v. Curry, 301 F.3d at 467 ("It is clear, however, that a third-party claim of indemnification, based solely on the diversity of citizenship of an insurer and an insured,. . . is not presently removable pursuant to § 1441(c)."). Congress thus appears to intend not to allow parties to remove suits whose federal jurisdiction is founded in diversity based only on an "independent claim or cause of action." Pritchett v. Office Depot, Inc., 420 F.3d at 1094-95 ("It is well-established that statutes conferring jurisdiction upon the federal courts, and particularly removal statutes, are to be narrowly construed in light of [their] constitutional role as limited tribunals."); Fajen v. Found. Reserve Ins. Co., 683 F.2d at 333 ("Removal statutes are to be strictly construed, and all doubts are to be resolved against removal."). It would defeat the congressional intent underlying the narrowing of section 1441(c) to allow defendants to remove "separate and independent claim[s] or cause[s] of action" under section 1441(a). Thus, because this is a diversity case, Great American must show that the Cross-Claims are a separate "civil action."

For Great American to prevail on this argument, it must establish that the Cross-Claims are a distinct "civil action" under 1441(a), and are not supplemental or ancillary to the Mach Plaintiffs' wrongful death claims. See Lawrence v. Morgan's La. & T.R. & S.S. Co., 121 U.S. at 637, 7 S.Ct. 1013 (remanding suit to enjoin sale of land pending in state court); Bondurant v. Watson, 103 U.S. at 287 (affirming removal where the case "could not be called incidental or auxiliary to the original case[;] it was a new and independent controversy between other parties"); Barrow v. Hunton, 99 U.S. at 83 (remanding proceeding to annul judgment on ground of irregularities, because "the proceeding to procure nullity of the former judgment in such a case . . . is not in its nature a separate suit. . . . [I]t is a supplementary proceeding so connected with the original suit as to form an incident to it, and substantially a continuation of it."); First Nat. Bank v. Turnbull & Co., 83 U.S. at 195 ("Conceding it to be a suit, and not essentially a motion, we think it was merely auxiliary to the original action, a graft upon it, and not an independent and separate litigation."); West v. Aurora City, 73 U.S. at 141 (holding that a counterclaim remaining in the state court after a plaintiff had dismissed his complaint was not an independent suit within the meaning of 1441(a)'s predecessor statute—section 12 of the Judiciary Act of 1789); Fed. Sav. and Loan Ins. Corp. v. Quinn, 419 F.2d at 1018-19 ("Under the general removal statute, . . . only independent suits are removable . . . [;] a counterclaim, in the sense of a responsive pleading which raises litigable issues beyond the scope of the pleading to which it is directed, is not removable."). Wright and Miller have discussed approvingly this limit on what can be considered a civil action:

14B C. Wright & A. Miller, supra § 3721, at 34-36 (footnotes omitted). The requirement that a civil action be an independent suit is founded in Supreme Court jurisprudence. In Federal Savings & Loan Insurance Corp. v. Quinn, the Seventh Circuit stated:

Fed. Sav. and Loan Ins. Corp. v. Quinn, 419 F.2d at 1018-19 (footnotes omitted).

In West v. Aurora City, the Supreme Court held that a cross-action remaining in the state court after a plaintiff had dismissed his complaint was not an independent suit within the meaning of Section 12 of the Judiciary Act of 1789, the predecessor the 28 U.S.C. § 1441. The Supreme Court grounded its decision on the principle that a cross-action is incidental to an on-going suit. See 73 U.S. at 141 ("These made a cross-action by the defendants against the plaintiffs; one but incidental to the original action, so long as that original action was in course of existence and progress, but independent of it, as soon as it was withdrawn, and so destroyed."). In Federal Savings & Loan Insurance Corp. v. Quinn, the Seventh Circuit stated: "There is no indication that antiquity or any other cause has weakened the precedential authority of West for the proposition that a counterclaim, by itself, is not a removable suit. . . . If Quinn's Counterclaim were, in substance, a counterclaim, it would not have been removable." 419 F.2d at 1018 n. 4.

In light of West v. Aurora City, the Court is reluctant to say that a cross-claim can be a separate civil action. This conclusion is compelled given that a cross-claim, by definition, must generally "arise[ ] out of the transaction or occurrence that is the subject matter of the original action." Fed.R.Civ.P. 13(g).3 In this case, the Cross-Claims involve insurance coverage, the scope of which turns on the same underlying facts as the Mach Plaintiffs' wrongful death claims. Moreover, the Mach Plaintiffs bring, among others, claims against Great American for breach the duty of good faith and fair dealing. See FAC ¶¶ 5.1-5.3, at 8. Similarly, the Cross-Claimants bring insurance bad-faith and breach-of-fiduciary duties claims against Great American. See Cross-Claimants' Complaint Count I-V, at 6-7.4

Great American further suggests that the Cross-Claims are not an independent and distinct civil action when it contends that, if the Court allows Great American to remove the Cross-Claims, the Court may exercise supplemental jurisdiction over the remaining claims. Section 1367 of Title 28 of the United States Code states:

Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.

18 U.S.C. § 1367(a). Because Great American asserts "that this Court may exercise supplemental jurisdiction over the wrongful death claims brought by the Mach Plaintiffs," Response to Mach Plaintiffs at 8, Great American recognizes that the Cross-Claims are "so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." 18 U.S.C. § 1367(a). While 28 U.S.C. § 1441(a) uses the term "civil action," and not the term "case," when Congress adopted the term "civil action" in 28 U.S.C. § 71, the predecessor statute to 28 U.S.C. § 1441, it substituted "the words `civil action'" for "[p]hrases such as `in suits of a civil nature, at law or in equity,' the words `case,' `cause,' `suit'. . . in harmony with Rules 2 and 81(c) of the Federal Rules of Civil Procedure." 28 U.S.C. § 1441 Revision Notes and Legislative Reports. See Fed.R.Civ.P. 2 ("There is one form of action—the civil action."); Fed.R.Civ.P. 81(c)("These rules apply to a civil action after it is removed from a state court.").

In Nungesser v. Bryant, the District Court for the District of Kansas addressed whether a defendant's bad faith claim against his liability insurer was part of the same civil action as the plaintiff's tort action against the defendant. See 2007 WL 4374022, at *5. The district court analogized to cases that discussed whether garnishment proceedings were distinct civil actions, stating:

2007 WL 4374022, at *6-7 (emphasis added)(footnote omitted). Unlike the bad-faith claim in Nungesser v. Bryant, the Cross-Claimants are able to pursue, and have been pursuing, their Cross-Claims concurrently with the Mach Plaintiffs' wrongful death suit in state court. Moreover, unlike the underlying suit in Nungesser v. Bryant, judgment has not been entered in the underlying suit. Consequently, the Court finds that Nungesser v. Bryant is inapposite.

Wright and Miller also recognize that, recently, federal courts have stated that federal law governs the question whether a proceeding is removable, but that federal courts can consider the state's characterization of the proceeding.

14B C. Wright & A. Miller, supra § 3721, at 36-37 (footnotes omitted).

In Stoll v. Hawkeye Cas. Co. of Des Moines, Iowa, the Eighth Circuit stated that "[t]he question whether a civil action is removable and has been properly removed is one for the consideration of the federal court and is not controlled by State law." 185 F.2d at 99 (citations omitted). Four years later, the Supreme Court of the United States stated that a state statute's "procedural provisions cannot control the privilege o[f] removal granted by the federal statute." Chicago, R.I. & P.R. Co. v. Stude, 346 U.S. at 580, 74 S.Ct. 290 (citation omitted). More recently, the District Court for the District of Kansas has stated:

Nungesser v. Bryant, 2007 WL 4374022, at *6.

While "[t]he characterization imparted to a proceeding by state law is not, in the final analysis, determinative," Fed. Sav. and Loan Ins. Corp. v. Quinn, 419 F.2d at 1018, the Court considers it noteworthy that, in Foundation Reserve v. Mullenix, the Supreme Court of New Mexico expressed a preference that matters of insurance coverage be decided by the court considering the underlying action. The New Mexico Supreme Court stated:

97 N.M. at 620, 642 P.2d at 606.

The Court concludes that the Cross-Claims are not a distinct civil action from the wrongful death claims that the Mach Plaintiffs bring. The Supreme Court provides that a cross-action is not an independent suit within the meaning of 1441(a)'s predecessor statute. West v. Aurora City, 73 U.S. at 141, 73 U.S. 139. "There is no indication that antiquity or any other cause has weakened the precedential authority of West for the proposition that a counterclaim, by itself, is not a removable suit." 419 F.2d at 1018 n. 4. The Cross-Claims involve insurance coverage, the scope of which turns on the facts in the wrongful death suit. Both the Mach Plaintiffs' Claims and the Cross-Claims involve contract disputes. Given the overlap in facts and claims, the Court believes that the Cross-Claims are ancillary and supplemental to the Mach Plaintiffs' Claims. Moreover, this holding is consistent with the Supreme Court of New Mexico's expressed preference in Foundation Reserve v. Mullenix that matters of insurance coverage be considered in the same action as the underlying claims. The Court holds, therefore, that the Cross-Claims are part of the same civil action as the Mach Plaintiffs' Claims within the meaning of U.S.C. § 1441(a). Great American contends that it removes only the Cross-Claims, and the Court may exercise supplemental jurisdiction over the Mach Plaintiffs' Claims. Great American's contention is unavailing. The case is one civil action, not two or more. Accordingly, the Court must turn to the question whether Great American can remove the entire case.

II. GREAT AMERICAN DID NOT TIMELY REMOVE.

Great American did not timely remove this case. Section 1446 of Title 28 of the United States Code governs the procedure for removal. Section 1446(b) provides:

28 U.S.C. § 1446(b). "The failure to comply with these express statutory requirements for removal can fairly be said to render the removal `defective' and justify a remand." Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d at 1077 (quoting Snapper, Inc. v. Redan, 171 F.3d at 1253). "In a case not originally removable, a defendant who receives a pleading or other paper indicating the postcommencement satisfaction of federal jurisdictional requirements—for example, by reason of the dismissal of a nondiverse party—may remove the case to federal court within 30 days of receiving such information. § 1446(b)." Caterpillar Inc. v. Lewis, 519 U.S. at 68-69, 117 S.Ct. 467. "No case, however, may be removed from state to federal court based on diversity of citizenship `more than 1 year after commencement of the action.'" Caterpillar Inc. v. Lewis, 519 U.S. at 69, 117 S.Ct. 467 (quoting 28 U.S.C. § 1446(b)). The requirement that a defendant timely file the notice of removal is mandatory, although timely removal is not jurisdictional. See Bonadeo v. Lujan, 2009 WL 1324119, at *6 (citing McCain v. Cahoj, 794 F.Supp. at 1062).

The Plaintiffs filed their complaint in state court on July 31, 2009. Based on diversity, Great American removed the case to federal court on November 12, 2010, more than one "year after commencement of the action." 28 U.S.C. § 1446(b). Great American filed its notice of removal based on jurisdiction under 18 U.S.C. § 1332. "No case, however, may be removed from state to federal court based on diversity of citizenship `more than 1 year after commencement of the action.'" Caterpillar Inc. v. Lewis, 519 U.S. at 69, 117 S.Ct. 467 (quoting 28 U.S.C. § 1446(b)). By the plain language of 28 U.S.C. § 1446(b), Great American is time barred from removing this case. See United States ex rel. Walker v. Gunn, 511 F.2d at 1026 ("[T]he statute, insofar as the time for removal is concerned, is imperative and mandatory, must be strictly complied with, and is to be narrowly construed."). Great American contends that the clock should begin with the filing of the Cross-Claims, because the Cross-Claims are a separate civil action. The Court has concluded, however, that the Cross-Claims are not a separate civil action, and Great American's contention is therefore unavailing. Moreover, section 1446(b) expressly contemplates a case "becom[ing] removable" through subsequent events—such as through a "motion, order or other paper"—and nonetheless imposes the requirement that "[n]o case . . . may be removed from state to federal court based on diversity of citizenship `more than 1 year after commencement of the action.'" Caterpillar Inc. v. Lewis, 519 U.S. at 69, 117 S.Ct. 467 (quoting 28 U.S.C. § 1446(b)). See Fajen v. Found. Reserve Ins. Co., 683 F.2d at 333 ("Removal statutes are to be strictly construed, and all doubts are to be resolved against removal." (internal citations omitted)). The Court, therefore, will remand this case to the state court. See Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d at 1077 ("The failure to comply with these express statutory requirements for removal can fairly be said to render the removal `defective' and justify a remand." (quoting Snapper, Inc. v. Redan, 171 F.3d at 1253)).

III. GREAT AMERICAN AS CROSS-DEFENDANT IS NOT "A DEFENDANT OR DEFENDANTS" WITHIN THE MEANING OF 28 U.S.C. § 1441(a).

Even if Great American's removal were timely, which it was not, there is another problem with Great American's removal. Great American contends that, as a Third-Party Defendant and Cross Defendant, it may remove this case under 28 U.S.C. § 1441(a).5 As an initial matter, Great American is not a Third-Party Defendant. Rule 14 of the Federal Rules of Civil Procedure governs third-party practice. Rule 14(a) states that "[a] defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it," and defines "[t]he person served with the summons and third-party complaint—the `third-party defendant'. . . ." Fed.R.Civ.P. 14(a)(1), (2). See also Fed.R.Civ.P. 14(b)("When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do so."). The Mach Plaintiffs brought Great American into this case as a Defendant. The FAC named Great American as a Defendant. The Mach Plaintiffs brought, among others, claims against Great American for breach of the duty of good faith and fair dealing. See FAC ¶¶ 5.1-5.3, at 8. On September 2, 2010, the Mach Plaintiffs served a summons and the FAC on Great American through the New Mexico Public Regulation Commission. See Letter from John Franchini, Superintendent of Insurance, to Great American Insurance Company of New York at 1 (dated September 2, 2010); Summons at 1. When Cross-Claimants filed their Cross-Claims against Great American on September 3, 2010, therefore, Great American was already a party to this case. Great American, therefore, is not a non-party who a third-party plaintiff summoned under rule 14, and Great American is therefore not a third-party defendant. Because Great American was an existing party when the Cross-Claimants filed their Cross-Claims, Great American is a Cross-Defendant. See Fed. R.Civ.P. 13(g)("Crossclaim Against a Coparty. A pleading may state as a cross-claim any claim by one party against a coparty. . . .").

The Court concludes that, as a Cross-Defendant, Great American is not "[a] defendant or defendants" within the meaning of 28 U.S.C. § 1441(a). In Shamrock Oil & Gas Corp. v. Sheets, the Supreme Court interpreted the term "defendant" under the predecessor statute to 28 U.S.C. § 1441(a) not to include cross-defendants. 313 U.S. at 108-09, 61 S.Ct. 868. The Supreme Court reasoned that Congress "narrow[ed] the federal jurisdiction on removal" when it amended the statute, which had allowed "either party" to remove, to allow removal only "by the `defendant or defendants' in the suit." 313 U.S. at 104-05, 107, 61 S.Ct. 868. In addition to finding congressional intent to narrow the statute, the Supreme Court also asserted that federalist principles favor reading the statute narrowly and "call[] for . . . strict construction." 313 U.S. at 108, 61 S.Ct. 868. The Supreme Court stated: "Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined." 313 U.S. at 108, 61 S.Ct. 868 (quoting Healy v. Ratta, 292 U.S. at 270, 54 S.Ct. 700)(other citations and internal quotation marks omitted). Accordingly, the Supreme Court held that the plaintiff/cross-defendant against whom the original defendant had filed a counterclaim could not remove the case to federal court. See 313 U.S. at 108-09, 61 S.Ct. 868.

While the Supreme Court addressed a plaintiff/cross-defendant, and not cross-defendants generally, courts have consistently interpreted Shamrock Oil & Gas Corp. v. Sheets as establishing that only original defendants are "[a] defendant or defendants" under 28 U.S.C. § 1441(a), precluding cross-defendants and third-party defendants from removing cases. See, e.g., Palisades Collections LLC v. Shorts, 552 F.3d at 333-34 ("Counter-defendants, like third-party defendants, are certainly not defendants against whom the original plaintiff asserts claims; [t]hus, we easily conclude that an additional counter-defendant is not a `defendant' for purposes of § 1441(a)." (citations omitted)); Progressive W. Ins. Co. v. Preciado, 479 F.3d at 1017 (recognizing "Shamrock's longstanding rule that a plaintiff/cross-defendant cannot remove an action to federal court"); First Nat. Bank of Pulaski v. Curry, 301 F.3d at 462 ("We hold that third-party defendants are not `defendants' for purposes of § 1441(a)."); Cross Country Bank v. McGraw, 321 F.Supp.2d at 821-22 (noting that district courts within the Fourth Circuit have adopted the majority rule that "a third-party defendant is distinct from `the defendant or defendants' who are permitted to remove cases pursuant to 28 U.S.C. § 1441(a)"); Galen-Med, Inc. v. Owens, 41 F.Supp.2d at 614 ("The majority view, that third-party defendants are not `defendants' for purposes of removal under 28 U.S.C. § 1441(a), is the better rule."); Hayduk v. UPS, 930 F.Supp. at 590 ("Nearly every court that has considered the question whether third-parties may remove under § 1441(a) has determined that they may not."); NCO Fin. Sys., Inc. v. Yari, 422 F.Supp.2d at 1239-40; Menninger Clinic Inc. v. Schilly, 1992 WL 373927, at *1-2; Radio Shack Franchise Dep't v. Williams, 804 F.Supp. at 152-53; Elkhart Co-op Equity Exch. v. Day, 716 F.Supp. at 1385, 1387; Garnas v. Am. Farm Equip. Co., 502 F.Supp. at 351 n. 7 (holding that a third-party defendant whom a plaintiff/counter-defendant impleads cannot remove, because the third-party defendant is not a defendant within the meaning of § 1441); Croy v. Buckeye Int'l, Inc., 483 F.Supp. at 406 ("The overwhelming weight of authority indicates that a third party defendant is not entitled to removal of an entire case to federal court under 28 U.S.C. § 1441(a)."); Manternach v. Jones County Farm Serv. Co., 156 F.Supp. at 577 (noting that courts "are not in disagreement as to the non-removability of a third-party claim [under § 1441(a)]").

While on a clean slate, the phrase "defendant or defendants" could be read to include any party that is defending against a claim—counter-defendants, cross-defendants, third-party defendants—the Court does not write on a clean slate. The Supreme Court has already established that cross-defendants may not remand; there is no valid distinction between cross-defendants, counter-defendants, and third-party defendants for the purposes of 28 U.S.C. § 1441(a). The Court thus agrees with those courts that have held only original defendants may remove cases under 28 U.S.C. § 1441(a).

First Nat. Bank of Pulaski v. Curry, 301 F.3d at 461-62. "A counterdefendant is not a defendant joined in the original action and therefore not a party that can remove a state action to federal court." Palisades Collections LLC v. Shorts, 552 F.3d at 333 (quoting Dartmouth Plan, Inc. v. Delgado, 736 F.Supp. at 1492).

Moreover, the Supreme Court's reasoning in Shamrock Oil & Gas Corp. v. Sheets that Congress narrowed the statute to include only "defendants"—and not cross-defendants—supports finding that cross-defendants generally are not defendants under 28 U.S.C. § 1441(a). The removal statutes "call[] for . . . strict construction." 313 U.S. at 108, 61 S.Ct. 868. "Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined." 313 U.S. at 108, 61 S.Ct. 868 (quoting Healy v. Ratta, 292 U.S. at 270, 54 S.Ct. 700)(other citations and internal quotation marks omitted). Allowing removal would expand jurisdiction of federal courts in contravention of the strictly construed statutory limits on the right to removal.

The Court thus concludes that, under Shamrock Oil & Gas Corp. v. Sheets, cross-defendants generally are not "[a] defendant or defendants" within the meaning of 28 U.S.C. § 1441(a). Cross-defendants, therefore, may not remove state cases to federal court. Because the Court agrees that cross-defendants may not remove, the Court rejects Great American's contention that, as a Cross-Defendant, it is able to remove the Cross-Claims. Because Great American cannot remove as a Defendant, its role as a Cross-Defendant brings it no greater removal rights.6

IV. THE COURT DENIES THE MACH PLAINTIFFS' AND CROSS-CLAIMANTS' REQUESTS FOR COSTS AND EXPENSES.

The Mach Plaintiffs request that the Court award them just costs and actual expenses, including attorney fees. The Cross-Claimants request that the Court afford them "such other and further relief the Court deems appropriate." Cross-Claimants' Motion at 4-5. "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). The Supreme Court of the United States has relatively recently clarified the standards governing an award of fees under § 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. Conversely, when an objectively reasonable basis exists, fees should be denied." Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005). It is not necessary that the plaintiff show that the defendants acted in bad faith to win attorney's fees. See Topeka Housing Auth. v. Johnson, 404 F.3d 1245, 1248 (10th Cir. 2005). The Court finds that Great American has made good-faith arguments and has found some authority to support its position that removal was appropriate. While the Court does not agree that Cross-Claims are a separate civil action, there are separate civil actions in the same case, as the Court recently recognized in Stark-Romero v. National Railroad Passenger Co. Great American's argument is weak, but the Court cannot say that it is objectively unreasonable given its separate civil action argument. Finally, there is some authority that parties other than traditional defendants can remove. See NCO Fin. Sys., Inc. v. Yari, 422 F.Supp.2d at 1239-40 ("interpreting `the defendant or defendants' to exclude third-party defendants is not a necessary construction of § 1441(a)."). Cf. Wiatt v. State Farm Ins. Companies, 560 F.Supp.2d at 1077 ("The Tenth Circuit has not spoken definitively on the propriety of third-party removal. It is therefore an open question in this circuit whether a third-party defendant, who the plaintiff impleaded, may remove a case." (citations omitted)); Galen-Med, Inc. v. Owens, 41 F.Supp.2d at 614 ("The majority view, that third-party defendants are not `defendants' for purposes of removal under 28 U.S.C. § 1441(a), is the better rule."). The standard announced in Martin v. Franklin Capital Corp. does not allow the Court to award fees and costs any time the defendant loses; there must be more to make the basis objectively unreasonable. The Court finds that Great American was wrong on some arguments, but that it did not lack an objectively reasonable basis for its arguments. The Court will therefore deny the Mach Plaintiffs' and the Cross-Claimants' requests for costs and fees under § 1447(c).

IT IS ORDERED that: (i) the Plaintiff's Motion to Remand—Opposed, filed November 13, 2010 (Doc. 8), is granted in part and denied in part; (ii) Third Party Plaintiffs, Triple D Supply, L.L.C. and Donald Doak's Motion to Remand, filed November 24, 2010 (Doc. 22), is granted in part and denied in part; (iii) the Court remands this case to District Court of Dona Ana County, Third Judicial District, New Mexico; and (iv) the Court denies the moving parties' requests for fees and costs.