F I L E D

United States Court of Appeals

Tenth Circuit

January 24, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ANA WASHBURN; DAVID

WASHBURN,

Plaintiffs-Appellants,

 v.

SANTA FE TOW; DOUG WOOD,

individually and as Special Agent for

the State of New Mexico; NEW

MEXICO MOTOR VEHICLE

DEPARTMENT; STATE OF NEW

MEXICO,

Defendants-Appellees,

ARMANDO BELTRAN, doing

business as Santa Fe Tow, a sole

proprietorship,

Defendant-Cross-ClaimantAppellee,

 v.

MVD SPECIALISTS, INC.,

individually and as agent for the

State of New Mexico,

Defendant-Cross-DefendantAppellee.

No. 05-2074

(D.C. No. CIV-04-807-MCA/RHS)

(D. N.M.)
* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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ORDER AND JUDGMENT*

Before HENRY, McKAY, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Plaintiffs/appellants Ana and David Washburn, appearing pro se, appeal

from an order denying their motion for remand of their case to state court. Our

jurisdiction arises under 28 U.S.C. § 1291. Because we conclude that the district

court did not err in refusing to grant an untimely motion for remand that was

based solely on alleged procedural defects, we affirm.

I.

The Washburns originally brought suit in state court for state-law claims

and for violation of their constitutional rights. They alleged that defendants

Armando Beltran, Santa Fe Tow, and MVD Specialists, Inc. conspired to “wash”

the title to, and illegally sold, their motorcycle after Beltran and Santa Fe Tow
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towed it away from an accident site. Defendants timely removed the case to

federal court where, after giving the Washburns several extensions of time in

which to amend their complaint, the district court dismissed the entire case. The

Washburns do not appeal from the district court’s rulings in its final order

dismissing without prejudice their claims against defendants Beltran, Santa Fe

Tow, and MVD Specialists, and dismissing with prejudice their claims against the

State of New Mexico and Doug Wood. Rather, they challenge only the district

court’s order denying their request to remand the case to state court.

II.

We must first address the State’s surprising and erroneous assertion that we

must dismiss this appeal because “[m]otions to remand for defects in removal

procedure generally are not reviewable on appeal or otherwise under 28 U.S.C. 

§ 1447(d),” and its reliance for such a statement on Caterpillar Inc. v. Lewis,

519 U.S. 61, 76 (1996). Aple. Br. at 7. Section 1447(d) provides,

An order remanding a case to the State court from which it was

removed is not reviewable on appeal or otherwise, except that an

order remanding a case to the State court from which it was removed

pursuant to section 1443 of this title shall be reviewable by appeal or

otherwise.

The section expressly prohibits review only of orders remanding a case to state

court that do not involve civil rights actions. See Caterpillar Inc., 519 U.S. at 76. 

“Congress did not similarly exclude appellate review of refusals to remand.” Id.
1 The Washburns point out that the notice of removal was file-stamped at

3:18 p.m. on July 16, and the receipt for the filing fee is dated July 16 at 3:59

p.m. This evidence conclusively demonstrates that defendants properly paid the

fees concurrently with filing their notice of removal. It is not necessary to

physically pay the fee before filing the document in order to comply with the

rules.

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As mentioned above, the order we are asked to review is not one remanding this

civil rights case to state court; the district court denied the motion to remand. We

therefore deny the State’s request to dismiss the appeal.

III.

Reading the Washburns’ appeal brief liberally, it appears that they raise

three issues. First, they assert that the district court erred in refusing to remand

their suit to state court because the defendants allegedly failed “to prepay filing

fee to duly file ‘notice of removal.’” Aplt. Br. at 3.1

 Second, without specifically

stating what procedural defects allegedly exist, they claim that remand was

mandatory because the defendants did not “comply with removal procedure.” Id.

Third, they assert that the district court’s failure to convene an evidentiary

hearing to ascertain compliance with the removal procedures violated their

“substantial rights and prejudiced [their] case.” Id. at 4. They give no details

explaining how or why their case was prejudiced by this failure, however. As a

remedy, the Washburns request that we order the district court to remand the case

to state court solely for a determination of damages against defendants. See id. 
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“Because removal is an issue of statutory construction, we review a district

court’s determination of the propriety of removal de novo.” Huffman v. Saul

Holdings Ltd. P’ship, 194 F.3d 1072, 1076 (10th Cir. 1999) (quotation marks

omitted). The district court denied the motion to remand after determining that

the Washburns’ motion was based solely on alleged procedural defects. The court

held that these alleged defects were statutorily waived because the motion had not

been made within thirty days of removal. R. Doc. 52 at 5. The federal removal

statutes require that “[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.” 28 U.S.C. § 1447(c); see Huffman, 194 F.3d

at 1077 (noting that, “[a] procedural defect, however, does not involve the subject

matter jurisdiction of the court and may be waived.”). 

Citing document nine of the record, the Washburns assert that they did not

waive their right to remand because they raised the procedural defects in a filing

made within thirty days of the notice of remand. Our review of document nine,

however, reveals that the Washburns complained only that defendant Wood

appeared to be represented by two counsel of record, R. Doc. 9 at 1-2; and that

counsel for one of the defendants stated in a motion that the proper name of one

defendant was the “New Mexico Motor Vehicle Division,” but identified the same
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defendant as the “New Mexico Motor Vehicle Dept.” in the notice of removal, see

id. at 2. 

In their motion for remand, in contrast, the Washburns complained of the

following alleged procedural defects: (1) the former counsel for Doug Woods had

not been served with a copy of the notice of removal; (2) the wrong state-court

case number was included on a page of the filing; (3) a certificate of service may

be erroneous; (4) they had received a “nearly illegible copy” of the notice of

removal, R. Doc. 30 at 2; (5) defendants had failed to include a summons served

on defendants MVD Specialists in their filing; (6) a state-court document

endorsement may have been altered or tampered with; and (7) there was no

“raised seal of the State Court” on the submission of the state-court record, id. at

3. We agree with the district court that the Washburns waived the alleged

procedural defects and conclude that the court did not err in denying the motion

to remand for failure to timely file the motion.

We further conclude that, because plaintiffs waived any alleged procedural

defects by not timely filing a motion for remand, the district court did not err in

failing to hold an evidentiary hearing.

We deny the Washburn’s request for sanctions against counsel for

defendants. 

The judgment of the district court is AFFIRMED.
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Entered for the Court

Monroe G. McKay

Circuit Judge