Higgins v. The City of Savannah, Georgia et al
ORDER granting 12 Motion to Amend/Correct Motion to Remand; granting 15 Motion for Extension of Time; denying 16 Motion to Exclude Defendant's Response in Opposition to Plaintiff's Motion for Remand. Signed by Magistrate Judge G. R. Smith on 2/8/18. (jrb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
JANET K. HIGGINS,
THE CITY OF SAVANNAH,
GEORGIA; et al.,
Scott L. Poff, Clerk
United States District Court
By James Burrell at 3:07 pm, Feb 08, 2018
Pro se plaintiff Janet Higgins fell and was injured while crossing
River Street in Savannah, Georgia. Doc. 1-2 at 12, ¶ 12. She contends
that the City of Savannah and various individual defendants are
responsible for her injury. See doc. 1-2 at 10-33 (Complaint). She seeks
to recover medical expenses and compensation for pain and suffering, for
a total compensatory award of not less than $500,000, as well as punitive
damages and costs. Id. at 32. Defendants removed the action to this
Court. See doc. 1 (Notice of Removal). Plaintiff now seeks remand to the
state court. Doc. 5. Her request to supplement that motion (doc. 12) is
Defendants oppose remand.
They also seek
additional time to respond to plaintiff’s amendment to her remand
motion. Doc. 15. That request is GRANTED, subject to the additional
requirement that the defendants address the issues discussed below
(which are raised, but not fully developed in their response brief).
Defendants removed this case from the Superior Court of Chatham
See doc. 1 (Notice of Removal).
They assert that
removal is proper pursuant to 28 U.S.C. § 1441 and 28 U.S.C. § 1332. Id.
at 3-4, ¶ 9. As with questions concerning the Court’s subject matter
jurisdiction generally, “there is a presumption against the exercise of
federal jurisdiction, such that all uncertainties as to removal jurisdiction
are resolved in favor of remand.” Russel Corp. v. Am. Home Assurance
Co., 264 F.3d 1040, 1050 (11th Cir. 2001) (cite omitted).
Defendants assert that this Court has original jurisdiction based on
the parties’ diversity of citizenship. See doc. 1 at 3-4, ¶ 9. Assuming that
defendants correctly assert the bases for diversity jurisdiction -- complete
diversity of citizenship between the parties and an amount in
controversy in excess of the statutory threshold, see 28 U.S.C. § 1332(a) -removal is still questionable. Section 1441 explicitly precludes removal
based on diversity jurisdiction “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,” a provision commonly referred to as the “forum
defendant rule.” 28 U.S.C. § 1441(b)(2); see Stillwell v. Allstate Ins. Co.,
663 F.3d 1329, 1332 (11th Cir. 2011) (“When a case is removed based on
diversity jurisdiction, as this case was, it must be remanded to state court
if . . . [even] one of the defendants is a citizen of the state in which the
suit is filed, [cit.].” (citation omitted)); see also, e.g., CHARLES ALAN
WRIGHT, ARTHUR MILLER, et al., 14B FED. PRAC. & PROC. JURIS. § 3723
(4th ed. 2017) (“Section 1441(b) explicitly provides, and the cases
uniformly hold, that diversity cases may be removed to federal court only
if none of the parties in interest properly joined and served as a
defendant is a citizen of the state in which the action was brought.”).
Defendants’ notice of removal explicitly alleges that they are all “citizens
of Georgia” and that this action was brought in Georgia. Doc. 1 at 1, ¶1;
4, ¶ 9; see also doc. 14 at 1 (noting that defendants’ Georgia citizenship is
“a fact which is not in dispute.”).
Defendants advance a rather subtle argument to support removal,
even given the undisputed facts. They contend that no defendant has
been properly served.
Doc. 14 at 5-7.
Consequently, they reason, §
1441(b)’s prohibition on removal by “any of the parties in interest
properly joined and served as defendants” who are citizens of the state
where the action was filed, does not apply. Id. at 5. They contend that
the “plain meaning” of § 1441 requires this rather extraordinary result
and that this action -- which they implicitly concede could not have been
removed if even one defendant were properly served -- can be removed
because of variously defective service. Id. at 5 (arguing that defendants
were not served when removal was noticed); id. at 6-7 (arguing that
service on all the defendants is defective for various reasons). The Court
is not convinced that the interests underlying the forum defendant rule
can be so easily displaced.
Defendants cite to an unpublished case from the Middle District of
Alabama in support of the proposition that a forum defendant (i.e., one
who is “a citizen of the state in which such action is brought,” 28 U.S.C.
§ 1441) who is not properly served may nevertheless remove a case,
avoiding the forum defendant rule. Doc. 14 at 5 (citing Seong Ho Hwang
v. Gladden, 2016 WL 9334726 (M.D. Ala. Dec. 12, 2016)). This Court,
however, inclines more toward the well-reasoned and contrary opinion of
the Northern District of Georgia. See generally Hawkins v. Cottrell, Inc.,
785 F. Supp. 2d 1361 (N.D. Ga. 2011) (concluding, after careful textual
analysis, that “allowing an unserved forum defendant to remove a
diversity action clearly defeats the purpose of the forum defendant rule
because it enables a resident defendant, who would not be subject to
presumptive local prejudice in the state courts, to obtain a federal forum.
This totally eviscerates the forum defendant rule and leads to an absurd
result, because it undermines the rationale for having a forum defendant
rule at all.”).
The Hawkins court concluded that removal is always improper
unless at least one defendant is properly served. See Hawkins, 785 F.
Supp. 2d at 1369. There, as here, there was no dispute concerning the
citizenship of the un-served defendant. See id. at 1364. The Court thus
explained the dilemma:
If [any] defendant had been served, then there would have been at
least one party in interest that was joined and served, and the court
would then proceed to ask whether ‘none’ of the parties in interest
were residents of the state where the suit was brought. At this
point, the forum defendant rule would be applied to bar removal by
defendant, because defendant is a resident of the state where the
suit was brought.
Id. at 1369 n. 12.
Avoiding the kind of Through-the-Looking-Glass
procedural paradoxes that result from a non-party effecting removal and
litigating, all the while maintaining that he is not properly served, is one
of the principal virtues of the Hawkins approach. See n. 3 infra.
Hawkins finds further support for its conclusion (that removal is
improper unless at least one party is effectively served) in the Supreme
Court’s analysis of the timing provisions in 28 U.S.C. § 1446.
Hawkins, 785 F. Supp. 2d at 1370 (discussing Murphy Bros., Inc. v.
Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999)). The Supreme Court
held that the thirty-day period within which notice of removal must be
filed does not start until both service of the summons and receipt of the
complaint upon the defendant.1 Id. (citing Murphy Bros., 526 U.S. at
348, 356). Although Hawkins concedes that the Supreme Court has not
determined that service was required before removal, the fact that the
Murphy contended with the tortuous phrasing of § 1446(b), which requires a
defendant to file his notice of removal “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.” 28 U.S.C. § 1446(b)(1). The Supreme Court explained that
traditional notions of service of process and the statutory text implied that the period
for removal extended no less than thirty days from the date of service of the
summons, and might extend for thirty days, if the summons were served without an
attached complaint, from the date the complaint is received. See Murphy Bros., Inc.,
526 U.S. at 354. The reference in the statute to receipt “through service or
otherwise” did not vitiate the traditional requirement of service of process, but
merely recognized that complaints might be transmitted to a defendant by service
(i.e., contemporaneous with service of the summons) or “otherwise,” (i.e.,
electronically or physically separate from the summons). See id. at 353-54.
time for removal does not begin to run until after service has been
effected suggests that service is at least a necessary (if not a sufficient)
condition for removal. Id. The Hawkins court also points out that, if
service were not a precondition to removal, § 1446’s deadline is
superfluous; “[i]f removal can be effected prior to service, it makes no
sense for the removal deadline to begin to run after service of process.”
The Hawkins court finally explains that Georgia law provides
additional support for the conclusion that there can be no removal
without effective service on at least one defendant.
contemplates removal “to the district court of the United States for the
district and division embracing the place where such action is pending.”
28 U.S.C. § 1441(a). Whether an action is “pending” before a state court
is a matter of state law. Hawkins, 785 F. Supp. 2d at 1371. Georgia law
historically recognizes a distinction between the “commencement of an
action” and the existence of a “suit pending between the parties,” and
that distinction is preserved under the modern Civil Practice Act.
Hawkins, 785 F. Supp. 2d at 1371 (quoting McClendon v. Hernando
Phosphate Co., 100 Ga. 219, 28 S.E. 2d 152, 153 (1897) (historical
distinction); Franek v. Ray, 239 Ga. 282, 236 S.E.2d 629, 632 (1977)
(modern distinction)). That distinction implies that, under Georgia law,
a filed action “‘is not a ‘pending’ suit until after service of process is
Hawkins, 785 F. Supp. 2d at 1371-72 (quoting Steve A
Martin Agency, Inc. v. PlantersFIRST Corp., 297 Ga. App. 780, 678
S.E.2d 186, 188 (2009) (citing Jenkins v. Crea, 289 Ga. App. 174, 656
S.E.2d 849, 850 (2008) (“An action is not a pending suit until service is
The Hawkins court, therefore, provides strong conceptual support
for the conclusion that removal prior to any defendant being served is
This conceptual support is in addition to the Hawkins
court’s persuasive discussion of the history of diversity jurisdiction and
removal. See Hawkins, 785 F. Supp. 2d at 1373-1378 (discussing “the
fear that state courts would potentially exhibit local prejudice towards
defendants who were citizens of a different state,” as the underlying
rationale of diversity jurisdiction and removal predicated upon it). The
cumulative force of the Hawkins court’s reasoning seems to overwhelm
the strictly logical inference that underlies defendants’ position here.
See doc. 14 at 5 (“Giving the [forum defendant] rule its plain meaning,
the converse of the rule should also be true.”); see also OLIVER WENDELL
HOLMES, JR., THE COMMON LAW (1881) (“The life of the law has not been
logic: it has been experience.”); Ralph Waldo Emerson, Self-Reliance,
EMERSON’S ESSAYS 45, 57 (Houghton, Mifflin & Co. 1980) (“A foolish
consistency is the hobgoblin of little minds . . . .”).
However, even if the Court were to accept the possibility of removal
before effective service, it would then confront the City’s argument that
it has not, in fact, been properly served. The Court is all too familiar
with the City’s argument here. See, e.g., Willis v. Mayor and Alderman
of the City of Savannah, 770 F. Supp. 2d 1349, 1350 (S.D. Ga. 2011);
Kicklighter v. City of Savannah, CV402-199, doc. 14 at 3 (S.D. Ga. Sept.
25 2002); Smith v. City of Savannah, CV404-134, doc. 5 at 1; doc. 12
(S.D. Ga. Nov. 30, 2004).2 It contends that by naming only “The City of
The Court also remembers cases in which the City has ignored the exact misnomer
it seeks to capitalize on here. See Croslen v. City of Savannah, Georgia, CV414-143,
doc. 3 (Summons directed to “City of Savannah, c/o Mayor Edna Branch Jackson, 2
East Bay Street, Savannah, Ga., 31402.”), doc. 5 at 1-3 (noting that the City was
“misidentified in the Complaint as the ‘City of Savannah, Georgia,’” but asserting no
service- or process-related defense), 4, ¶ 5 (admitting the City was “properly served
with the Complaint and Summons.”). Obviously waiving a defense in one case does
not require waiving it in every case, but, given the substance (or lack of it) of the
defense at issue, the Court has suggested that waiver may be a more appropriate
choice. Willis, 770 F. Supp. 2d at 1351 n.3 (suggesting “the City’s counsel should
reconsider the . . . drain on judicial resources exacted by what is, at bottom, a paperchurning, taxpayer-dollar-wasting defense.”).
Savannah, Georgia,” and not “The Mayor and Aldermen of the City of
Savannah,” service upon the City has not been perfected.3 Doc. 14 at 6.
As this Court has pointed out before, “[t]he City [of Savannah], which
has never shown legal prejudice from not being called by its formal name
was told [more than] a quarter century ago that its ‘wrong-name’ dog
won’t hunt . . . .” Willis v. Mayor & Alderman of the City of Savannah,
770 F. Supp. 2d 1349, 1350 (S.D. Ga. 2011). Georgia law continues to
support that conclusion.4 See, e.g, O.C.G.A. § 9-11-4(i) (“At any time in
its discretion and upon such terms as it deems just, the court may allow
Despite contending that service has not been perfected, defendants seem prepared
(if not anxious) to commence discovery. See doc. 10 (Fed. R. Civ. P. 26(f) Report
contemplating commencement of discovery and requesting that the Court limit its
scope); doc. 11 (requesting court intervention, among other reasons, “so that the case
will not be protracted”). It is axiomatic that a party is not properly before the court
before that party has been served with process. See, e.g., Murphy Bros., Inc., 526
U.S. at 350 (“[O]ne becomes a party 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.” (emphasis
added)). Defendants contend they are before the Court to the extent necessary to
remove the action and oppose remand, and even to the extent that they seek its
intervention in discovery, but they still “reserve” their process- and service-related
defenses. The Court struggles to see why defendants should get to have it both ways:
in the case when it suits them, and out when it doesn’t.
Defendants correctly point out that the effectiveness of service prior to removal is
determined by the laws of the state from which the action was removed, in this case
Georgia. See doc. 14 at 5 (citing Rentz v. Swift Transp. Co., Inc., 185 F.R.D. 693
(1998)); see also Orton v. Mathews, 572 F. App’x 830, 833 (11th Cir. 2014) (citing
Usatorres v. Marina Mercante Nicaraguenses, S.A., 768 F.2d 1285, 1286 n.1 (11th
Cir. 1985)) (“When a federal court is considering the sufficiency of process after
removal, it does so by looking to the state law governing process.”).
any process or proof of service thereof to be amended, unless it clearly
appears that material prejudice would result to the substantial rights of
the party against whom the process is issued.”); RICHARD C. RUSKELL,
GA. PRAC. & PROC. § 8.9 (2017-2018 ed.) (“Where there is a misnomer of a
defendant corporation in the complaint and summons, but the name set
forth therein is such as to mislead nobody, such pleadings and summons
are amendable to show the correct name.”). As the Georgia Court of
appeals has explained (and as defense counsel would do well to
“[a] suit at law is not a children’s game, but a serious effort on
the part of adult human beings to administer justice; and the
purpose of process is to bring parties into court. If it names
them in such terms that every intelligent person understands
who is meant, it has fulfilled its purpose; and courts should not
put themselves in the position of failing to recognize what is
apparent to everyone else. As a general rule the misnomer of a
corporation in a notice, summons, notice by publication,
garnishment action, writ of certiorari, or other step in a judicial
proceeding is immaterial if it appears that it could not have
been, or was not, misled . . . . Georgia cases . . . follow [ ] this
rationale and do not hold that the existence of a mere misnomer
authorizes one freely to ignore the fact that he has been served
with legal process.”
Mathis v. BellSouth Telecomms., Inc., 301 Ga. App. 881, 884 690 S.E.2d
210 (2010) (quoting Sam’s Wholesale Club v. Riley, 241 Ga. App. 693,
696, 527 S.E.2d 293 (1999)) (alterations and emphasis in original); see
also AAA Restoration Co., Inc. v. Peek, 333 Ga. App. 152, 154 n. 1, 775
S.E.2d 627 (2015) (describing Mathis and other cases as “holding that a
corporate misnomer in a complaint will not invalidate service of process
where service was in fact made on the real party-defendant.”). There is
no contention that the City was misled by plaintiff’s nomenclature. See
doc. 1-2 at 9 (memorandum to an Assistant City Attorney, forwarding
notice of suit “Civil Action Number SPCV12-01109-MO Janet K.
Higgins, Plaintiff v. Mayor and Aldermen of the City of Savannah,
The Court GRANTS plaintiff’s request to amend her remand
motion (doc. 12), and defendants’ request for additional time to respond
(doc. 15). Further, the Court will extend their response time by seven
days, rather than the five they request, to allow them to fully address the
Court’s concerns discussed above. In the interest of fairness, the Court
will also proactively afford plaintiff seven days from the date of any
response to file her reply. Defendants remain free to withdraw their
opposition to remand and proceed to address plaintiff’s allegations in
Chatham County Superior Court. If defendants intend to withdraw their
opposition to remand, they shall so notify the Court within the extended
deadline for their response. In the interest of efficiency, the Court will
take up the remaining motions (doc. 8, doc. 9, doc. 11) only after
resolving the question of remand.
In response to defendants’ request for an extension, Higgins has
requested that the Court strike their response and impose sanctions, or
criminal charges, against defense counsel. Doc. 16. She, correctly it
appears, points out that defendants’ response was not timely filed.
Under the Court’s Local Rules, a party has 14 days to oppose a motion.
See S.D. Ga. L. Civ. R. 7.5.
Plaintiff filed her motion to remand on
January 22, 2018 (doc. 5) and 14 days from that date was February 5,
The Court’s docketing software, however, recorded defense
counsel’s brief as filed at 12:04 a.m. on February 6, 2018. See doc. 14.
Later that day, defendants requested the extension to respond to
plaintiff’s requested amendment. Doc. 15. While Higgins is correct that
defendants’ opposition is technically out of time, the Court does not
ordinarily concern itself with such trivial deviations. See S.D. Ga. L. Civ.
R. 1.1 (requiring Local Rules “be read consistently” with the Federal
Rules); Fed. R. Civ. P. 1 (admonishing application of the Federal Rules
“to secure the just, speedy, and inexpensive determination of every
action and proceeding.”).
Above, the Court admonished defense counsel to remember that
these proceedings are not a game. Plaintiff apparently needs a similar
reminder. The Court appreciates that this action must be a source of
emotional tension for plaintiff. In such situations, everyone is subject to
However, litigation is not an exercise in catching one’s
opponent in some technical misstep to secure advantage. It is a search
for truth and justice. The procedural rules should facilitate that search,
not impede it. This Court will not abide any party or counsel’s attempt
to reduce its procedures to a game of “Gotcha!”
Despite the Court’s impression that plaintiff’s allegations that
defense counsel “filed a FALSE and Fraudulent document,” doc. 16 at 2,
are primarily an expression of her frustration, it takes any allegation of
misconduct by members of its bar very seriously. Having explained the
seriousness of every aspect of this proceeding, and (hopefully) satisfying
plaintiff by the extended analysis above that the Court is vigilant in
scrutinizing all the arguments the parties advance, the Court will give
her an opportunity to reconsider her allegations.
If plaintiff wishes to press her misconduct claims against defense
counsel, she may do so within the extended time provided above. If she
does so, however, she must make clear not only what defense counsel did,
but how it harmed her. Mere typographical errors or minor errors in the
date on filings -- which have not resulted in any demonstrable harm to
plaintiff -- are not enough. See doc. 16 at 3. If she wishes to pursue her
claims, she should follow the procedure imposed by Fed. R. Civ. P. 11,
including the provisions of Rule 11(c)(2) (imposing specific procedural
Accordingly, plaintiff’s motion to “exclude” defendants’ response
opposing her motion is DENIED. Doc. 16. Her request that criminal
charges be filed based on the alleged conduct is frivolous.5
Even assuming that the facts alleged supported a criminal charge (and they don’t
appear to) private citizens simply cannot initiate criminal proceedings. See, e.g.,
Lopez v. Robinson, 914 F.2d 486, 494 (4th Cir. 1990) (“No citizen has an enforceable
right to institute a criminal prosecution.” (citing Linda R. v. Richard V., 410 U.S.
614, 619 (1973) (“In American jurisprudence at least, a private citizen lacks a
judicially cognizable interest in the prosecution or nonprosecution of another.”)); Cok
v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (“[A] private citizen has no authority to
initiate a federal criminal prosecution.”). The Court is also without authority to
order the United States Attorney to initiate a prosecution. See Inmates of Attica
Corr. Facility v. Rockefeller, 477 F.2d 375, 379 (2nd Cir. 1973) (citations omitted)
(“federal courts have traditionally and, to our knowledge, uniformly refrained from
overturning, at the insistence of a private person, discretionary decisions of federal
prosecuting authorities not to prosecute persons regarding whom a complaint of
criminal conduct is made[,] . . . even in cases . . .where . . . serious questions are
raised as to the protection of the civil rights and physical security of a definable class
SO ORDERD, this 8th day of February, 2018.
of victims of crime and as to the fair administration of the criminal justice system.”).
Such orders would violate the Constitution’s separation of powers between the
Executive and Judicial Branches. See id. at 379-80 (quotes and cite omitted) (the
United States Attorney, although a member of the bar and an officer of the court, “is
nevertheless an executive official of the Government, and it is as an officer of the
executive department that he exercises a discretion as to whether or not there shall
be a prosecution in a particular case.”). The Court has discretion to refer perjury
allegations to the United States Attorney for prosecution, but sees no reason to do so
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?