Barr v. Jefferson County Barber Commision, The et al
MEMORANDUM OPINION AND ORDER DENYING 7 MOTION to Remand. In accordance with the Order entered on October 3, 2016 (doc. 12), any opposition to the Motion To Dismiss (doc. 4) should be filed within ten (10) days of the date of this Order. Any reply should be filed no later than seven (7) days after the date on which the opponent's responsive brief is due. Signed by Judge Virginia Emerson Hopkins on 11/18/2016. (JLC)
2016 Nov-18 PM 04:18
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
THE JEFFERSON COUNTY
FLORENCE JOHNSON, TRINA
PAULDING, THE CITY OF
CENTER POINT, THOMAS
HENDERSON, and JOHN
) Case No.: 2:16-CV-1340-VEH
MEMORANDUM OPINION AND ORDER
This case was originally filed on or about July 18, 2016, in the Circuit Court
of Jefferson County by Plaintiff Geta Barr (“Ms. Barr”). (Doc. 1-1). Defendants
Thomas Henderson (“Mr. Henderson”) and the City of Center Point (“Center
Point”) removed this case to federal court on August 17, 2016. (Doc. 1). The case
was reassigned to the undersigned on November 14, 2016. (Doc. 13).
Currently pending before this court are Defendants Jefferson County Barber
Commission (the “JCBC”), Florence Johnson (“Ms. Johnson”), and Trina
Paulding (“Ms. Paulding”)’s Motion To Dismiss, filed on September 26, 2016
(doc. 4), and Ms. Barr’s Motion To Remand (doc. 7), filed on September 27, 2016.
On September 30, 2016, Mr. Henderson and Center Point filed a Response (doc. 9)
to the Motion To Remand (doc. 7), and the remand motion is now under
submission. For the following reasons, the Motion To Remand is due to be
STANDARD FOR REMAND
“Federal courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co.
of America, 511 U.S. 375, 377 (1994). For removal to be proper, the court must
have subject-matter jurisdiction in the case:
Except as otherwise expressly provided by Act of Congress, any civil
action brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of the United States
for the district and division embracing the place where such action is
28 U.S.C. § 1441(a). “Only state-court actions that originally could have been
filed in federal court may be removed to federal court by the Defendant.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). In order to effect the
[a] defendant or defendants desiring to remove any civil action from a
State court shall file in the district court of the United States for the
district and division within which such action is pending a notice of
removal signed pursuant to Rule 11 of the Federal Rules of Civil
Procedure and 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).
In removal cases, the burden is on the party seeking removal to demonstrate
that federal jurisdiction exists. Friedman v. New York Life Ins. Co., 410 F.3d 1350,
1353 (11th Cir. 2005); see also Parker v. Brown, 570 F. Supp. 640, 642 (D.C.
Ohio, 1983) (“That burden goes not only to the issue of federal jurisdiction, but
also to questions of compliance with statutes governing the exercise of the right of
Ms. Barr’s Motion To Remand claims that removal by Center Point and Mr.
Henderson was fatally defective because they failed to show unanimity of consent
by all defendants. “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(2)(A). This provision, known as the
“unanimity requirement,” provides that “each defendant must join in the removal
by signing the notice of removal or by explicitly stating for itself its consent on the
record, either orally or in writing within the 30–day period prescribed in 28 U.S.C.
§ 1446(b).” Gabriel v. Life Options Int'l, Inc., 2015 WL 1967498, at *7 (S.D. Ala.
Apr. 30, 2015) (internal citations omitted).
A remand “based solely on the unanimity requirement is clearly based on a
defect in the removal process.” Russell Corp. v. American Home Assurance Co.,
264 F.3d 1040, 1044 (11th Cir. 2001) (internal quotations and citations omitted).
“The unanimity requirement mandates that in cases involving multiple defendants,
all defendants must consent to removal.” Id. (citing Chicago, R.I. & P. Ry. Co. v.
Martin, 178 U.S. 245, 247-48 (1900); In re Ocean Marine Mut. Protection and
Indem. Ass’n, Ltd., 3 F.3d 353, 355-56 (11th Cir. 1993)).
However, the unanimity requirement only requires the joinder or consent of
“all defendants who have been properly joined and served” as of the time of
removal to federal court. 28 U.S.C. § 1446(b)(2)(A); see also Bailey v. Janssen
Pharmaceutica, Inc., 536 F.3d 1202, 1207 (11th Cir. 2008) (requiring that a
removing defendant “receive the consent of all then-served defendants at the time
he files his notice of removal”). Section 1448, rather than Section 1446(b)(2)(A),
governs the procedures for service on a defendant after removal and states as
In all cases removed from any state court to any district court of the
United States in which any one or more of the defendants has not been
served with process or in which the service has not been perfected prior
to removal, or in which process served proves to be defective, such
process or service may be completed or new process issued in the same
manner as in cases originally filed in such district court. This section
shall not deprive any defendant upon whom process is served after
removal of his right to move to remand the case.
28 U.S.C. § 1448.
As another district court in this Circuit has noted, “28 U.S.C. §1448
specifically provides that a defendant that receives service after removal may
move to remand the case, but makes no mention of any affirmative filing
obligation in the event that the defendant does not wish to obtain a remand.”
Packard v. Temenos Advisory, Inc., 159 F. Supp. 3d 1344, 1353 (S.D. Ga. 2016).
The court in Packard further stated,
Moreover, the purpose of the unanimous consent rule “is to promote
unanimity among the served defendants ‘without placing undue
hardships on subsequently served defendants.’” Hooper v. Albany Int'l
Corp., 149 F. Supp. 2d 1315, 1319 n.2 (M.D. Ala. 2001) (emphasis in
original) (quoting Getty Oil v. Ins. Co. of N. Am., 841 F.2d 1254, 1263
(5th Cir.1988)). Accordingly, “[s]ubsequently served defendants may
either ‘accept the removal or exercise their right to choose the state
forum by making a motion to remand.’” Id. (quoting Getty Oil, 841
F.2d at 1263). A later-served defendant that accepts the removal,
however, need not do so by expressly joining in or giving its consent
after the fact. See, e.g., Shaw v. Dow Brands, Inc., 994 F.2d 364, 369
(7th Cir.1993) (“[Defendant] was not served until January 21, 1992, or
nearly a month after the removal petition was filed on December 23,
1991, so that its consent was not needed.” (citing Richards v. Harper,
864 F.2d 85, 87 (9th Cir.1988), and P.P. Farmers' Elevator Co. v.
Farmers Elevator Mut. Ins. Co., 395 F.2d 546, 547-48 (7th Cir.1968))),
abrogated on other grounds by Carroll v. Stryker Corp., 658 F.3d 675
(7th Cir.2011); Lewis v. Rego Co., 757 F.2d 66, 69 (3d Cir.1985)
(“[T]he removal statute contemplates that once a case has been properly
removed the subsequent service of additional defendants who do not
specifically consent to removal does not require or permit remand on a
plaintiff's motion.”); McArthur v. Wong, No. 07-0234-M, 2007 WL
4570327, at *1 n.3 (S.D. Ala. Dec. 20, 2007) (“[Defendant] had not been
served at the time that this action was removed, so it was unnecessary
for him to join in the removal.”); Cramer v. Devera Mgmt. Corp., No.
04-2012-JWL, 2004 WL 1179375, at *1-2 (D. Kan. May 27, 2004)
(denying the plaintiff's motion to remand grounded in the unanimity
rule, because the defendant, who was served after removal and never
filed any notice consenting to removal, was not required to join in or
consent to the removal).
Id. at 1353-54 (emphasis added). The court in Packard concluded that, because the
later-served defendant was served after the first-served defendant properly
removed the case, the later-served defendant was “under no obligation to consent
to the removal at any time.” Id. at 1354.
In her Motion To Remand, Ms. Barr alleges that removal was fatally
defective because the JCBC, Ms. Paulding, John Watkins (“Mr. Watkins”), Ms.
Johnson, and John Wood (“Mr. Wood”)1 neither joined in the Notice of Removal
filed by Mr. Henderson and Center Point nor gave their express written consent to
removal in federal court. (Doc. 7 at 7, ¶ 15 and 2, ¶3).
On November 17, 2016, Ms. Barr filed a Notice consenting to the dismissal without
prejudice of Mr. Wood. (Doc. 17). Mr. Wood was dismissed from this action on November 18,
2016 (Doc. 18), and all claims against Mr. Wood have been dismissed without prejudice.
However, Ms. Barr does not dispute that the JCBC, Mr. Watkins, and Ms.
Johnson were all served after the Notice of Removal was filed on August 17,
2016.2 (Id. at 2, ¶3). Additionally, though Ms. Barr alleges that Ms. Paulding was
served on August 15, 2016 (Id.), Mr. Henderson and Center Point attached an
affidavit from Ms. Paulding to their responsive motion. In that affidavit, Ms.
Paulding declared that she was personally served with papers in this matter on
Thursday, August 18, 2016.3 (Doc. 9-2 at 1). As Ms. Barr has failed to controvert
that service on Ms. Paulding occurred on August 18, 2016, the court finds that the
JCBC, Ms. Paulding, Mr. Watkins, and Ms. Johnson were all served after the case
was removed to federal court and therefore their consent to the removal was not
required. Accordingly, removal by Mr. Henderson and Center Point on August 17,
2016, was in accordance with the unanimous consent rule and thus was
Accordingly, Ms. Barr’s Motion To Remand is hereby DENIED. In
accordance with the Order entered on October 3, 2016 (doc. 12), any opposition to
Ms. Barr’s Notice of Remand states that the JCBC was served on August 18, 2016; Mr.
Watkins was served on August 22, 2016; and Ms. Johnson was served on September 18, 2016.
(Doc. 7 at 2, ¶3).
Part of the confusion surrounding the date of service of Ms. Paulding stems from the
illegibility of the date written on the summons delivered. (See Doc. 9-1).
the Motion To Dismiss (doc. 4) should be filed within ten (10) days of the date of
this Order. Any reply should be filed no later than seven (7) days after the date on
which the opponent’s responsive brief is due. All filings should be briefed
according to the requirements of Appendix III of this Court’s Uniform Initial
DONE and ORDERED this the 18th day of November, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
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