Stark-Romero v. National Railroad Passenger Co. (763 F. Supp. 2d 1231, 2011)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Plaintiffs’ Motion to Remand and Memorandum in Support Thereof, filed September 9, 2010 (Doc. 19)(“Motion to Remand”); and (ii) the Plaintiff and Plaintiff-Intervenors’ Motion Requesting That this Matter Be Returned to the Previously Assigned Judge, filed October 10, 2010 (Doc. 32)(“Motion to Return”). The Court held a hearing on November 18, 2010. The primary issues are: (i) whether the Court should transfer the case to the Honorable Martha Vázquez, Chief United States District Judge, who decided the motion to remand in Victoria Stark-Romero v. The National Railroad Passenger Co. (Amtrak), No. CIV 09-0295 MV/RLP (D.N.M.); and (ii) whether the Court should remand the case to the state court. The Court will remand Stark-Romero’s claims, because it finds that the Second Notice of Removal removed Stark-Romero’s claims in addition to the Esquibels’ claims, and because the Court is foreclosed from reconsidering a prior remand determination. The Court finds that the Plaintiff-Intervenors Emilio J. Esquibel’s and Helen G. Esquibel’s claims are subject to independent removal as a separate civil action, because the Esquibels’ claims involve issues that are separate and distinct from Stark-Romero’s claims. Because the Court has found that the Esquibels’ claims are a separate civil action from Stark-Romero’s claims, and because the Court has remanded Stark-Romero’s claims, the Court will not reassign this matter to Judge Vázquez. The Court will not remand the Esquibels’ claims, because it finds that the Second Notice of Removal did not contain procedural deficiencies, and because it finds that it has federal-question jurisdiction over the Esquibels’ claim against Defendant National Railroad Passenger Corporation (“Amtrak”) and supplemental jurisdiction over the Esquibels’ claims against Defendants BNSF Railway Company (“BNSF”); the County of San Miguel, New Mexico; the City of Las Vegas, New Mexico; and the New Mexico Department of Transportation (“NMDOT”).

FACTUAL BACKGROUND

The Esquibels’ claims against the Defendants relate to a 2009 railroad crossing accident involving their son, Michael Esquibel. See Complaint in Intervention for Wrongful Death and Negligence ¶¶ 8-9, at 3, filed August 19, 2010 (Doc. l-2)(“Complaint-in-Intervention”). The Esquibels allege that, on January 15, 2009, M. Esquibel approached a railroad crossing. See Complaint-in-Intervention ¶¶ 8, 15, at 3. The Esquibels allege that, because vegetation blocked M. Esquibel’s line of sight, he began to cross the tracks without knowing an Amtrak train was approaching. See id. ¶ 17, at 4. The Esquibels allege that the Amtrak train collided with the vehicle M. Esquibel was driving, killing M. Esquibel. See id. ¶ 20, at 6. The ComplainL-in-Intervention alleges counts of negligence against Amtrak, BNSF, the City, the County, and the NMDOT. See Complaint Counts I, II, III, IV, V, at 4, 6, 8, 9, 10.

PROCEDURAL BACKGROUND

On February 12, 2009, Stark-Romero filed a Complaint for Wrongful Death and Negligence against Amtrak, BNSF, City of Las Vegas, San Miguel County, the NMDOT, and Ride to Pride at the Barn, LLC, in the Fourth Judicial District Court in San Miguel County. See Stark-Romero v. Nat’l R.R. Passenger Co., No. 09-cv-0295-MV-RLP, Complaint for Wrongful Death and Negligence, filed March 26, 2009 (Doc. 1-1). On March 26, 2009, the Defendants removed the Stark-Romero case to the United States District Court for the District of New Mexico. See Stark-Romero v. Nat’l R.R. Passenger Co., No. 09-cv-0295-MV-RLP, Notice of Removal, filed March 26, 2009 (Doc. l)(“First Notice of Removal”). The First Notice of Removal asserts that the Court has original jurisdiction over the matter, because jurisdiction exists in federal court under 28 U.S.C. § 1349 for lawsuits against Amtrak. See First Notice of Removal at 2. The First Notice of Removal also states that removal was proper pursuant to 28 U.S.C. § 1331 and potentially the federal officer removal statute, 28 U.S.C. § 1442(A)(1). See First Notice of Removal at 3. Counsel for Amtrak, BNSF, the NMDOT, and the City of Las Vegas signed the pleading; counsel for San Miguel County did not. See First Notice of Removal at 5. Stark-Romero filed a Motion to Remand on April 20, 2009, alleging that the First Notice of Removal was procedurally defective, because it did not establish that all Defendants served at the time of removal consented to the removal, given that San Miguel County did not sign the notice of removal or file an independent consent to removal. See Stark-Romero v. Nat’l R.R. Passenger Co., No. 09-cv-0295-MV-RLP, Motion to Remand and Memorandum in Support Thereof at 4-5, filed April 20, 2009 (Doc. 14)(“Stark-Romero’s Motion to Remand”).

On March 31, 2010, Chief Judge Martha Vázquez, issued a Memorandum Opinion and Order, granting Stark-Romero’s Motion to Remand. See Stark-Romero v. Nat’l R.R. Passenger Co., No. 09-cv-0295-MV-RLP, Memorandum Opinion and Order Granting Motion to Remand, filed March 31, 2010 (Doc. 96)(“Mar. 31, 2010 MOO”). Chief Judge Vázquez remanded the case because the First Notice of Removal was procedurally deficient. See Mar. 31, 2010 MOO at 10. Chief Judge Vázquez found that the First Notice of Removal was procedurally deficient, because San Miguel County did not sign the First Notice of Removal or file its consent within the required thirty-day period. See Mar. 31, 2010 MOO at 10. Chief Judge Vázquez also stated that she was not convinced that Amtrak and BNSF were duly diligent in their attempts to join all the defendants in the First Notice of Removal. See Mar. 31, 2010 MOO at 10. Although Chief Judge Vázquez remanded the case because of the procedural errors in the Notice of Removal, she also stated that, “even if this Court was not persuaded to remand on the basis of this procedural error, removal is improper on the basis of several other substantive issues.” Mar. 31, 2010 MOO at 10. Chief Judge Vázquez found that the case did not involve a substantial federal question and that, even if it did, “the exercise of jurisdiction by this Court would be optional,” and she would not exercise jurisdiction given the presumption in favor of Stark-Romero’s chosen forum and federal courts’ limited jurisdiction. Mar. 31, 2010 MOO at 23. When Chief Judge Vázquez issued her opinion, she also ordered Stark-Romero to submit a motion and supporting documentation for reimbursement for fees and costs associated with removal of the case to federal court. Stark-Romero submitted a motion, requesting attorneys’ fees and costs from Amtrak and BNSF, see Plaintiffs Motion Requesting Attorneys’ Fees and Costs Related to her Motion to Remand, filed April 29, 2010 (Doc. 98), which Amtrak and BNSF opposed, see Defendant Amtrak’s and BNSF’s Response in Opposition to Plaintiffs Motion Requesting Attorneys’ Fees and Costs Related to her Motion to Remand, filed May 17, 2010 (Doc. 99). The issue of attorney’s fees and costs is fully briefed and is currently pending before Judge Vázquez. See Notice of Completion of Briefing, filed June 1, 2010 (Doc. 101).

On June 10, 2010, the Esquibels sent an expedited motion to intervene, pursuant to rule 1-024(B) NMRA, to all counsel of record in Stark-Romero’s pending state lawsuit. See Expedited Motion to Intervene, filed September 27, 2010 (Doc. 23-2). As grounds for the motion to intervene, the Esquibels stated that their claim and Stark-Romero’s claim have common questions of law and fact, and that their claim is “virtually identical” to Stark-Romero’s claim. Expedited Motion to Intervene at 1. On July 13, 2010, the Honorable Abigail Aragon, New Mexico District Judge for the Fourth Judicial District, ordered that “Emilio J. Esquibel and Helen G. Esquibel, ... are allowed to intervene in this case for purposes of discovery only and that the Complaint-in-Intervention may be filed in this action and a copy shall be served on each of the defendants as provided in Rule 1-004.” Order on Motion to Intervene at 1-2, filed September 27, 2010 (Doc. 23-3). Judge Aragon further ordered

that the claims of Emilio J. Esquibel and Helen G. Esquibel set forth in the Complaint-in-Intervention shall not be consolidated for trial with the claims of Victoria Stark-Romero set forth in the Complaint for Wrongful Death and Negligence filed February 12, 2009 in the above-captioned case absent further order by the Court.

Order on Motion to Intervene at 2. Judge Aragon based her decision allowing limited intervention on rule 1-024B NMRA, which permits intervention even when the intervening party cannot demonstrate an interest relating to the property or transaction which is the subject of the ongoing case. Compare Rule 1-024A NMRA (stating an applicant shall be allowed to intervene “when the applicant claims an interest relating to the property or transaction which is the subject of the action and ... disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties”), with Rule 1-024B NMRA (stating an applicant may intervene “when an applicant’s claim or defense and the main action have a question of law or fact in common”).

Amtrak and BNSF filed a Notice of Removal on August 19, 2010. See Notice of Removal, filed August 19, 2010 (Doc. l)(“Second Notice of Removal”). Amtrak and BNSF attached the Esquibels’ Complainh-in-Intervention to the Second Notice of Removal. See Doc. 1-2. Also attached to the Second Notice of Removal was the City of Las Vegas’ Consent to Removal, San Miguel County’s Consent of Removal, and the NMDOT’s Consent of Removal. See Defendant City of Las Vegas’ Consent to Removal, filed August 19, 2010 (Doc. 1-6); Defendant San Miguel County’s Consent of Removal, filed August 19, 2010 (Doc. 1-6); Defendant the New Mexico Department of Transportation’s Consent of Removal, filed August 19, 2010 (Doc. 1-6). In the Second Notice of Removal, Amtrak and BNSF assert that the Court has original jurisdiction, because it has federal-question jurisdiction over the Esquibels’ claims against Amtrak. See Second Notice of Removal at 3. Amtrak and BNSF state that they have expressly limited their removal to the Esquibels’ claims, and have rejected any intention to assert federal jurisdiction over the claims that were part of the prior Stark-Romero case. See Defendants Amtrak and BNSF’s Response to Plaintiffs’ Motion to Remand at 12, filed September 27, 2010 (Doc. 23)(“Response”).

On September 9, 2010, the Plaintiffs filed a Motion to Remand. See Doc. 19. The Plaintiffs argue that the Court should remand the case, because second removals are permitted under only limited circumstances, which do not apply in this case, because the Defendants waived their right to remove, and because their removal is procedurally defective. See Motion to Remand at 1.

Amtrak and BNSF responded, asserting that the Esquibels’ case was a separate legal action, which the Defendants could remove to federal court, and that the Court has jurisdiction over the Esquibels’ claims. See Response at 1-2. Amtrak and BNSF also assert that the Second Notice of Removal was timely filed and that they did not manifest any intent to litigate the Esquibels’ claims in state court, and therefore did not waive their right to remove. See Response at 14-15. The City of Las Vegas, San Miguel County, and the NMDOT adopted the arguments contained in Amtrak’s and BNSF’s Response. See Defendant City of Las Vegas’s Joinder in Response by Defendants Amtrak and BNSF to Plaintiffs’ Motion to Remand, filed September 27, 2010 (Doc. 24); Defendant San Miguel County’s Response to Plaintiffs’ Motion to Remand and Memorandum in Support Thereof, filed September 27, 2010 (Doc. 26); Defendant New Mexico Department of Transportation’s Response to Plaintiffs’ Motion for Remand in Esquibel, filed September 27, 2010 (Doc. 27).

On October 10, 2010, the Plaintiffs filed their Motion to Return, asking the Court to reassign the matter to Judge Vázquez to make the most efficient use of scarce judicial resources, to discourage judge shopping, and to avoid re-litigation of issues previously decided. See Motion to Return at 1-2. Amtrak and BNSF responded, arguing that re-assignment of the case would be improper, because the only case removed is the separate and distinct civil action which the Esquibels brought. See Response of Defendants Amtrak and BNSF to Motion Requesting that this Matter be Returned to the Previously Assigned Judge, filed October 21, 2010 (Doc. 36)(“Response to Motion to Return”). The City of Las Vegas, San Miguel County, and the NMDOT joined in Amtrak and BNSF’s Response. See Defendant City of Las Vegas’s Joinder in Response by Defendants Amtrak and BNSF to Motion Requesting that this Matter be Returned to the Previously Assigned Judge, filed October 21, 2010 (Doc. 37); Defendant San Miguel County’s Response to Plaintiffs’ Motion Requesting that this Matter be Returned to the Previously Assigned Judge, filed October 21, 2010 (Doc. 38); Defendant New Mexico Department of Transportation’s Joinder in Defendants Amtrak and BNSF [Doc. 36] and Defendant San Miguel County’s Response to Plaintiffs Motion Requesting that this Matter be Returned to the Previously Assigned Judge [Doc. 38], filed October 22, 2010 (Doc. 39).

At the hearing, Earl DeBrine, BNSF’s and Amtrak’s counsel, asserted that BNSF and Amtrak never intended to bring Stark-Romero’s claims to the federal court, and that if Stark-Romero’s claims are indeed in federal court, the Court should remand her claims to state court. See Transcript of Hearing at 29:22-30:14 (taken November 18, 2010)(DeBrine, Court)(“Tr.”). Jerry Walz, the NMDOT’s counsel, Tony Ortiz, City of Las Vegas’ counsel, and Joan Waters, San Miguel County’s counsel, all agreed that they did not intend to bring Stark-Romero’s claims to federal court, and that if her claims were in federal court, the Court should either remand her claims or enter an order that states her claims are not in federal court. See Tr. at 58:5-13 (Walz), 58:15-59:2 (Ortiz), 59:3-5 (Court, Waters). Maria Touchet, Stark-Romero’s and the Esquibels’ counsel, asserted that there were two procedural deficiencies with the Second Notice of Removal: (i) it was not timely filed; and (ii) the Defendants were aware that they were removing Stark-Romero’s claims, but did nothing to ensure that her claims were not removed. See Tr. at 54:15-17, 56:17-23 (Touchet).

On January 6, 2011, Amtrak and BNSF gave notice to the Court of a recent decision from the United States Court of Appeals for the Tenth Circuit, Henderson v. National Railroad Passenger Corp., No. 09-2173, 412 Fed.Appx. 74, 2011 WL 14458 (10th Cir. Jan. 5, 2011). In Henderson v. National Railroad Passenger Corp., the Tenth Circuit stated that the district court had federal-question jurisdiction over the plaintiffs’ claims against Amtrak, and supplemental jurisdiction under 28 U.S.C. § 1367(a) over the plaintiffs’ state-law claims against BNSF and San Miguel County. See 412 Fed.Appx. at 76-77, 2011 WL 14458, at *1.

RELEVANT LAW REGARDING REMOVAL

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

[A]ny 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). A federal district court has original jurisdiction if Article Ill’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).

The right to removal is a statutory right, and the removing defendant must carefully follow all statutory requirements. See Bonadeo v. Lujan, No. CIV 08-0812, 2009 WL 1324119, at *4 (D.N.M. Apr. 30, 2009) (Browning, J.); 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.”). Section 1446 of Title 28 of the United States Code, which controls the procedure for removal of a state action to federal court, states:

A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

28 U.S.C. § 1446(a). The defendant must file the notice of removal within thirty days after being served. See 28 U.S.C. § 1446(b). “[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.” United States ex rel. Walker v. Gunn, 511 F.2d 1024, 1026 (9th Cir.1975). See Fajen v. Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir.1982) (“Removal statutes are to be strictly construed, and all doubts are to be resolved against removal.” (internal citations omitted)).

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) (“[AJccording 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, “[gjiven 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). See Bonadeo v. Lujan, 2009 WL 1324119, at *4 (“Removal statutes are strictly construed, and ambiguities should be resolved in favor of remand.”).

1. 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). “[TJhe 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 proceedings for garnishment 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 defendant filed a petition for removal of a garnishment proceeding, and the United States District Court denied the motion to remand. See 106 F.2d at 279. The district court later entered an order dismissing the action without prejudice. See 106 F.2d at 279. The Tenth Circuit remanded the case to the lower court, instructing the lower court to modify the order dismissing the action, and in its opinion, addressed whether the removal was proper. See 106 F.2d at 283-85. The Tenth Circuit stated:

It has been held that where party is called by process of garnishment in attachment proceedings he is not entitled to remove the case. The reason therefor is that it not only becomes a part of the original proceeding, but that, in case of a judgment against the garnishee, it might be for a sum greater than the claim established against the principal debtor, and in such case the application of the fund would devolve upon the court where the judgment was rendered to make proper distribution of the surplus. In such case the proper parties would not be before the federal court in case of removal by the garnishee. This objection has no application here, as the proceeding for execution against the garnishee arises only after return of nulla bona on the execution against the defendant, and no matter what amount the garnishee might owe the defendant no more than would be sufficient to satisfy the execution, reflecting the prior adjudicated amount of the judgment, could be awarded against him.

With diversity of citizenship and other jurisdictional facts existing, the right of the defendant to remove such suits into the federal court exists.

In Lackawanna Coal & Iron Co. v. Bates, [56 F. 737, 740 (C.C.W.D.Mo.1893)], it is further said:

“The defendant’s controversy with the plaintiff is wholly separable from the issues involved in the judgment against the corporation. The only question he litigates here is his liability as a stockholder. The motion takes and occupies the character of a petition. The defendant is brought into court on process. There is a plaintiff and a defendant, and the object of the proceeding is to have the court adjudge whether or not the defendant’s property shall be rendered liable to plaintiff in the sum of $26,250 or less. On this issue he is entitled to a trial in due form of law, with the right of appeal or writ of error. The defendant corporation is not a party to this proceeding, and is not before the court. If such a case does not present all the elements of a ‘suit,’ within the meaning of the judiciary acts of congress, it does seem to me that Chief Justice Marshall was in error when he said, in Weston v. Charleston, 2 Pet. 449, 464, 7 L.Ed. 481:

“The term (‘suit’) is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice on which an individual pursues that remedy which the law affords. The modes of proceeding may be various, but if a right is litigated in a court of justice the proceeding on which the decision of the court is sought is a suit.”

See, also, Kansas City & T.R. Co. v. Interstate Lumber Co. (C.C.), 37 F. 3 [C.C.W.D.Mo.1888)].

In the instant case the defendant garnishee’s controversy with the plaintiff, Lucile A. Courtney, is wholly separable from the issues involved on which the judgment against R.G. Courtney in favor of Lucile A. Courtney is founded. The only question to be litigated in the civil action wherein the garnishee, London & Lancashire Indemnity Company of America, is defendant and Lucile A. Courtney, plaintiff, is as to whether said garnishee was indebted to said defendant, R.G. Courtney.

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

In Adriaenssens v. Allstate Ins. Co., 258 F.2d 888 (10th Cir.1958), a father and daughter each instituted a personal injury action in state court against the defendant. See 258 F.2d at 889. Judgment for the plaintiff was entered in each case. See 258 F.2d at 889. Approximately five years later, the plaintiffs instituted 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:

Treating the actions as being merely supplemental proceedings in the nature of garnishment for the collection of the judgments rendered in the state court, it is argued that they were not subject to removal. A like contention was advanced in London & Lancashire Indemnity Co. of America v. Courtney, 10 Cir., 106 F.2d 277. There the holder of an unpaid judgment rendered in a state court in Oklahoma caused to be issued and served a writ of garnishment against a foreign corporation for the purpose of subjecting to the payment of the judgment the obligation of the garnishee under its policy of indemnity protection. The garnishee caused the proceeding to be removed upon the ground of diversity of citizenship with the requisite amount in controversy. The removability of the proceeding was challenged by motion to remand. It was held in terms too clear for misunderstanding that the proceeding was in effect an original and independent action; and that diversity of citizenship with the requisite sum in controversy being present, the proceeding was removable. In like manner, these actions were original and independent actions between the holders of the judgments and the insurer. The issue between the parties was whether the insurer was liable under its policy issued to one who made a false representation of a material nature in order to obtain the coverage. And, being original and independent actions of that kind with diversity of citizenship and the requisite sum in controversy, they were open to removal. London & Lancashire Indemnity Co. of America v. Courtney, supra.

258 F.2d at 889-90. See Conn. Bank of Commerce v. Republic of Congo, 440 F.Supp.2d 346, 351 (D.Del.2006) (concluding that a garnishment action was a separate and independent civil action, because Delaware courts had explained that a garnishment proceeding is a separate process and because the facts in the case presented “several issues for resolution that are distinct from the original state action”); Scanlin v. Utica First Ins. Co., 426 F.Supp.2d 243, 250 (M.D.Pa.2006) (finding that the garnishment proceeding was removable as a “distinct ‘civil action’ ” where the issue sought to be resolved in the garnishment proceeding was separate from the issues presented in the prior state court action, where in the previous case the salient issue was liability and in the garnishment action the issue was whether the defendant acted in bad faith, and where the defendant in the garnishment proceeding was not a defendant in the prior state action); Xactron Mgmt. Ltd. v. Kreepy Krauly U.S.A., Inc., 696 F.Supp. 1465, 1466 (S.D.Fla.1988) (action became removable when the plaintiff filed a motion to compel arbitration “pursuant to the Convention on the Recognition of Foreign Arbitral Awards”); Local 435 of Retail Store Emp. Union v. Heinrich Motors, Inc., 521 F.Supp. 418, 422 (D.C.N.Y.1981) (concluding that the case was improperly removed, because the motion to confirm arbitrator’s supplemental award was part of the action begun to vacate the arbitrator’s initial award, because the action to vacate the initial award was commenced more than thirty days before the petition for removal, and because the petition for removal was therefore untimely).

The Court has found several cases in which federal courts analogized to cases that discuss whether garnishment proceedings are separate civil actions to determine whether petitions-in-intervention or bad faith claims 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. See 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:

Applying the reasoning from Johnson [v. Great American Ins. Co., 213 F.Supp.2d 657 (S.D.Miss.2001)] to this case, the Petition for Intervention filed in the state court is comparable to a garnishment action for the purposes of removal. The lesson taught by Johnson is that the court should evaluate both the separate character of the sought-to-be-removed “civil action,” as well as the other side of the coin-its connection to the overall litigation.

The dispute to be resolved by the Petition of Intervention is the division of the attorneys’ fees among the attorneys making a claim to them. The state court judgment has already fixed the total amount of attorneys’ fees. The Petition of Intervention does not seek to increase or reduce the amount of attorneys! fees awarded in the judgment. This dispute is separate and distinct from the issues in the underlying litigation; the outcome of it will not change the plaintiffs’ recovery or the defendant’s liability.

It is true that neither the plaintiffs-in-intervention nor the defendants-in-intervention are similarly situated to either the typical judgment creditor or judgment debtor, inasmuch as their respective shares of the attorneys’ fees have not yet been determined by a court judgment. But this difference is outweighed by the separate and distinct character of the claims asserted in the Petition of Intervention. Had the plaintiffs-in-intervention filed a new declaratory judgment action against the defendants-in-intervention to obtain a division of attorneys’ fees, it appears that it would have been removable under § 1441(a). Defendants-in-intervention took this very action by filing a complaint, CV 07-928, in this court based on diversity jurisdiction. Their complaint seeks a declaratory judgment to resolve the same dispute that is the subject of the removed Petition of Intervention. That the plaintiffs-in-intervention chose to file in the underlying litigation, albeit improperly in the form of an intervention, what in substance is a declaratory judgment action between non-parties does not change the essential character of their pleading. In these circumstances, the Petition of Intervention is a new and separate civil action, and therefore the one-year time limit for filing a notice of removal under § 1446(b) does not bar the removal.

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 part of the same civil action as the plaintiffs 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:

Although the instant case stands on a different procedural footing than the above garnishment actions, the principles expressed in those cases and the Kansas Supreme Court’s ruling requiring dismissal of Bryant’s third-party petition lead this court to a similar conclusion-namely, that Bryant’s claim against EMCASCO must be considered a distinct “civil action” for purposes of § 1441(a) and (b). The court recognizes that Bryant’s bad faith claim is asserted by way of a third-party petition filed in the underlying tort action, rather than by way of a garnishment proceeding by Nungesser. And most federal courts have determined that third party defendants do not have the right to remove a case under § 1441. See Elkhart Co-op. Equity Exchange v. Day, 716 F.Supp. 1384 (1989); Right of Third-Party Defendant to Removal of Action from State to Federal Court under 28 U.S.C. § 1441, 8 A.L.R. Fed. 708 (1971). But in determining whether removal jurisdiction is proper, this court is not bound by the labels attached by state practice

The court is not persuaded that the distinction between the instant case and the garnishment actions ... is material insofar as removal is concerned. The Kansas Supreme Court in Nungesser [v. Bryant, 283 Kan. 550, 153 P.3d 1277 (Kan.2007),] made clear that when the tort action against Bryant was filed, Bryant had no bad faith claim and could not implead or assert a third-party complaint against EMCASCO. It said Bryant could not sue EMCASCO on such claims “until the tort claim against him ... has been reduced to judgment.” Nungesser, 283 Kan. at 558, 153 P.3d 1277. See also id. at 560, 153 P.3d 1277 (stating the issue is whether it was “permissible for Bryant’s third-party suit against EMCASCO to proceed before the underlying tort action brought by Nungesser had concluded”). The Supreme Court found it was error to allow the insurer to be brought into the same proceeding. Under these unique circumstances, the state Supreme Court has already determined that Bryant’s bad faith claim could not be joined as a third-party complaint in the same action with Nungesser’s tort claim. Whatever case label one may attach to the current post-judgment petition, one thing is clear: the Supreme Court required the bad faith claim to be brought as a separate action. It declared the joinder of the claims improper and effectively severed the bad faith claim from the tort action. Under these circumstances, the court concludes EMCASCO has met its burden of showing there is no possibility that Bryant could establish a cause of action against it in the tort action. Under the “egregious joinder” or “fraudulent misjoinder” doctrine, then, this court will disregard Bryant’s purported joinder of the claims, and will treat the bad faith claim as a separate civil action. See Central of Georgia Ry. Co. v. Riegel Textile Corp., 426 F.2d 935, 938 (5th Cir.1970) (indemnity claim that was severed from main action “treat[ed] the case as two lawsuits” and was properly removed; federal court should recognize that a party in this position “is as much a ‘defendant’ as if an original action had been brought against him.”). Cf. Federal Ins. Co. v. Tyco Int’l Ltd., 422 F.Supp.2d 357, 378-88 (S.D.N.Y.2006) (finding no fraudulent misjoinder where the state court had “explicitly invit[ed] the impleader of’ the third-party defendant).

Just as in a garnishment situation, the bad faith claim did not exist until liability in the tort action had been reduced to final judgment. And just as in a garnishment situation, Bryant’s bad faith cause of action is “a suit involving a new party and litigating the existence of a new liability.” Bridges [for Bridges v. Bentley by Bentley], 716 F.Supp. [1389,] 1392 [(D.Kan.1989)]. The entry of judgment on Nungesser’s claims shows the tort action was in fact concluded, and that the subsequently filed bad faith claim against EMCASCO was a separate civil action, notwithstanding the state district court’s allowance of the third-party petition under the same case number. In either event — whether such a claim is asserted by garnishment or by a post-judgment third-party complaint — it is separate from the tort action concerning the injuries suffered by the plaintiff. Moreover, the fact that the instant claim was asserted by Bryant, the defendant in the tort action, rather by the judgment creditor Nungesser, does not materially distinguish this case from the garnishment cases. Insofar as the claim of bad faith is concerned, the interests of Nungesser and Bryant are aligned, and the distinction between a claim by Bryant or, alternatively, by Nungesser via garnishment, is one of form but not substance insofar as removal is concerned. The election of one or both of these parties to assert a bad faith claim does not alter the conclusion that the federal law considers the claim to be a separate civil action for purposes of § 1441(a) and (b).

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:

There is, however, a sensible judge— made limitation — stemming from the civil action requirement — that proceedings that are ancillary to an action pending in state court cannot be removed separately from the main claim. This restriction, which has been applied in numerous cases for over a century, is premised on the wastefulness of having a satellite element of a case pending in federal court when the principal claims are being litigated in state court. A modern example is Ohio v. Doe, in which the Sixth Circuit vacated the judgment and remanded to state court, holding that a proceeding to enforce a subpoena against a public defender, ordering her testimony, was not a removable civil action under 28 U.S.C.A. § 1442 where the proceeding was ancillary to a state court contempt proceeding arising out of a previously issued subpoena for the same testimony, and the contemnor was barred by res judicata from raising federal defenses that she could have raised to the prior subpoenas, so that nothing remained but for the state court to enforce the subpoena.

C. Wright & A. Miller, supra § 3721, at 34-36 (footnotes omitted). See 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.”) (citing Fed. Sav. and Loan Ins. Corp. v. Quinn, 419 F.2d 1014 (7th Cir.1969); Adriaenssens v. Allstate Ins. Co., 258 F.2d 888; Overman v. Overman, 412 F.Supp. 411).

A few cases have drawn a distinction between supplemental proceedings that are a mere mode of execution or relief, inseparably connected with an original judgment or decree in a state court proceeding and therefore not removable, and supplemental proceedings that involve an independent controversy with a new and different party. The latter are removable.

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):

It seems to me that the true principle is this: Where the supplemental proceeding is in its character a mere mode of execution or of relief, inseparably connected with the original judgment or decree, it cannot be removed, notwithstanding the fact that some new controversy or issue between the plaintiff in the original action and a new party may arise out of the proceeding. But where the supplemental proceeding is not merely a mode of execution or relief, but where it, in fact, involves an independent controversy with some new and different party, it may be removed into the federal court; always, of course, assuming that otherwise the proper jurisdictional facts exist.

10 F. at 407-08.

The Court has found a case that relies in part on Wright & Miller’s discussion of this judge-made limitation to find that a defendant could not remove a third-party claim. 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.

The partial-removal concept is in substantial conflict with many time-honored and well-settled judicial tenets of removal; it could not possibly be given effect without fleshing out those conflicts and reconciling them. For instance, the defendant has not explained why it believes the term “civil action,” as used in the removal statute, has the same meaning as does the term “claim,” (so as to permit the removal of a third party claim, without the rest of the action), nor why Congress used the former term if it intended the latter. Additionally, the concept of partial removal would permit pick-and-choose removal of only certain parties’ claims and, therefore, would have the effect of eliminating the longstanding statutory and jurisprudential requirement that diversity jurisdiction be premised upon complete diversity among the parties; the abrogation of this requirement certainly would have to be addressed directly. As a third example, the removing party’s theory of removal could not possibly be accepted without an explanation as to the source of, and justification for, the removal process granting to a defendant the authority to rearrange litigation to reflect its preferences by carving it up into howsoever many separate cases it prefers to have proceeding in different courts simultaneously. This list of conflicts is not intended to be exhaustive, but merely illustrative of the monumental incompatibility between the partial-removal concept and the well-settled, longstanding judicial theory of removal.

No effort to reconcile the aforementioned conflicts has been made by Hartford in its Notice of Removal, and this Court’s independent research has yielded no support for the partial-removal concept. The statutory provisions which authorize removal — which reflect Congress’ intentions with regard to the proper scope of removal — do not justify partial removal. In light of the use of the term “civil action” in the removal statute, and of this Court’s understanding of the term “action” as comprising the entirety of a case, and of the longstanding prohibition against removing only handpicked claims from state court to federal, and as the removing defendant has made no attempt to reconcile its theory of partial removal with the well-settled judicial tenets with which it is in conflict, this Court finds that the defendant’s attempt at a partial removal is contrary to both the law and the theory of removal. The legal effect of the removal herein was to remove the entirety of the Tabor action from state court. Thus, the proper analysis of whether this Court has subject matter jurisdiction over this case must be made on the basis of the entirety of the action as it existed at the time the Notice of Removal was filed.

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.

Although earlier cases held that state law determined whether a proceeding was ancillary for removal purposes, more recent decisions show a distinct trend toward regarding this question as governed by federal law, with the state characterization regarded as weighty but not conclusive. This utilization of federal standards informed by state law was first clearly applied by the Eighth Circuit in Stoll v. Hawkeye Casualty Company of Des Moines, Iowa, a 1950[sic] decision.

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:

But in determining whether removal jurisdiction is proper, this court is not bound by the labels attached by state practice. Congress intended the removal statute to be uniform in its nationwide application, and the removal statute thus sets its own criteria, irrespective of local practice, for determining what suits may be removed. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100[, 61 S.Ct. 868, 85 L.Ed. 1214] (1941). At the same time, this does not mean the State’s practice and procedure is irrelevant. The state court’s characterization of the action is a factor this court can consider in determining whether a civil action is separate for purposes of removal. See Scanlin v. Utica First Ins. Co., 426 F.Supp.2d 243, 248 (M.D.Pa.2006).

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

2. Time for Removal.

Section 1446 of Title 28 of the United States Code governs the procedure for removal. See 28 U.S.C. § 1446(b). It states:

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1832 of this title more than 1 year after commencement of the action.

28 U.S.C. § 1446(b). Section 1446(b) “allows for more than one petition to remove.” O'Bryan v. Chandler, 496 F.2d 403, 408 (10th Cir.1974). “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 plaintiffs 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 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 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.

Prior to 1948, a defendant could remove a case any time before the expiration of her time to respond to the complaint under state law. See, e.g., 28 U.S.C. § 72 (1940 ed.). Because the time limits for responding to the complaint varied from State to State, however, the period for removal correspondingly varied. To reduce the disparity, Congress in 1948 enacted the original version of § 1446(b), which provided that “[t]he petition for removal of a civil action or proceeding may be filed within twenty days after commencement of the action or service of process, whichever is later.” Act of June 25,1948, 62 Stat. 939, as amended, 28 U.S.C. § 1446(b). According to the relevant House Report, this provision was intended to “give adequate time and operate uniformly throughout the Federal jurisdiction.” H.R.Rep. No. 308, 80th Cong., 1st Sess., A135 (1947).

Congress soon recognized, however, that § 1446(b), as first framed, did not “give adequate time and operate uniformly” in all States. In States such as New York, most notably, service of the summons commenced the action, and such service could precede the filing of the complaint. Under § 1446(b) as originally enacted, the period for removal in such a State could have expired before the defendant obtained access to the complaint.

To ensure that the defendant would have access to the complaint before commencement of the removal period, Congress in 1949 enacted the current version of § 1446(b): “The petition for removal of a civil action or proceeding shall be filed within twenty days [now thirty days] after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” Act of May 24, 1949, § 83(a), 63 Stat. 101. The accompanying Senate Report explained:

“In some States suits are begun by the service of a summons or other process without the necessity of filing any pleading until later. As the section now stands, this places the defendant in the position of having to take steps to remove a suit to Federal court before he knows what the suit is about. As said section is herein proposed to be rewritten, a defendant is not required to file his petition for removal until 20 days after he has received (or it has been made available to him) a copy of the initial pleading filed by the plaintiff setting forth the claim upon which the suit is based and the relief prayed for. It is believed that this will meet the varying conditions of practice in all the States.” S.Rep. No. 303, 81st Cong., 1st Sess., 6 (1949).

See also H.R.Rep. No. 352, 81st Cong, 1st Sess., 14 (1949) (“The first paragraph of the amendment to subsection (b) corrects [the New York problem] by providing that the petition for removal need not be filed until 20 days after the defendant has received a copy of the plaintiffs initial pleading.”). Nothing in the legislative history of the amendment so much as hints that Congress, in making changes to accommodate atypical state commencement and complaint filing procedures, intended to dispense with the historic function of service of process as the official trigger for responsive action by an individual or entity named defendant.

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

3. Waiver of Right to Remove.

The right to remove may be waived. See Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d 1072, 1077 (10th Cir.1999) (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). 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):

If a defendant could remove a case to federal court after a final and unfavorable determination had been made on the merits of the case in state court, he would be able to litigate the same case twice. This situation is precisely what must be avoided in the interests of judicial economy, fairness, convenience, and comity.

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.

4. Removal of Remand Order.

Section 1447(d) of Title 28 of the United States Code prohibits a court from reviewing a remand order “by appeal or otherwise.” This prohibition extends to the court reviewing its own remand orders, as well as to appellate courts reviewing the orders of district courts. The United States Court of Appeals for the Tenth Circuit has not yet ruled whether 28 U.S.C. § 1447 forecloses a district court’s reconsideration of its own remand order, but numerous other courts have ruled that it does. For instance, the United States Court of Appeals for the Eleventh Circuit has held that § 1447(d)’s provision of “nonreviewability extends to the power of a district court to reconsider its own remand order.” First Union Nat’l Bank v. Hall, 123 F.3d 1374, 1377 (11th Cir.1997) (citations omitted). The United States Court of Appeals for the Fourth Circuit remarked that “[i]ndisputably, ‘otherwise’ in § 1447(d) includes reconsideration by the district court.” In re Lowe, 102 F.3d 731, 734 (4th Cir.1996) (Motz, J.) (citations omitted). See Three J Farms v. Alton Box Bd. Co., 609 F.2d 112, 115 (4th Cir.1979) (“Unquestionably, [§ 1447(d)] not only forecloses appellate review, but also bars reconsideration of such an order by the district court.”). Similarly, the United States Court of Appeals for the First Circuit has ruled:

[T]here is no more reason for a district court being able to review its own decision, and revoke the remand, than for an appellate court requiring it to do so. Both are foreclosed; nothing could be more inclusive than the phrase “on appeal or otherwise.” The district court has one shot, right or wrong.

In re La Providencia Dev. Corp., 406 F.2d 251, 252-53 (1st Cir.1969). The First Circuit explained the rationale behind this strict rule of nonreviewability:

Removal ... to the prejudice of state court jurisdiction, is a privilege to be strictly construed, and the state court proceedings are to be interfered with once, at most. This is not only in the interest of judicial economy, but out of respect for the state court and in recognition of principles of comity. The action must not ricochet back and forth depending upon the most recent determination of a federal court.

406 F.2d at 252. Finally, two Districts in the Tenth Circuit — the Districts of Kansas and Colorado — have also found that they cannot review their own remand orders. See Maggio Enters. v. Hartford Cas. Ins. Co., 132 F.Supp.2d 930, 931 (D.Colo.2001) (“Because a remand order deprives the district court of jurisdiction, the district court may not vacate or reconsider its order of remand.”) (citations omitted)); Aetna U.S. Healthcare, Inc. v. Hoechst Aktiengesellschaft, 67 F.Supp.2d 1242, 1245 (D.Kan.1999) (“The broad language of Section 1447(d) clearly prohibits review of remand orders under Section 1447(c), and a motion for reconsideration is a form of review.” (citations omitted)