ROCHA v. BROWN & GOULD LLP et al

Filing 17

MEMORANDUM & ORDER denying 8 Plaintiff's Motion to Remand; and granting 10 Defendants' Motion to Amend the Notice of Removal. See document for details. Signed by Judge Rudolph Contreras on 07/30/2014. (lcrc3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NIEVES ROCHA, Individually and
as the Personal Representative of the
Estate of OSCAR ROCHA, Deceased,
Plaintiff,
v.
BROWN & GOULD, LLP,
DANIEL A. BROWN, and
DAVID M. LIPMAN, P.A.,
Defendants.

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Civil Action No.:

14-1136 (RC)

Re Document Nos.:

8, 10

MEMORANDUM & ORDER
DENYING PLAINTIFF’S MOTION TO REMAND; GRANTING DEFENDANTS’ MOTION TO AMEND
THE NOTICE OF REMOVAL
I. INTRODUCTION AND BACKGROUND
On June 9, 2014, plaintiff, Nieves Rocha, individually and as the personal representative
of the estate of Oscar Rocha, commenced a legal malpractice action against the law firm Brown
& Gould, LLP, attorney Daniel A. Brown, and David M. Lipman, P.A. in the Superior Court of
the District of Columbia. The next day, defendants Brown & Gould and Daniel Brown were
served with the Superior Court summons, complaint, and initial order and addendum. Three
days later, defendant David Lipman was served with the same documents. On June 22, plaintiff
filed a first amended complaint in the Superior Court that largely mirrored the original
complaint, and on July 3, Brown & Gould and Daniel Brown filed a notice of removal in this
Court based on diversity jurisdiction. The notice included a statement that Lipman consented to
the removal.

Defendants, however, failed to include with their notice of removal a copy of several
documents from the Superior Court proceeding, which, they concede, violated 28 U.S.C. §
1446(a). Specifically, defendants did not include with their removal notice a copy of the first
amended complaint, the summons, and the initial order and addendum. Plaintiff subsequently
filed a timely motion to remand on July 16, 2014, requesting the Court to send this case back to
the Superior Court due to defendants’ error. But for the reasons set forth below and in
accordance with the majority of federal courts that have addressed this issue, the Court will deny
plaintiff’s motion to remand.

II. ANALYSIS
A civil action filed in state court may be removed to a United States district court if the
case originally could have been brought in federal court. See 28 U.S.C. § 1441(a). Title 28
U.S.C. § 1446(a) sets forth some of the basic procedural requirements for a defendant to follow
when attempting to remove such an action. Specifically, this section instructs that a defendant
desiring to remove any civil action from a State court 1 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.
Id. § 1446(a) (emphasis added). It is undisputed that in this case, defendants failed to comply
with the letter of § 1446(a) by not including with their original notice of removal a copy of the
first amended complaint, the summons, and the initial order and addendum, all of which were
part of the Superior Court record. See Defs.’ Mem. Opp’n Mot. Remand, ECF No. 9, at 1.
Instead, defendants argue that their mistake constitutes a procedural error that does not require
1

The Superior Court of the District of Columbia is treated as a state court for
purposes of removal. See 28 U.S.C. § 1451.

2

remand to the Superior Court. Plaintiff, on the other hand, argues that defendants’ error is fatal
to the removal and remand therefore is appropriate.
Although “removal statutes are to be strictly construed,” Williams v. Howard Univ., 984
F. Supp. 27, 29 (D.D.C. 1997), that does not mean every defect in the removal procedure under §
1446(a) requires remand as a matter of law. Admittedly, a few federal district courts have
interpreted § 1446(a) as demanding absolute compliance such that a defendant’s failure to
include one document from the state court record — despite no actual prejudice to any party,
including the court itself — requires remand. 2 But with the question not yet having been
addressed directly in this Circuit, the Court disagrees that a draconian application of § 1446(a) is
required such that a minor, often inconsequential error in not attaching all the state court
paperwork necessitates the disproportionate sanction of denying federal jurisdiction to a
defendant. Instead, the Court sides with the majority of federal courts which have held that
failure to include documents from the state court record under § 1446(a) is a procedural error that
does not require remand and that can be cured at the federal court, even after expiration of the
thirty-day removal period. 3

2

See, e.g., Emp’rs-Shopmens Local 516 Pension Trust v. Travelers Cas. & Sur. Co.
of Am., No. 05-444, 2005 WL 1653629, *4 (D. Or. July 6, 2005) (remand is required due to
defendant’s failure to attach exhibits from the state court complaint within the thirty-day removal
period); Comtrade Ltd. v. United States, No. 05-80729-CIV, 2005 WL 5643875, *1 (S.D. Fla.
2005) (removal was defective due to absence of state court papers); Kisor v. Collins, 338 F.
Supp. 2d 1279, 1280-81 (N.D. Ala. 2004) (remanding when defendant failed to attach a copy of
the summons to the notice of removal).
3

See, e.g., Walton v. Bayer Corp., 643 F.3d 994, 999 (7th Cir. 2011) (failure to
include summonses was “totally inconsequential defect” that did not deprive district court of
jurisdiction); Countryman v. Farmers Ins. Exch., 639 F.3d 1270, 1272 (10th Cir. 2011) (failure
to attach summons constituted de minimis procedural defect that did not necessitate remand, and
that defect was curable, either before or after expiration of the thirty-day removal period); Cook
v. Randolph Cnty., Ga., 573 F.3d 1143, 1150 (11th Cir. 2009) (“[T]he failure to include all state
court pleadings and process with the notice of removal is procedurally incorrect but is not a
jurisdictional defect.”); Covington v. Indem. Ins. Co., 251 F.2d 930, 932-33 (5th Cir. 1958)
3

Indeed, among the category of procedural mistakes a defendant potentially could make
when removing an action, failing to include certain state court papers usually will qualify as de
minimis at best. This is because in most instances, such as here, the error causes no prejudice to
any party, does not delay proceedings in the federal forum, and is easily curable by a defendant
filing a supplement with the correct paperwork — which is exactly what defendants have done in
this case through their motion for leave to amend the notice of removal, which the Court grants. 4
See generally Defs.’ Mot. Amend Notice Removal, ECF No. 10.

(failure to include “a copy of all process, pleadings and orders” was a mere procedural defect,
not a jurisdictional defect necessitating remand, and missing state court papers could be supplied
later); Griffin v. JPMorgan Chase Bank, N.A., No. 2:13-CV-10002, 2013 WL 2237974, at *2
(E.D. Mich. May 21, 2013) (“While JPMorgan’s failure to include a copy of its summons among
the removal papers was certainly an error, its error was procedural — not jurisdictional…. Such
a de minimis procedural error is curable in federal courts, even after expiration of the thirty-day
removal period.”); McWilliams v. Broderick, No. 1:11CV519, 2011 WL 2669969, at *3 (E.D.
Va. July 7, 2011) (denying motion to remand because failure to include state court summons was
inadvertent and trivial, did not unduly burden the court, and did not prejudice plaintiff); Presnell
v. Cottrell, Inc., No. 09-CV-656, 2009 WL 4923808, at *5 (S.D. Ill. Dec. 14, 2009) (“The
omission of documents required to be filed with the notice of removal does not require remand if
the Court is able to determine its jurisdiction from the documents filed and the plaintiff is not
prejudiced by the omission.”); Wood v. City of Lanett, 564 F. Supp. 2d 1317, 1320-21 (M.D. Ala.
2008) (failure to attach various state court filings was not jurisdictional defect and did not require
remand); Riggs v. Fling Irr., Inc., 535 F. Supp. 2d 572, 578-79 (W.D.N.C. 2008) (failure to
attach state court documents was a curable procedural defect that caused no prejudice); James J.
Flanagan Shipping Corp. v. Mediterranean Shipping Co., S.A., 499 F. Supp. 2d 710, 711-12
(E.D. Tex. 2007) (failure to include copy of process was correctable procedural defect that did
not require remand); Yellow Transp., Inc. v. Apex Digital, Inc., 406 F. Supp. 2d 1213, 1219 (D.
Kan. 2005) (finding “no valid reason for remanding this case solely because the defendant failed
to attach the summons to the notice of removal” because the error “was inadvertent and trivial”);
Agee v. Huggins, 888 F.Supp. 1573, 1577 (N.D. Ga. 1995) (“Defendant’s failure to file the
documents complained of by Plaintiff is not grounds for remand. Rather, the subsequent filing
of these documents is the proper remedy.”).
4

See, e.g., Griffin, 2013 WL 2237974, at *2 (failure to include summons among
removal papers was a de minimis procedural error curable even after expiration of the thirty-day
removal period); Christenson Media Grp., Inc. v. Lang Indus., Inc., 782 F. Supp. 2d 1213, 1219
(D. Kan. 2011) (granting defendant leave to amend notice of removal after failure to include
process with the original notice); Presnell, 2009 WL 4923808, at *5 (“[A] court may allow
amendment of a notice of removal to cure a procedural defect even after the 30-day removal
period as long as original federal jurisdiction exists and amendment does not assert a completely
4

Defendants’ error also does not require remand for a second reason: although § 1446(a)
clearly places the burden on a defendant to include the correct state court documents with the
notice of removal, the Superior Court of the District of Columbia nonetheless automatically
transfers a copy of the state court record to the clerk of this Court upon being informed that the
removal notice was filed, and that record is promptly scanned and uploaded into the Court’s
electronic filing system. Thus, by the time plaintiff filed her motion to remand on July 16
complaining about defendants’ error, this Court already had received the entire Superior Court
record several days prior. See generally Original File From State Court, ECF No. 4. As such,
not only was there no prejudice to any party from defendants’ initial mistake, there was no
practical need for defendants even to supplement the original notice of removal because their
already-de minimis procedural defect was quickly corrected for when the state court documents
were transferred and then posted electronically for this Court to access within just a few days of
the removal notice being filed.

III. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that plaintiff’s motion to remand
(ECF No. 8) is DENIED, and defendants’ motion to amend the notice of removal (ECF No. 10)
is GRANTED.
Dated: July 30, 2014

RUDOLPH CONTRERAS
United States District Judge

new basis for that jurisdiction.”); Woodall v. Ins. Co. of N. Am., 582 F. Supp. 247, 248 (N.D. Ga.
1984) (granting defendant leave to amend notice of removal after failure to include a copy of all
state court documents with the original notice).

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