Henderson v. Jinny Poot Properties, Inc. et al
Filing
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MEMORANDUM. Signed by Judge William M Nickerson on 11/28/11. (bmh, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
TERRY HENDERSON
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* Civil Action WMN-11-2482
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v.
JINNY-POOT PROPERTIES, INC.
et al.
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MEMORANDUM
Currently pending before the Court are Plaintiff’s Motion
to Remand, ECF No. 11, Defendant’s Motion to Amend Notice of
Removal, ECF No. 12, and Plaintiff’s Motion for Leave to Amend
Plaintiff’s Complaint, ECF No. 13.
review.
The motions are ripe for
Upon consideration of the pleadings, facts and
applicable law and for the reasons set forth below, the Court
determines that (1) no hearing is necessary, Local Rule 105.6,
(2) Defendant’s Motion to Amend Notice of Removal will be
denied, (3) Plaintiff’s Motion to Remand will be granted and (4)
Plaintiff’s Motion to Amend the complaint is moot.
On July 27, 2011, Plaintiff Terry Henderson, a Maryland
resident, filed the instant suit in the Circuit Court of
Maryland for Baltimore City alleging negligence and other claims
arising from lead exposure at properties owned or managed by the
Defendants.
Defendants Jack W. and Dawn A. Cherry (the
Cherrys), Florida residents, were served with process on August
6, 2011.
Defendants Junious A. Mattoon, Jr. and Judith Mattoon,
South Carolina residents, were served on August 8, 2011.
Defendant David Gomer, a Virginia resident, and Defendant JinnyPoot Properties, a Virginia corporation with its principal place
of business in Virginia, were also served on August 8, 2011.
The Complaint claims damages totaling four million dollars.
On September 2, 2011, the Cherrys filed a Notice of Removal
(Notice), ECF No. 1, removing the case to this Court based on
diversity jurisdiction.
See 28 U.S.C. § 1441(a).
Plaintiff
requests that the case be remanded to state court because the
Cherrys failed to obtain consent from the other defendants for
the removal within the required 30 day period and thus violated
the “rule of unanimity.”
Pl.’s Mem. ¶ 4-6.
The Cherrys oppose
the Motion to Remand and request leave of the Court to amend
their Notice to reflect the now-obtained consent of the other
defendants.
Section 1441(a) permits a defendant to remove a civil
action filed in a State court of which the district courts of
the United States have original jurisdiction, to the United
States district court for the district and division embracing
the place where the action is pending.
28 U.S.C. § 1441(a).
Section 1446 specifies that “[a] defendant or defendants
desiring to remove any civil action . . . from a State court
shall file in [federal] court . . . a notice of removal signed
pursuant to Rule 11 of the Federal Rules of Civil Procedure and
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containing a short and plain statement of the grounds for
removal . . .”
28 U.S.C. § 1446(a).
Courts have interpreted the phrase “a defendant or
defendants” to require that all defendants join in or consent to
a notice of removal within thirty days of being served with the
Notice.
Landford v. Prince George’s County, 175 F.Supp. 2d 797,
801 (Md. 2001); see also Brodar v. McKinney, 378 F.Supp. 2d 634,
363 (M.D.N.C. 2005)(“Court have uniformly ruled that the phrase
‘a defendant or defendants’ in Section 1446(a) of Title 28
requires that all defendants join in or otherwise consent to a
notice of removal filed under Section 1441(a) of Title
28.”)(citations omitted).
unanimity.”
This is known as the “rule of
The removing defendant may be excused from
obtaining consent, however, from a defendant that was improperly
served or that is a “nominal or formal” party.
Egle Nursing
Home v. Erie Ins. Group, 981 F.Supp. 932, 933 (D. Md. 1997)
“The removal jurisdiction of the federal courts is to be
‘scrupulously confined,’” id. (quoting Shamrock Oil & Gas Co. v.
Sheets, 313 U.S. 100, 109 (1941)), so ‘if federal [removal]
jurisdiction is doubtful, a remand is necessary.’”
Mulcahey v.
Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994).
This narrow construction is designed to protect the sovereignty
of the states.
Egle, 981 F.Supp. at 933 (citing Shamrock, 313
U.S. at 109).
Therefore, “[t]he party seeking removal bears the
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burden of stating facts in its notice of removal demonstrating
entitlement to removal.”
Id.
The Cherrys properly stated facts demonstrating that
removal was appropriate based upon this Court’s original
diversity jurisdiction, namely that there is complete diversity
of citizenship among the parties and the amount in controversy
exceeds $75,000.
Notwithstanding, the Notice was deficient
because it was not signed by any of the other defendants, nor
did the other defendants join it or otherwise manifest their
consent to removal within 30 days of receiving the Notice.1
Furthermore, the Cherrys failed to explain either in the Notice
or in their Opposition to Plaintiff’s Motion to Remand their
reason for failing to obtain consent.
It does not appear that
any of the exceptions for obtaining consent are present, nor
have the Cherrys raised them.
Additionally, though the other
defendants joined Cherrys’ Opposition to Plaintiff’s Motion to
Remand, which was filed on October 14, 2011, counsel for these
defendants have not yet entered their appearances nor in any
other way acknowledged the federal proceeding.
This is
particularly noteworthy because all four of these defendants
filed Answers in the Circuit Court for Baltimore City after
receiving the Cherrys’ Notice of Removal and have served
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The other Defendants received service of the Notice of Removal
on or about September 7, 2011. Pl.’s Mot. ¶ 9.
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discovery requests on Plaintiff in the state proceeding.2
Pl.’s
Reply ¶ 9.
The Cherrys acknowledge that their Notice failed to satisfy
the unanimity requirement but argue that they should be
permitted to amend the Notice out of time to reflect the nowreceived consent of all Defendants.
They cite several cases to
suggest that such amendment is appropriate, characterizing the
failure to obtain unanimous consent as a “technical defect.”
The cases cited, however, are clearly distinguishable, as they
deal with true technical defects and cases in which the parties
had already invested a lot of time and effort in the federal
court proceedings.
See Nutter v. New Rents, Inc., No. 90-2493,
1991 WL 193490 (S.D.W.V. Oct. 1, 1991)(permitting amendment to
clarify claim of diversity jurisdiction by stating corporation’s
principle place of business and noting that case had proceeded
to final judgment); Esposito v. Home Depot USA, Inc., 590 F.3d
72 (1st Cir. 2009)(denying motion to remand because nonconsenting party had filed an answer in federal court within the
thirty day period, implicitly indicating its consent and
fulfilling unanimity requirement, and also noting that case had
proceeded to summary judgment stage of litigation); Destfino v.
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The Mattoons filed an Answer on September 19, 2011, and JinnyPoot, Inc. and David H. Gomer filed their Answer on September
26, 2011. Defendants Jinny-Poot, Inc. and David H. Gorman have
also attempted to make a “Qualified Offer” pursuant to Maryland
law. Pl.’s Reply ¶ 9.
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Reiswig, 630 F.3d 952 (9th Cir. 2011)(noting that Court “may
allow” removing defendant to cure defect by obtaining joinder
prior to entry of judgment, and indicating that case had
proceeded far into litigation).
Obtaining unanimity is a key component of the procedure for
removal and is certainly more than a technicality.
Egle, 381
F.Supp. at 935 (“the consent of all defendants to removal is not
a mere technicality, but an important part of the burden carried
by the party seeking removal jurisdiction”).
Moreover, in
remanding this case there is little danger of inefficiency, as
the parties have already clearly invested more time and effort
in the state court proceedings than in the federal proceeding.
Finally, it is consistent with the policy to strictly construe
removal jurisdiction that this Court reject the Cherrys’
untimely attempt to correct the deficient Notice and remand the
case for failure to meet the requirements for removal.3
For the foregoing reasons, the Court concludes that
Defendant’s Motion to Amend Notice of Removal will be denied,
Plaintiff’s Motion to Remand will be granted and Plaintiff’s
Motion to Amend the complaint will be denied as moot.
The Court
will issue a separate Order.
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Because this Court will remand this matter to state court, it
need not consider Plaintiff’s Motion for Leave to Amend
Plaintiff’s Complaint as the issue is now moot.
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/s/
William M. Nickerson
Senior United States District Judge
November 28, 2011
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