Sawyer v. USAA Insurance (839 F. Supp. 2d 1189, 2012)

MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the United Services Automobile Association’s Motion to Set Aside Default Judgment, filed July 13, 2011 (Doc. 10)(“United Services Motion”); (ii) the Motion to Set Aside Default Judgment Against Defendants Blue Cross and Blue Shield of Kansas City, filed July 13, 2011 (Doc. 11)(“BCBSKC Motion”); (iii) the Motion to Set Aside Default Judgment Against Defendant Blue Cross and Blue Shield Association, filed July 14, 2011 (Doc. 14)(“BCBSA Motion”); and (iv) Plaintiff Constance A. Sawyer’s Motion to Remand, filed August 4, 2011 (Doc. 28)(“Sawyer Motion”). The Court held a hearing on February 9, 2012. The primary issues are: (i) whether the Court should set aside the default judgment entered in the Ninth Judicial District, Roosevelt County, State of New Mexico against Defendants USAA Insurance Company, Blue Cross Blue Shield Association (“BCBS Association”), and Blue Cross Blue Shield of Kansas City (“BCBS Kansas City”), because they never received service of process; (ii) whether the Court should set aside the default judgment because the Defendants have meritorious defenses; (iii) whether the Court should set aside the default judgment against USAA Insurance because the state court lacked personal jurisdiction over United Services Automobile Association (“United Services”); (iv) whether the motions to set aside the default judgment are timely; and (v) whether the Court should remand the case for lack of subject matter jurisdiction. The Court will deny the Sawyer Motion and will grant the: (i) United Services Motion; (ii) BCBSKC Motion; and (iii) BCBSA Motion. The Defendants removed this case while post-judgment motions could still be filed. Accordingly, there is a case or controversy for the Court to resolve, and the Court has subject-matter jurisdiction over the case. Because none of the Defendants were properly served, the default judgment entered against them is void.

FACTUAL BACKGROUND

On June 7, 2007, Sawyer was in a motor vehicle accident. See Verified Complaint for Damages for Breach of Contract, Insurance Bad Faith, Violation of the Insurance Code, and Breach of Fiduciary Duties ¶ 14, at 4 (dated May 24, 2010), filed June 14, 2011 (Doc. l-l)(“Complaint”). She was severely injured and incurred substantial medical expenses. See Complaint ¶ 14, at 4. Sawyer has a number of outstanding medical bills related to the injuries she suffered in the accident, and full and final settlement against the driver’s insurance has been completed “at maximum liability payments per accident.” Complaint ¶¶ 15-16, at 4.

PROCEDURAL BACKGROUND

On May 24, 2010, Sawyer filed her Complaint in state court, Sawyer v. USAA Insurance Co., D-911-CV-201000101. See Doc. 1-1. She alleges that she paid insurance premiums to USAA Insurance and Blue Cross Blue Shield, and that those companies accepted payment. See Complaint ¶¶ 17, 19, at 4. She asserts that, when she contacted USAA Insurance, BCBS Association, and BCBS Kansas City, they refused to tender the amounts owed under her policies. See Complaint ¶¶ 18, 20, at 4. She contends that the Defendants breached their duty to act in good faith in the performance of the contract. See Complaint ¶ 21, at 4-5. The Complaint contains four counts: (i) breach of contact; (ii) insurance bad faith; (iii) violations of the Unfair Insurance Practices Act, N.M.S.A.1984, § 59A-16-20; and (iv) a request for punitive damages. See Complaint at 5-9.

On February 24, 2011, the Clerk of the District Court of the Ninth Judicial District of the State of New Mexico certified that “it appears from the return made by Chris Quinn[, the person who served the Complaint], that the process was served on Defendant USAA Insurance Company by mailing the same to USAA Insurance Company, c/o Superintendent of Insurance for the Dept, of Ins. For the State of NM.” Sawyer v. USAA Ins. Co., Case No. D-0911-CV-0201000101, Certificate as to the State of the Record and Non-Appearance at 11-13 (dated February 24, 2011), filed June 14, 2011 (Doc. l-l)(“State Certificate”). The Clerk certified process as to BCBS Association and BCBS Kansas City as well. See State Certificate at 1-2. Sawyer moved for default judgment the same day as the entry of the State Certificate. See Application for Entry of Default Judgment (dated February 24, 2011), filed June 14, 2011 (Doc. l-l)(“Default Judgment Application”). Sawyer asserted that no “Defendant has filed an Answer to the Complaint, and the time for filing an Answer has expired” and requested that “default be entered against each Defendant.” Default Judgment Application at 2. She represented that the Defendants had been served “as indicated by the Return of Service.” Default Judgment Application at 1.

On May 5, 2011, the Honorable Drew Douglas Tatum, District Court Judge for the Ninth Judicial District, Roosevelt County, State of New Mexico, held a hearing on the Default Judgment Application. See Sawyer v. USAA Ins. Co., Case No. D-0911-CV-0201000101, Transcript of Hearing at 3:1-9 (May 5, 2011)(Judge Tatum)(“Default Judgment Tr.”). At the hearing, Sawyer stated that no Defendant had entered an appearance and that notice of the hearing was sent to the Superintendent of Insurance. See Default Judgment Tr. at 3:21-4:2 (Collins). Judge Tatum stated that he was surprised that no Defendant entered an appearance, because the Defendants are national companies. See Default Judgment Tr. at 4:3-7 (Judge Tatum). Judge Tatum indicated that it would grant default judgment against all the Defendants except for Defendant Nueterra Healthcare, because there were questions whether service was made on Nueterra Healthcare. See Default Judgment Tr. at 8:13-9:6 (Judge Tatum). On May 11, 2011, Judge Tatum entered a default judgment. See Sawyer v. USAA Ins. Co., Case No. D-0911-CV-0201000101, Default Judgment on the Pleadings (dated May 11, 2011), filed June 14, 2011 (Doc. l-l)(“Default Judgment”). In his Default Judgment, Judge Tatum found that service of process was duly and properly made and entered judgment as follows: (i) $100,000.00 against USAA Insurance for breach of contract; (ii) $300,000.00 against USAA Insurance for violations of the Unfair Practices Act; (iii) $500,000.00 against USAA Insurance as punitive damages; (iv) $85,625.01 against BCBS Association, BCBS Kansas City, and Blue Cross Blue Shield of New Mexico (“BCBS New Mexico”) jointly and severally for breach of contract; (v) $256,875.63 against BCBS Association, BCBS Kansas City, and BCBS New Mexico jointly and severally for violations of the Unfair Practices Act; and (vi) $428,126.05 against BCBS Association, BCBS Kansas City, and BCBS New Mexico jointly and severally as punitive damages. Default Judgment at 1-3. On June 6, 2011, Sawyer filed Plaintiffs Unopposed Motion to Vacate and Set Aside Default Judgment and to Dismiss Without Prejudice Claims Against Blue Cross Blue Shield of New Mexico (dated June 6, 2011), filed June 14, 2011 (Doc. 1-1)(“BCBS New Mexico Default Set Aside”). Sawyer stated that, since the entry of the Default Judgment, she received a document stating that BCBS New Mexico was a division of Health Care Service Corporation and that a search of its database revealed she “was not, is not, and has never been a member.” BCBS New Mexico Default Set Aside at 36. Sawyer represented that Health Care Service Corporation denied that it received proper service, and that there is “good cause and sufficient ‘other reason’ to justify setting aside and vacation of the judgment against” BCBS New Mexico. BCBS New Mexico Default Set Aside at 36. Judge Tatum entered an order setting aside the default judgment against BCBS New Mexico the same day. See Sawyer v. USAA Ins. Co., Case No. D-0911-CV-0201000101, Order Vacating and Setting Aside Default Judgment Dismissing Without Prejudice Plaintiffs Claims Against Blue Cross Blue Shield of New Mexico (dated June 6, 2011), filed June 14, 2011 (Doc. 1-1).

On June 14, 2011, the Defendants filed their Notice of Removal. See Doc. 1. The Defendants assert that BCBS Kansas City is an independent licensee of BCBS Association. See Notice of Removal ¶ 2, at 2. They contend that removal is timely, because they removed within thirty days of becoming aware of the litigation, in conformance with 28 U.S.C. § 1446(b). See Notice of Removal ¶ 7, at 3. They argue that the one-year time limit for removal, set forth in 28 U.S.C. § 1446(b), is expressly limited to diversity removals. See Notice of Removal ¶ 8, at 4. The Defendants assert that the federal proceeding is not an appeal, but a continuation of the state proceedings, and that the Default Judgment is not a final judgment, because the Complaint also sought costs. See Notice of Removal ¶ 9, at 4.

BCBS Kansas City asserts that it is only authorized to transact insurance in Missouri and Kansas, and not in New Mexico, and that it is an “unauthorized” insurer under N.M.S.A.1978, § 59A-5-ll(H). Notice of Removal ¶¶ 11-12, at 4-5. It argues that, for service of process upon the Superintendent of Insurance to be lawful, Sawyer must have delivered two copies of the Complaint and a fee to the Superintendent of Insurance, who must, in turn, forward the Complaint to BCBS Kansas City by certified mail. Notice of Removal ¶ 13, at 5. It also argues that New Mexico law requires that Sawyer send a copy of the court process to BCBS Kansas City’s last know principal place of business, and submit receipts and an affidavit to the court. See Notice of Removal ¶ 13, at 4-5. BCBS Kansas City asserts that, until it received a courtesy copy of the Complaint on May 18, 2011, it had not seen the Complaint. See Notice of Removal ¶ 17, at 7. BCBS Association asserts that it is an incorporated association and not an insurer. See Notice of Removal ¶ 20, at 7. It asserts that it does not “solicit, induce, negotiate, or effect any insurance contract.” Notice of Removal ¶ 20, at 7. BCBS Association argues that, because the Superintendent of Insurance is not an authorized agent of process for BCBS Association under New Mexico law, it was not served. See Notice of Removal ¶ 21, at 8. BCBS Kansas City and BCBS Association assert that the general rule of unanimity for removal does not apply to defendants who have not been served at the time of removal and defendants who were dismissed before removal. See Notice of Removal ¶ 24, at 9. They argue that BCBS of New Mexico need not consent to removal, because it denied service of process and because Sawyer voluntarily dismissed her claims against it. See Notice of Removal ¶ 24, at 9. BCBS Association and BCBS Kansas City note that United Services denied that it was served with process or named as a Defendant and that, in the alternative, United Services consents to removal. See Notice of Removal ¶¶ 27, 30, at 10. They also note that Nueterra Healthcare denies that it was served, but that, in the alternative, it consents to removal. See Notice of Removal ¶ 31, at 10-11.

The Defendants assert that the Court has federal jurisdiction under the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 to 1461. They argue that the Supreme Court of the United States has held that ERISA “bars all claims of close relation,” and that “the preemptive force of [29 U.S.C. § 1132(a) ] of ERISA is so extraordinary that it converts a state claim into a federal claim for purposes of removal and the well-pleaded complaint rule.” Notice of Removal ¶¶ 32-33, at 11 (citing Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Lind v. Aetna Health, Inc., 466 F.3d 1195, 1197 (10th Cir.2006)). They contend that the group health plan that BCBS Kansas City issued to Sawyer’s former employer meets all the criteria of an employee benefit plan under ERISA. See Notice of Removal ¶¶ 35-36, at 12. The Defendants assert that “all of Plaintiffs attempted state law claims against BCBSKC[,] BCBSA[,] and Nueterra Healthcare are based on alleged improper processing of her claim for benefits under the group health plan,” and that all of Sawyer’s “purported state law claims” relate to the employee benefit plan. Notice of Removal ¶¶ 41-43, at 13-14. They argue that Sawyer’s “attempted state law claims ... conflict with ERISA’s comprehensive civil enforcement scheme and are therefore completely preempted.” Notice of Removal ¶ 45, at 14.

The Defendants then filed several motions to set aside the default judgment, and Sawyer filed a motion to remand.

1. United Services Motion.

On July 13, 2011, United Services filed its motion. See Doc. 10. United Services argues that it was never served with notice of this lawsuit, and never had an opportunity to answer or respond to the Complaint before entry of default judgment. See United Services Motion at 1. As a result, United Services asserts that the default judgment was entered in error and that the Court should set it aside. See United Services Motion at 1. United Services represents that there is no legal entity known as “USAA Insurance Company,” but that United Services is a reciprocal interinsurance exchange authorized to transact insurance in New Mexico. See United Services Motion at 2. It denies that it was properly named, or named at all, as a defendant in the state proceeding. See United Services Motion at 2.

United Services notes that the returns of service that Sawyer filed relating to each Defendant demonstrate only that Sawyer’s counsel sent a copy of the Complaint to each Defendant in care of the Superintendent of Insurance and that Paul S. Lucero received each summons on June 7, 2010. See United Services Motion at 2 (citing Certified Mail Receipt at 19 (dated June 7, 2010), filed June 14, 2011 (Doe. 1-1)(“USAA Receipt”); Certified Mail Receipt at 22 (dated June 7, 2010), filed June 14, 2011 (Doc. 1-1)(“BCBS Association Receipt”); Certified Mail Receipt at 25 (dated June 7, 2010), filed June 14, 2011 (Doc. 1-1)(“BCBS Kansas City Receipt”)). It contends that John Franchini, Superintendent of Insurance, has admitted that “[sjervice of process was not done on USAA and BCBS of NM by the Superintendent of Insurance,” and that, “as for the other companies[,] they are not doing business in New Mexico and we could not serve them.” United Services Motion at 2-3 (citing Letter from John G. Franchini to Andrew Schultz at 1 (dated June 29, 2011), filed July 13, 2011 (Doc. 10-l)(“Franchini Letter”)). United Services also represents that, when Franchini contacted Sawyer, she could not produce the “Certificate of Acceptance of Service by the Superintendent.” United Services Motion at 3 (citing Franchini Letter at 1). With respect to the Default Judgment, United Services notes that the Default Judgment “purports to treble damages under New Mexico’s Unfair Practices Act even though no such claim is set forth in the body of the complaint,” and that the it awards “both treble and punitive damages,” which is “expressly prohibited by New Mexico law.” United Services Motion at 4 (emphasis original).

United Services argues that, when a case is removed from state court, the federal court takes the case in its current posture and treats previously entered orders as its own. See United Services Motion at 4 (citing 28 U.S.C. § 1450; Granny Goose Foods v. Bhd. of Teamsters, Local No. 70, 415 U.S. 423, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974)). It asserts that a federal district court should also treat a state default judgment as its own and that rule 55(c) of the Federal Rules of Civil Procedure allows for relief from a default judgment in accordance with rule 60(b). See United Services Motion at 5. It contends that the Default Judgment is void, because neither USAA Insurance nor United Services was served with process, which offends due process. See United Services Motion at 6 (citing Armstrong v. Manzo, 380 U.S. 545, 550, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). It asserts that the Default Judgment is also void because the state court lacked personal jurisdiction over United Services. See United Services Motion at 6 (citing Hukill v. Okla. Native Am. Domestic Violence Coal., 542 F.3d 794, 797 (10th Cir.2008)). United Services further asserts that the Court should set aside the Default Judgment, because of “mistake, inadvertence, surprise, or excusable neglect” under rule 60(b)(1). United Services Motion at 7. It argues that: (i) nothing United Services did caused the Default Judgment to be entered; (ii) it has a meritorious defense to the lawsuit, because United Services does not appear to have insured Sawyer; and (iii) if the Court sets aside the Default Judgment, Sawyer will not be prejudiced. See United Services Motion at 8.

On July 26, 2011, Sawyer filed her Memorandum of Points and Authorities in Opposition to Defendant United Services Automobile Association’s Motion to Set Aside Default Judgment. See Doc. 21 (“United Services Response”). Sawyer argues that United Services, which she denotes as “USAA,” is subject to the Default Judgment, that the United Services Motion is untimely, and that she properly served process on United Services. United Services Response at 1. Sawyer asserts that the United Services Motion is untimely, because, under New Mexico law, a court retains jurisdiction over a judgment for a period of thirty days and a party has only thirty days in which to appeal the judgment. See United Services Response at 2. She represents that United Service’s time to file this motion expired on June 10, 2011, and that, when a judgment becomes final, there is no case or controversy over which the Court can exercise jurisdiction. See United Services Response at 2. She argues that the Defendants’ removal is “nothing more than forum shopping.” United Services Response at 3.

Sawyer further asserts that, even if the Court has jurisdiction, the Default Judgment should not be set aside, because she properly served United Services and because personal service is not a due-process requirement. See United Services Response at 3. Sawyer represents that the New Mexico Legislature has determined that companies offering insurance services within New Mexico agree that service of process on the Superintendent is sufficient to give notice of a complaint. See United Services Response at 3-4. Sawyer states that she served process on the Superintendent of Insurance and that, through her services, constructive notice was given to the Defendants. See United Services Response at 4. Sawyer also argues that any meritorious defense that the Defendants may have had are now stale, because the Defendants had notice of the state court action within the thirty-day time limit established under state law. See United Services Response at 5.

On August 1, 2011, United Services filed United Services Automobile Association’s Reply in Support of Motion to Set Aside Default Judgment. See Doc. 23 (“United Services Reply”). United Services describes Sawyer’s state Default Judgment as a “chimerical victory,” because the undisputed facts are that no “USAA Insurance Company” exists. United Services Reply at 1-2. It asserts that, even if USAA Insurance Company is a real entity, Sawyer failed to serve it in the manner required under New Mexico law, because service of process on the insurer is complete only “upon receipt, or, in the event of refusal to accept, the date of such refusal,” and that actual notice is required. United Services Reply at 4 (citing N.M.S.A.1978, § 59A-5-32(B)). United Services notes that there is no evidence that Sawyer paid the statutorily required fee or filed an affidavit demonstrating compliance with N.M.S.A.1978, § 59A-15-8. See United Services Reply at 5. With respect to timeliness, United Services asserts that this action was timely removed, because, where the Defendants were never formally served, the thirty-day removal clock never began to run and removal was timely. See United Services Reply at 7. It contends that removal or a motion to set aside a default judgment is timely even after a default judgment is entered in state court. See United Services Reply at 8. It argues that in Nieto v. University of New Mexico, 727 F.Supp.2d 1176 (D.N.M.2010)(Browning, J.), the Court held that “so long as there was a legal dispute between the parties that a federal court could legitimately resolve, there exists a case or controversy under Article III,” and noted that, “even where a federal district court issues a final judgment, it maintains jurisdiction to rule on post-judgment motions.” United Services Reply at 9 (citing Nieto v. Univ. of N.M., 727 F.Supp.2d at 1187,1192).

2. BCBSKC Motion.

On July 13, 2011, BCBS Kansas City filed its motion. See Doc. 11. BCBS Kansas City states that Sawyer had a policy with it that expired on May 31, 2007 and that they have no record of Sawyer obtaining a COBRA policy with it. See BCBSKC Motion ¶ 4, at 2. It argues that it was never served with a summons or complaint in accordance with N.M.S.A. § 59A-15-7 and that it has meritorious defenses to the Complaint. See BCBSKC Motion ¶¶ 5-7, at 2-3. On July 13, 2011, BCBS Kansas City filed its Memorandum of Points and Authorities in Support of Motion to Set Aside Default Judgment Against Defendant Blue Cross and Blue Shield of Kansas City. See Doc. 12 (“BCBSKC Memo”). BCBS Kansas City asserts that “there is no question that, following removal, this Court has the authority to set aside the default judgment entered against BCBSKC in the State Court Action for failure to obtain good service on BCBSKC.” BCBSKC Memo at 2 (citing Jenkins v. MTGLQ Investors, 218 FedAppx. 719 (10th Cir.2007)(unpublished)). BCBS Kansas City argues that the Default Judgment is void for lack of service of process, because there is no evidence that it was served in accordance with N.M.S.A.1978, § 59A-15-7, which requires a plaintiff to send copies of the summons and the complaint “directly to the insurer defendant by certified mail.” BCBSKC Memo at 2. It asserts that the “direct service by mail” requirement is intended to safeguard against the possibility that the Superintendent of Insurance may not have contact information readily available for unauthorized insurers like BCBS Kansas City. BCBSKC Memo at 3. BCBS Kansas City contends that lack of service prevented the state court from obtaining personal jurisdiction over it, which voids the judgment. See BCBSKC Memo at 3-4.

BCBS Kansas City further asserts that the Default Judgment against it should be set aside because of a misrepresentation to the state court. See BCBSKC Memo at 4. It argues that the Default Judgment, “at the urging of plaintiffs counsel,” included damages not pled in the Complaint and duplicative damages. BCBSKC Memo at 4. It contends that it has meritorious defenses, because all of Sawyer’s allegations are grounded on the assumption that she had a valid right to health care benefits and there is no evidence that she had any such right under COBRA. See BCBSKC Memo at 5. BCBS Kansas City asserts that the lack of any evidence of a valid COBRA election relieved BCBS Kansas City from any obligation to provide Sawyer with health care benefits following her termination of employment with Nueterra. See BCBSKC Memo at 6. It argues that it has the further legal defense that ERISA preempts Sawyer’s claims against it. See BCBSKC Memo at 6.

On July 26, 2011, Sawyer filed her Memorandum of Points and Authorities in Opposition to Defendant Blue Cross and Blue Shield of Kansas City’s Motion to Set Aside Default Judgment. See Doc. 22 (“BCBSKC Response”). In her BCBSKC Response, Sawyer makes substantially the same timeliness, service of process, and meritorious defense arguments as in her United Services Response. See BCBSKC Response at 2-4, 5. Sawyer disputes that any misrepresentation occurred, and argues that, even if a misrepresentation occurred, it would not justify setting aside the entire Default Judgment. See BCBSKC Response at 5.

On August 3, 2011, BCBS Kansas City filed the Reply of Defendant Blue Cross and Blue Shield of Kansas City in Support of Motion to Set Aside Default Judgment. See Doc. 26 (“BCBSKC Reply”). BCBS Kansas City argues that Sawyer failed to rebut its evidence that it did not obtain service and that failure to properly serve BCBS Kansas City voids the Default Judgment. See BCBSKC Reply at 1. It asserts that Sawyer does not address the provisions of the Insurance Code which address service on an unauthorized insurers and argues that the plaintiff owes actual notice to an unauthorized insurer. See BCBSKC Reply at 2. It contends that the Court has subject matter jurisdiction, because, had “the case not been removed, BCBSKC would have had exactly the same grounds for setting aside the default judgment under NMRA Rule 1-060(B)(4) without regard to the time for filing an appeal from the default judgment.” BCBSKC Reply at 5.

3. BCBSA Motion.

BCBS Association filed its motion on July 14, 2011. See Doc. 14. BCBS Association represents that it is an Illinois not-for-profit corporation and argues that, because it does not transact insurance in New Mexico, it is not subject to service of process under the New Mexico Insurance Code, N.M.S.A.1978, § 59A-15-7 See BCBSA Motion ¶¶ 2, 4, at 1-2. It argues that it has a meritorious defense, because it is not a party to the agreement between Nueterra and BCBSKC and does not owe Sawyer coverage of her alleged medical bills. See BCBSA Motion ¶¶ 5-6, at 2. BCBS Association contends that the state court did not obtain personal jurisdiction over it, because it was never served, and it “does not maintain an office in New Mexico, has no operations in New Mexico, and does not routinely transact business in New Mexico.” BCBSA Motion ¶¶ 8-9, at 3. Sawyer did not file a written response to the BCBSA Motion. See Notice of Completion of Briefing at 1-2, filed August 3, 2011 (Doc. 25).

4. Sawyer Motion

Sawyer filed her motion on August 4, 2011. See Doc. 28. Sawyer moves, pursuant to 28 U.S.C. § 1447(c), to remand this matter to the Ninth Judicial District Court, because the Court lacks subject-matter jurisdiction. See Sawyer Motion at I. She argues that, because the Default Judgment was a final judgment, the Court cannot take any action regarding it. See Sawyer Motion at 1. Sawyer argues that, by removing this action to federal court, the Defendants are “attempting to appeal the state court’s ruling on constitutionality grounds, among other things.” Sawyer Motion at 1. Sawyer also filed a Memorandum of Points and Authorities in Support of Motion to Remand on August 4, 2011. See Doc. 29 (“Sawyer Memo”). In support of her motion, Sawyer sets out twelve undisputed facts: (i) that Sawyer filed her Complaint on May 28, 2010; (ii) that process was served on USAA Insurance, BCBS Association, and BCBS Kansas City through the Superintendent on June 7, 2010; (iii) that no Defendant entered an appearance; (iv) that, on February 24, 2011, she filed the Default Judgment Application; (v) that Judge Tatum held a hearing on her application and notices of the hearing were mailed to the Defendants through the Superintendent of Insurance; (vi) that, at the May 5, 2011 hearing, no Defendant appeared; (vii) that Judge Tatum entered the Default Judgment on May II, 2011; (viii) that, no later than May 18, 2011, the Defendants began contacting Sawyer with respect to the matter; (ix) that Sawyer agreed to set aside the judgment as to BCBS New Mexico; (x) that, on June 10, 2011, the time limit for Defendants to file any post-judgment expired; (xi) that, on June 16, 2011, BCBS Kansas City and BCBS Association removed this action; and (xii) that, thereafter, the BCBS Kansas City, BCBS Association, and United Services filed their motions. See Sawyer Memo at 1-2.

Sawyer argues that, in “distributing to courts the authority to hear matters, the ‘authority to review final judgments of a state court in judicial proceedings’ was withheld from federal district courts, and ‘such review may be had only in the United States Supreme Court.’ ” Sawyer Memo at 3 (citing Van Sickle v. Holloway, 791 F.2d 1431, 1436 (10th Cir.1986)). She assert that, because no appeal or post-judgment motion could be made, the Default Judgment was final, and “no case or controversy exists over which this Court can exercise jurisdiction.” Sawyer Memo at 4. She further asserts that, in Nieto v. University of New Mexico, the Court determined that removal following a state court dismissal was appropriate, because a case or controversy still existed, but that the Court added the caveat that removal is appropriate “so long as there is time to insist on reconsideration or appellate review.” Sawyer Memo at 4. Sawyer contends that the Defendants did nothing until BCBS Kansas City and BCBS Association untimely removed this matter to federal court and that, because of “their own lack of diligence,” they lost that chance to move to set aside the Default Judgment or appeal in the state court system. Sawyer Memo at 5. Sawyer also requests attorney’s fees under 28 U.S.C. § 1447(c). See Sawyer Memo at 5.

On August 12, 2011, United Services filed United Services Automobile Association’s Response to Plaintiffs Motion to Remand (Doc. 28). See Doc. 30 (“United Services’ Sawyer Response”). United Services argues that the Court has subject-matter jurisdiction over the case, and that the Sawyer Motion is premised on “unsupported factual assertions” and “a fundamental misunderstanding of legal authorities.” United Services’ Sawyer Response at 1. It disputes several of Sawyer’s facts as “thinly disguised legal conclusions that are incorrect and unsupported.” United Services’ Sawyer Response at 1. It argues that the assertion that process was served on the United Services, USAA Insurance, BCBS Kansas City, or BCBS Association through the Superintendent of Insurance is “demonstrably false,” because the Superintendent of Insurance admits that he did not serve them, and because there is nothing in the record which demonstrates that Sawyer complied with the full requirements for service of process. United Services’ Sawyer Response at 2. United Services also disputes that the time limit to file a post-judgment action or appeal had expired. See United Services’ Sawyer Response at 2. United Services contends that nothing in N.M.S.A.1978, § 39-1-1, affects the deadlines in N.M.R.A. 1-060(B), which also permits post-judgment relief. See United Services’ Sawyer Response at 2-3 (citing N.M.S.A.1978, § 39-1-1; AC. v. C.B., 113 N.M. 581, 584, 829 P.2d 660, 663 (Ct.App.1992)).

United Services argues that Sawyer misunderstands the Rooker-Feldman doctrine, which is confined to “cases brought by state-court losers complaining of injuries cause by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” United Services’ Sawyer Response at 3 (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005)). It asserts that Sawyer’s reliance on this doctrine falters because proper removal does not constitute an appeal. See United Services’ Sawyer Response at 3. United Services notes that Sawyer has waived any argument with respect to removal other than subject-matter jurisdiction, because the motion to remand was made more than thirty days after the notice of removal. See United Services’ Sawyer Response at 5 (citing 28 U.S.C. § 1447(c)). United Services argues that the Court has jurisdiction to consider whether to set aside the Default Judgment. See United Services’ Sawyer Response at 5. United Services also includes substantially the same discussion of the Court’s opinion in Nieto v. University of New Mexico as in the United Services Reply. See United Services’ Sawyer Response at 6-7. United Services contends that Sawyer is not entitled to attorneys fees. See United Services’ Sawyer Response at 7-8.

On August 12, 2011, BCBS Kansas City and BCBS Association filed BCBSKC’s and BCBSA’s Response to Plaintiffs Motion to Remand. See Doc. 31 (“BCBS’ Sawyer Response”). BCBS Association asserts that it is not an insurance company and that the Superintendent of Insurance cannot be its agent for service of process. See BCBS’ Sawyer Response at 1-2. BCBS Kansas City asserts that service was proper only if Sawyer sent copies of the notice of service and court process, and filed an affidavit of her compliance. See BCBS’ Sawyer Response at 2. It argues that Sawyer did not meet the service requirements and that it was not served. See BCBS’ Sawyer Response at 3. BCBS Kansas City and BCBS Association contend that Sawyer waived any non-jurisdictional arguments, because the Sawyer Motion was filed more than thirty days after removal. See BCBS’ Sawyer Response at 4. They assert that the New Mexico courts have repeatedly held that the time limits in N.M.S.A.1978, § 39-1-1 yield to the longer time limits in N.M.R.A. 1-060 and that N.M.R.A. 1-060 motions remain viable “indefinitely.” BCBS’ Sawyer Response at 4 (emphasis original). They also argue that removal jurisdiction is original, not appellate, and, thus, the Rooker-Feldman doctrine does not apply. See BCBS’ Sawyer Response at 6.

On September 8, 2011, Sawyer filed her Reply Memorandum in Support of Motion to Remand. See Doc. 32 (“Sawyer Response”). Sawyer argues that, despite any of the Superintendent of Insurance’s alleged failings, she served the Defendants’ agent and, therefore, properly served the Defendants. See Sawyer Response at 1. She asserts that, because service was proper, the Court has no jurisdiction and remand is necessary. See Sawyer Response at 1.

On February 9, 2012, the Court held a hearing. The Court asked United Services how it learned of the Default Judgment. See Transcript of Hearing at 4:13-15 (February 9, 2012)(Court)(“Tr.”). United Services responded that one of the Blue Cross Blue Shield entities contacted its corporate offices, because Blue Cross Blue Shield had just seen the judgment and was trying to determine what United Services knew about it. See Tr. at 4:16-5:10 (Court, Schultz). United Services argued that the Default Judgment was in error, because: (i) Sawyer failed to name the correct corporate entity; and (ii) United Services was never properly served. See Tr. at 5:11-20 (Schultz). The Court asked whether United Services would feel comfortable removing the case and voiding the Default Judgment, if the facts of the case were more egregious, and United Services did not find out about the case until three or four years after default judgment. See Tr. at 6:11-19 (Court). United Services stated that it would feel comfortable because, under 28 U.S.C. § 1446, the thirty-day removal period begins to run only when proper service is made and asserted that the United States Court of Appeals for the Tenth Circuit determined that rule was the correct one in Jenkins v. MTGLQ Investors. See Tr. at 6:20-7:11 (Schultz).

It contended that rule 60(b)(4), which states that a judgment should be set aside if void, applies, because USAA Insurance does not exist and that, once a judgment is void, a court must set it aside. See Tr. at 7:15-8:6 (Schultz). United Services asserted that it would make the same argument, if it received a summons with the wrong name, but admitted that it was a closer question. See Tr. at 8:7-17 (Court, Schultz). The Court asked why, if USAA Insurance is a non-entity and judgment was only entered as to it, United Services is concerned about the Default Judgment. See Tr. at 9:6-9 (Court). United Services responded that it wants a court ruling that the judgment is void and that it wants there to be no doubt that the Default Judgment against USAA Insurance cannot be enforced against United Services. See Tr. at 9:10-17 (Schultz). It argued that the Franchini Letter establishes two key facts: (i) that the Superintendent of Insurance received a copy of process from Sawyer; and (ii) that he never served either USAA Insurance or United Services. See Tr. at 10:15-12:12 (Court, Schultz). United Services contended that the Franchini Letter establishes that service was never completed. See Tr. at 13:1-11 (Schultz). United Services also asserted that the Court could set aside the Default Judgement as the result of mistake, inadvertence, surprise or excusable neglect, because: (i) United Services did not cause the default judgment to be entered; (ii) it has meritorious defenses, because the Default Judgment was entered against a different entity, and because it has no record of a policy related to Sawyer; and (iii) there is no prejudice to Sawyer if the Default Judgment is set aside, because setting aside a judgment to which she was never entitled cannot prejudice her. See Tr. at 13:12-14:16 (Schultz).

The Court then asked BCBS Kansas City and BCBS Association what evidence they had to show that they were not served. See Tr. at 17:19-24 (Court). BCBS Kansas City and BCBS Association responded that they supplied affidavits from company employees who have attested that neither company received service of process from the Superintendent of Insurance and that the Franchini Letter confirms that the Superintendent of Insurance did not forward any copies of the Complaint Sawyer that provided him. See Tr. at 17:25-18:11 (Bartell). They argued that Sawyer has only provided the certified mail receipt, which established no more than that the Superintendent of Insurance received service. See Tr. at 18:12-17 (Bar-tell). BCBS Association asserted that its service of process argument is clear-cut, because it is not an insurance company and does not transact insurance, such that the Superintendent of Insurance is not its agent and no statute permits substituted service to the Superintendent of Insurance. See Tr. at 18:18-19:1 (Bartell). It represented that it is the holder of the Blue Cross Blue Shield trademark and that it has no corporate ties to the other Blue Cross Blue Shield Defendants. See Tr. at 20:4-19 (Bartell). BCBS Kansas City admitted that Sawyer, at one time, had insurance with it through her employer. See Tr. at 20:20-21:2 (Bartell). It asserted that it is an unauthorized insurer and that the N.M.S.A.1978, § 59A-15-7 sets forth the means of serving an unauthorized insurer. See Tr. at 22:5-15 (Bar-tell). It contended that Sawyer treated all of the Defendants as if they were authorized insurers and that she did not follow § 59A-15-7, because, in addition to serving the Superintendent of Insurance, New Mexico law requires that a plaintiff send a copy of the summons and the complaint directly to an unauthorized insurer. See Tr. at 22:16-23:23 (Bartell). BCBS Association and BCBS Kansas City argued that the Default Judgment is void for lack of proper service and that the state court did not have personal jurisdiction over them in the absence of proper service. See Tr. at 23:24-25:8 (Bartell). BCBS Association and BCBS Kansas City asserted that the Court has jurisdiction over the action, and that Sawyer’s references to Nieto v. University of New Mexico are misguided. See Tr. at 24:16-25:6 (Bartell). They represented that, if these motions were before the state court, the state court would have had jurisdiction to set aside the default judgment once it determined that process had never been served. See Tr. at 25:7-18 (Bartell). They contended that there is a live controversy sufficient to support the Court’s subject-matter jurisdiction and that the Court should set aside the Default Judgment. See Tr. at 26:4-16 (Bartell).

The Court asked Sawyer whether she believed the Court would be sitting in an appellate fashion if Judge Tatum had entered summary judgment and then the Defendants properly removed. See Tr. at 27:19-28:2 (Court). Sawyer responded that, if the case was removed within thirty days of service, it would also be inside the thirty-day requirement under N.M.S.A. 1978, § 39-1-1, which permits a court to dispose of any post-judgment motion. See Tr. at 28:3-12 (Collins). Sawyer admitted that, with respect to rule 60(b)(4), the thirty-day rule under § 39-1-1 would not have any impact, but that the thirty-day rule would dispose of the rule 60(b)(6) motion— that Sawyer negligently named USAA Insurance rather than United Services. See Tr. at 28:24-29:2 (Collins). Sawyer asserted that United Services should be treated differently from the other Defendants, because it is arguing that it was improperly named, and contended that United Services’ argument was a “red herring,” because it had sufficient notice that it was the real party in interest. Tr. at 29:13-24 (Collins). The Court asked what Sawyer gained in having a judgment against a nonexistent entity. See Tr. at 29:25-30:2 (Court). She responded that, if the entity does not exist, then she would not be able to enforce the Default Judgment. See Tr. at 30:3-5 (Collins). She argued, however, that United Services is known as USAA, and that, had it received a copy of the summons and complaint from the Superintendent of Insurance it would have been on notice. See Tr. at 30:6-13 (Collins). The Court asked, assuming that Sawyer complied with the service of process statutes and that the Superintendent of Insurance never forwarded that service, how the Court should rule on the motions. See Tr. at 30:22-31:2 (Court). Sawyer agreed the blame lies with the Superintendent of Insurance but asserted that the Court needs to decide the state-law question whether the Superintendent is the Defendants’ agent, authorized to receive service of process. See Tr. at 31:3-12 (Court, Collins). She asserted that, once she served the Superintendent of Insurance, United Services, BCBS Association, and BCBS Kansas City were served under state law. See Tr. at 31:13-15 (Court, Collins).

Sawyer represented that the Supreme Court of New Mexico has not addressed the statutes discussing service of process on authorized and unauthorized insurers, but that it has ruled on service of process on an agent in the context of a corporation. See Tr. at 31:19-25 (Collins). She stated that, in 1935, in Silva v. Crombie & Co., 39 N.M. 240, 44 P.2d 719 (1935), a corporation appointed an agent who subsequently left the state and the Supreme Court of New Mexico held that serving the Secretary of State of New Mexico, who failed to forward the process, was sufficient. See Tr. at 32:3-12 (Collins). Sawyer asserted that the Supreme Court of New Mexico held that the Secretary of State’s negligence is not chargeable to the plaintiff. See Tr. at 32:13-18 (Collins). Sawyer also pointed the Court to Abarca v. Henry L. Hanson, Inc., 106 N.M. 25, 738 P.2d 519 (Ct.App.1987). See Tr. at 33:23-25 (Collins). The Court then asked, assuming that Sawyer correctly interpreted the statutes and that service was proper when made on the Superintendent of Insurance, whether a federal court could find good cause to set aside the Default Judgment, because United Services, BCBS Association, and BCBS Kansas City did not receive the full benefits of service under those statutes. See Tr. at 35:14-21 (Court). Sawyer responded that actual notice is not required under due process. See Tr. at 35:22-23 (Collins). Sawyer asserted that the only process due to the Defendants is process reasonably calculated to give the Defendants notice and that the State of New Mexico has determined that insurance companies have notice when service is made on the Superintendent. See Tr. at 36:4-20 (Collins). She argued that the Superintendent of Insurance was served, giving United Services, BCBS Association, and BCBS Kansas City notice, and asked that the Court remand the matter to state court and deny the Defendants’ motions. See Tr. at 36:21-37:4 (Collins). With respect to Nieto v. University of New Mexico, Sawyer contended that the Court held that, when there is no issue that can be appealed, there is no case or controversy for the Court to decide. See Tr. at 37:12-19 (Collins). She admitted, however, that, if BCBS Association and BCBS Kansas City had not removed, the Defendants probably would have been able to bring a rule 60(b) or 55(c) motion in state court. See Tr. at 38:17-22 (Collins).

The Court asked why United Services had standing to contest the Default Judgment. See Tr. at 41:4-6 (Court). United Services responded that it had standing insofar as Sawyer has represented that she intends to enforce the Default Judg-

ment against it. See Tr. at 41:7-14 (Schultz). With respect to § 39-1-1, United Services argued that § 39-1-1 does not repeal “the provisions of sections 4227 or 4230, Code 1915” and that rule 1-060 superseded those provisions. Tr. at 42:5-15 (Schultz). It also pointed the Court to AC. v. C.B., where the Court of Appeals of New Mexico held that § 39-1-1 “has never been viewed as depriving the district court of jurisdiction to consider and resolve a subsequent timely motion under Rule 60(B)” and to Classen v. Classen, 119 N.M. 582, 893 P.2d 478 (Ct.App.1995). Tr. at 42:25-43:5 (Schultz). United Services conceded that New Mexico could have a scheme in which service on the Superintendent of Insurance would satisfy due process, even though a party did not receive actual service, but asserted that New Mexico has not done that. See Tr. at 44:9-18 (Court, Schultz). It argued that service is not completed until the insurer receives service or refuses to accept service. See Tr. at 44:23-45:15 (Schultz). United Services agreed that the Court has no appellate jurisdiction, under the Rooker-Feldman doctrine, but asserted that this case was removed and that the Court has original jurisdiction. See Tr. at 47:10-48:1 (Schultz). United Services contended that failure to satisfy the statutory service requirements rendered the Default Judgment void, despite the allegation that the. due-process minimum standard may have been met. See Tr. at 48:7-18 (Court, Schultz). BCBS Kansas City argued that it saw no way that merely serving the Superintendent of Insurance without demanding proof of actual service could comply with due process, because service on the Superintendent of Insurance is not reasonably calculated to advise the defendant that he has been served. See Tr. at 49:21-25 (Bartell). Furthermore, BCBS Kansas City and BCBS Association contended that Sawyer has not rebutted their assertions that they are not authorized insurers and that BCBS Association is not an insurer. See Tr. at 50:3-18 (Bartell). They also asserted that they were not blaming the Superintendent of Insurance, because Sawyer failed to comply with the unauthorized insurer statute and send service of process directly to them. See Tr. at 51:8-52:16 (Bartell).

RELEVANT LAW OF REMOVAL PROCEDURES

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. 08-0812, 2009 WL 1324119, at *9-10 (D.N.M. Apr. 30, 2009) (Browning, J.). Removal statutes are strictly construed, and ambiguities should be resolved in favor of remand. See Shamrock Oil & Gas v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Fajen v. Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir.1982). Doubtful cases are resolved in favor of remand, because “there is a presumption against removal jurisdiction.” Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.1995). On the other hand, strict construction and a presumption against Congressionally allowed removal should not become a judicial hostility toward removal cases. See Bonadeo v. Lujan, 2009 WL 1324119, at *12 (“Strict construction does not mean judicial hostility toward removal.”).

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). The requirement that a defendant timely file the notice of removal is mandatory, although 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 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.

Neither the Supreme Court nor the United States Court of Appeals for the Tenth Circuit ... has spoken on whether, in a case of more than one defendant, the thirty-day clock for removal begins to run when the first defendant is served or when the last defendant is served. There appears ... to be a split among the other federal courts on this issue ....

A majority of judges in the District of New Mexico support the traditional view that the thirty-day removal period begins to run when service of process is accomplished on the first-served defendant. This rule is referred to as the “first-served rule.” This Court, however, has concluded that the more modern, “last-served” rule is more in harmony with the language of the removal statute, and is a more fair and workable rule. Under that rule, the clock begins running on each defendant to either remove a case or join a removal petition when that defendant receives formal service of process.

McEntire v. Kmart Corp., No. 09-0567, 2010 WL 553443, at *4 (D.N.M. Feb. 9, 2010)(Browning, J.) (citations 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 to comply with the requirements of § 1446(b) constitutes a ‘defect in removal procedure.’ ” Page v. City of Southfield, 45 F.3d 128, 131 (6th Cir.1995) (citing In re Cont’l Cas. Co., 29 F.3d 292, 294 (7th Cir.1994)). Under 28 U.S.C. § 1447(c), “[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a).” 28 U.S.C. § 1447(c).

REMOVAL TO FEDERAL COURT AFTER JUDGMENT

There is some disagreement whether a defendant may remove a case to federal court after the state trial court has entered a judgment in a 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 state-court 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 thirty 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). There is no express requirement that the removal occur at any particular stage of the adjudicatory process.

1. The Case-or-Controversy Requirement.

Article III of the Constitution limits the judicial power of the federal courts to particular “cases” or “controversies.” The Clause states:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; ... [and] to Controversies between two or more States;- — -between a State and Citizens of another State; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

U.S. Const. Art. Ill, § 2. To satisfy Article Ill’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 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 971, 974 (10th Cir.2004); Morgan v. McCotter, 365 F.3d 882, 887-88 (10th Cir.2004).

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.” County of L.A. v. Davis, 440 U.S. at 631, 99 S.Ct. 1379. The burden of establishing mootness is a heavy one. See County of L.A. v. Davis, 440 U.S. at 631, 99 S.Ct. 1379.

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 Morgan v. McCotter, 365 F.3d at 890-91.

2. A Case or Controversy Exists in Cases Removed After State-Court Judgments.

Although 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, the Court, in Nieto v. University of New Mexico, found the reasoning of those case unpersuasive. See 727 F.Supp.2d at 1185. In Nieto v. University of New Mexico, a state court had dismissed the plaintiffs complaint before the defendants removed, and the plaintiff argued that there was no case or controversy under Article III. See 727 F.Supp.2d at 1190. The Court found that both parties still had a cognizable interest in the outcome of the case, because “even when cases are dismissed at the trial level it is standard to still be a case if the parties are contemplating post-trial motions, requests for fees, or appeals.” Nieto v. Univ. of N.M., 727 F.Supp.2d at 1191. The Court noted that “even where a federal district court issues a final judgment, it maintains jurisdiction to rule on post-judgment motions, e.g., motions for new trial, motions for fees, or motions for relief from judgment.” Nieto v. Univ. of N.M., 727 F.Supp.2d at 1192 (citations omitted). The Court held that, as a matter of logic, it “does not believes a state-court judgment could extinguish a case-or-controversy, at least while non-extraordinary appellate remedies are still available.” Nieto. v. Univ. of N.M., 727 F.Supp.2d at 1193. It noted that “the case-or-controversy requirement binds all courts, including the Supreme Court of the United States” and that “the state-court judgment, after all state appellate remedies have been exhausted, does not extinguish the case or controversy for the purposes of the Supreme Court’s review.” Nieto v. Univ. of N.M., 727 F.Supp.2d at 1193. The Court held that, “[s]o 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.” Nieto v. Univ. of N.M., 727 F.Supp.2d at 1194. The Court stated that, if it treats the state-court judgment as if it was rendered by the Court, “the Court has jurisdiction to review it and potentially set it aside in response to a party’s post-judgment motions.” Nieto v. Univ. of N.M., 727 F.Supp.2d at 1195.

Several federal courts have recognized that the case-or-controversy requirement is met even after a state-court judgment. The Tenth Circuit, in Jenkins v. MTGLQ Investors, implicitly recognized that a case or controversy exists when a case is removed after the entry of a state-court default judgment. There, the Tenth Circuit granted a motion to amend the notice of removal to more specifically discuss the defendant’s citizenship and found that the notice of removal was timely “despite being filed more than three months after entry of the default judgment and more than eight months after Mr. Jenkins filed his complaint.” 218 Fed.Appx. at 724. The Tenth Circuit held that, after removal, “MTGLQ had the ‘right to the opinion of

the Federal court’____[and] [t]he district court could set aside the default judgment under Fed.R.Civ.P. 55(c) and 60(b).” Jenkins v. MTGLQ Investors, 218 Fed.Appx. at 724. In In re Savers Federal Savings & Loan Association, 872 F.2d 963 (11th Cir.1989), a jury decided the plaintiffs 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 United States Court of Appeals for the Eleventh Circuit. In re Savers Fed. Sav. & Loan Ass’n, 872 F.2d at 964-65. The plaintiff moved to remand, challenging the propriety of the post-judgment removal. See In re Savers Fed. Sav. & Loan Ass’n, 872 F.2d at 964-65. The district court granted the motion to remand, but the Eleventh Circuit stayed the order to decide whether to issue a writ of mandamus requiring the district court to vacate the remand order. 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)(l), 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:

The question, then, is whether[,] after there has been a final judgment by the state trial court, but when the period for appeal has not yet lapsed, a case ceases to be an “action from a State court” which can be removed to a federal forum under section 1730(k). We can discern no reason to confine