Easter-Green et al v. Verizon Maryland LLC et al
Filing
31
MEMORANDUM AND ORDER denying as moot 11 Motion of Harbor Group Management Company andHarbor Group International, LLC to Dismiss; granting 15 Motion of plaintiffs for Order of Remand ; denying 18 Motion of plaintiffs to Strike Amended Notice ofRemoval ; denying as moot 20 Motion of of plaintiffs for Order of Remand; denying 26 Motion of Harbor Group for Leave to Amend Notice ofRemoval. Signed by Judge Marvin J. Garbis on 7/23/14. (jnls, Deputy Clerk) Modified on 7/24/2014 (jnls, Deputy Clerk).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
FARRIE R. EASTER-GREENE et al.
Plaintiffs
vs.
Defendants
*
*
*
*
VERIZON MARYLAND, LLC, et al.
*
*
*
CIVIL ACTION NO. MJG-14-1040
*
*
*
*
*
*
*
MEMORANDUM AND ORDER RE: REMAND
The Court has before it Defendant Harbor Group Management
Company and Harbor Group International, LLC's Motion to Dismiss
[Document 11], Plaintiffs' Motion for Order of Remand [Document
15], Plaintiffs' Motion to Strike Amended Notice of Removal
[Document 18], Plaintiffs' Motion for Order of Remand [Document
20], Harbor Group's Motion for Leave to Amend Notice of Removal
[Document 26], and the materials submitted relating thereto.
The
Court has held a hearing and has had the benefit of the arguments
of counsel.
I.
BACKGROUND
Plaintiffs Farrie R. Easter-Greene and Anthony J. Greene,
Sr. (the "Greenes"), Maryland citizens, have sued Verizon
Maryland LLC ("Verizon"), a Delaware and New York corporation,
and Harbor Group International, LLC and Harbor Group Management
Co. (collectively "the Harbor Defendants"), Virginia
corporations, in connection with injuries that Ms. Easter-Greene
sustained in September 2011 when she tripped and fell over a
Verizon equipment box.
The Greenes assert claims in six Counts1:
Count I
– Negligence
Count II
– Tort Arising from Breach of Contract
Count III – Breach of Contract
Count IV
– Nuisance
Count V
- Negligence
Count VI
- Joint Claim of Plaintiffs as to all Defendants
The Greenes brought suit in the Circuit Court for Baltimore
City, Maryland on February 20, 2014.2
On April 3, the Harbor
Defendants filed a Notice of Removal in this Court.
By their
instant Motions, the Greenes seek remand, contending that the
Notice of Removal did not comply with the requirements of 28
U.S.C. § 1446.
II.
JURISDICTION
The removal statute, 28 U.S.C. § 1441(a), provides that:
any civil action brought in a State court of
which the district courts of the United
1
Counts I – III are asserted against the Harbor Defendants
only. Count V is asserted against Verizon only. Counts IV and
VI are asserted against all three Defendants.
2
All date references herein are to the year 2014 unless
otherwise indicated.
2
States have original jurisdiction,[3] may be
removed by the defendant or the defendants,
to the district court of the United States
for the district and division embracing the
place where such action is pending.
A defendant who wishes to remove a case to federal court
must, "within 30 days after the receipt . . . of a copy of the
initial pleading":
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), (b)(1).
As to a case with multiple defendants:
(A) When a civil action is removed solely
under section 1441(a), all defendants who
have been properly joined and served must
join in or consent to the removal of the
action.
(B) Each defendant shall have 30 days after
receipt by or service on that defendant of
the initial pleading or summons described in
paragraph (1) to file the notice of removal.
3
The diversity statute provides, in pertinent part:
The district courts shall have original
jurisdiction of all civil actions where the
matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and
costs, and is between –
(1) citizens of different States . . . .
28 U.S.C. § 1332(a)(1).
3
Id. § 1446(b)(2)(A)-(B).
"[T]he Supreme Court has construed [§ 1446] to include a
'unanimity requirement,' such that all defendants must consent to
removal."
Mayo v. Bd. of Educ. of Prince George's Cnty., 713
F.3d 735, 741 (4th Cir. 2013) (citing Lapides v. Bd. of Regents
of Univ. Sys. of Ga., 535 U.S. 613, 620 (2002), cert. denied, 134
S. Ct. 901 (2014).
"The removal jurisdiction of the federal
courts is to be 'scrupulously confined,' and '[i]f federal
[removal] jurisdiction is doubtful,'" – i. e., if unanimous
consent to removal is lacking – '"a remand is necessary.'"
Egle
Nursing Home, Inc. v. Erie Ins. Grp., 981 F. Supp. 932, 933 (D.
Md. 1997) (alterations in original) (citations omitted).
The Greenes seek remand of the instant case to the Circuit
Court for Baltimore City on the grounds that the Harbor
Defendants' Notice of Removal is defective because it does not
state that Verizon joined in, or consented to, removal within 30
days after being served with the Complaint.
The Harbor
Defendants assert that the explicit consent of Verizon was not
required, and that even if such consent were required, Verizon's
Answer to the Complaint satisfies the requirements of § 1446.
Further, the Harbor Defendants contend that if explicit consent
was required and Verizon's Answer is not sufficient, they should
4
be permitted to amend the Notice of Removal to reflect Verizon's
consent.
III. DISCUSSION
A.
Timeline of Filings
A timeline of the parties' filings is helpful for
understanding the removal dispute.
Feb. 20
The Greenes filed the underlying lawsuit in the
Circuit Court for Baltimore City.
March 4
Harbor Group served with Complaint.
March 6
Verizon served with Complaint via certified mail.4
April 3
The Harbor Defendants removed case to this Court.
April 4
This Court issued a Standing Order Concerning
Removal," stating that all removing parties shall
file a statement that, inter alia, identifies "any
defendant who was served in the state court action
prior to the time of removal who did not formally
join in the notice of removal and the reasons why
such defendant did not join." [Document 8] ¶ 5.
April 8
Verizon filed its Answer to the Complaint in this
Court.
April 10
The Harbor Defendants filed their Motion to
Dismiss.
April 10
The Harbor Defendants responded to the Court's
April 4 Order, stating that "It is unknown whether
Verizon Maryland, LLC was served prior to the time
of removal. However, the undersigned spoke with
4
According to the Maryland Judiciary Case Search, a writ of
summons was served on Verizon on March 4, 2014. However, since
the parties seem to agree that the service date was March 6, and
since the two-day difference is immaterial, the Court will assume
that service was effected on March 6.
5
counsel for Verizon Maryland, LLC, who consented
to the removal." [Document 13] ¶ 5.
April 15
Verizon responded to the Court's April 4 Order,
stating that it "consents to and joins in the
removal to federal court." [Document 14] ¶ 3.
April 23
The Greenes filed their first Motion for Order of
Remand.
April 24
The Harbor Defendants filed their Amended Notice
of Removal, adding a ninth paragraph - "Verizon
consents and joins in the removal of this action
from state court." [Document 16] ¶ 9.
May 2
The Greenes filed their Motion to Strike Amended
Notice of Removal.
May 2
The Greenes filed their second Motion for Order of
Remand.
May 13
Verizon filed its Response in Opposition to
Plaintiffs' Motions to Remand.
May 20
The Harbor Defendants filed their Motion for Leave
to Amend Notice of Removal.
B.
The Harbor Defendants' April 3 Notice of Removal
The Greenes contend that the Notice of Removal is defective
because it "does not indicate in any manner that Verizon had
approved the removal."
[Document 15-1] at 3.
The Harbor
Defendants5 argue that § 1146 does not require explicit written
consent and that consent-in-fact to removal is sufficient.
According to the Harbor Defendants, the Notice of Removal
satisfies § 1146 because, prior to removing the case, counsel for
5
As well as Verizon, which "note[d] its adoption of Harbor
Group's Response in Opposition to Motion for Order of Remand."
[Document 23] at 1.
6
the Harbor Defendants spoke with counsel for Verizon who "advised
that Verizon joined and consented to removal."6
[Document 22-1]
at 4.
Explaining the unanimity requirement of § 1446, the United
States Court of Appeals for the Fourth Circuit has stated:
[Section 1446 and Fed. R. Civ. P. 11] do not,
however, require that in a case involving
multiple defendants where all defendants must
consent
to
removal
that
each
of
the
defendants sign the notice of removal or file
a separate notice of removal complying with §
1446(b).
Moreover, we can see no policy reason why
removal in a multiple-defendant case cannot
be accomplished by the filing of one paper
signed by at least one attorney, representing
that all defendants have consented to the
removal. . . .
Accordingly, we conclude that a notice of
removal signed and filed by an attorney for
one defendant representing unambiguously that
the other defendants consent to the removal
satisfies
the
requirement
of
unanimous
consent for purposes of removal.
Mayo v. Bd. of Educ. of Prince George's Cnty., 713 F.3d 735, 742
(4th Cir. 2013).
6
In an email exchange between counsel for the Harbor
Defendants and counsel for Verizon dated April 3, counsel for
Verizon wrote "I'm not sure, maybe I missed it, that [the Notice]
says that Verizon Maryland LLC joins in or consents to the
removal. If you need to in any fashion, you are authorized to so
represent." [Document 22-2]. In the Harbor Defendants'
statement in the April 10 response to the Court's Standing Order
Concerning Removal, they state that they were unaware whether
Verizon actually had been served with the Complaint at the time
the Harbor Defendants filed the Notice of Removal. See [Document
13] ¶ 5. Any issue regarding this matter would be moot, however.
7
The Mayo decision stated that "neither [§ 1446] nor the
Supreme Court's decisions have specified how defendants are to
give their 'consent' to removal."
Id. at 741.
The Harbor
Defendants wish to rely on this statement to support their
contention that that their Notice of Removal satisfied § 1446
because counsel for the Harbor Defendants had received consent to
removal from counsel for Verizon via email.
Defendants' reliance is misplaced.
The Harbor
The notice of removal at
issue in Mayo, which was filed by the School Board and its chair,
but not by the employees' union, explicitly "stated that the
Union had been consulted and had 'agree[d] with the removal of
this action to federal court.'"
Id. at 739.
Thus, the Fourth
Circuit concluded that the notice of removal was "signed and
filed by an attorney for one defendant representing unambiguously
that the other defendants consent[ed] to the removal."
Id. at
742.
In the instant case, however, there is absolutely no
reference in the Notice of Removal – filed by the Harbor
Defendants only - to Verizon's decision joining in or consenting
to removal.
That is, the Notice of Removal lacks any statement
of concurrence or other unambiguous representation that all
Defendants consented to removal.
8
Faced with a Notice of Removal similar to the one at issue
in the instant case, Judge Titus of this Court stated:
Nutrex's Notice of Removal indicates that its
first notice of this action was by its
receipt on December 22, 2005, and that GNC's
first notice of this action was by its
receipt
on
December
30,
2005.
Both
Defendants therefore had notice of this
action at the time that Nutrex filed a Notice
of Removal on January 19, 2006. However, GNC
failed to join in the Notice of Removal or
otherwise indicate its consent to removing
the action to federal court. Nutrex's Notice
of Removal does not explain why GNC did not
join Nutrex in removing the case or suggest
that GNC for some reason was not required to
join in or consent to the removal in a timely
manner.
This alone makes the removal
petition defective.
Johnson v. Nutrex Research, Inc., 429 F. Supp. 2d 723, 727 (D.
Md. 2006) (emphasis added).7
Here, the Harbor Defendants were served with the Complaint
on March 4 and Verizon was served on March 6.
All Defendants,
therefore, had notice of the lawsuit when the Harbor Defendants
filed the Notice of Removal on April 3.
However, the Notice of
Removal does not assert that Verizon joined in or consented to
removal.
Nor does it refer to, or explain, the absence of such
consent.
The only reference to Verizon in the Notice of Removal
7
See also Anne Arundel Cnty., Md. v. United Pac. Ins. Co.,
905 F. Supp. 277, 279 (D. Md. 1995) ("GPI was served by the
County on September 27, 1995. Because GPI did not file any
notice joining in or consenting to UPIC's removal petition, or
submit any written documentation to this Court of its intent to
join, by October 27, 1995, removal is defective. For that
reason, this Court will grant the County's motion to remand.").
9
is the allegation that "[u]pon information and belief, Verizon
Maryland, LLC is a limited liability corporation and is a citizen
of Delaware and New York." [Document 1] ¶ 5.
The Harbor
Defendants' suggestion that this Court find compliance with §
1446 based upon the email exchange between counsel has no support
in case law and runs counter to the Fourth Circuit's strict
construction of § 1446 that consent to removal must be clear and
unanimous.
Accordingly, the original Notice of Removal filed on April
3, 2014 is defective.
C.
Verizon's April 8 Answer to the Complaint
The Harbor Defendants contend that any alleged defect in the
Notice of Removal was cured when Verizon filed its Answer to the
Complaint in this Court on April 8.
The Court will assume that
the Answer was filed timely, although there appears to be a basis
for doubt as to its timeliness.8
8
The Greenes argue that
Verizon was served with the Complaint on March 6 via
certified mail and filed its Answer on April 8. See [Document
22-1] at 4. Under Fed. R. Civ. P. 12(a)(1)(A)(i), "[a] defendant
must serve an answer . . . within 21 days after being served with
the summons and complaint." Verizon contends that its Answer was
timely under Fed. R. Civ. P. 81, which states that "[a] defendant
who did not answer before removal must answer or present other
defenses or objections under these rules within the longest of
these periods . . . 7 days after the notice of removal is filed."
Fed. R. Civ. P. 81(c)(2)(C); see [Document 23]. Verizon contends
that it had 7 days from April 3 to file the Answer. In the
10
Verizon's Answer does not satisfy § 1446 because it does not
"state[] in any manner that Verizon had consented to removal from
State Court." [Document 15-1] at 1.
The Harbor Defendants rely on a decision from the U.S. Court
of Appeals for the Sixth Circuit, which stated:
Even assuming, arguendo, that the statement
of concurrence in the notice of removal did
not satisfy the rule of unanimity because
Kelly needed to file a written concurrence on
his own behalf, it is clear that Kelly
complied with the rule when he filed his
answer within 30 days of being served with
the complaint.
Harper's complaint was
personally served on Kelly on July 24, 2002.
In his answer, filed on August 21, 2002,
Kelly stated, "Defendant Kelly asserts that
the proper jurisdiction and venue for this
case is the U.S. District Court for the
Eastern
District
of
Michigan,
Southern
Division."
Thus,
the
district
court
correctly concluded that Kelly's answer
complied with the rule of unanimity.
Harper v. AutoAlliance Int'l, Inc., 392 F.3d 195, 202 (6th Cir.
2004) (emphasis added).
The instant case is not, however, analogous to Harper.
Verizon's Answer is silent not only on removal, but also on
jurisdiction and venue as being proper in this Court.
The Harper
decision does not provide an example of an Answer analogous to
Verizon's being accepted as satisfying § 1446.9
absence of authority cited by any party, the Court will assume
that Verizon is correct.
9
In Harper, the Sixth Circuit stated that "the fact that
Kelly subsequently [but, within the period for filing a consent]
11
No appellate court appears to have addressed the issue of
whether an answer to a state-court complaint that is filed in
federal court within the 30-day period after service, but is
wholly silent on removal and jurisdiction satisfies the unanimity
required by § 1446.10
However, numerous district courts, when
faced with such facts, have held that the answer did not satisfy
the removal statute.
For example, in Unicom Sys., Inc. v. Nat'l
Louis Univ., a judge for the U.S. District Court for the Eastern
District of Virginia noted:
opposed Harper's motion to remand cured any purported defect in
the removal petition." Harper v. AutoAlliance Int'l, Inc., 392
F.3d 195, 202 (6th Cir. 2004); see also City of Cleveland v.
Deutsche Bank Trust Co., 571 F. Supp. 2d 807, 815-16 (N.D. Ohio
2008) ("[A]lbeit in dicta, Harper supports the legal proposition
that a co-defendant can express its consent to removal merely by
opposing a plaintiff's motion to remand. Here, Defendants
unanimously opposed the City's motion (Doc. Nos. 68, 71, 89), and
did so within thirty days of removal."). In the instant case,
the parties have not argued that Verizon filing an opposition to
the Greenes' motion to remand qualifies under Fourth Circuit
authority as consent to removal. But, even if an opposition to
remand did so qualify, Verizon filed its Response in Opposition
[Document 23] to the Motion to Remand on May 13 – more than 30
days after April 3 when the Harbor Defendants removed the case
and roughly a month outside the period during which Verizon was
permitted to join in or consent to removal.
10
In Mayo v. Board of Education of Prince George's County, the
Fourth Circuit did adopt the Sixth Circuit's analysis in Harper
as it pertained to a notice of removal that expressly states it
was filed with the consent of all defendants. See 713 F.3d 735,
741 (4th Cir. 2013) ("Approving a less formal process — the
procedure used by the defendants in this case — the Sixth Circuit
has held that a notice of removal filed by three defendants which
stated that the fourth defendant concurred in the removal
satisfied the rule of unanimity." citing Harper v. AutoAlliance
Int'l, Inc., 392 F.3d 195, 201–02 (6th Cir. 2004)). However,
this does not indicate that the Fourth Circuit would accept
Verizon's filing of its Answer as adequate to satisfy § 1446.
12
On January 27, 2003, defendants NLU and MLU
filed a joint notice of removal to federal
court.
Thereafter, on February 4, 2003,
defendant TC filed its answer in federal
court. Significantly, this answer contained
no explicit consent to the removal notice,
nor any demand or request to remand the case
to state court; indeed, the answer contained
no reference at all to removal.
. . . .
TC further argues that the filing of its
answer on February 4, 2003, within the thirty
day removal time period, is sufficient to
constitute consent to the removal petition.
This argument also fails. The Fourth Circuit,
consistent with the strict construction of
removal
statutes,
has
held
that
"all
defendants
must
affirmatively
and
unambiguously assert their desire to remove
the case to federal court." An answer that
is wholly silent on removal, as here, falls
far short of this standard and many courts
have so held.
262 F. Supp. 2d 638, 639-40, 641-42 (E.D. Va. 2003) (emphasis
added) (citations omitted).
The court in Unicom explained that
"the filing of an answer is an 'ambiguous act' that is not
necessarily consistent with consent to removal" because an answer
that does not reference removal "might well have been filed for a
variety of reasons unrelated to removal, including a desire to
avoid default or to expedite the case."11
11
Id. at 642.
See also Unicom Sys., Inc. v. Nat'l Louis Univ., 262 F.
Supp. 2d 638, 639-40, 642-43 (E.D. Va. 2003) ("Under plaintiff's
reasoning, defendant's filing of an answer should be deemed a
'waiver' of its right to decline consent to the removal. That an
answer, silent on the issue of removal, should be given
13
Other district courts in other circuits have reached
conclusions similar to that reached by the court in Unicom.
See,
e.g., Premier Holidays Int'l, Inc. v. Actrade Capital, Inc., 105
F. Supp. 2d 1336, 1338 (N.D. Ga. 2000) ("Courts in this
jurisdiction have gone so far as to hold that, even if a
defendant answers within the 30 day period in the federal court,
an answer that is silent on whether the defendant consents to the
removal does not constitute proper consent."); Williams v. Howard
Univ., 984 F. Supp. 27, 30 n.4 (D.D.C. 1997) ("[T]he mere filing
of a pleading or motion in federal court is insufficient to
demonstrate an unambiguous consent to removal."); Landman v.
Borough of Bristol, 896 F. Supp. 406, 409 (E.D. Pa. 1995)
("Because courts strictly construe the removal statutes, the
parties must meticulously comply with the requirements of the
statute to avoid remand. The filing of an answer is an ambiguous
act in this regard.").
But see Glover v. W.R. Grace & Co., Inc.,
773 F. Supp. 964, 965 (E.D. Tex. 1991) ("Crosfield, however, did
not manifest its consent, by filing an answer in this court,
until April 2, 1991, thirty-four days after it received a copy of
the plaintiffs' petition. . . . Here, Crosfield's consent to
Grace's removal was merely four (4) days late. . . . This court
declines to elevate form over function. Accordingly, the
conclusory weight over an explicit notice of non-consent reveals
the weakness in plaintiff's argument.").
14
plaintiffs' motion to remand should be, and hereby is, in all
things, DENIED."), disapproved of by Snead v. Woodbine Prod.
Corp., CIVA 08-1301, 2008 WL 4610236 (W.D. La. Oct. 11, 2008).
This Court is persuaded by the reasoning of the Unicom case
from the Eastern District of Virginia and cases from other
federal district courts that have held that an answer to a statecourt complaint that is filed in federal court but is silent as
to removal, jurisdiction, and/or venue is insufficient to
demonstrate unanimous consent to removal.
Accordingly, the April 8 Answer to the Complaint filed by
Verizon does not satisfy the unanimity requirement of § 1446.
D.
The Harbor Defendants' May 20 Motion for Leave to Amend
Notice of Removal
The Harbor Defendants contend that they should be permitted
to amend their Notice of Removal, pursuant to 28 U.S.C. § 1653,
to "reflect[] that [their] original Notice of Removal was filed
with the consent of Verizon."12
[Document 26-1] at 5.
12
The
The Harbor Defendants argue that Verizon timely joined in
and consented to removal by virtue of Verizon filing a Statement
Pursuant to Standing Order Concerning Removal, which states
"Defendant Verizon Maryland LLC consents to and joins in the
removal to federal court." [Document 14] ¶ 3. However, this
Statement was filed on April 15, roughly a week after Verizon was
required to join in or consent to removal. The Harbor Defendants
filed a Statement Concerning Removal on April 10 that states,
"the undersigned spoke with counsel for Verizon Maryland, LLC,
who consented to the removal," [Document 13] ¶ 5, but that
15
Greenes argue that a notice of removal cannot be amended under §
1653 when the notice was defective because of the failure to
satisfy the unanimity requirement.
See [Document 29] at 3, 6-7.
Under 28 U.S.C. § 1653, "[d]efective allegations of
jurisdiction may be amended, upon terms, in the trial or
appellate courts."
In Covert v. Auto. Credit Corp., Judge Bredar
of this Court observed that:
Within the Fourth Circuit, district courts have
split into two school[s] regarding the application
of § 1653 after the thirty-day window for removal
under § 1446(b) has elapsed.
This Court has
frequently adhered to a "strict constructionist"
approach under which amendments after § 1446(b)'s
thirty-day period are allowed "only for the
purpose of setting forth more specifically grounds
that had been imperfectly stated in the original
petition; missing allegations may not be supplied
nor new allegations furnished."
By contrast, some of our sister courts have
adopted a more liberal approach of allowing
supplemental allegations where "the imperfection
in the jurisdictional allegation is a 'mere
defect.'"
Muhlenbeck v. KI, LLC, 304 F.Supp.2d
797, 801 (E.D.Va.2004). However, even under this
liberal approach "[i]f a ground for removal was
completely omitted [as opposed to 'imperfectly
stated'], the court has no discretion to permit
amendment under § 1653 and must remand the case to
the state court."
968 F. Supp. 2d 746, 750 (D. Md. 2013) (citations omitted).
The Fourth Circuit has ruled "that an amendment [to a notice
of removal] which merely perfects a technically defective
Statement also was filed outside of the timeframe in which
Verizon was permitted to consent to removal.
16
jurisdictional allegation in a timely filed removal petition may
be allowed after the 30-day removal period."
Nutter v. New
Rents, Inc., 945 F.2d 398, at *2 (4th Cir. 1991) (unpublished
disposition).
In Nutter,
the Fourth Circuit upheld a district
court's decision permitting amendment of a notice of removal when
"New Rents' original notice of removal identified diversity as
the ground for removal, and stated that New Rents was a 'Kentucky
corporation' [and t]he amendment simply clarified this by
specifying that Kentucky was New Rents' 'principal place of
business.'"
Id.; see also D. J. McDuffie, Inc. v. Old Reliable
Fire Ins. Co., 608 F.2d 145, 146 (5th Cir. 1979) ("In their
original petition for removal the insurers failed to specifically
allege the citizenship of the parties . . . . Appellants moved to
remand the cause to state court, citing the failure to
specifically allege citizenship.
The district court allowed the
insurers to amend their removal petition to cure the omission,
and denied the motion to remand. The appellants argue that the
missing allegation is a fatal omission which cannot be cured by
amendment. We disagree.").
The parties have not pointed to any federal appellate case
that has addressed amendments to a notice of removal under § 1653
in the context of a defect in the unanimity requirement required
by § 1446 for a multi-defendant case.
17
In Johnson v. Nutrex
Research, Inc., Judge Judge Titus of this Court considered such
circumstances, noting:
The Defendants never sought to amend their
Notice of Removal, and even if they had, it
would not be proper here because the failure
to file a notice joined by both Nutrex and
GNC is not a mere technical defect of the
type that courts have permitted a removing
defendant to correct after the time for
removal has expired. GNC was in receipt of a
copy of the complaint on December 30, 2005,
but failed to join in or consent to Nutrex's
Notice of Removal, and failed to otherwise
indicate its consent in the thirty-day window
in which removal was proper. Therefore, in
accordance with the strict construction of
removal statutes, this Court will remand this
case to the Circuit Court for Prince George's
County due to the failure of GNC to timely
join in or consent to the removal of this
case as required by 1446(a).
429 F. Supp. 2d at 727-28 (citations omitted); see also Nat'l
Union Fire Ins. Co. of Pittsburgh, Pa. v. Louth, 40 F. Supp. 2d
776, 783 (W.D. Va. 1999) ("The court will deny defendants'
request that they be allowed to cure their failure to file a
notice of removal joined by all defendants. . . . The lack of
joinder or consent by each and every defendant to the notice of
removal represents a much more significant defect than those at
issue in the cases cited by defendants."); Egle Nursing Home,
Inc. v. Erie Ins. Grp., 981 F. Supp. 932, 935 (D. Md. 1997) ("The
Court will therefore grant Egle's motion to remand and deny
Northern's motion to correct this defect by amending its notice
of removal.
As stated, removal jurisdiction is strictly
18
construed.
The weight of authority holds that amendments of a
notice of removal after the initial thirty-day period for removal
has passed are permitted only to correct technicalities or to set
out more specifically the grounds for removal already stated in
the original notice. . . . [T]he 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.")
In the instant case, the Harbor Defendants filed their
Amended Notice of Removal, adding a ninth paragraph that states
"Verizon consents and joins in the removal of this action from
state court," on April 24.
[Document 16] ¶ 9.
April 24 falls
well outside the period during which Verizon was permitted to
join in or consent to removal.
The Court finds the reasoning of
other judges of this Court persuasive.
This Court adheres
strictly to the requirements of the removal statute.
To permit a
defendant to amend a notice of removal to add that another
defendant joins in or consents to removal, when such an
allegation was completely absent from the original notice of
removal, would be akin to "[a]llowing amendments to include
entirely new allegations[, which] would 'substantially
eviscerate' the thirty-day time limit for removal prescribed by
Congress in § 1446(b)."
Covert, 968 F. Supp. 2d at 750.
Accordingly, the Court shall deny the Harbor Defendants'
Motion for Leave to Amend Notice of Removal.
19
IV.
CONCLUSION
For the foregoing reasons:
1.
Defendant Harbor Group Management Company and
Harbor Group International, LLC's Motion to
Dismiss [Document 11] is DENIED AS MOOT.
2.
Plaintiffs' Motion for Order of Remand [Document
15] is GRANTED.
3.
Plaintiffs' Motion to Strike Amended Notice of
Removal [Document 18] is DENIED.
4.
Plaintiffs' Motion for Order of Remand [Document
20] is DENIED AS MOOT.
5.
Harbor Group's Motion for Leave to Amend Notice of
Removal [Document 26] is DENIED.
6.
A separate Order of Remand shall be issued
herewith
SO ORDERED, on Wednesday, July 23, 2014.
/s/__________
Marvin J. Garbis
United States District Judge
20
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?