Zia Land and Water Conservation, LLC v. Rover Operating, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ZIA 	LAND 	AND 	WATER
CONSERVATION, LLC.,
Plaintiff,
v.
Case No. 1:26-cv-00732-MIS-KK
ROVER OPERATING, LLC.,
Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO REMAND
This matter is before the Court on Plaintiff Zia Land and Water Conservation, LLC’s
(“Plaintiff”) Motion to Remand (“Motion”) filed on March 24, 2026. ECF No. 5. Defendant Rover
Operating, LLC (“Defendant”) filed an untimely Response on April 10, 2026. ECF No. 12. Upon
review of the Parties’ submissions, the record, and the relevant law, the Court will grant Plaintiff’s
motion.
Plaintiff filed suit against Defendant in the First Judicial District Court of New Mexico on
November 10, 2025. Notice of Removal, Ex. 1 at 1-8, ECF No. 1-1. The First Judicial District
issued Summons on December 1, 2025. Id. at 9. Plaintiff served Defendant on January 29, 2026,
by delivery of the Summons and Complaint to an authorized representative of Defendant. Mot.,
Ex. A at 5, ECF No. 5-1. Defendant’s counsel entered appearance with the First Judicial District
Court on February 11, 2026. Notice of Removal, Ex. 1 at 12, ECF No. 1-1. Defendant filed a
Notice of Removal with the Federal District Court of New Mexico on March 10, 2026. Notice of
Removal, ECF No. 1.
Plaintiff argues that removal was untimely because 28 U.S.C. § 1446(b)(1) requires a
notice of removal be filed within thirty (30) days of the date of service of process and Defendant
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failed to do so. Mot. at 2, ECF No. 5. Defendant was served on January, 29, 2026, Mot., Ex. A at
5, ECF No. 5-1, and filed a Notice of Removal on March 10, 2026, Notice of Removal, ECF No.
1, forty (40) days after service.
Defendant was required to respond to Plaintiff’s Motion within fourteen (14) calendar days,
D.N.M.LR-Civ.7.4(a), but filed their Response twenty-one (21) days after Plaintiff filed their
Motion, Mot., ECF No. 5; Resp., ECF No. 12. Defendants did not file an extension. In their
untimely Response, Defendant argues that the clock for removal started at the time of “counsel’s
entry of appearance,” not the date of service, because Plaintiff did not file “a return of service in
the state court” and “the state court file reflected that there was no service prior to counsel’s entry
of appearance.” Resp. ¶ 4, ECF No. 12. Defendant’s counsel entered his appearance on February
11, 2026, id., and Defendant filed the Notice of Removal twenty-seven (27) days later, on March
10, 2026, Notice of Removal, ECF No. 1. Defendant cites nothing in support but asserts this
complies with § 1446(b)(1). Id. Defendant is incorrect.
The plain language of § 1446(b)(1) states:
The notice of removal of a civil action or proceeding shall be filed within 30 days
after the receipt by the defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon which such action or
proceeding is based, or within 30 days after the service of summons upon the
defendant if such initial pleading has then been filed in court and is not required to
be served on the defendant, whichever period is shorter.
Section 1446(b)(1) has no requirement that Plaintiff file a notice of service with the state court.
The only requirement is that Defendant has 30 days to file removal once they are notified, either
via service, service of summons, or otherwise. § 1446(b)(1). In considering the timeline for
removal, no weight is given “‘to the knowledge, presumptions, or constructive or actual notice of
either party in relation to the triggering of the removal period.’” Paschall v. Frietz, 461 F. Supp.
3d 1145, 1150 (D.N.M. 2020) (citation omitted); see also Murphy Bros. v. Michetti Pipe Stringing,
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Inc., 526 U.S. 344, 354 (1999) (listing the four possibilities triggering the thirty (30) day clock for
filing a notice of removal). Once service is complete, the thirty (30) day removal period begins.
Paschall, 461 F. Supp. 3d at 1150-51.
Here, Plaintiff served Defendant on January 29, 2026. Mot., Ex. A at 5, ECF No. 5-1.
Defendant’s clock started on January 29, 2026. Mot., Ex. A at 5, ECF No. 5-1; § 1446(b)(1).
Defendant failed to file a Notice of Removal until forty (40) days later, Notice of Removal, ECF
No. 1, making it ineffective under § 1446(b)(1).
After considering the Parties’ arguments, the record, and relevant law, for the foregoing
reasons Plaintiff Zia Land and Water Conservation, LLC’s Motion to Remand, ECF No. 5, is
GRANTED consistent with this Order. Defendant’s Motion for Extension of Time to File Show
Cause, ECF No. 4, and Defendant’s Amended Motion to Amend/Correct Notice of Removal,
ECF No. 13, are DENIED as moot.
IT IS ORDERED this matter be REMANDED to the First Judicial District Court of Santa
Fe County, New Mexico.
IT IS FURTHER ORDERED the Clerk of the Court SHALL mail to the clerk of the First
Judicial District Court of Santa Fe County, New Mexico, a certified copy of this order of remand
pursuant to 28 U.S.C. § 1447(c).
………………………………………….
MARGARET STRICKLAND
UNITED STATES DISTRICT JUDGE
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