Jacome De Espina v. Jackson et al

Filing 50

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 10/15/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ESTELAN CONCEPCION JACOME
DE ESPINA, As Personal
:
Representative of the Estate
of Manuel DeJesus Espina, et al.:
v.

:

Civil Action No. DKC 15-2059

:
OFFICER STEVEN JACKSON, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution is Plaintiffs’
motion to remand.

(ECF No. 14).

A hearing was held this

morning, and, for the reasons stated at that time, supplemented
by this opinion, Plaintiffs’ motion will be granted.
I.

Background
This case arises from the fatal shooting of Manuel Espina

by

Prince

George’s

August 16, 2008.

County

police

officer

Steven

Jackson

on

Plaintiffs’ initial complaints in state court

asserted only state law claims, including a pattern-or-practice
claim against Prince George’s County, Maryland (the “County”).
Prior to trial, the County sought and obtained bifurcation of
the pattern-or-practice claim.

The pattern-or-practice claim

(“Phase Two”) would proceed after the court had adjudicated the
claims against Officer Jackson (“Phase One”), and discovery was
deferred until after trial in Phase One.

(See ECF Nos. 19-17;

22-4; 22-5; Dkt. Nos. 37; 84; 85).

A jury tried the Phase One

tort case in March 2011 in the Circuit Court for Prince George’s
County, Maryland.

The trial resulted in a verdict in favor of

Plaintiffs and against the County and Officer Jackson, jointly
and severally, in the amount of $11.5 million.
Post-trial motions and appeals to the Maryland Court of
Special

Appeals

resulting

in

and

the

the

Maryland

affirmance

of

Court

the

of

Appeals

judgment

followed,

against

Officer

Jackson, but a reduction of the judgment against the County due
to the application of Maryland’s cap on damages against a local
government.

See Espina v. Prince George’s County, 215 Md.App.

611 (2013); Espina v. Jackson, 442 Md. 311 (2015).
When the time to consider Phase Two arrived, Plaintiffs
filed a fifth amended complaint in state court on June 17, 2015,
without first seeking leave of court.
428).

(ECF No. 2; Dkt. No.

For the first time, they asserted a federal claim under

42 U.S.C. § 1983 against the County, asserting liability under
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658
(1978).

The County filed a motion to strike the fifth amended

complaint on July 2, 2015 (ECF No. 35-36; Dkt. No. 430) and
removed the case to this court on July 14, 2015 (ECF No. 1).

2

Plaintiffs filed a motion to remand on August 13, 2015 (ECF No.
14), and the County responded in opposition (ECF No. 38).
II.

Propriety of Removal
A.

Standard of Review

When a plaintiff challenges the propriety of removal, the
defendant bears the burden of proving proper removal.

See Dixon

v. Coburg Dairy, Inc., 369 F.3d 811, 815 (4th Cir. 2004); Greer
v.

Crown

Title

Corp.,

216

F.Supp.2d

519,

521

(D.Md.

2002)

(citing Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148,
151 (4th Cir. 1994)).

In considering a motion to remand, the

court must “strictly construe the removal statute and resolve
all

doubts

in

favor

of

remanding

the

case

to

state

court.”

Richardson v. Philip Morris Inc., 950 F.Supp. 700, 702 (D.Md.
1997) (internal quotation marks omitted); see Barbour v. Int’l
Union, 640 F.3d 599, 605 (4th Cir. 2011).
the

reluctance

of

federal

courts

properly before a state court.”

“to

This standard reflects
interfere

with

matters

Richardson, 950 F.Supp. at 701.

That is, “[w]hile a district court should be cautious in denying
defendants access to a federal forum because remand orders are
generally

unreviewable,

it

is

also

true

that

jurisdiction raises significant federalism concerns.”

3

removal
Momin v.

Maggiemoo’s

Int’l,

LLC,

205

F.Supp.2d

506,

508

(D.Md.

2002)

(citations and internal quotation marks omitted).
B.

Entire Action Removed

The operative pleading for purposes of the County’s notice
of removal is the amended complaint at the time of removal.

See

McCoy v. Norfolk S. Ry. Co., 858 F.Supp.2d 639, 642 (S.D.W.Va.
2012);

Momin,

205

F.Supp.2d

at

508

(citation omitted) (“[A]

court must consider the claims in the state court petition as
they

existed

Plaintiffs’

at

fifth

the

time

amended

of

removal.”).

complaint

(filed

Accordingly,

without

leave

of

court on June 17, 2015, and the subject of the County’s motion
to strike) (ECF No. 2) is the operative complaint.
The parties dispute what proceedings have been removed and
how bifurcation of the state trial affects removal under §§ 1441
and 1446.

The first question is whether bifurcation in state

court renders Officer Jackson a non-party at this stage and/or
whether the garnishment actions affect his status on removal to
federal court.
phases.
under

Phase One contained Plaintiffs’ tort claims and claims

the

against

Here, the state action was bifurcated into two

Maryland

Officer

Constitution

Jackson

and

that

the

resulted

County,

some

in
of

currently being enforced by the garnishment actions.
4

a

judgment
which

is

The County

notes that “the only unadjudicated claims are those in” Count
XIV (the Longtin claim) and Count XV (the Monell claim).
No. 1 ¶ 4).

(ECF

The County now seeks to remove these Phase Two

claims, but also asserts that “no further proceedings may be had
in the Circuit Court for Prince George’s County.”

(Id. ¶ 8).

Plaintiffs argue that the County “appears to have attempted to
remove

the

ongoing

collection

proceedings

against

Jackson along with the pending Phase [Two] claims.

[Officer]
. . .

If

the collection proceedings are severable from the Phase [Two]
claims, the collection proceedings should be remanded.”
No. 14, at 1).

(ECF

As will be seen, it is unnecessary to address

that argument directly.
The removal statute states that “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 or the defendants, 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).

Removal concerns

the entire action, “not merely those aspects involving discrete
federal claims or parties.”

Arango v. Guzman Travel Advisors

Corp., 621 F.2d 1371, 1376 (5th Cir. 1980).
—

embracing

all

defendants

—

that
5

is

to

“[I]t is the action
be

transferred

to

federal court.”

Id. at 1375 (emphasis in original).

Here,

bifurcation permitted the court to try separately the claims
against

Officer

Jackson

Md.Rule 2–503(b).

and

the

County,

as

contemplated

by

But “‘[s]everance for litigation’ is not the

same as severance into independent separate actions sufficient
to trigger the right to remove.”

Wittstadt v. Reyes, No. DKC-

15-1263, 2015 WL 4232379, at *3 (D.Md. July 13, 2015).

In sum:

[T]here is only one case with a single
caption and case number. . . . The manner
in
which
the
state
court
chooses
to
administer the lawsuit or divide the claims
for separate trials or other adjudicative
treatment cannot turn one lawsuit into two
for the purpose of the removal statute and
the review of jurisdiction that must occur
in every federal civil action.
Concerned

Citizens

of

Caro

v.

Michigan

Ethanol,

LLC,

396

F.Supp.2d 814, 818 (E.D.Mich. 2005) (remanding to state court
because

removal

requires

the

unanimous

consent

of

all

defendants); see also Mullins v. Burke, No. 7:10-144-KKC, 2011
WL

864496,

at

*2

(E.D.Ky.

Mar.

9,

2011)

(granting

the

plaintiffs’ motion to remand because bifurcation at state court
did not sever claims into separate cases).
for

the

proposition

that

bifurcated

These cases stand

proceedings

cannot

be

separated and removed, but must remain together as part of one
action.
6

The County argues that the judgment against Officer Jackson
is final and that he is not involved in the remaining claims.
This argument ignores that his rights are very much affected by
the

remaining

claims,

adverse to the County.

frankly

in

a

manner

that

is

directly

If the County is found liable, there is

the real possibility that it will be responsible for more of the
damages,

jointly

with

him,

than

it

currently

is.

Officer

Jackson has a right to be considered a party, to be represented
by counsel, to receive notice of proceedings, and, as discussed
at the hearing, possibly to be present at and participate in
trial, particularly if the federal claim is allowed to proceed.
Furthermore,

the

ongoing

garnishment

proceedings

provide

additional force for the notion that Officer Jackson remains an
active party in this action.

Much of the available case law

concerns attempts to remove a garnishment proceeding to federal
court

as

an

independent

action,

not

whether

a

pending

garnishment action is removable to federal court alongside the
residual

bifurcated

component

or

whether

pending

garnishment

proceedings keep a party active.1

1

“‘[T]he [removal] statute does not define the term ‘civil
action’ . . . [,]’ Levert–St. John, Inc. v. Hartford Steam
Boiler Inspection & Ins. Co., No. 06–1023, 2006 WL 1875494, at
*1 (W.D.La. July 3, 2006), but federal courts have broadly
7

The determination of the Maryland Court of Special Appeals
that “garnishment proceedings are separate cases, even though
filed

in

the

underlying

action,”

Mayor

&

City

Council

of

Baltimore v. Utica Mut. Ins. Co., 145 Md.App. 256, 277 (2002),
is

not

binding

examining

on

whether

federal

courts

garnishment

in

removal

proceedings

actions.

against

In

separate

insurers fall squarely within the confines of the underlying
action, the Maryland court concluded that garnishment actions
are separate cases “because each garnishment initiated against a
construed the term, see 14B C. Wright, A. Miller, E. Cooper, R.
Freer, J. Stainman, C. Struve, & V. Amark, Federal Practice &
Procedure Jurisdiction § 3721, at 28 (4th ed. 2009 & Supp.
2010).” Mach v. Triple D Supply, LLC, 773 F.Supp.2d 1018, 1024
(D.N.M. 2011).
Many cases address garnishment actions, initiated after all
other proceedings concluded, that were properly removed on the
ground of diversity jurisdiction.
These cases examine whether
garnishment actions are merely supplemental proceedings and
therefore not subject to removal apart from the underlying
action. See Richmond v. Allstate Ins. Co., 624 F.Supp. 235, 236
(E.D.Pa. 1985) (citation omitted) (“A suit which is merely
ancillary or supplemental to another action cannot be removed
from a state court to a federal court.”); W. Med. Props. Corp.
v. Denver Opportunity, Inc., 482 F.Supp. 1205, 1207 (D.Colo.
1980) (citations omitted) (“It is a well settled rule that a
suit which is merely ancillary or supplemental to another action
cannot be removed from a state court to a federal court.”). In
the diversity context, at least, garnishment proceedings can be
“original and independent actions between the holders of the
judgments and the insurer.
. . .
And, being original and
independent actions of that kind with diversity of citizenship
and the requisite sum in controversy, they [are] open to
removal.” Adriaenssens v. Allstate Ins. Co., 258 F.2d 888, 890
(10th Cir. 1958).
8

different

insurer

proceeding.”

constitutes

Id.

a

separate

and

distinct

For purposes of removal, however, state law

is not dispositive.

See Harding Hosp. v. Sovchen, 868 F.Supp.

1074, 1077 (S.D.Ind. 1994).

In the cases permitting removal of

garnishment

independent

distinct

proceedings

from

as

underlying

claim,

the

actions

separate

garnishment

and

proceeding

involved adversarial litigation of disputed issues, a new party,
and disputes concerning rights and issues not decided by state
court.

See

id.

at

1078

(citations

omitted).

substantial issues do not appear to be present.
proceeding

against

Officer

questions of liability.

Jackson

does

Here,

those

The garnishment

not

involve

new

Rather, as in Overman v. Overman, 412

F.Supp. 411, 412 (E.D.Tenn. 1976), the garnishment proceeding
against Officer Jackson is Plaintiffs’ “final step in seeking to
satisfy the judgment against defendant.

It is a supplementary

proceeding rather than an independent action.”
Under

some

circumstances,

the

entire

action

removed because the case is over and decided.

cannot

be

See Oviedo v.

Hallbauer, 655 F.3d 419, 422 (5th Cir. 2011) (“Emphasizing the
total finality of the state case here, we hold that it cannot
[be removed].”).

In Oviedo, the United States Court of Appeals

for the Fifth Circuit concluded that, at the time of removal,
9

“there

was

no

pending

case

to

remove,

inasmuch

as

nothing

remained for the state courts to do but execute the judgment.
Removal is simply not possible after a final judgment and the
time

for

However,
whether

direct
the
the

enforcement
courts.”

appellate

Fifth

review

Circuit

[defendant]
or

run.”

carefully

could

collection

has

Id. at 424 n.5.

declined

remove

proceedings

Id.
to

at

opine

subsequent

initiated

in

423-24.
“on

ancillary
the

state

In the unusual posture presented

here, in which the County obtained bifurcation of one state law
claim against it, allowed the judgment against its officer to
become final, and only then faces an entirely new federal claim,
the

officer,

particularly

in

light

of

pending

garnishment

actions, must be found to remain a party to this action.
C.

Rule of Unanimity

Title 28 U.S.C. § 1446, which outlines the procedures for
the

removal

unanimity.”
unanimity

of

civil

actions,

for

the

“rule

of

Embodied in 28 U.S.C. § 1446(b)(2)(A), the rule of
serves

as

an

important

defendants’ right of removal.2

2

provides

procedural

limitation

on

Section 1446(b)(2)(A) provides:

Non-compliance with the rule of unanimity is a waivable
“error in the removal process,” rather than a defect in subject
matter jurisdiction. Payne ex rel. Estate of Calzada v. Brake,
439 F.3d 198, 203 (4th Cir. 2006). While the rule is waivable,
10

“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.”

Under the

rule of unanimity, when more than one defendant is named in the
complaint, all of the defendants who have been served “must join
in the petition for removal.”

Chicago, R.I. & P. Ry. Co. v.

Martin, 178 U.S. 245, 245 (1900); Gee v. Lucky Realty Homes,
Inc., 201 F.Supp.2d 732, 736 (D.Md. 2002).
for

“nominal

or

formal”

parties,

who

An exception is made
are

ignored

determining the procedural validity of the removal.

when

See, e.g.,

Creed v. Virginia, 596 F.Supp.2d 930, 934 (E.D.Va. 2009).3

Plaintiffs did not waive it.
(See ECF No. 14).
Rather, they
preserved their objection to non-unanimous removal by timely
moving to remand on that basis.
See 28 U.S.C. § 1447(c)
(establishing 30–day time period in which to move to remand on
non-jurisdictional grounds).
3

The party seeking removal has the burden of proving that
non-consenting defendants are merely nominal.
Creed, 596
F.Supp.2d at 934 (citing Blue Mako, Inc. v. Minidis, 472
F.Supp.2d 690, 696 (M.D.N.C. 2007)); see Johnson v. Nutrex
Research, Inc., 429 F.Supp.2d 723, 727 (D.Md. 2006); Egle
Nursing Home, Inc. v. Erie Ins. Grp., 981 F. Supp. 932, 935
(D.Md. 1997) (granting motion to remand when the removal notice
failed to state why all defendants did not join in or consent to
removal and noting that “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”).
11

The United States Court of Appeals for the Fourth Circuit
recently

clarified

what

constitutes

a

“nominal

party”

in

Hartford Fire Ins. Co. v. Harleysville Mut. Ins. Co., 736 F.3d
255 (4th Cir. 2013).4

Quintana v. J.P. Morgan Chase Bank, N.A.,

No. DKC-14-1586, 2015 WL 1321436, at *4 (D.Md. Mar. 23, 2015).
The Fourth Circuit determined that “[n]ominal means simply a
party having no immediately apparent stake in the litigation
either prior or subsequent to the act of removal.”

Hartford

Fire, 736 F.3d at 260 (noting that a stake in the litigation
means

a

“real

outcome”).
resolved

or

“[T]he

without

tangible
key

interest

inquiry

affecting

reasonably foreseeable way.”

the

in

the

litigation’s

is

whether

the

[]

nominal

defendant

Id.

suit

can
in

be
any

“Determining nominal party

status is a practical inquiry, focused on the particular facts
and circumstances of a case, which district courts can be relied
upon to apply with . . . sound judgment.”

Id. at 260-61 (citing

Shaughnessy v. Pedreiro, 349 U.S. 48, 54 (1955)).

In applying

this standard, the Fourth Circuit found that the defendant who

4

Other circuits have defined “nominal parties” as those:
(1) against which the plaintiff has no possibility of
establishing a cause of action in state court; (2) against which
“there is no reasonable basis for predicting that it will be
held liable”; or (3) “against whom no real relief is sought.”
See Creed, 596 F.Supp.2d at 934-35 (collecting cases).
12

was challenged as being “nominal” was in fact nominal because
the

plaintiff

sought

neither

monetary

judgment

nor

any

non-

declaratory injunctive relief against it, and, accordingly, the
defendant in no way would be directly affected by the outcome of
the case.
Inc.,

9

Id. at 261; see also Alban Waste, LLC v. CSX Transp.,
F.Supp.3d

618,

619–21

(D.Md.

2014)

(concluding

that

nondiverse defendants were nominal parties because plaintiff was
“seek[ing] neither [a] monetary judgment nor any nondeclaratory,
injunctive relief against them”).

In addition, the court stated

that the defendant’s nominal status was evident considering that
were this defendant “not included in this action, it would have
no effect on [the plaintiff’s] ability to be made whole by the
other [defendants.]”

Hartford Fire, 736 F.3d at 261.

In its notice of removal, the County simply concludes that
Officer Jackson is not a party at this point.

(ECF No. 1 ¶ 6).

However, the party seeking removal has the burden of proving
that non-consenting defendants are merely nominal.
F.Supp.2d at 934.
be

resolved

And “the key inquiry is whether the suit can

without

affecting

the

non-consenting

defendant in any reasonably foreseeable way.”
736 F.3d at 260.

Creed, 596

nominal

Hartford Fire,

“Examples of situations reflecting nominal

parties ‘include one where the party was not involved in the
13

activities charged in the complaint, [the party] ha[s] already
settled with the plaintiff, [the party] ha[s] only been named as
[a]

John

Doe

defendant[],

imputing liability.’”

or

where

there

is

no

basis

for

Wayne J. Griffin Elec., Inc. v. Travelers

Prop. Cas. Co. of Am., No. 1:13CV882, 2014 WL 842983, at *2
(M.D.N.C. Mar. 4, 2014) (citing
696).

Blue Mako, 472 F.Supp.2d at

Importantly, “[n]ominal means simply a party having no

immediately apparent stake in the litigation either prior or
subsequent to the act of removal.”
260.

Hartford Fire, 736 F.3d at

Officer Jackson is not merely a nominal party because he

very clearly had and has a stake in the litigation prior and
subsequent to the act of removal, as he was found liable in the
Phase One trial and is now subject to garnishment proceedings.
In its notice of removal, the County stated that:
none of the other Defendants are parties at
this point, with the possible exception of
Officer Steven Jackson.
All of Plaintiffs’
claims
against
him
have
already
been
adjudicated, but the judgment against him,
which is not subject to the LGTCA cap, has
not been paid.
[The] County does not
believe that he is a party at this point for
purposes of his consent being required for
removal, but in the event his consent is
required, he has and hereby does consent by
undersigned counsel to removal.

14

(ECF No. 1 ¶ 6).
with

the

In addition, the County noted that, concurrent

filing

of

the

notice

of

removal,

“no

further

proceedings may be had in the Circuit Court for Prince George’s
County.”

(Id. ¶ 8).

Although

the

County’s

privately-retained

counsel

represented Officer Jackson at trial and on appeal, Plaintiffs
contend that he has since retained new counsel.
4).

(ECF No. 14, at

In support of their contention, Plaintiffs point to three

documents:

(1)

a

“Substitution

of

Counsel”

for

which

no

citation, document, or exhibit is provided (see id.); (2) an
October 1, 2014 motion for exemption revealing Officer Jackson’s
counsel to be Steven Sunday and Schlachman, Belsky & Weiner,
P.A. (ECF No. 35-18; Dkt. No. 409); and (3) a transcript of a
June

30,

2015

deposition

of

Officer

Jackson

revealing

his

counsel to be Matthew Emmick and the firm Schlachman, Belsky &
Weiner, P.A. (ECF No. 14-1).

According to Plaintiffs, attorneys

Karp and Shearer represent the County and no longer represent
Officer Jackson, and thus cannot consent on his behalf.5

5

(ECF

Some district court cases within the Fourth Circuit appear
to adopt the more wooden independent-and-unambiguous consent
rule.
That is, the “‘rule of unanimity’ requires that each
defendant ‘register to the Court its official and unambiguous
consent to a removal petition filed by a co-defendant.’” Creed,
596 F. Supp. 2d at 934 (citing Stonewall Jackson Mem’l Hosp. v.
15

No. 14, at 4 (“Mr. Karp and Ms. Shearer clearly do not, and
cannot, represent [Officer] Jackson at this point.

Thus, their

purported consent to removal on his behalf is simply inaccurate
and ineffective.”); ECF No. 41, at 1).

In its response in

opposition, the County only argues that “if [Officer] Jackson’s
consent had been required, it was given.”

(ECF No. 38, at 1).

The County’s filings are signed by Mr. Karp and Ms. Shearer, who
do not assert that they or Karpinski, Colaresi & Karp, P.A. also
represent Officer Jackson.
In cases involving multiple defendants, the Fourth Circuit
does not require that “each of the defendants sign the notice of
removal or file a separate notice of removal complying with §
1446(b).”

Mayo v. Bd. of Educ. of Prince George’s Cnty., 713

F.3d

742

735,

(4th

Cir.

2013);

see

Easter-Greene

v.

Verizon

Maryland, LLC, No. MJG-14-1040, 2014 WL 3723228, at *3 (D.Md.
July 23, 2014) (granting a motion to remand because “the Notice
of

Removal

Am. United
1997)).

lacks

Life

any

Ins.

statement

Co.,

963

16

of

concurrence

F.Supp.

553,

558

or

other

(N.D.W.Va.

unambiguous

representation

that

all

Defendants

removal”).6

consented

to

The Fourth Circuit reasoned in Mayo:

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.
It is true that
such a procedure does not include the
signature of an attorney representing each
defendant.
But that does not suggest that
the nonsigning attorneys for the defendants
lack accountability to the court when they
will be before the court within days of the
removal,
signing
papers
and
otherwise
performing
as
officers
of
the
court.
Indeed, in this case, the Union did file
papers early on, signed by its attorney,
indicating that it had consented to the
removal.
The practice of having one
attorney represent to the court the position
6

Other district courts have remanded cases based on a
defendant’s procedurally defective method of consenting to a codefendant’s notice of removal.
For example, courts have held
that a defendant’s filing of a notice of removal that merely
notes that a co-defendant consents to removal, without more, is
insufficient to show consent. See Berrios v. Our Lady of Mercy
Med. Ctr., 1999 WL 92269, at *3 (S.D.N.Y. Feb. 19, 1999) (“In
this case, since it is uncontested that no one communicated to
the court prior to the expiration of the thirty day period that
[the defendant] had consented to the removal, removal is
defective.”); see also DiChiara v. RDM, 2009 WL 1351640, at *4
(D.Mass. Jan. 13, 2009) (remanding the action due to a
defendant’s failure to “independently notify the court of its
consent” when the notice of removal merely “indicated that the
[co-defendant] consented”); West v. 3M Co., 2006 WL 287973
(S.D.Tex. Feb. 6, 2006) (“[T]here must be some timely filed
written document from each served Defendant, or its authorized
representative, indicating that the Defendant has consented to
removal.”).
17

of other parties in the case, with the
intent
that
the
court
act
on
such
representation, is quite common. The courts
often receive motions representing that the
opposing party consents to the motion, and
courts have not traditionally required the
other party to file a separate paper
confirming that consent. Were there to be a
misrepresentation by an attorney signing a
paper,
falsely
stating
that
another
defendant consented to removal, the other
defendant “would [no doubt] have brought
this
misrepresentation
to
the
court's
attention and it would have been within the
district court’s power to impose appropriate
sanctions, including a remand to state
court.” Harper, 392 F.3d at 202. And those
“appropriate sanctions” would surely include
the sanctions authorized by Rule 11, which
are explicitly available when an attorney
misrepresents the evidentiary basis for a
“factual contention.”
See
Fed.R.Civ.P.
11(b)–(c).
713 F.3d at 742.

Thus, the Fourth Circuit concluded that “a

notice

signed

of

removal

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.”
nonconsenting

party

did

adequately

Id.

In Mayo, however, the

consent

by

papers within one week of the notice of removal.

filing

signed

Id. at 739;

see also Anne Arundel Cnty., Md. v. United Pac. Ins. Co., 905
F.Supp. 277, 279 (D.Md. 1995) (remanding the case to state court
because the co-defendant failed to file notice joining in or
18

consenting to the defendant’s removal petition within 30 days,
even though the defendant stated “upon information and belief”
that the co-defendant did not object to petition for removal).
At the hearing, counsel for the County acknowledged that
neither she nor anyone else in her firm represented Officer
Jackson on July 15, 2015, when the notice of removal was filed
and

she

could

consent was.
for

Officer

not

proffer

what

the

basis

for

reciting

his

The notice of removal did not state that counsel
Jackson,

or

Officer

Jackson

himself,

consented.

Rather, the notice cryptically and ambiguously recites that he
consents “by undersigned counsel to removal.”
(emphasis added)).

(ECF No. 1 ¶ 6

But that counsel did not represent him.

Officer Jackson has made no appearance in the case since removal
and

no

other

conclusion

is

attorney

has

inescapable

appeared

that

he

on

did

his

not,

in

behalf.
fact,

The
timely

consent to removal, nor did anyone with authority to consent on
his behalf do so.
III. Conclusion
Accordingly,
properly.

the

County

did

not

remove

this

action

Without the effective consent of Officer Jackson,

19

removal is not proper and Plaintiffs’ motion to remand will be
granted.

________/s/_________________
DEBORAH K. CHASANOW
United States District Judge

20