JAMES O. BROWNING, District Judge.
On January 12, 2007, the Equal Employment Opportunity Commission ("EEOC") issued its Dismissal and Notice of Rights. See Defendant's Brief at 1. On April 13, 2007, Nieto filed a Notice of Appeal of the Dismissal and Notice of Rights by the Equal Employment Opportunity Commission, and a Complaint of Damages, in the Second Judicial Court, Bernalillo County, State of New Mexico. See Notice of Removal ¶ 1, at 1, filed May 12, 2008 (Doc. 1); Plaintiff's Letter at 1; Notice of Appeal and Complaint for Damages, filed May 12, 2008 (Doc. 1-1)("Complaint").
On March 13, 2008, New Mexico District Judge Linda Vanzi—now a judge on the Court of Appeals of New Mexico—dismissed Nieto's Complaint for lack of prosecution. See Defendant's Brief at 3. The parties agree that Nieto served UNM's counsel with a copy of the summons and Complaint in this action on April 11, 2008—almost a full months after the trial court dismissed Nieto's Complaint. See Plaintiff's Letter at 1; Defendant's Brief at 3. Nieto filed a motion to reinstate in the state trial court on April 14, 2008. Judge Vanzi denied the motion to reinstate on May 9, 2008 because Nieto failed to appear for the motion hearing. See Plaintiff's Letter at 1. On May 12, 2008—after Judge Vanzi dismissed Nieto's suit for want of prosecution and after she denied his motion to reinstate, but within 30 days of the day Nieto served UNM
On June 6, 2008, Nieto filed a notice of appeal to the Court of Appeals of New Mexico. On May 26, 2009, the Court of Appeals of New Mexico issued a Memorandum Opinion and Order, followed by a Judgment by Mandate, which stated that the Court of Appeals' jurisdiction was suspended by UNM's filing of a Notice of Removal. See Defendant's Brief at 3. There is, therefore, nothing moving forward in state court.
On April 2, 2010, the Court held a rule 16 scheduling conference. The Court expressed its concern whether it had jurisdiction over an action that has been removed after it was dismissed for want of prosecution and after a motion to re-instate has been denied. The Court noted that, from a review of the parties' Joint Status Report and Provisional Discovery Plan, filed March 31, 2010 (Doc. 10), that the only one who had any concern about the Court's jurisdiction was the Court. Indeed, at the initial scheduling conference, the parties both asserted that they believed the Court had subject-matter jurisdiction. The Court nevertheless requested that the parties each send a letter or brief to the Court explaining why they believe the Court has jurisdiction over the matter.
On April 26, 2010, UNM submitted a brief explaining why it believes the Court has jurisdiction over the case. On the same day, Nieto filed a letter brief explaining—for the first time—why, in his view, the Court lacks subject-matter jurisdiction. At the hearing, Christina Vigil, Nieto's attorney, stated that she would like to have her letter brief treated as a motion to remand, and UNM did not oppose this request. Ms. Vigil also conceded that, because of the timing of her motion, she had waived all procedural arguments for remand and was only arguing that the Court lacks subject-matter jurisdiction.
A defendant may remove "any civil action brought in a State court of which the district courts of the United States have original jurisdiction" 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). The right to remove is a statutory right, and thus removing defendants must carefully follow all statutory requirements. See Bonadeo v. Lujan, No. CIV 08-0812 JB/ACT, 2009 WL 1324119, at *9-10 (D.N.M. Apr. 30, 2009) (Browning, J.).
Section 1446 of Title 28 of the United States Code governs the procedure for removal. See 28 U.S.C. § 1446(b). It demands that "[t]he notice of removal . . . be filed within thirty days after the receipt by the defendant . . . of a copy of the initial pleading . . . or . . . after the service of summons . . . if such initial pleading has then been filed in court and is not required to be served . . ., whichever period is shorter." 28 U.S.C. 1446(b). Furthermore, at least in cases in which the complaint was not removable as initially filed, a defendant must make any diversity-based removal within one year of the commencement of the action. See 28 U.S.C. § 1446(b). The requirement that a defendant timely file the notice of removal is mandatory, though it is not jurisdictional. See Bonadeo v. Lujan, 2009 WL 1324119, at *6 (citing McCain v. Cahoj, 794 F.Supp. 1061, 1062 (D.Kan.1992)). As the Court has recently recognized, there is a split amongst courts whether this thirty-day removal window runs from the date the first defendant is served—the "first-served" rule—or the date the last-served defendant is served—the "last-served" rule.
McEntire v. Kmart Corp., No. CIV 09-0567 JB/LAM, 2010 WL 553443, at *4 (D.N.M. Feb. 9, 2010) (Browning, J.)(internal citations and quotes omitted). The Court follows the last-served rule.
If a defendant removes a matter to federal court, the plaintiff may challenge the removal by filing a motion to remand in federal district court. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 69, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996). The procedure for motions to remand is governed primarily by 28 U.S.C. § 1447. Grounds for remand include a lack of subject-matter jurisdiction, see 28 U.S.C. § 1447(c), or a defect in the removal procedure, see Bonadeo v. Lujan, 2009 WL 1324119, at *6 (citing McShares, Inc. v. Barry, 979 F.Supp. 1338, 1341 (D.Kan.1997)). A defect in the removal notice or any "[f]ailure
There is some disagreement whether a defendant may remove a case to federal court after the state trial court has dismissed the state-court action, but before the expiration of the defendant's time for removal under the applicable removal statute. This situation rarely arises, because it is uncommon that a judge will dispose of a case before the defendant's thirty-day period to seek removal expires. See 28 U.S.C. § 1446(b) (requiring notice of removal be filed within 30 days of receipt of service of process). Thus, most cases that address the issue do so in the context of removal statutes other than 28 U.S.C. § 1441. Nevertheless, the Court concludes that the better reasoned opinions allow for removal after a state-court dismissal. And, in certain circumstances, a federal district court may set aside the state trial court's judgment pursuant to rule 60(b) of the Federal Rules of Civil Procedure.
The statutes governing procedures for removal appear to require only: (i) an existing "civil action," 28 U.S.C. §§ 1441, 1446(a) & (b); (ii) over which the federal district court has original jurisdiction, see 28 U.S.C. § 1441(a); and (iii) that the defendant file a notice of removal within thirty days of receipt of service, see 28 U.S.C. § 1446(b).
Article III of the Constitution limits the judicial power of the federal courts to particular "cases" or "controversies." The Clause states:
U.S. Const. Art. III, § 2. To satisfy Article III's core justiciability requirements, a plaintiff must have standing, his or her claims must not be moot, and his or her claims must be ripe. To have standing, a plaintiff must show: (i) that he or she has suffered an injury in fact—an invasion of a legally protected interest that is concrete
Claims become moot when the issues that they present are no longer "live" or the parties lack a legally cognizable interest in the outcome. County of L.A. v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979). A claim may become moot if "(i) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (ii) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Id. The burden of establishing mootness is a heavy one. See id.
The ripeness doctrine focuses on whether the harm asserted has matured sufficiently to warrant judicial intervention. In determining whether a case is ripe, a court must evaluate the fitness of the issues and record presented for judicial review, and the potential hardship to the parties of withholding court consideration. See Morgan v. McCotter, 365 F.3d at 890-91. The fitness inquiry involves assessing whether uncertain or contingent future events may not occur as anticipated, and the hardship inquiry involves examining whether the challenged action creates a direct and immediate dilemma for the parties. See id.
Several federal district courts have found that, when a case is removed after the state court has issued a final judgment, the district court lacks jurisdiction and must remand the case to state court. Most of those cases, however, make their decision based on a finding that there exists no case or controversy under Article III of the United States Constitution once the state court dismisses the plaintiff's claims. In Robert Plan Corp. v. American International Group, Inc., No. CIV 09-200(GEB)(DEA), 2009 WL 2448509 (D.N.J. Aug. 10, 2009), the Honorable Garrett E. Brown, Jr., United States District Judge for the District of New Jersey, found that it lacked jurisdiction over a case removed pursuant to the bankruptcy removal statute after the state-court judge had dismissed the case for failure to prosecute. See 2009 WL 2448509, at **2-4.
Even Philpott v. Resolution Trust Corp., however, acknowledged that many cases recognize the propriety of removal to federal court after the state court entered a default judgment, apparently recognizing a case or controversy exists. See 739 F.Supp. at 383 (citing Murray v. Ford Motor Co., 770 F.2d 461, 463 (5th Cir. 1985); Butner v. Neustadter, 324 F.2d 783, 785 (9th Cir.1963)); Munsey v. Testworth Labs., 227 F.2d 902 (6th Cir.1955) (per curiam); Robert E. Diehl, Inc. v. Morrison, 590 F.Supp. 1190, 1192 (M.D.Pa.1984); Kizer v. Sherwood, 311 F.Supp. 809, 811 (M.D.Pa.1970). The court in Philpott v. Resolution Trust Corp. did not attempt to explain away the post-default removal cases. Rather, it addressed the "[o]nly. . . case [it] found that permitted removal after a final judgment where the judgment was not one by default": In re Savers Federal Savings & Loan Association, 872 F.2d 963 (11th Cir.1989). The Northern District of Illinois in Philpott v. Resolution Trust Corp. did not attempt to address the United States Court of Appeals for the Eleventh Circuit's logic in In re Savers Federal Savings & Loan Association. Instead, the court merely found that, "[i]n light of the dictum in Rothner[ v. City of Chicago, 879 F.2d 1402 (7th Cir.1989),] and the Seventh Circuit's general narrow interpretation of federal jurisdiction, it is believed the Seventh Circuit would follow those courts that hold there is generally no jurisdiction to remove closed cases." Philpott v. Resolution Trust Corp., 739 F.Supp. at 384. The Court does not find the rationale in Philpott v. Resolution Trust Corp. particularly persuasive.
In In re Savers Federal Savings & Loan Association, a jury decided the plaintiff's primary claims on December 1, 1988, and the state trial court entered final judgment on January 25, 1989. See 872 F.2d at 964 & n. 1. On February 10, 1989—before the time for filing a notice of appeal in state court expired—the Federal Savings and Loan Insurance Corporation ("FSLIC") was appointed as conservator for the defendant, and FSLIC removed to federal district court and filed a notice of appeal to the Eleventh Circuit. See 872 F.2d at 964-65. The plaintiff moved to remand,
The Eleventh Circuit issued the writ. It first found that, although the removal in question was made pursuant to 12 U.S.C. § 1730(k)(1), it was governed by the procedures of 28 U.S.C. § 1446(b), just like a removal under 28 U.S.C. § 1441. See 872 F.2d at 965. It then stated:
872 F.2d at 965-66. Although it did not state it in terms of the case-or-controversy requirement, the Eleventh Circuit implicitly acknowledges that there is a case or controversy by finding that there was a federal-court action from which the defendant could appeal to the Eleventh Circuit. The Court finds the reasoning of the Eleventh Circuit persuasive.
Many other cases have found or assumed that a removed case, even after final judgment was rendered in the state court, remains a justiciable case or controversy and that the federal district court has jurisdiction—at least to enter a final judgment. In Resolution Trust Corp. v. BVS Development, Inc., the Ninth Circuit addressed whether a case or controversy exists in a case pending appeal in state court.
Resolution Trust Corp. v. BVS Development, Inc., 42 F.3d at 1211. In other words, the Ninth Circuit believed that, so long as there is a legal dispute between the parties that a federal court could legitimately resolve, there exists a case or controversy under Article III.
The United States Court of Appeals for the Fifth Circuit held similarly in Federal Deposit Insurance Corporation v. Kahlil Zoom-In Markets, 978 F.2d 183 (5th Cir. 1992). In FDIC v. Kahlil Zoom-In Markets, Inc., the Fifth Circuit addressed "the question of the jurisdiction of a federal court of appeals where a matter has been removed to federal district court while appeal is pending in a state court of appeals." Id. at 183. The case dealt with a different removal statute—12 U.S.C. § 1819(b)(2)— but the Court finds the case instructive.
The Fifth Circuit stated that § 1631 was inapplicable and found that the district court had jurisdiction, notwithstanding the state-court dismissal and Kahlil's notice of appeal before the FDIC's notice of removal. See 978 F.2d at 184. The Fifth Circuit found that, until the federal district court entered a final judgment in the removed action, the federal court of appeals lacked appellate jurisdiction. See id. ("[I]n the absence of a final, appealable judgment from the district court, we are without jurisdiction."). The Fifth Circuit informed the trial court that the proper procedure for a district court to follow when dealing with a case that has been dismissed in state court before removal is to "enter[] the state court's judgment as its own, complying with the requirements set forth in Granny Goose Foods [v. Brotherhood of Teamsters, Local No. 70, 415 U.S. 423, 435-36, 94 S.Ct. 1113, 39 L.Ed.2d 435 . . . (1974).]" FDIC v. Kahlil Zoom-In Markets, Inc., 978 F.2d at 184. While it did not address the case-or-controversy issue, the Fifth Circuit found jurisdiction.
In Federal Deposit Insurance Corporation v. Yancey Camp Development, 889 F.2d 647 (5th Cir.1989), the Fifth Circuit
In 1955, the United States Court of Appeals for the Sixth Circuit recognized that a case may be removed after entry of a default judgment against the defendant, implicitly finding a cognizable case or controversy. In Munsey v. Testworth Laboratories, 227 F.2d 902 (6th Cir.1955), Munsey sued Testworth Laboratories. The case had a peculiar procedural posture because Munsey had served Testworth with a summons four months before he filed his complaint. Munsey then filed his complaint on one day, served Testworth with a copy of the complaint two days later, and received a default judgment a mere two days after that. See Munsey v. Testworth Labs., 227 F.2d at 902-03. Within a week after the complaint was filed—and two days after the default judgment was entered—Testworth removed to federal court. See id. at 903. Munsey argued that the federal district court lacked jurisdiction to proceed. The Sixth Circuit stated:
Munsey v. Testworth Labs., 227 F.2d at 903. The Sixth Circuit thus affirmed the district court's decision to set aside the default judgment against Testworth that the Tennessee trial court entered. Several United States District Courts have also found that removal after a state-court dismissal is appropriate, implicitly finding a case or controversy. See Yash Techs., Inc. v. ProSpeed Trading, Inc., No. 07-CV-4054, 2009 WL 2928095, at **2-4, 2009 U.S. Dist. LEXIS 82026, at **6-12 (C.D.Ill. Sept. 9, 2009) (ruling on 60(b)(1) motion to set aside state-court default judgment); Virginia Stockton v. The Canada Life Assurance Co., No. 08-3016, 2008
When a case is removed from state court, the federal court takes the case in its current posture and treats prior-entered orders as its own. The Supreme Court of the United States in Granny Goose Foods v. Brotherhood of Teamsters, Local No. 70, 415 U.S. 423, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974), stated:
415 U.S. at 436-37, 94 S.Ct. 1113. The Fifth Circuit stated in Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d 890 (5th Cir.1984):
742 F.2d 890, 895. See In re Savers Fed. Sav. & Loan Ass'n, 872 F.2d at 966 ("In the instant case, in which removal and notice of appeal were timely, we will take the case as we find it on removal and treat everything that occurred in the state court as if it had taken place in the district court below."). As the Ninth Circuit has recognized, "a federal court must take a case as it finds it on removal, requiring a district court to treat a prior state judgment `as though it had been validly rendered in [a] federal proceeding.'" Resolution Trust Corp. v. BVS Dev., Inc., 42 F.3d at 1212 (quoting Butner v. Neustadter, 324 F.2d at 786). At least two federal circuits have implied that, where there has been a final judgment entered in the state court before removal, the proper action for the federal district court is to enter the state-court's judgment as its own. See Resolution Trust Corp. v. BVS Dev., Inc., 42 F.3d at 1210; FDIC v. Kahlil Zoom-In Markets, 978 F.2d at 184. See also Virginia Stockton v. The Canada Life Assurance Co., 2008 U.S. Dist. LEXIS 74258, at **11-12 ("After the state court's jurisdiction ends, the federal court must treat any judgment entered before the state court received notice [of removal] as if it [the federal court] had entered the judgment").
The sole issue for resolution is whether the Court has jurisdiction over this case. As UNM points out in its brief, Nieto's underlying Complaint asserts a federal cause of action, and therefore the Court has jurisdiction unless the state court's dismissal somehow extinguished the case as Nieto had filed it. See Defendant's Brief at 4. UNM states that the ultimate issue the Court must resolve is "whether at the time of removal, there was a case in controversy in state court to remove to the federal court." Id.
First, the Court notes that, if Judge Vanzi had not dismissed Nieto's state-court case for want of prosecution before UNM's notice of removal, the Court would have jurisdiction over this case pursuant to 28 U.S.C. § 1331 because Nieto's Complaint alleges federal claims. The issue is only whether Judge Vanzi's dismissal changed the case in such a way as to deprive the Court of jurisdiction. The Court concludes that it did not.
To satisfy Article III's justiciability or case-or-controversy requirement, a plaintiff must have standing, his or her claims must not be moot, and the claims must be ripe. To have standing, a plaintiff must show: (i) that he or she has suffered an injury in fact—an invasion of a legally protected interest that is concrete and particularized, and actual or imminent, not conjectural or hypothetical; (ii) that there is a fairly traceable causal connection between the injury and the defendant's conduct complained of; and (iii) that it is likely that a favorable decision will redress the injury. See D.L.S. v. Utah, 374 F.3d at 974; Morgan v. McCotter, 365 F.3d at 887-88. Neither party argues otherwise here. Nieto asserts he was wrongly accused of theft, wrongly placed on administrative leave from his employer, and wrongly terminated. See Complaint ¶¶ 15-31, at 3-5. These acts allegedly invaded Nieto's legally protected interest in
Claims become moot when the issues that they present are no longer "live" or the parties lack a legally cognizable interest in the outcome. See County of L.A. v. Davis, 440 U.S. at 631, 99 S.Ct. 1379. Neither party has met the "heavy burden," id., of showing that Nieto's case was moot when UNM filed its notice of removal. While the state court issued an order dismissing Nieto's claims for want of prosecution, and even denied Nieto's motion to reinstate based on Nieto's failure to appear, there was still time for Nieto to seek reconsideration of the denial of his motion to reinstate, or to file a notice of appeal. Both parties therefore still had a cognizable interest in the outcome of the case, and the case was not yet fully determined.
In determining whether a case is ripe, a court must evaluate the fitness of the issues and record presented for judicial review, and the potential hardship to the parties of withholding court consideration. See Morgan v. McCotter, 365 F.3d at 890-91. Nieto's claims were for wrongs that UNM employees had already allegedly committed and for harm that Nieto had already incurred. There is no sound reason to find that the case was not yet ripe. The Court thus concludes that Nieto's claims meet the traditional requirements of being a justiciable case or controversy under Article III.
Article III's requirement is that there by a case or controversy. There is still a controversy—whether the case will proceed and, if so, what this Court will do procedurally and/or on the merits. Moreover, even when cases are dismissed at the trial level, it is standard to consider the case to still be a case if the parties are contemplating post-trial motions, requests for fees, or appeals. Thus, this matter fits the legal and common-sense understanding of a case and controversy.
The Court notes that nothing in the removal statute prohibits removal of a case that has been dismissed, but as to which the time for appeal has not yet run. Title 28, Section 1441 of the United States Code states, in relevant part:
28 U.S.C. § 1441. To authorize removal under the statute, a defendant need only have a "civil action" over which "the district courts of the United States have original jurisdiction." The statute does not define a civil action, but Black's Law Dictionary defines it as "[a]n action brought to enforce, redress, or protect a private or
Nieto's argument boils down to the notion that, when a state-court trial judge issues an order dismissing a case, there no longer exists a case or controversy over which a federal district court could exercise jurisdiction. This argument does not persuade the Court. First, as a matter of logic, the Court does not believe a state-court judgment could extinguish a case-or-controversy, at least while non-extraordinary appellate remedies are still available. If a trial court judgment, which might yet be upset on appeal, were to extinguish a case or controversy between two parties, neither the United States Courts of Appeals nor Supreme Court of the United States would ever have jurisdiction, because Article III limits the judicial power of all federal courts, not merely federal district courts. See City of Erie v. Pap's A.M., 529 U.S. 277, 305-06, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (reminding the lower courts that "the case-or-controversy requirement of Art. III . . . applies `at all stages of review.'")(quoting Richardson v. Ramirez, 418 U.S. 24, 36, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974), and Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975)); U.S. Const. art. III, § 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."); U.S. Const. art. III, § 2, cl. 1 ("The judicial Power shall extend to all Cases. . . ."). Once a federal district court resolved a case in the first instance, federal appellate remedies would be for naught, as the district court would have extinguished the case or controversy necessary for the circuit court to exercise jurisdiction. The Court sees no sound reason why a New Mexico trial court judgment, which might yet be upset on appeal, should have greater adjudicatory force.
Moreover, another widely accepted practice under federal law undermines Nieto's argument. When a state-court case raises a federal issue, as does the one in this case, federal statute allows for an appeal by writ of certiorari from the state's highest court to the Supreme Court of the United States for review of that federal issue. See 28 U.S.C. § 1257 ("Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari [in cases raising federal issues]."). Again, the case-or-controversy requirement binds all federal courts, including the Supreme Court of the United States, not just district courts. If the state-court judgment, after all state appellate remedies have been exhausted, does not extinguish the case or controversy for the purposes of Supreme Court review under 28 U.S.C. § 1257, it would be difficult to believe that the state-court judgment with state appellate remedies unexhausted has such an effect.
Second, the weight of authority also pushes the Court to conclude that a case or controversy exists in this case, and that the Court continues to have jurisdiction over that case or controversy. While there does exist district-court authority to the contrary, the majority of well-reasoned cases find—whether implicitly or explicitly—that a case or controversy continues to exist after the state court enters judgment. See Resolution Trust Corp. v. BVS Dev., Inc., 42 F.3d at 1211-12; FDIC v. Kahlil Zoom-In Markets, Inc., 978 F.2d at 184; FDIC v. Yancey Camp Dev., 889 F.2d at 648; In re Savers Fed. Sav. & Loan Ass'n, 872 F.2d at 965-66; Murray v. Ford Motor Co., 770 F.2d at 463; Munsey v. Testworth Labs., 227 F.2d at 903; Yash Techs., Inc. v. ProSpeed Trading, Inc., 2009 WL
Resolution Trust Corp. v. BVS Dev., Inc., 42 F.3d at 1211-12. The Court finds this reasoning to be a sound description of the case-or-controversy requirement as the Court understands it. So long as there exist issues to be resolved at some level of judicial review, there exists a case or controversy and a basis for federal jurisdiction. Whether the Court will be bound to merely "perform the ministerial task of entering judgment based on an already entered state judgment," as the Ninth Circuit mentioned, or rather be allowed to review or set aside the state-court judgment now that it is effectively a judgment of this Court, is a question the Court will leave for another day.
Finally, Federal Deposit Insurance Corporation v. Sellards, as well-reasoned as the case may be, does not convince the Court otherwise. First of all, the case does not address the issue that the Court is now addressing; rather, it deals with the propriety of removal of a state-court appeal. See 731 F.Supp. at 1300-01 ("[W]hile the appeal was pending . . . the FDIC timely removed. . . . The FDIC argues that [the Financial Institutions Reform, Recovery, and Enforcement Act of 1989] clearly empowers it to remove a pending state court appeal to federal court."). Moreover, its basis for finding that removal of pending appeals improper does not withstand scrutiny, at least in the context of this case. Judge Sanders first insisted that such removals "run contrary to . . . the nature of our federalist system." He insisted that it violates principles of federalism and comity to allow the federal district court to review the judgment of the state court after it has been rendered. See 731 F.Supp. at 1301-02. This concern does not fully take into account that Congress, in promulgating the removal statutes, authorized the transplanting of cases meeting certain criteria from the state to the federal courts. The removal statutes, by and large, do not set forth a point during the progression of the case at which removal is no longer viable, except that it generally must be done within a certain period of time after the defendant is served with process. As the Supreme Court and several circuits have recognized, once the case has been removed, the federal district court should treat orders entered before removal as though they were entered by the district court. See Granny Goose Foods v. Brotherhood of Teamsters, Local No. 70, 415 U.S. at 436-37, 94 S.Ct. 1113; Resolution Trust Corp. v. BVS Dev., Inc., 42 F.3d at 1212; Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d at 895; In re Savers Fed. Sav. & Loan Ass'n, 872 F.2d at 966. If the Court follows this precedent and treat the state-court judgment as though it was rendered by this
The Court is inclined to follow the procedure that the Fifth and Ninth Circuits have proposed, which would compel the Court to enter Judge Vanzi's dismissal order as its own and enter final judgment. See Resolution Trust Corp. v. BVS Dev., Inc., 42 F.3d at 1210; FDIC v. Kahlil Zoom-In Markets, 978 F.2d at 184. The parties, however, have informed the Court that Nieto intends to file a motion seeking to set aside the dismissal for want of prosecution. See Joint Status Report and Provisional Discovery Plan at 9, filed March 31, 2010 (Doc. 10)("Plaintiff intends to file: Motion to Reinstate. . . ."). The Court will therefore withhold entering an order of dismissal and final judgment for a period of ten days from the issuance of this opinion to allow Nieto to file the appropriate motion. If he does not file such motion, the Court will enter the state court's order of dismissal as its own and enter final judgment in this matter. Nieto's motion to remand is denied.
12 U.S.C. § 1441a(l)(3)(A). The Court sees no evidence from the language of 12 U.S.C. § 1441a(l) that it would somehow differ from 28 U.S.C. § 1441 with respect to whether a case or controversy exists, or whether a district court could have jurisdiction over a removed case if the case had already reached a final judgment.
12 U.S.C. § 1819(b)(2)(B).
