Brown v. Heintz et al

Filing 7

ORDER granting 3 Motion to Remand. Signed by Judge Sarah S. Vance on 5/15/2017. (mmm) (Additional attachment(s) added on 2/15/2017: # 1 Remand Letter) (mmm).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DALE BROWN

CIVIL ACTION

VERSUS

NO. 16-13697

DAVID HEINTZ, ET AL.

SECTION “R” (4)

ORDER AND REASONS
Plaintiff Dale Brown moves to remand this case to the Civil District
Court for the Parish of Orleans. For the following reasons, Brown’s motion is
granted.

I.

BACKGROUND
Dale Brown, proceeding pro se, brings claims against defendants David

Heintz, Steven Verret, and Arthur Lawson under 42 U.S.C. § 1983 and
Louisiana state law. Brown alleges that the defendants, police officers in the
city of Gretna, Louisiana, used excessive force in arresting Brown in January
of 2014.1

1

R. Doc. 1-1.

Brown originally filed this suit in the Civil District Court for the Parish
of Orleans on January 13, 2015.2 On July 14, 2016 Brown moved to amend
his complaint.3 Defendants removed to this Court on August 8, 2016.4 In
their notice of removal, defendants represent that they were never served
with the original complaint in this case and only became aware of the suit on
August 1, 2016 when they were served with the original complaint.5
On August 26, 2016 Brown filed a document titled “Objection to
Motion for Removal.”6 In his filing, Brown argues that defendants’ removal
motion is untimely and asks that defendants’ “request” to remove be
“denied.”7 The Court entered an order notifying the parties that Brown’s
document would be construed as a motion for remand, and set the motion
for submission on November 23, 2016.8 Defendants have not responded to
Brown’s filing.

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3
4
5
6
7
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Id. at 1.
R. Doc. 1-1 at 53.
R. Doc. 1.
Id. at 2-3.
R. Doc. 3.
Id. at 1.
R. Doc 5.
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II.

LEGAL STANDARD
“Removal statutes are to be construed strictly against removal[,] . . .

and a failure to timely file a notice of removal is a defect that requires remand
to state court.” Delaney v. Viking Freight, Inc., 41 F. Supp. 2d 672, 674 (E.D.
Tex. 1999) (quoting Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 106
(5th Cir. 1996)). Under 28 U.S.C. § 1446, which sets forth the general
procedure for removal, a determination of whether a defendant timely
removed a case is a two-step process. Chapman v. Powermatic, Inc., 969
F.2d 160, 161 (5th Cir. 1992). First, if the case stated by the initial pleading is
removable, a defendant has thirty days from receipt of the initial pleading to
file a notice of removal. See 28 U.S.C. § 1446(b); Chapman, 969 F.2d at 161.
Second, if the case stated by the initial pleading is not removable, then a
defendant may remove the case within thirty days of receiving an amended
pleading, motion, or “other paper” that informs the defendant that the case
is removable. Id. In either situation, the removing party bears the burden of
showing that federal jurisdiction exists. See Allen v. R & H Oil & Gas Co., 63
F.3d 1326, 1335 (5th Cir. 1995).

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III. DISCUSSION
Brown argues that this case must be remanded to state court because
defendants’ notice of removal is untimely. In support of his position, Brown
points to service returns, contained in the state court record and purportedly
completed by a Deputy Sheriff of Jefferson Parish, stating that all three
defendants were personally served on April 28, 2015.9 Defendants removed
more than a year after this purported service.10 Therefore, if defendants were
in fact served with Brown’s initial complaint on this date, and the case stated
by that complaint is removable, then defendants’ removal is untimely and
the Court must remand this case.
As an initial matter the Court notes that defendants have failed to
respond to Brown’s motion. This alone provides sufficient grounds to
remand. See Jackson v. City of New Orleans, No. 95-1340, 1995 WL 599046,
at *1 (E.D. La. Oct. 10, 1995) (stating that when defendant failed to file
opposition, motion to remand “could be granted as unopposed”); see also
Sundby v. Bank of N.Y. Mellon, No. 11-627, 2011 WL 1670914, at *1 (S.D. Cal.
May 3, 2011) (“[T]he Court finds Defendants’ failure to file an opposition to
Plaintiffs’ motion to remand constitutes their consent to the granting of the

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10

R. Doc. 1-1 at 39-44.
R. Doc. 1.
4

motion.”); Rubio v. Allegheny Int’l, Inc., 659 F. Supp. 62, 63 (S.D. Fla. 1987)
(stating that failure to oppose remand motion was grounds for remand).
Even if it were inclined to excuse defendants’ failure to oppose Brown’s
motion, the Court finds that defendants have failed to meet their burden to
show that removal was properly executed in this case. In his original
complaint, Brown seeks “remedy [for] the deprivation, under color of state
law, of rights guaranteed by the 8th and 14th amendments.”11 Defendants do
not contest that this language renders Brown’s original complaint removable
on its face, and in fact cite this language to justify this Court’s jurisdiction.
See Local Union No. 12004, United Steelworkers of Am. v. Massachusetts,
377 F.3d 64, 75 (1st Cir. 2004) (“Almost by definition, a claim under § 1983
arises under federal law and will support federal-question jurisdiction . . .”).
Defendants also concede that the state court record “reveal[s] and
state[s] that the defendants were allegedly ‘personally served’ with the
original petition on or about April 28, 2105.”12 The removal motion asserts,
without support, that defendants were never, in fact, served.13

But

defendants point to no evidence tending to contradict the clear state court
record. Defendants’ bald assertions in an unverified motion are insufficient

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12
13

R. Doc 1-1 at 5.
R. Doc. 1 at 2.
Id.
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to meet their burden, especially in the face of Brown’s convincing evidence
of service. See Allen, 63 F.3d at 1335 (“Removal . . . cannot be based simply
upon conclusory allegations.”). Accordingly, the Court finds that defendants
have failed to show that removal is appropriate in this case.

IV.

CONCLUSION

For the foregoing reasons, this case is REMANDED to the Civil District
Court for the Parish of Orleans.

15th
New Orleans, Louisiana, this _____ day of February, 2017.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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