Sherrell et al v. The City of Atlanta et al
Filing
9
OPINION AND ORDER that Plaintiffs' Motion to Remand to the Superior Court of Fulton County 7 is GRANTED. IT IS FURTHER ORDERED that pursuant to 28 U.S.C. § 1447(c), Plaintiffs' request for attorney fees is DENIED. Signed by Judge William S. Duffey, Jr on 6/23/2014. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
PEARLIE SHERRELL, FRED
SHERRELL, and JOE LOUIS
SHERRELL,
Plaintiffs,
v.
1:13-cv-4020-WSD
THE CITY OF ATLANTA, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Remand to the
Superior Court of Fulton County [7]. Plaintiffs assert that Defendants’ Removal
Action violates 28 U.S.C. § 1441, that it was filed in bad faith pursuant to Rule 11
of the Federal Rules of Civil Procedure, and that they should be awarded attorney
fees.
I.
BACKGROUND
On November 18, 2013, Plaintiffs Pearlie Sherrell, Fred Sherrell, and Joe
Louis Sherrell (“Plaintiffs”) filed their action under 42 U.S.C. § 1983 and state law
against Defendants City of Atlanta, Atlanta Police Department (“APD”), Chief
George T. Turner, Sgt. Eddie R. Smith, and former APD Officer Anwar T. Bradley
(“Defendants”) in the Superior Court of Fulton County, Georgia. Plaintiffs allege
various state law causes of action and violations of their Fourth Amendment civil
rights. The Plaintiffs’ claims arise from the Defendants’ alleged misconduct on
October 11, 2009. Plaintiffs’ Complaint asserts a variety of claims against the
Defendants including false imprisonment, assault, battery, and gross negligence.
On December 4, 2013, Defendants City of Atlanta, Chief George T. Turner,
and Sgt. Eddie Smith (the “Removal Defendants”) filed their Notice of Removal
[1]. The Removal Defendants stated in their notice that “[t]hey do not yet have the
consent of the remaining Defendant[] [Anwar T. Bradley] because [he has not
been] served with this Complaint.” (Notice of Removal [1] ¶ 5.). There is no
evidence showing that Bradley filed his own Notice of Removal or that he joined
Removal Defendants in their removal action.
On December 29, 2013, the Plaintiffs moved to remand the action to state
court, contending that Defendant Anwar T. Bradley (“Bradley”) did not join in the
removal and that the rule of unanimity was not satisfied. They presented evidence
showing that on November 12, 2013, a deputy sheriff served Bradley with a copy
of the action summons and that his entry of service was filed in the Fulton County
Superior Court Clerk’s office on November 14, 2013.
II.
DISCUSSION
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A.
Motion to Remand
The parties do not dispute that the Court has federal question subject-matter
jurisdiction over Plaintiffs’ Section 1983 claims. Plaintiffs argue, however, that
this action must be remanded to the state court because Bradley did not join the
Removal Defendants in removing this matter to this Court. Plaintiffs contend that
they perfected service on Bradley, and that Bradley did not consent to removal
within the required thirty-day period, violating the unanimity rule required by 28
U.S.C. § 1446(b)(2)(A).
Under the removal statute, “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” to federal court. 28 U.S.C. § 1441(a).1 When removal
is challenged, the removing party has the burden to show that the removal was
proper, or the case must be remanded to the state court. Williams v. Best Buy Co.,
269 F.3d 1316, 1319 (11th Cir. 2001). “[U]ncertainties are resolved in favor of
remand.” Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994).
“When a civil action is removed [to a federal court with jurisdiction arising]
solely under section 1441(a), all defendants who have been properly joined and
1
In cases where original jurisdiction is based “solely” on diversity under 28 U.S.C.
§ 1332(a), the action “may not be removed if any of the parties in interest properly
joined and served as defendants is a citizen of the State in which such action is
brought.” 28 U.S.C. § 1441(b)(2).
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served must join in or consent to the removal of the action.” 28 U.S.C.
§ 1446(b)(2)(A). Section 1441(b)(1) requires that the notice of removal be filed
“within 30 days after the receipt by the [removing] defendant,” of a copy of the
complaint. Id. § 1446(b)(1); see also Murphy Bros., Inc. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344 (1999); Bailey v. Janssen Pharmeceutica, Inc., 536
F.3d 1202, 1205 (11th Cir. 2008) (citing Murphy, 526 U.S. at 347-48).
“The unanimity rule [of Section 1446(b)(2)(A) generally] requires that all
defendants consent to and join a notice of removal in order for it to be effective.”
Bailey, 536 F.3d 1202, 1207 (11th Cir. 2008); see also Russell Corp., 264 F.3d at
1044 (“The unanimity requirement mandates that in cases involving multiple
defendants, all defendants must consent to removal.”); Tri-Cities Newspapers, Inc.
v. Tri-Cities Printing Pressman Assistants’ Local 340 et. al., 427 F.2d 325, 326-27
(5th Cir. 1970).
“The requirement that there be unanimity of consent in removal cases with
multiple defendants does not require consent of defendants who have not been
properly served.” See Johnson v. Wellborn, 418 F. App’x 809, 815 (11th Cir.
2011) (citing Bailey, 536 F.3d at 1208 (“[A] defendant has no obligation to
participate in any removal procedure prior to his receipt of formal service of
judicial process.”)); see also Murphy, 526 U.S. at 350 (“[O]ne becomes a party
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officially, and is required to take action in that capacity, only upon service of a
summons or other authority-asserting measure stating the time within which the
party served must appear and defend. . . . Unless a named defendant agrees to
waive service, the summons continues to function as the sine qua non directing an
individual or entity to participate in a civil action or forgo procedural or
substantive rights.”). If the unanimity rule is not met, then the case must be
remanded pursuant to 28 U.S.C. § 1447(c).2 Id.; see also Tri-Cities Newspapers,
427 F.2d at 327.
B.
Analysis
The record here supports that the Removal Defendants—all of whom had
been served with Plaintiffs’ Complaint by the date of removal—consented to the
removal when the Notice of Removal was filed. The question that remains is
whether Bradley had been served with the Complaint by the date of the Notice of
Removal, and if so, whether Bradley consented to the removal.
Georgia’s law regarding personal service of process provides:
Service shall be made by delivering a copy of the summons attached
to a copy of the complaint as follows . . . to the defendant personally,
or by leaving copies thereof at the defendant’s dwelling house or
usual place of abode with some person of suitable age and discretion
2
Section 1447(c) provides: “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 under section 1446(a).”
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then residing therein, or by delivering a copy of the summons and
complaint to an agent authorized by appointment or by law to receive
service of process.
O.C.G.A. § 9-11-4(e)(7). A return of service creates a presumption that a
defendant was properly served, although evidence that service failed to comply
strictly with the statute overcomes the presumption raised by the service return.
See Forsythe v. Gay, 487 S.E.2d 128, 129 (Ga. Ct. App. 1997). In Georgia, the
plaintiff is responsible for complying with the requirements of Section
9-11-4(e)(7). See Ballenger v. Floyd, 639 S.E.2d 554, 555 (Ga. Ct. App. 2006).
Here, plaintiffs have submitted evidence that shows that a deputy sheriff served
Defendant Bradley with a copy of the action and summons on November 12, 2013,
and that the deputy’s Entry of Service was filed in the Fulton County Superior
Court Clerk’s Office on November 14, 2013.
Removal Defendants do not present any evidence to rebut the evidence or
the presumption that arises from the stamp-filed Entry of Service that Bradley was
properly served. Removal Defendants assert that “[a]lthough Plaintiffs claim the
Return of Service was stamp-filed November 14, 2013, the Fulton County Superior
Court On-line search [sic] has no listing of the service even as late as December
30, 2013.” The Removal Defendants also assert that “a telephone call to the
Fulton County Clerk’s office also failed to confirm service of Defendant Bradley.”
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That the Entry of Service may not have been properly docketed does not support
that service was not made, especially because considering the record evidence of
the stamp-filed Entry of Service. The Removal Defendants have not otherwise
provided any evidence to demonstrate that Bradley did not live at the residence at
which the process server sought to serve him or that he was not, in fact, served.
See Dickson v. Amick, 662 S.E.2d 333, 335 (Ga. Ct. App. 2008) (finding that
affidavit and documents showing appellant did not live at the address at which the
complaint and summons were delivered were sufficient to show that process was
improper under Georgia law).
The Court concludes that Bradley “[h]ad been properly joined and served” at
the time of removal. In failing to get Bradley to join in, or consent to, removal
when the Removal Defendants filed their Notice of Removal in this action, the
removal did not satisfy the requirements of the unanimity rule, and the removal
was invalid.
Plaintiffs further assert that Defendants’ removal action was filed in bad
faith under Rule 11 of the Federal Rules of Civil Procedure and that they are
entitled to attorney fees and relevant costs.3, 4 Rule 11(c)(2) of the Federal Rules of
3
In the Eleventh Circuit, three types of conduct warrant Rule 11 sanctions: (1)
when a party files a pleading that has no reasonable factual basis; (2) when a party
files a pleading that is based on a legal theory that has no reasonable chance of
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Civil Procedure provides that a motion for sanctions must be made separately from
any other motion and must describe the specific conduct that allegedly violates
Rule 11(b). See Fed. R. Civ. P. 11(c)(2). Plaintiffs did not file a separate motion
that would support an award of sanctions based on Rule 11.
In remanding a case, the Court “may require payment of just costs and any
actual expenses, including attorney fees, incurred as a result of the removal.” 28
U.S.C. § 1447(c). District courts may, in their discretion, award expenses under
§ 1447(c) “where the removing party lacked an objectively reasonable basis for
seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).
Removal Defendants had “an objectively reasonable basis for seeking removal”
because there is no evidence suggesting that the Removal Defendants knew or had
reason to know that Bradley had been served with the Complaint at the time of
success and that cannot be advanced as reasonable argument to change existing
law; (3) and when a party files a pleading in bad faith or for improper purpose.
Didie v. Howes, 988 F.2d 1097 (11th Cir. 1993).
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“[A] removing defendant’s counsel is bound by Rule 11 to file a notice of
removal only when counsel can do so in good faith.” Lowery v. Ala. Power Co.,
483 F.3d 1184, 1213 (11th Cir. 2007). This requires the defendant’s counsel to
represent, under Rule 11, that the case belongs in federal court. Id. at 1217. Based
on the facts, the Removal Defendants put forth good faith efforts in filing their
removal notice. The parties do not dispute that the Court has federal question
subject-matter jurisdiction over Plaintiffs’ Section 1983 claims. Instead, Plaintiffs
assert that the Removal Defendant’s Notice of Removal was improper because it
did not have Bradley’s consent. The evidence does not suggest that the Removal
Defendants filed their Notice of Removal in bad faith.
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removal. Id. The Court, in its discretion, concludes that Plaintiffs should not be
awarded their costs and expenses.
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Remand to the
Superior Court of Fulton County [7] is GRANTED.
IT IS FURTHER ORDERED that pursuant to 28 U.S.C. § 1447(c),
Plaintiffs’ request for attorney fees is DENIED.
SO ORDERED this 23rd day of June, 2014.
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