Federal National Mortgage Ass'n v. Milasinovich (161 F. Supp. 3d 981, 2016)

United States District Court for the District of New Mexico 2016-03-30

Bankruptcy Crimes and Criminal Procedure Judiciary and Judicial Procedure

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) Defendant Melanie Milasinovich’s Exigent Amended Notice for Removal and Objection to the State Court Hearing, filed July 23, 2015 (Doc. 4)(“Seeond Amended Notice of Removal”); (ii) Plaintiff Federal National Mortgage Association’s Motion to Strike or Remand and for Award of Additional Sanctions, filed August 19, 2015 (Doc. ll)(“Motion”); (iii) Defendant Melanie Milasinovich’s Petition for Writ - of Mandamus, filed July 31, 2015 (Doc. 9), and Amended Petition for Writ of Mandamus, filed August 3, 2015 (Doc. 10)(collec-tively, the “Mandamus Petitions”); (iv) Defendant Melanie Milasinovich’s Motion to Strike, filed September 2, 2015 (Doc. 13)(“Motion to Strike”); and (v) Defendant Melanie Milasinovich’s Notice of Motion and Motion to Enjoin the United States, filed January 21, 2016 (Doc. 52)(“Motion to Enjoin”). The Court held a hearing on November 18, 2015. The primary issues are: (i) whether the subsequent state court proceedings were valid after Defendant Melanie Milasinovich removed the case to federal court; (ii) whether the Court should grant Milasinovich’s request for a writ of mandamus ordering the state court to halt proceedings; (iii) whether the Court should remand this case to the state court; (iv) whether the Court should grant any of Milasinovich’s other requests for relief; (v) whether the Court should award sanctions against Milasinovich for her improper removal; and (vi) whether the Court should impose limitations on Milasinovich’s ability to file further removal notices. First, the Court concludes that the proceedings in state court after Milasinovich filed her removal notices are void, and the Court will vacate the relevant state court orders. Second, the Court cannot use mandamus to order the state court to take any specific actions. Third, the Court will remand the case to state court, because Milasinovich’s removal notices are defective, untimely, and do not establish, as they must, that the Court has jurisdiction over the case. Fourth, the Court will deny the Motion to Strike and the Motion to Enjoin; and will leave the other issues for the state court to decide. Fifth, the Court will grant Federal National Mortgage Association’s request for fees and costs because Milasinovich did not have an objectively reasonable basis for removing the case. Finally, the Court will prohibit Milasinovich from filing further motions in this matter in federal court without express permission from the Chief United States Magistrate Judge for the District of New Mexico.

FACTUAL BACKGROUND

The Court takes its facts from the Complaint for Foreclosure, filed in state court December 14, 2014, filed in federal court July 20, 2015 (Doc. I). On or about October 27, 2005, Milasinovich and co-Defendant Susan Jacques “signed a Note in the principal amount of $412,000.00, which was secured by a Mortgage recorded on October 28, 2005.” Complaint ¶ 8, at 3. The mortgage burdened a lot at 422 Mission Road, Santa Fe, New Mexico (the “Property”). Complaint ¶ 6, at 2-3. Milasinovich and Jacques failed to make required payments beginning in August, 2009. See Complaint ¶ 9, at 3. They thus defaulted under the terms of the Note and Mortgage. See Complaint ¶ 9, at 3.

The ensuing litigation has a complicated procedural history. See Aurora Loan Services, L.L.C. v. Milasinovich, No. CIV 14-0575 MCA/KK, (D.N.M.), Memorandum Opinion and Order, filed February 17, 2015 (Doc. 155)(“Armijo MOO”)(“[T]he procedural posture of this case is far from simple.”)(quotation omitted). The Court will thus summarize only the portions of the prior state and federal litigation history relevant to the Motion.

On December 14, 2009, Plaintiff Aurora Loan Services, L.L.C. filed a foreclosure action in the state court. See Complaint at 1. The Complaint names two specific individuals — Milasinovich and Jacques — as well as Lehman Brothers Bank, FSB, and a variety of unidentified individuals and corporations. See Complaint ¶¶ 2-4, at 1-2. The Complaint alleges one count of judicial foreclosure. See Complaint ¶¶ 5-17, at 2-3. The Complaint seeks, among other forms of relief: (i) at least $412,000.00; (ii) post-filing costs and attorney’s fees; (iii) interest from 2009 to the present; (iv) a valid lien on the Property; (v) a declaration that the Mortgage is “not to be subordinate to any right, title, interest, lien, equity, or estate of the Defendants or fictitious defendants”; and (vi) the appointment of a special master to seize and sell the property. See Complaint ¶¶ A~B(14), at 4-6. In May 2013, Fannie Mae overtook the litigation on behalf of Aurora Loan Services, Inc., becoming the plaintiff. See Armijo MOO at 13.

Milasinovich first attempted to remove her case to federal court on June 23, 2014. See Aurora Loan Services, L.L.C. v. Milasinovich, No. CIV 14-0575 MCA/KK, (D.N.M.), Notice of Removal, filed June 23, 2014 (Doc. 1); Motion ¶ 7, at 4. The Honorable Christina Armijo, Chief United States District Judge for the District of New Mexico, rejected Milasinovieh’s attempt to remove the case and remanded it to the state court. See Armijo MOO at 1. Chief Judge Armijo first explained that the Complaint does not raise any claims arising under federal law and that Milasi-novich’s federal defenses were insufficient to invoke federal-question jurisdiction. See Armijo MOO at 11 (citing Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1220 (10th Cir.2011)(explaining the “well-pleaded complaint rule”). Second, Chief Judge Armijo noted that Milasinovich failed to comply with 28 U.S.C. § 1446(b)’s requirement that she remove the action within thirty days after she received notice that federal jurisdictional requirements were satisfied. Armijo MOO at 12. She noted that Milasinovich was aware of Fannie Mae’s participation in the case “as early as May of 2013” and that Milasino-vich thus filed her notice of removal more than one year after her deadline. Armijo MOO at 13. Third, Chief Judge Armijo held that she did not have diversity jurisdiction over the matter, because Milasino-vich did not adequately allege the parties’ citizenship. See Arraijo MOO at 13-14. Finally, Chief Judge Armijo noted that, in any case, Milasinovich failed to comply with 28 U.S.C. § 1446(c)(Z)’s requirement that she remove the case within one year after the commencement of the action. See Armijo MOO at 15-16 (“Ms. Milasinovich did not file her notice of removal until June 23, 2014, more than four years later”). Chief Judge Armijo concluded that Milasinovich “lacked an objectively reasonable basis for removal” because of her delay, and thus awarded attorney’s fees to Fannie Mae. Armijo MOO at 16.

Proceedings then continued before the Honorable Sarah M. Singleton, District Judge for the First Judicial District, State of New Mexico. See Order Regarding Jurisdiction in Light of Removal Petition at 3, filed in state court July 27, 2015, filed in federal court August 19, 2015 (Doc. 11-4)(“Singleton Order”). Fannie Mae sought to set a status conference to discuss pending motions, but Milasinovich opposed it. See Motion ¶ 12, at 4-5; Singleton Order at 3. Judge Singleton set the status conference for July 21, 2015. See Singleton Order at 3-4.

PROCEDURAL HISTORY

Milasinovich filed a second notice of removal on July 20, 2015. See Second Notice of Removal at 1. Milasinovich first cites “congress 1949” for the proposition that “the second paragraph of the amendment to subsection (b) is intended to make clear that the [rjight of removal may be exercised at a later stage of the case if the initial pleading does not state a removable case but its removability is subsequently disclosed.” Second Notice of Removal at 1. The Court interprets this argument as a reference to 28 U.S.C. § 1446(b)(3), which creates an exception to § 1446(b)(l)’s general requirement that a defendant remove a case within thirty days of receipt of the initial pleading: “Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 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.” 28 U.S.C. § 1446(b)(3). Section 1446(b)(3)’s legislative history includes Milasinovich’s cited language: “The second paragraph of the amendment to subsection (b) is intended to make clear that the right of removal may be exercised at a late state of the case if the initial pleading does not state a removable case but its removability is subsequently disclosed.” H.R.Rep. No. 81-352 (1949), reprinted in 1949 U.S.C.C.A.N. 1254, 1268. Milasinovich requests the following forms of relief:

A. the court review the removed case in the nature of a bill of exception

B. the court invoke article III jurisdiction

C. the court invoke high court of chancery in chambers in camera upon recognition of a private American national citizen of the united states of American, non-beligerent [sic], not at war.

D. the court transfer from law to English equity upon recognition of a special private matter for deposit in camera in private chambers

E. no damages are claimed

F. injunction for equitable relief against any person coming at the cestui que trust

Second Notice of Removal at 2.

On July 21, 2015, Judge Singleton proceeded with her scheduled status conference. See Singleton Order at 3-4. At the conference, Fannie Mae presented “authorities that showed that in the circumstances presented by this notice of removal the state court might have jurisdiction.” Singleton Order at 4. Milasinovich did not appear, but Judge Singleton gave her leave to present authorities in response to Fannie Mae’s arguments. See Singleton Order at 4.

On July 23, 2015, Milasinovich filed an amended notice of removal. See Second Amended Notice of Removal at 1. The Second Amended Notice of Removal is difficult to understand, but it appears to object to the Judge Singleton’s continued exercise of jurisdiction over the matter. Second Amended Notice of Removal at 1 (“This amended notice comes prior to state court’s issuance of ill made order to gain jurisdiction where the court lacked jurisdiction to issue an order as admitted by attorney Mr. Montano.”). Milasinovich particularly objects to Judge Singleton’s decision to hold a hearing the day after she filed her Second Notice of Removal. See Second Amended Notice of Removal at 2. She again asserts that the Court has diversity jurisdiction, again quoting language related to 28 U.S.C. § 1446(b)(3). See Second Amended Notice of Removal at 3-4. Milasinovich also presents extensive argument on the merits of her dispute. See Second Amended Notice of Removal at 4-8. She focuses on Fannie Mae’s responsibilities under the Home Affordable Modification Program, a federal program designed to help homeowners modify their home mortgage debt in the wake of the subprime mortgage crisis. See Second Amended Notice of Removal at 4-7. Milasinovich concludes that “[t]he plain meaning of removal is clear. Once notice is filed on the State Court the State Court loses jurisdiction.” Second Notice of Removal at 1.

1. Judge Singleton’s Order.

Judge Singleton filed an order rejecting Milasinovich’s second round of removal notices on July 27, 2015. See Singleton Order at 1. The Singleton Order concludes that the state court retained jurisdiction despite Milasinovich’s second set of removal notices, because they were clearly frivolous. See Singleton Order at 1. First, it looks to state cases holding that state courts may retain jurisdiction where a notice of removal is frivolous. See Singleton Order at 4-7 (citing McDonald v. Zions First Nat’l Bank, N.A., 2015 COA 29, ¶ 26, 348 P.3d 957, 962; Attig v. Attig, 177 Vt. 544, 548-49, 862 A.2d 243, 249 (2004); Farm Credit Bank of St. Paul v. Rub, 481 N.W.2d 451 (N.D.1992)). It acknowledges that other courts have reached the opposite result, but contends that the phrase “proceed no further” in 28 U.S.C. § 1446(d) does not require an immediate halt to all proceedings, because a Supreme Court of the United States of America decision interpreted a predecessor statute with similar language to mean that “proceedings in the state court subsequent to the petition for removal are valid if the suit was not in fact removable.” Bell v. Burlington N.R. Co., 1986 OK CIV APP 17, 738 P.2d 949, 954 (quoting Metro. Cas. Ins. Co. v. Stevens, 312 U.S. 563, 566, 61 S.Ct. 715, 85 L.Ed. 1044 (1941)).

The Singleton Order concludes that Milasinovich’s second round of removal notices is without merit. See Singleton Order at 10. Citing the Armijo MOO, it concludes that “Congress did not intend ‘to allow a defendant to repeatedly file notices of removal and endlessly delay state court proceedings.... Condoning that type of abuse of process is inconsistent with any notion of fairness and justiee[.]’ ” Singleton Order at 10 (quoting Farm Credit Bank of St. Paul v. Rub, 481 N.W.2d at 457).

2. The Motion.

Fannie Mae moved to “strike Ms. Milasinovich’s notices of removal and/or remand this case back to the State Court, award sanctions against Ms. Milasinovich, and impose limitations on her ability to file further notices of removal in this case,in the future” on August 19, 2015. Motion at 2. First, Fannie Mae contends that the Court should deem the new removal notices “ ‘a legal nullity’ ab initio ” and strike them because they are “frivolous on their face.” Motion at 6-7 (citing Maggio Enterprises, Inc. v. Hartford Cas. Ins. Co., 132 F.Supp.2d 930, 931 (D.Colo.2001)(Daniel, J.)).

Second, Fannie Mae contends that the Court should remand the case even if it declines to strike the new removal notices. See Motion at 7. It explains that both notices are untimely under 28 U.S.C. § 1446(c)(1), because it did not act in bad faith to prevent Milasinovich from removing the case. Moreover, it notes that “Milasinovich filed her Second Notices of Removal knowing full well that they were improper.” Motion at 8.

Third, Fannie Mae contends that the Court should , prevent Milasinovich from filing further removal notices without obtaining the Court’s leave. See Motion at 8-9. It argues that Milasinovich removed the case “knowing full well that the applicable deadlines for removal had long passed, that she had not otherwise cured the deficiencies of the First Notice of Removal, and that she lacked an objectively reasonable basis for filing it.” Motion at 8-9. It suggests that the Court prevent further removal notices “[i]n the interests of justice, fairness to Fannie Mae, and the preservation of this Court’s time and resources.” Motion at 9. It cites several cases supporting its position. See Motion at 9 (citing Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir.1989); Ketchum v. Cruz, 961 F.2d 916, 921 (10th Cir.1992); and Moore v. Jahani, No. CIV.A. 10-CV00425BNB, 2010 WL 1610130, at *2 (D.Colo. Apr. 20, 2010)(Brimmer, J.)).

Finally, Fannie Mae requests that the Court award it costs and expenses under 28 U.S.C. § 1447(c), and sanctions under rule 11 of the Federal Rules of Civil Procedure or under the Court’s inherent authority. See Motion at 9-10. It states that the absence of an objectively reasonable basis for removal, the Armijo MOO confirms, supports an award of costs and expenses. See Motion at 10. It further argues that the Court should impose rule 11 sanctions, “[gjiven the egregiousness and lengthy history” of Milasinovich’s frivolous filings. Motion at 10. It cites to Federal Home Loan Mortgage Corp. v. Pulido, No. C 12-04525 LB, 2012 WL 5199441 (N.D.Cal. Oct. 20, 2012) (Beeler, M.J.), which held that, “absent new and different grounds for removal based on newly discovered facts or law, a defendant who improperly removes a case after a federal court previously remanded it risks being sanctioned under Federal Rule of Civil Procedure 11.” Motion at 10 (quoting Fed. Home Loan Mortgage Corp. v. Pulido, 2012 WL 5199441, at *2).

3. The Responsive Filings.

Milasinovich responded to the Motion with a motion to strike rather than with a formal response. See Motion to Strike at 1. The Motion to Strike includes fifteen numbered paragraphs, each of which begins with the phrase “is it not true that.” See Motion to Strike ¶¶ 1-15, at 1-3. It again refers to 28 U.S.C. § 1446(b)(3), but does not specifically allege how the statute applies to the facts. See Motion to Strike at 1. It raises numerous other arguments that the Court finds difficult to understand or irrelevant to the issues that the Motion raises, including an accusation that Fannie Mae is a “foreclosure mill[ ],” that Milasinovich is not a government employee, that she “is not domiciled in the federal zone,” that Fannie Mae violated rule 1002 of the Federal Rules of Evidence by not verifying its claim, and that Fannie Mae lacks a “secured claim as defined by 11 U.S.C. § 506(a).” Motion to Strike at 1-3. It requests that the Court “strike Plaintiffs pleadings as moot.” Motion to Strike at 3. Milasinovich followed up on the Motion to Strike with a variety of other filings.

4. The Reply.

Fannie Mae replied on September 18, 2015. See Reply in Support of Fannie Mae’s Motion to Strike or Remand, and for Award of Additional Sanctions, and Response to Related Filings by Ms. Milasino-vich, filed September 18, 2015 (Doc. 19)(“Reply”). Fannie Mae argues that Mi-lasinovich’s “motion to strike and related filings are facially improper, incomprehensible, and devoid of any legitimate factual or legal support, and appear to have been filed solely for the purpose of harassment or delay.” Reply at 2. Fannie Mae first notes that rule 12(f) applies only to material contained in a “pleading.” Reply at 2 (citing Ysais v. New Mexico Judicial Standard Comm’n, 616 F.Supp.2d 1176, 1191 (D.N.M.2009)(Browning, J.)). The definition of pleading, it adds, does not include motions, briefs, or memoranda. See Reply at 3. Second, Fannie Mae notes that its Motion does not contain “any insufficient defenses or redundant, immaterial, impertinent, or scandalous matters.” Reply at 3 (citing Fed. R. Civ.P. 12(f)). Third, Fannie Mae attacks the Motion to Strike as a collection of “incomprehensible and irrelevant allegations and arguments” that neither address Milasinovich’s timing problems nor explain why the Court should not impose sanctions. Reply at 4.

5. The Hearing.

On November 6, 2015, the Court informed the parties that it would hold a hearing on November 18, 2015 at 1:30 p.m. See Notice of Motion Hearing Regarding Docs. 11, 13 and 25, filed November 6, 2015 (Doc. 32). The Court held a hearing on November 18, 2015. See Transcript of Hearing at 1:1 (taken November 18, 2015)(“Tr.”). Milasinovich failed to appear in person or call in, so the Court contacted her by telephone. Milasinovich first argued for a continuance, citing “a notice of conflict of variance of law.” Tr. at 5:13-15 (Milasinovich). Fannie Mae replied that the Motion was “a routine motion to remand a case to state court to strike the notices of removal” and that nothing in Milasinovich’s filings justified a continuance. Tr. at 6:24-5 (Montano). The Court denied a continuance on the grounds that Milasinovich appeared prepared to proceed. See Tr. at 8:13-20 (Court).

Fannie Mae first addressed its request that the Court strike Milasinovich’s removal notices. See Tr. at 11:4-16 (Montano). It explained that Judge Singleton, citing the Armijo MOO’s findings, refused to accept Milasinovieh’s notice of removal. See Tr. at 11:21-25 (Montano). It stated that “there is a growing general trend to recognize that if a notice of removal is frivolous on its face as this one is, then a state district court does not have to honor that notice of removal.” Tr. at 13:4-7 (Montano). It defended Judge Singleton’s decision, warning of the “impropriety and the improper conduct that can take place in these notices of removal. And the harm that they can cause. Not just with respect to an individual case but the utter lack of respect that certain litigants have for the rule of law.” Tr. at 15:18-23 (Montano). Fannie Mae conceded that it was an “unusual issue” and likely an issue of first impression, but urged the Court to decide it. Tr. at 16:15-20 (Montano).

Fannie Mae then fell back on its “much more ordinary request” that the Court remand the case to the state court. Tr. at 16:25-17:4 (Montano). It argued that remand was appropriate because: (i) Milasinovich did not file within 30 days; (ii) Milasinovich failed to file within one year, despite her “apparent reliance on diversity jurisdiction”; and (iii) Chief Judge Armijo had already reached the legal issues. Tr. at 17:4-19 (Montano).

Fannie Mae also contended that sanctions are appropriate, noting that Milasinovich has already had the benefit of one learned Judge in this district reviewing the matter, issuing a lengthy and well reasoned opinion, one that Ms. Milasinovich did not challenge, and that is the standing decision in this case. And yet she has found it fit to file a second round of removal notices. Under these circumstances, I think the only thin[g] that will [ jcause her not to continue this litany of [frivolous] filings is for the Court to instruct her not to in the form of an injunction.

Tr. at 18:2-11 (Montano).

Milasinovich’s response appeared to argue that her removal notices were timely under 28 U.S.C. § 1446(b)(3) because Fannie Mae’s entry into the case made the case removable for the first time. See Tr. at 19:7-20:9 (Milasinovich). She repeated that “the plain meaning of removal is clear, and once notice is filed on the state Court, the state court loses their [sic] jurisdiction,” accusing Judge Singleton of holding an “extra jurisdictional hearing.” Tr. at 21:24-22:5 (Milasinovich). She also mentioned rescission, promissory estoppel, and potential violations of her civil rights. See Tr. at 20:19-23:2 (Milasinovich).

Fannie Mae responded that “Ms. Milasinovich has made no arguments that would support the denial of my client’s motion.” Tr. at 23:13-15 (Montano). It explained that its late entry as a party did not allow removal, because it occurred well before Milasinovieh filed her removal notices. See Tr. at 23:13-21 (Montano).

The Court then stated its inclination. See Tr. at 24:1-26:2. It explained that it was unlikely to decide “whether the state court has proceeded properly in this matter by continuing to have proceedings after the notice of removal was filed.” Tr. at 24:3-9 (Court). It asserted that the Court of Appeals of New Mexico, the Supreme Court of New Mexico, and ultimately the Supreme Court of the United States were better placed to decide the question. See Tr. at 24:9-15 (Court). It noted that, because it did not have mandamus authority over the state court, it would be “kind of rendering an advisory opinion to the state system” and remarked that it is “not an appellate court over the state' district courts.” Tr. at 24:15-25:3 (Court). It explained, however, that “I will grant the motion to remand largely for the same reasons that Chief Judge Armijo did. I will also grant the request for fees and costs, and I will try to craft some limitations on Ms. Milasinovich’s ability to file further remand petitioners in this Court.” Tr. at 25:11-16 (Court). It sketched out the boundaries of these limitations:

For example, if she has other cases that she needs or wants to bring in Federal Court, she can do that, but not this case. She can’t remove it to Federal Court without perhaps the chief magistrate judges, her going to the magistrate judge and seeing if she can file that document.

Tr. at 25:17-23 (Court).

LAW REGARDING MOTIONS TO STRIKE UNDER RULE 12(f)

Rule 12(f) of the Federal Rules of Civil Procedures provides:

(f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

(1) on its own; or

(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.

Fed. R. Civ. P. 12(f). Professors Charles Wright and Arthur Miller have recognized, however, that such motions are not favored and, generally, should be denied:

The district court possesses considerable discretion in disposing of a Rule 12(f) motion to strike redundant, impertinent, immaterial, or scandalous matter. However, because federal judges have made it clear, in numerous opinions they have rendered in many substantive contexts, that Rule 12(f) motions to strike on any of these grounds are not favored, often being considered purely cosmetic or “time wasters,” there appears to be general judicial agreement, as reflected in the extensive case law on the subject, that they should be denied unless the challenged allegations have no possible relation or logical connection to the subject matter of the controversy and may cause some form of significant prejudice to one or more of the parties to the action. Any doubt about whether the challenged material is redundant, immaterial, impertinent, or scandalous should be resolved in favor of the non-moving party.

5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1382 (3d. ed.2015)(footnotes omitted). Accord Burget v. Capital W. Sec., Inc., No. CIV 09-1015-M, 2009 WL 4807619, at *1 (W.D.Okla. Dec. 8, 2009)(Miles-LaGrange, J.)(citing Scherer v. U.S. Dep’t of Educ., 78 Fed.Appx. 687, 689 (10th Cir.2003)(unpublished )(“While motions to strike are generally disfavored, the decision to grant a motion to strike is within the discretion of the court.”)).

“Allegations will not be stricken as immaterial under this rule unless they have no possible bearing on the controversy.” Estate of Gonzales v. AAA Life Ins. Co., No. CIV 11-0486 JB/WDS, 2012 WL 1684599, at *5 (D.N.M. May 8, 2012)(Browning, J.)(quoting Sai Broken Arrow C, LLC v. Guardian Emergency Vehicles, Inc., No. CIV 09-0455 CVE/FHM, 2010 WL 132414, at *5 (N.D.Okla. Jan. 8, 2010)(Eagan, J.)). “The Court must be convinced that there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the defenses succeed.” Friends of Santa Fe Cty. v. LAC Minerals, Inc., 892 F.Supp. 1333, 1343 (D.N.M.1995)(Hansen, J.)(quoting Carter-Wallace, Inc. v. Riverton Lab., Inc., 47 F.R.D. 366, 368 (S.D.N.Y.1969)(Cannella, J.))(internal quotation marks omitted). Professors Wright and Miller have also commented on what constitutes “immaterial” matter in the context of a motion to strike. “ ‘Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded, or a statement of unnecessary particulars in connection with and descriptive of that which is material.” 5C Wright & Miller, supra, § 1382 (footnotes omitted). Scandalous allegations are those that degrade a party’s moral character, contain repulsive language, or detract from the court’s dignity. See Sierra Club v. Tri-State Generation & Transmission Ass’n, Inc., 173 F.R.D. 275, 285 (D.Colo.1997)(Nottingham, J.).

“Only material included in a ‘pleading’ may be the subject of a motion to strike, and courts have been unwilling to construe the term broadly. ' Motions, briefs, ... memoranda, objections, or affidavits may not be attacked by the motion to strike.” Dubrovin v. Ball Corp. Consol. Welfare Ben. Plan for Emps., No. CIV 08-0563 WYD/KMT, 2009 WL 5210498, at *1 (D.Colo. Dec. 23, 2009)(Daniel, J.). Accord Ysais v. N.M. Judicial Standard Comm’n, 616 F.Supp.2d 1176, 1184 (D.N.M.2009)(Browning, J.) (“Generally ... motions, briefs, and memoranda may not be attacked by a motion to strike.”)(citing Searcy v. Soc. Sec. Admin., 956 F.2d 278, 1992 WL 43490, at *1, *4 (10th Cir.1992)(unpublished table decision)). “The Federal Rules of Civil Procedure define ‘pleadings’ as a complaint or third-party complaint; an answer to a complaint, a third-party complaint, a counterclaim, or a crossclaim; and, ‘if the court orders one, a reply to an answer.’ ” Ysais v. N.M. Judicial Standard Comm’n, 616 F.Supp.2d at 1184 (quoting Fed. R. Civ. P. 7(a)).

“Striking a pleading or part of a pleading is a drastic remedy and because a motion to strike may often be made as a dilatory tactic, motions to strike under Rule 12(f) generally are disfavored.” Estate of Gonzales v. AAA Life Ins. Co., 2012 WL 1684599, at *5 (quoting Sai Broken Arrow C, LLC v. Guardian Emergency Vehicles, Inc., No. CIV 09-0455 CVE/ FHM, 2010 WL 132414, at *5 (N.D.Okla. Jan. 8, 2010)(Egan, J.))(internal quotation marks omitted)). “The exception to this principle is that a Court may ‘choose to strike a filing that is not allowed by local rule, such as a surreply filed without leave of court.’ ” Ysais v. N.M. Judicial Standard Comm’n, 616 F.Supp.2d at 1184 (citing In re Hopkins, 162 F.3d 1173, 1998 WL 704710, at *3 n. 6 (10th Cir.1998)(un-published table decision)).

For example, in Skyline Potato, Co., Inc. v. Hi-Land Potato, Co., Inc., No. CIV 10-698, 2012 WL 6846386 (D.N.M. Dec. 31, 2012)(Browning, J.), the Court denied a motion to strike a letter filed with the Court, because the letter was not a pleading, and did not pertain to either party’s legal defenses or arguments — the letter expressed one party’s position on whether the Court should rule on summary judgment motions pending at the close of a bench trial. See 2012 WL 6846386, at *6. Similarly, in Great American Insurance Co. v. Crabtree, No. CIV 11-1129 JB/KBM, 2012 WL 3656500 (D.N.M. Aug. 23, 2012)(Browning, J.), the Court denied a plaintiffs motion to strike exhibits attached to the defendant’s motion to dismiss, because they were neither pleadings nor irrelevant. See 2012 WL 3656500, at *18. In Applied Capital, Inc. v. Gibson, the Court refused the plaintiffs request to strike a motion to dismiss because rule 12(f) applies only to pleadings and not to a motion to dismiss. See 2007 WL 5685131, at *18 (D.N.M.2007). In Estate of Anderson v. Denny’s, Inc., 291 F.R.D. 622 (D.N.M.2013) (Browning, J.), the Court denied the plaintiffs request to strike a notice of completion of briefing for similar reasons. See 291 F.R.D. at 635.

In Lane v. Page, 272 F.R.D. 581 (D.N.M.2011)(Browning, J.), the plaintiff filed a motion to strike parts of the defendants’ answer because it was “devoid of factual allegations and assert[ed] improper defenses.” 272 F.R.D. at 588. Specifically, the plaintiff argued that the defendants’ affirmative defenses should “put the plaintiff on notice of how the defense applies.” 272 F.R.D. at 588. The plaintiff therefore asked the Court not only to strike some of the defendants’ answers, but also to “require the Defendants to amend their answers.” 272 F.R.D. at 588. The defendants argued that rule 8 does “not require them to provide factual support for their affirmative defenses” and contended that their answers adequately responded to the plaintiffs complaint. 272 F.R.D. at 588. The Court “decline[d] to extend the heightened pleading standard the Supreme Court established in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), to affirmative defenses pled in answers, because the text of the rules, and the functional demands of claims and defenses, militate against requiring factual specificity in affirmative defenses.” 272 F.R.D. at 588.'

LAW REGARDING REMOVAL AND REMAND

If a civil action filed in state court satisfies the requirements for original federal jurisdiction — meaning, most commonly, federal-question or diversity jurisdiction— the defendant may invoke 28 U.S.C. § 1441(a) to remove the action to the federal district court “embracing the place where such action is pending.” 28 U.S.C. § 1441(a). See Huffman v. Saul Holdings LP, 194 F.3d 1072, 1076 (10th Cir.1999)(“When a plaintiff files in state court a civil action over which the federal district courts would have original jurisdiction based on diversity of citizenship, the defendant or defendants may remove the action to federal court .... ” (quoting Caterpillar Inc. v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996))). Under 28 U.S.C. § 1331, a federal district court possesses original subject-matter jurisdiction over a case “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.

■ 1. The Presumption Against Removal.

Federal courts are courts of limited jurisdiction; thus, there is a presumption against removal jurisdiction, which the defendant seeking removal must overcome. See Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.1995); Fajen v. Found. Reserve Ins, Co., 683 F.2d 331, 333 (10th Cir.1982); Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290 (10th Cir.2001); Bonadeo v. Lujan, No. CIV 08-0812 JB/ACT, 2009 WL 1324119, at *4 (D.N.M. Apr. 30, 2009)(Browning, J.)(“Removal statutes are strictly construed, and ambiguities should be resolved in favor of remand.”). The defendant seeking removal must establish that federal court jurisdiction is proper “by a preponderance of the evidence.” McPhail v. Deere & Co., 529 F.3d 947, 953 (10th Cir.2008). See 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.”). Because federal courts are courts of limited jurisdiction, the United States Court of Appeals for the Tenth Circuit has ruled that “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)(unpublished). On the other hand, this strict construction and presumption against removal should not be interpreted as hostility toward removal cases in the federal courts. See McEntire v. Kmart Corp., No. CIV 09-0567 JB/LAM, 2010 WL 553443, at *2 (D.N.M. Feb. 9, 2010)(Browning, J.)(citing Bonadeo v. Lujan, 2009 WL 1324119, at *12 (“Strict construction does not mean judicial hostility toward removal. Congress provided for removal, and courts should not create rules that are at tension with the statute’s language in the name of strict construction.”)).

2. Procedural Requirements for Removal.

Section 1446 of Title 28 of the United States Code governs the procedure for removal. “Because removal is entirely a statutory right, the relevant procedures to effect removal must be followed.” Thompson v. Intel Corp., No. CIV 12-0620 JB/LFG, 2012 WL 3860748, at *5 (D.N.M. Aug. 27, 2012)(Browning, J.). A removal that does not comply with the express statutory requirements is defective and must be remanded to state court. See Huffman v. Saul Holdings Ltd. P’Ship, 194 F.3d 1072, 1077 (10th Cir.1999). See also Chavez v. Kincaid, 15 F.Supp.2d 1118, 1119 (D.N.M.1998)(Campos, J.)(“The [rjight to remove a case that was originally in state court to federal court is purely statutory, not constitutional.”).

Section 1446(a) of Title 28 of the United State Code provides that a party seeking removal of a matter to federal court shall file a notice of removal in the district and division where the state action is pending, “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). Such notice of removal is proper if filed within thirty days from the date when the case qualifies for federal jurisdiction. See Caterpillar Inc. v. Lewis, 519 U.S. at 68-69, 117 S.Ct. 467; 28 U.S.C. § 1446(b). The Tenth Circuit has further elaborated that, for the thirty-day period to begin to run, “this court requires clear and unequivocal notice from the pleading' itself’ that federal jurisdiction is available. Akin v. Ashland Chem. Co., 156 F.3d 1030, 1036 (10th Cir.1998). The Tenth Circuit specifically disagrees with “cases from other jurisdictions which impose a duty to investigate and determine removability where the initial pleading indicates that the right to remove may exist.” Akin v. Ashland Chem. Co., 156 F.3d at 1036.

3. Amendment of the Notice of Removal.

In Caterpillar Inc. v. Lewis, the Supreme Court held that a defect in subject-matter jurisdiction cured before entry of judgment did not warrant reversal or remand to state court. See 519 U.S. at 70-78, 117 S.Ct. 467. Citing Caterpillar Inc. v. Lewis, the Tenth Circuit has held that “a defect in removal procedure, standing alone, is not sufficient to warrant vacating judgment and remand to state court if subject matter jurisdiction existed in the federal court.” Browning v. Am. Family Mut. Ins. Co., 396 Fed.Appx. 496, 505-06 (10th Cir.2010)(unpublished). In McMahon v. Bunn-O-Matic Corp., 150 F.3d 651 (7th Cir.1998)(Easterbrook, J.), the United States Court of Appeals for the Seventh Circuit noticed, on appeal, defects in the notice of removal, including that the notice failed to properly allege diversity of citizenship. See 150 F.3d at 653 (“As it happens, no one paid attention to subject-matter jurisdiction_”). The Seventh Circuit nonetheless permitted the defective notice of removal to be amended on appeal to properly establish subject-matter jurisdiction. See 150 F.3d at 653-54.

The Tenth Circuit has allowed defendants to remedy defects in their petition or notice of removal. See Jenkins v. MTGLQ Investors, 218 Fed.Appx. 719, 723 (10th Cir.2007)(unpublished)(granting unopposed motion to amend notice of removal to properly allege jurisdictional facts); Watkins v. Terminix Int’l Co., Nos. CIV 96-3053, 96-3078, 1997 WL 34676226, at *2 (10th Cir. May 22, 1997)(per euriam)(unpub-lished)(reminding the defendant that, on remand, it should move to amend the notice of removal to properly allege jurisdictional facts); Lopez v. Denver & Rio Grande W. R.R. Co., 277 F.2d 830, 832 (10th Cir.1960)(“Appellee’s motion to amend its petition for removal to supply sufficient allegations of citizenship and principal place of business existing at the time of commencement of this action is hereby granted, and diversity jurisdiction is therefore present.”). The Tenth Circuit has further reasoned that disallowing amendments to the notice of removal, even after the thirty-day removal window had expired, when the defendant made simple errors in its jurisdictional allegations, “would be too grudging with reference to the controlling statute, too prone to equate imperfect allegations of jurisdiction with the total absence of jurisdictional foundations, and would tend unduly to exalt form over substance and legal flaw-picking over the orderly disposition of cases properly committed to federal courts.” Hendrix v. New Amsterdam Cas. Co., 390 F.2d 299, 301 (10th Cir.1968). The Tenth Circuit has noted that a simple error in a jurisdictional allegation includes failing to identify a corporation’s principal place of business or referring to an individual’s state of residence rather than citizenship. See Hendrix v. New Amsterdam Cas. Co., 390 F.2d at 301. In McEntire v. Kmart Corp., when faced with insufficient allegations in the notice of removal — allegations of “residence” not “citizenship” — the Court granted the defendants leave to amend their notice of removal to cure the errors in some of the “formalistic technical requirements.” 2010 WL 553443, at *8 (citing Hendrix v. New Amsterdam Cas. Co., 390 F.2d 299, 300-02 (10th Cir.1968)). Further, in Thompson v. Intel Corp., the Court permitted the defendant, Intel Corp., to amend its notice of removal to include missing jurisdictional elements, including evidence that its principal place of business and corporate headquarters — the center of Intel Corp.’s direction, control, and coordination of activities — is out of state, so that the diversity requirements were met. See 2012 WL 3860748, at *1.

There are limits to the defects that that an amended notice of removal may cure, however, as Professors Charles Alan Wright and Arthur R. Miller explain:

[A]n amendment of the removal notice may seek to accomplish any of several objectives: It may correct an imperfect statement of citizenship, state the previously articulated grounds more fully, or clarify the jurisdictional amount. In most circumstances, however, defendants may not add completely new grounds for removal or furnish missing allegations, even if the court rejects the first-proffered basis of removal, and the court will not, on its own motion, retain jurisdiction on the basis of a ground that is present but that defendants have not relied upon.

14C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3733 (4th ed.2015)(footnotes omitted). Professor Moore has similarly recognized: “[Ajmendment may be permitted after the 30-day period if the amendment corrects defective allegations of jurisdiction, but not to add a new basis for removal jurisdiction.” 16 J. Moore, D. Coquillette, G. Joseph, S. Schreiber, G. Varo, & C. Varner, Moore’s Federal Practice § 107.30[2][a][iv], at 107-317 to -18 (3d ed.2013). Thus, where diversity jurisdiction is asserted as a basis for removal of an action to federal court, the district court may permit the removing defendant to amend its removal notice, if necessary, to fully allege facts which satisfy the requirements of diversity jurisdiction by a preponderance of the evidence.

4. Consideration of Post-Removal Evidence.

As the Court explained in Thompson v. Intel Corp., the Tenth Circuit looks to evidence submitted in and after the complaint in determining whether the criteria necessary for removal are met. See Thompson v. Intel Corp., 2012 WL 3860748, at *8 (citing McPhail v. Deere & Co., 529 F.3d at 956). The Tenth Circuit explained in McPhail v. Deere & Co. that a district court may consider evidence presented to it after a notice of removal has been filed, even if produced at a hearing on subject-matter jurisdiction, to determine if the jurisdictional requirements are met. See 529 F.3d at 593. “[B]eyond the complaint itself, other documentation can provide the basis for determining the amount in controversy — either interrogatories obtained in state court before removal was filed, or affidavits or other evidence submitted in federal court afterward.” McPhail v. Deere & Co., 529 F.3d at 593 (citing Meridian Secs. Ins. Co. v. Sadowski 441 F.3d 536, 541-42 (7th Cir.2006)(Easterbrook, J.), and Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.2002)). As the Court has explained, “the Seventh Circuit, on which the Tenth Circuit has heavily relied when addressing the amount in controversy, has recognized that ‘events subsequent to removal may clarify what the plaintiff was actually seeking when the case was removed.’ ” Aranda v. Foamex Int’l, 884 F.Supp.2d 1186, 1208 (D.N.M.2012)(Browning, J.)quoting Carroll v. Stryker Corp., 658 F.3d 675, 681 (7th Cir.2011)). Thus, when determining if the requirements for federal jurisdiction are met in a matter removed from state court, a district court may consider relevant evidence submitted after removal. See Thompson v. Intel Corp., 2012 WL 3860748, at *14 (“[I]t is appropriate to consider post-removal evidence to determine whether subject-matter jurisdiction exists.”).

5. Consent to Removal.

“When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A). The last-served rule provides that each defendant has a right to remove within thirty days of service. See 28 U.S.C. § 1446(b)(2)(B). Remand is required if all of the defendants fail to consent to the petition for removal within the thirty-day period. See Bonadeo v. Lujan, 2009 WL 1324119, at *6. “The failure of one defendant to join in the notice renders the removal notice procedurally defective, which requires that the district court remand the case.” Brady v. Lovelace Health Plan, 504 F.Supp.2d 1170, 1172-73 (D.N.M. 2007)(Smith, J.)(citing Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir.1981)).

Courts generally refer to the requirement that all defendants served at the time of filing must join in the notice of removal as the “unanimity rule.” McShares, Inc. v. Barry, 979 F.Supp. 1338, 1342 (D.Kan.1997) (citations omitted). The unanimity requirement, however, is excused under two circumstances: “First, a nominal or formal party is not required to join in the petition for removal. Second, a defendant who has not yet been served with process is not required to join.” Brady v. Lovelace Health Plan, 504 F.Supp.2d at 1173.

The Tenth Circuit has held that a defendant’s consent to removal was not necessary where he had not been served at the time another defendant filed its notice of removal. See Sheldon v. Khanal, 502 Fed. Appx. 765 (10th Cir.2012)(unpublished). In Sheldon v. Khanal, the plaintiff argued that the case should be remanded to state court, because one of the defendants did not join the notice of removal. See 502 Fed.Appx. at 770. The Honorable Harris L. Hartz, United States Circuit Judge for the Tenth Circuit, stated: “We reject the argument as contrary to the clear statutory language requiring only served defendants to consent to removal.” Sheldon v. Khanal, 502 Fed.Appx. at 770.

The Court has stated: “[W]hile the federal courts strictly construe the removal statutes and there is ¿ presumption against removal, the Court should not use these rules of construction to manufacture rules that Congress did not require, that are not necessary to enforce the statutes, and are contrary to normal federal practice.” Roybal v. City of Albuquerque, No. CIV 08-0181 JB/GBW, 2008 WL 5991063, at *8 (D.N.M. Sept. 24, 2008)(Browning, J.). “Strict construction and resolving doubts against removal does not mean the courts should be hostile to the Congres-sionally created right to removal, creating procedural hurdles that Congress did not create and that provide pitfalls for all but the most experienced federal court litigants.” fresco, Inc. v. Cont’l Cas. Co., 727 F.Supp.2d 1243, 1255 (D.N.M.2010)(Browning, J.).

In Tresco, Inc. v. Cont’l Cas. Co., the plaintiff filed suit against defendants National Union Fire Insurance Company of Pittsburgh, Pennsylvania (“National Union”), and Continental Casualty Company (“CNA”). See 727 F.Supp.2d at 1245. National Union filed a Notice of Removal with the federal court within thirty days of when it was served. See 727 F.Supp.2d at 1245. Its Notice of Removal stated that National Union obtained CNA’s consent to removal. See 727 F.Supp.2d at 1245. Thus, National Union obtained unanimity. See 727 F.Supp.2d at 1245. The plaintiff moved the Court to remand, arguing that CNA did not indicate its consent by signing the notice of removal or by filing a separate document indicating consent within thirty days of the date that defendant was served. See 727 F.Supp.2d at 1245. The Court denied the motion to remand, holding that neither the statute nor the Tenth Circuit requires a separate signature or signed document to indicate consent. See 727 F.Supp.2d at 1245. The Court concluded that not requiring each defendant to either sign the removal petition or independently submit a notice of consent in writing did not run counter to the principle that removal statutes be strictly construed, with all doubts resolved against removal, because the statute is not ambiguous, but silent. See 727 F.Supp.2d at 1255. The statute does not require the rule that the plaintiff requested. See 727 F.Supp.2d at 1255. The Court concluded that, strictly construing the statute, with no Tenth Circuit law to the contrary, a notice of removal can be effective without individual consent documents from each defendant. See 727 F.Supp.2d at 1255. The Court recognized that federal courts often rely on representations of counsel without requiring separate signed documents and concluded that those representations are sufficient in the removal consent context:

“[Fjederal courts often rely on the representations of counsel about other parties .... [P]arties frequently submit unopposed motions, stating that the other parties do not oppose. Rarely is there any problem, and if there is, a federal court has an abundant reservoir of powers to remedy misrepresentations.” Representations by counsel, signed under rule 11, are sufficient to deal with the primary concern animating the judicial creation of restrictions on removal.

727 F.Supp.2d at 1250 (quoting Roybal v. City of Albuquerque, 2008 WL 5991063, at *8).

6. Cross-Claim Removal.

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

Although Shamrock Oil [ & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941) ] is not dispositive of the precise issue before us, it does dictate that the phrase “the defendant or the defendants,” as used in § 1441(a), be interpreted narrowly, to refer to defendants in the traditional sense of parties against whom the plaintiff asserts claims. This interpretation of “the defendant or the defendants” is bolstered by the use of more expansive terms in other removal statutes. Title 28 grants removal power in bankruptcy cases to any “party,” see 28 U.S.C. § 1452(a), a broader grant of power that courts have interpreted to extend to third-party defendants. See Thomas B. Bennett, Removal, Remand, and Abstention Related to Bankruptcies: Yet Another Litigation Quagmire!, 27 Curnb. L.Rev. 1037, 1052-53 (1996-1997)(summarizing bankruptcy cases allowing third-party removal). Title 28 also allows removal by any “foreign state” against which an action is brought in state court, see 28 U.S.C. § 1441(d), and courts have interpreted that grant to include foreign states that are third-party defendants. See Jonathan Remy Nash, Pendent Party Jurisdiction Under the Foreign Sovereign Immunities Act, 16 B.U. Int’l L.J. 71, 107 & n.184 (1998)(sum-marizing cases). By contrast, § 1441 (a)’s grant of removal power is much more limited, instilling a right of removal only in the defendant or the defendants. See, e.g., Johnston [w. St. Paul Fire and Marine Ins. Co.], 134 F.Supp.2d [879] at 880 [ (E.D.Mich.2001) ] (noting that the terms “defendant” and “third-party defendant” “typically are understood as referring to distinct parties”); Knight v. Hellenic Lines, Ltd., 543 F.Supp. 915, 917 (E.D.N.Y.1982)(eoncluding that third-party defendant is not a “defendant” as that term is used in § 1441(a)); Friddle v. Hardee’s Food Sys., Inc., 534 F.Supp. 148, 149 (W.D.Ark.1981)(“We hold that 1441(a) limits the right to remove to defendants and does not give a right of removal to third-party defendants.”). Thus, construing the removal statute narrowly, we conclude that [cross-defendants] do not have a statutory right of removal pursuant to § 1441(a).

First Nat. Bank of Pulaski v. Curry, 301 F.3d 456, 462-63 (6th Cir.2002). “A counterdefendant is not a defendant joined in the original action and therefore not a party that can remove a state action to federal court.” Palisades Collections LLC v. Shorts, 552 F.3d 327, 333 (4th Cir.2008)(quoting Dartmouth Plan, Inc. v. Delgado, 736 F.Supp. 1489, 1492 (N.D.Ill.1990)(Hart, J.)).

Moreover, the Supreme Court’s reasoning in Shamrock Oil & Gas Corp. v. Sheets that Congress narrowed the statute to include only “defendants” — and not cross-defendants — supports finding that cross-defendants generally are not defendants under 28 U.S.C. § 1441(a). See 313 U.S. at 108, 61 S.Ct. 868. The removal statutes “call[ ] for ... strict construction.” 313 U.S. at 108, 61 S.Ct. 868. “Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confíne their own jurisdiction to the precise limits which the statute has defined.” 313 U.S. at 108, 61 S.Ct. 868 (quoting Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 78 L.Ed. 1248 (1934))(other citations and internal quotation marks omitted)). Allowing removal would expand jurisdiction of federal courts in contravention of the strictly construed statutory limits on the right to removal.

Congress has shown the ability to clearly extend the reach of removal statutes to include counter-defendants, cross-claim defendants, or third-party defendants, see 28 U.S.C. § 1452(a) (West 2006) (“A party may remove any claim or cause of action ... [related to bankruptcy cases].” (emphasis added)). In crafting § 1441(a), however, Congress made the choice to refer only to “the defendant or the defendants,” a choice we must respect.

Palisades Collections LLC v. Shorts, 552 F.3d at 333-34. The Court thus concludes that, under Shamrock Oil & Gas Corp. v. Sheets, cross-defendants generally are not “[a] defendant or defendants” within the meaning of 28 U.S.C. § 1441(a).

7. Costs and Expenses.

28 U.S.C. § 1447(c) allows the court to “require payment of just costs and actual expenses including attorney’s fees, incurred as a result of the removal.” The plaintiff need not show that the Defendants acted in bad faith to win attorney’s fees. See Topeka Hous. Auth. v. Johnson, 404 F.3d 1245, 1248 (10th Cir.2005). It is necessary only to show that the removal was improper ab initio. See Suder v. Blue Circle, Inc., 116 F.3d 1351, 1352 (10th Cir.1997).

The Court awarded costs and expenses under 28 U.S.C. § 1447(c) in New Mexico ex rel. Balderas v. Valley Meat Co., LLC, No. CIV 14-1100 JB/KBM, 2015 WL 3544288 (D.N.M. May 20, 2015)(Browning, J.), a dispute over horse slaughter for human consumption. See 2015 WL 3544288, *27. In that case, D’Allende Meats, LLC attempted to remove the case despite its non-defendant status, failed to obtain affirmative consent from any defendants, cited civil-rights jurisdiction as a basis for removal, and changed its position at the hearing to rest on frivolous field preemption and dormant Commerce Clause arguments. See 2015 WL 3544288, at *26. The Court concluded that its actions were objectively unreasonable: “Failure on any one of these bases would, on its own, justify remand. Whiffing on all four warrants the imposition of costs and fees.” 2015 WL 3544288, at *27. The Court later confirmed its initial ruling on D’Allende Meats, LLC’s motion for reconsideration. See New Mexico v. Valley Meat Co., LLC, No. CV 14-1100 JB/KBM, 2015 WL 9703255, at *16 (D.N.M. Dec. 14, 2015)(Browning, J.).

In Mach v. Triple D Supply, LLC, 773 F.Supp.2d 1018 (D.N.M.2011)(Browning, J.), on the other hand, the Court denied the plaintiffs’ request for costs and expenses. See 773 F.Supp.2d at 1053. The third-party defendant argued that it could remove the cross-claims because they were a separate civil action under 28 U.S.C. § 1441(a). See 773 F.Supp.2d at 1040. Although the Court rejected this argument and remanded the cross-claims, it acknowledged that: (i) it had recognized separate civil actions within a single case in another recent opinion; and (ii) that “there is some authority that parties other than traditional defendants can remove.” 773 F.Supp.2d at 1053. It thus concluded that the third-party defendant “was wrong on some arguments, but that it did not lack an objectively reasonable basis for its arguments.” 773 F.Supp.2d at 1053.

LAW REGARDING FILING RESTRICTIONS

“The right of access to the courts is neither absolute nor unconditional.” Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir.1989). “Federal courts have the inherent power under 28 U.S.C. § 1651(a) to regulate activities of abusive litigants by imposing carefully tailored restrictions if circumstances warrant.” Keyter v. 535 Members the 110th Congr., 277 Fed.Appx. 825 (10th Cir.2008)(citing Winslow v. Hunter, 17 F.3d 314, 315 (10th Cir.1994)). Restrictions are appropriate where “where (1) the litigant’s lengthy and abusive history is set forth; (2) the court provides guidelines as to what the litigant may do to obtain its permission to file an action; and (3) the litigant receives notice and an opportunity to oppose the court’s order before it is implemented.” Keyter v. 535 Members of 110th Cong., 277 Fed.Appx. at 827. See Tripati v. Beaman, 878 F.2d 351, 354 (10th Cir.1989)(“[I]njunctions are proper where the litigant’s abusive and lengthy history is properly set forth.”). An injunction without limitations, however, impermissibly leaves permission to file “completely to the whim of the court.” Tripati v. Beaman, 878 F.2d at 354. See Landrith v. Schmidt, 732 F.3d 1171, 1175 (10th Cir.2013); McMurray v. McCelmoore, 445 Fed.Appx. 43, 46 (10th Cir.2011); French v. Am. Airlines, Inc., 427 Fed.Appx. 666, 668 (10th Cir.2011); Judd v. Univ. of New Mexico, 149 F.3d 1190 (10th Cir.1998); United States v. Kettler, 934 F.2d 326 (10th Cir.1991).

The Court applied these principles in Clark v. Meijer, Inc., 376 F.Supp.2d 1077 (D.N.M.2004)(Browning, J.). In that case, pro se plaintiffs filed a series of five similar complaints in both state and federal courts against a grocery store chain. See 376 F.Supp.2d at 1080. Despite a decision dismissing their claims for lack of personal jurisdiction by the Honorable James A. Parker, Senior United States District Judge for the District of New Mexico, the plaintiffs re-filed the same claims in the same district roughly one year later. See 376 F.Supp.2d at 1086. The Court noted that the plaintiffs’ allegations appeared to be “an attempt to harass the Meijer Defendants and to cause a needless increase in the cost of litigation for a matter that other courts have already adjudicated, in whole or part, on five previous occasions.” 376 F.Supp.2d at 1086. The Court entered an order “preventing the Clarks from filing any legal proceedings .., against any named Meijer Defendant unless a licensed attorney admitted to practice before this Court signs the pleading or they first obtain permission to proceed pro se.” 376 F.Supp.2d at 1087. Specifically, it required the following process:

To obtain permission to proceed pro se against the Meijer Defendants named herein, the Clarks must take the following steps:

1. File a petition with the Clerk of the Court requesting leave to file a pro se original proceeding against the Meijer Defendants.

2. File with the Clerk a notarized affidavit, in proper legal form, which recites the issues they seek to present, including a short discussion of the legal right asserted and why the Court has personal jurisdiction over the Meijer Defendants. The affidavit must certify, to the best of the Clarks’ knowledge, that the legal arguments being raised are not frivolous or made in bad faith, that they are warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, that the new suit is not interposed for any improper purpose such as delay or to needlessly increase the cost of litigation, and that they will comply with all Federal and local rules of this Court. The affidavit must certify why the proposed new suit does not present the same issues decided twice by the Court and why another suit against the Meijer Defendants would not be an abuse of the system.

The Clarks shall submit these documents to the Clerk of the Court, who shall forward them to the Honorable Lorenzo F. Garcia, Chief United States Magistrate Judge, for review to determine whether to permit a pro se original proceeding. Without Judge G