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(D. N.M.)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. -2- ORDER AND JUDGMENT *

Before HENRY, McKAY , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, th is 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). T he case is therefore ordered submitted without oral argument. Plaintiffs/appellants Ana and David Washburn, appea ring pro se, appeal from an order denying their motion for remand of th eir case to state court. Our jurisdiction arises under 28 U.S.C. § 1291. Becaus e 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 affi rm. 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-3-

towed it away from an accident site. Defendants ti mely removed the case to federal court where, after giving the Washburns sev eral 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 r ulings in its final order dismissing without prejudice their claims against d efendants Beltran, Santa Fe Tow, and MVD Specialists, and dismissing with preju dice their claims against the State of New Mexico and Doug Wood. Rather, they ch allenge only the district court’s order denying their request to remand the c ase to state court.
II. We must first address the State’s surprising and er roneous assertion that we must dismiss this appeal because “[m]otions to rema nd for defects in removal procedure generally are not reviewable on appeal orotherwise under 28 U.S.C. § 1447(d),” and its reliance for such a statement o n Caterpillar Inc. v. Lewis , 519 U.S. 61, 76 (1996). Aple. Br. at 7. Section 1 447(d) provides, An order remanding a case to the State court from w hich it was removed is not reviewable on appeal or otherwise, e xcept that an order remanding a case to the State court from whic h it was removed pursuant to section 1443 of this title shall be rev iewable by appeal or otherwise. The section expressly prohibits review only of orde rs 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 revie w 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 filin g 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 remov al. It is not necessary to physically pay the fee before filing the document i n order to comply with the rules. -4- As mentioned above, the order we are asked to revie w 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 districtcourt erred in refusing to remand their suit to state court because the defendants al legedly failed “to prepay filing fee to duly file ‘notice of removal.’” Aplt. Br. at3. 1 Second, without specifically stating what procedural defects allegedly exist, th ey claim that remand was mandatory because the defendants did not “comply wi th removal procedure.” Id. Third, they assert that the district court’s failur e to convene an evidentiary hearing to ascertain compliance with the removal pr ocedures 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 dis trict court to remand the case to state court solely for a determination of damage s against defendants. See id.-5-

“Because removal is an issue of statutory construct ion, we review a district court’s determination of the propriety of removal d e novo.” Huffman v. Saul Holdings Ltd. P’ship , 194 F.3d 1072, 1076 (10th Cir. 1999) (quotation m arks omitted). The district court denied the motion to remand after determining that the Washburns’ motion was based solely on alleged p rocedural defects. The court held that these alleged defects were statutorily wa ived because the motion had not been made within thirty days of removal. R. Doc. 5 2 at 5. The federal removal statutes require that “[a] motion to remand the cas e on the basis of any defect other than lack of subject matter jurisdiction mustbe 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, howev er, does not involve the subject matter jurisdiction of the court and may be waived. ”). Citing document nine of the record, the Washburns a ssert 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. O ur 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 motio n that the proper name of one defendant was the “New Mexico Motor Vehicle Divisio n,” but identified the same-6-

defendant as the “New Mexico Motor Vehicle Dept.” i n the notice of removal, see id. at 2. In their motion for remand, in contrast, the Washbu rns complained of the following alleged procedural defects: (1) the forme r counsel for Doug Woods had not been served with a copy of the notice of remova l; (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 Washb urns 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, t he district court did not err in failing to hold an evidentiary hearing. We deny the Washburn’s request for sanctions agains t counsel for defendants. The judgment of the district court is AFFIRMED.-7- Entered for the Court

Monroe G. McKay Circuit Judge