Lothrop et al v. North American Air Charter, Inc. et al

Filing 50

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered regarding grant of 7 Motion to Remand to State Court (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ROBERT S. LOTHROP, Individually
and as Administrator of the
Estate of ROBERT E. LOTHROP,
(Deceased),

)
)
)
)
)
and
)
)
KEVIN EARLS, Individually and as
)
Administrator of the Estate of
)
WILLIAM J. SCHLEY, (Deceased),
)
)
Plaintiffs,
)
)
)
v.
)
)
NORTH AMERICAN AIR CHARTER, INC., )
AIRBORNE MAINTENANCE, INC., AIR
)
HAMPTONS, INC., CONTINENTAL
)
MOTORS, INC., TECHNIFY MOTOR (USA) )
INC., TELEDYNE CONTINENTAL MOTORS, )
INC., a/k/a TELEDYNE CONTINENTAL
)
MOTORS a/k/a CONTINENTAL MOTORS,
)
INC., TELEDYNE TECHNOLOGIES
)
INCORPORATED, TDY INDUSTRIES INC., )
a/k/a TELEDYNE INDUSTRIES, INC.,
)
TELEDYNE INDUSTRIES INC.,
)
ALLEGHENY TECHNOLOGIES, INC.,
)
and ALLEGHENY TELEDYNE, INC.,
)
)
Defendants.
)

CIVIL ACTION NO.
13-10235-DPW

MEMORANDUM AND ORDER
July 11, 2013
This case presents certain issues regarding the protocols
for removal of a non-federal question case from state court to
federal court when complete diversity is lacking.

The defendants

maintain that their removal followed proper procedure to secure
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the unanimity necessary to support removal.

I agree.

But I

disagree that the non-diverse party should be considered to have
been fraudulently joined as a plaintiff.

Consequently, finding

this case lacks the complete diversity necessary to support
federal jurisdiction, I will order the case remanded to state
court.
I. BACKGROUND
In December 2010, decedents Robert E. Lothrop and William J.
Schley were killed in a plane crash in Leverett, MA, while en
route from New Hampshire to New York.

Plaintiffs filed wrongful

death actions in Massachusetts Superior Court in November 2012.
On February 7, 2013, North American Air Charter, Inc. (“North
American”) removed the action to this court before any defendant
had been served with process.
The notice of removal was premised on diversity
jurisdiction.

The administrator of decedent Lothrop’s estate

assumes his North Carolina citizenship for purposes of this suit.
See 28 U.S.C. § 1332(c)(2).

Plaintiff Earls assumes decedent

Schley’s New York citizenship.

Defendants are, based on their

places of incorporation and principal places of business,
citizens of New York, Delaware, Alabama, California, and
Pennsylvania.

Although the New York citizenship of plaintiff

Earls destroys complete diversity of citizenship among the
parties, 28 U.S.C. § 1332(a), North American argues that removal
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was nevertheless proper because Earls has been fraudulently and
impermissibly joined in this action.
Plaintiffs moved to remand the case, arguing that Earls was
properly joined.

In addition to opposing remand, North American

filed an amended and supplemental notice of removal.

All of the

defendants--who by that point had been properly joined and served
in the action--consented to the amended notice of removal.
II. ANALYSIS
A.

Rule of Unanimity
In cases removed to federal court under 28 U.S.C. § 1441(a),

the so-called “rule of unanimity” requires that “all defendants
who have been properly joined and served must join in or consent
to the removal of the action.”

28 U.S.C. § 1446(b)(2)(A).

More

specifically, defendants properly joined and served at the time
of the removal each have 30 days from service to consent to
removal.

See 28 U.S.C. § 1446(b)(2)(B); Esposito v. Home Depot

U.S.A., Inc., 590 F.3d 72, 75-76 (1st Cir. 2009).
The rule of unanimity plainly “does not require consent of
defendants who have not been properly served.”

Johnson v.

Wellborn, 418 F. App’x 809, 815 (11th Cir. 2011).

Nevertheless,

assertedly based in large part on my recent opinion in Gentile v.
Biogen Idec, Inc., No. 11-11752-DPW, 2013 WL 1189497 (D. Mass.
Feb. 21, 2013), and its application in Howard v. Genentech, Inc.,
No. 12-11153-DPW, 2013 WL 680200 (D. Mass. Feb. 21, 2013),
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plaintiffs argue that § 1446(b)(2)(A) requires at least one
defendant to have been “properly joined and served” prior to
removal.

I disagree.

Gentile involved an interpretation of 28 U.S.C.
§ 1441(b)(2)--the “forum defendant rule”--which prohibits removal
of an action “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.”

I reasoned that the provision’s “use of

[‘any’] and definite article ‘the’ when referring to ‘parties
[properly joined and served]’ assumes that there is one or more
party in interest that has been properly joined and served
already at the time of removal.”
*4.

Gentile, 2013 WL 1189497, at

This reading of § 1441(b)(2) created only a narrow

exception, in cases involving forum defendants, to the generallyaccepted rule that “formal service is not required before a
defendant can remove.”

Sutler v. Redland Ins. Co., No.

12-10656-RWZ, 2012 WL 5240124, at *2 (D. Mass. Oct. 24, 2012)
(collecting cases).
My textual analysis of § 1441(b)(2) in Gentile actually cuts
against plaintiffs’ proposed reading of § 1446(b)(2).

I noted in

Gentile the subtle difference between the use of words like “any”
or “none” when deployed as pronouns and those same words deployed
as adjectives.

While use as a pronoun (i.e. “any of the [x]”)

implies the existence of some members of the group “[x]” from
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which the subject “any” is drawn, use as an adjective (i.e. “any
[x]”) carries no such implication.

Id. at *6 n.7.

So too here.

By predicating removal on the consent of “all defendants who have
been properly joined and served,” § 1446(b)(2)(A) does not seek
to draw a consenting defendant from some existing pool of served
defendants, but rather admits the possibility that there will be
no defendants who have been served at the time of removal.
The statutory scheme supports this reading.

One might

worry that allowing pre-service removal will prejudice the right
of later-served defendants to withhold consent to removal.

28

U.S.C. § 1448, however, specifically acknowledges that there may
be defendants who are not served until after removal, and
preserves their right “to move to remand the case.”

Section

1448, in its recognition of defendants served after removal and
their right to withhold consent by seeking remand, undermines the
notion that § 1446(b)(2)(A) requires a joined and served
defendant available to give consent at the time of removal.
In any event, there is no question that the defendants
here--once properly joined and served--adequately consented to
removal.

There are two aspects to effective consent: (1)

defendants must mainfest adequate consent, 28 U.S.C.
§ 1446(b)(2)(A), and (2) that consent must be given within 30
days of service of the complaint or other receipt of the
complaint after service of a summons, 28 U.S.C. § 1446(b)(2)(B);
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Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S.
344, 347-48 (1999).
As to the first issue, The First Circuit has declined to
establish a “wooden rule” regarding what conduct constitutes
adequate consent to removal.

Esposito, 590 F.3d at 77.

Although

the court indicated that “conduct less explicit than joining the
notice will suffice,” it did signal that some affirmative act of
consent may be necessary.

Id. at 76-77 (discussing consent by

filing answer within 30-day period, but expressing doubts about
merely oral consent); accord Wilkins v. Corr. Med. Sys., 931 F.2d
888 n.2 (4th Cir. 1991) (“[T]here is no federal jurisdiction when
one of the defendants fails to join in, file his own, or
officially and unambiguously consent to, a removal petition
within 30 days of service.”); Frankston v. Denniston, 376 F.
Supp. 2d 35, 41 (D. Mass. 2005) (“[A] failure to object is
different than affirmatively giving consent.

This finding is

bolstered by the general rule that the removal statutes should be
construed strictly against removal.”).

In any event, defendants

here have given the clearest consent possible by joining in the
amended notice of removal.
As to the second issue, defendants’ consent was timely.
amended notice of removal, to which all served defendants
consented, was filed on March 22, 2013, within 30 days after

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The

North American was served on February 21.1

Although the amended

notice provides no detail as to when the other defendants were
served, they all gave adequate consent by joining in North
American’s timely amended notice, even if any of them happened to
be served more than 30 days before the amended notice was filed.
See 28 U.S.C. § 1446(b)(2)(C) (“If defendants are served at
different times, and a later-served defendant files a notice of
removal, any earlier-served defendant may consent to the removal
even though that earlier-served defendant did not previously
initiate or consent to removal.”).2
B.

Fraudulent Joinder
I next turn to North American’s argument that plaintiff

Earls was joined merely to destroy the complete diversity of

Although North American received a copy of the complaint
by means other than service on January 22, 2013, the Supreme
Court has made clear that “a named defendant’s [30-day period] to
remove is triggered by simultaneous service of the summons and
complaint, or receipt of the complaint, ‘through service or
otherwise,’ after and apart from service of the summons, but not
by mere receipt of the complaint unattended by any formal
service.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.,
526 U.S. 344, 347-48 (1999).
1

Even if there were some defect in the formal particulars
of providing adequate consent, the First Circuit has indicated
that a court will retain discretion over the issue of remand
where unambiguous and unanimous consent among all served
defendants is achieved, albeit outside of the 30-day statutory
window. Esposito, 590 F.3d at 77. As long as the defect is
cured prior to the entry of summary judgment, “a remand to state
court [is] not required.” Id. There can be no question that
defendants here have unambiguously and unanimously consented to
removal.
2

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citizenship among the parties and to frustrate removal by
defendants.
In cases of diversity jurisdiction, the right of removal
cannot be defeated by the joinder of parties “having no real
connection with the controversy.”

Wilson v. Republic Iron &

Steel Co., 257 U.S. 92, 97 (1921).

Although the “fraudulent

joinder” doctrine is most often applied in cases in which
plaintiffs seek to defeat removal by fraudulently joining a forum
or non-diverse defendant, courts have found that “the fraudulent
joinder doctrine can be applied to the alleged fraudulent joinder
of a plaintiff.”

See Kansas State Univ. v. Prince, 673 F. Supp.

2d 1287, 1294 (D. Kan. 2009) (collecting cases).

That said,

North American has not demonstrated that plaintiff Earls was
fraudulently joined.
Lacking a clear standard from the First Circuit for
evaluating a claim of fraudulent joinder, I observe that other
courts in this district have applied the Second Circuit’s
serviceable rule that “a defendant must demonstrate, by clear and
convincing evidence, either that there has been outright fraud
committed in the plaintiff’s pleadings, or that there is no
possibility, based on the pleadings, that the plaintiff can state
a cause of action.”

See Mills v. Allegiance Healthcare Corp.,

178 F. Supp. 2d 1, 5 (D. Mass. 2001) (quoting Whitaker v. Am.
Telecasting, Inc., 261 F.3d 196, 207 (2d Cir. 2001)).
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At the heart of North American’s argument for fraudulent
joinder is that the complaint was signed on behalf of plaintiff
Earls by counsel not admitted to practice in Massachusetts or
even admitted pro hac vice.

North American goes to great lengths

to support this proposition--arguing, for example, that Earls
cannot have been represented by Lothrop’s Massachusetts counsel
because of the absence of any theories of joint recovery and
because of potentially non-waivable conflicts of interest.

North

American observes that Mass. R. Civ. P. 11(a) provides that
plaintiff Earls’ pleading “may be stricken.”
The discretionary language of Mass. R. Civ. P. 11(a) alone
suggests that North American cannot show plaintiff Earls has “no
chance of recovering” against defendants.
Inc., 959 F.2d 69, 73 (7th Cir. 1992).

Poulos v. Naas Foods,

North American seeks to

avoid this conclusion by arguing that Mass. R. Civ. P. 11(a)
becomes mandatory upon timely objection, citing Gill v. Richmond
Co-op Ass’n, 34 N.E.2d 509 (Mass. 1941).

Gill, however, is more

than a half-century old and was decided before adoption of the
Massachusetts Rules of Civil Procedure.

And, most importantly,

Gill explicitly does not decide the issue.

Id. at 511 (“we need

not decide in this case” whether a pleading by an unauthorized
attorney is a “nullity”).
Moreover, North American never made an objection to the
Massachusetts court; its only objection was made in this court by
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notice of removal.

Once the action was removed, however, federal

procedural rules began to govern.
Ct. 2368, 2374 n.2 (2011).

Smith v. Bayer Corp., 131 S.

And, as even North American

acknowledges, Fed. R. Civ. P. 11(a) gives litigants an
opportunity to correct the kind of procedural failings alleged by
North American here.

See Fed. R. Civ. P. 11(a) (“The court must

strike an unsigned paper unless the omission is promptly
corrected after being called to the attorney’s or party’s
attention.”).
North American also argues that plaintiffs failed to pay the
filing fees required for each plaintiff.

See Mass R. Civ. P.

20(a) (“In any action in which persons not asserting any right to
recover jointly join as plaintiffs . . . the entry fee shall be
an amount equal to the aggregate of the entry fees which would
have been required had separate actions been brought.”); M.G.L.
ch. 262, §§ 4A, 4C (setting fee amounts).

Plaintiffs paid two

filing fees, but North American appears to argue they should have
paid four: one for each of the two plaintiffs in their individual
capacities, and one for each of the two plaintiffs in their role
as administrators of the decedents’ estates.

Plaintiffs respond

that the complaint asserts only claims for wrongful death that
can be brought by the two plaintiffs in their representative
capacities, see M.G.L. ch. 229, § 2, and thus only two filing
fees needed to be paid.
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Even if the fees paid were insufficient, however, North
American has not established that Earls’ claims would necessarily
have been dismissed by the state court.

North American cites

Owens v. Amtrak, No. 94-7444, 1998 WL 448908 (Mass. Super. July
31, 1998), for the proposition that any failure with respect to
fees will result in dismissal.

Owens involved a circumstance in

which plaintiffs attempted to commence a timely action on their
claim for intentional infliction of emotional distress, but paid
inadequate per-plaintiff fees; the court thus dismissed the claim
because the statute of limitations had run just days after
plaintiffs’ initial (but failed) attempt at commencing the
action.

See id.

Here, however, North American--in an effort to

show that Earls will not be prejudiced by dismissal--argues that
the applicable statute of limitations on Earls’ claims has not
yet expired.

North American has not established that

Massachusetts courts would be obligated to take a harsh approach
to dismissal where the statute of limitations has not run, rather
than simply allowing an opportunity to cure the defect.
In any event, further discussion of the niceties of
Massachusetts practice is unnecessary.

I need not and do not

determine whether there was any procedural defect in Earls’
filing, or whether any such defect requires dismissal of his
claims.

I do conclude, however, that the various procedural

irregularities raised by North American, which likely allow for a
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discretionary judicial response in any event, do not establish
that plaintiff Earls was joined “without any reasonable basis in
fact and without any purpose to prosecute the cause in good
faith.”

Wilson, 257 U.S. at 98.

The sort of state law

procedural objections raised by North American are not the stuff
of fraudulent joinder, and are more properly raised in the first
instance with the Massachusetts court.
The doctrine of fraudulent joinder is, to be sure, necessary
to preserve the integrity of removal jurisdiction.

But “[t]he

burden of persuasion placed upon those who cry ‘fraudulent
joinder’ [should be] a heavy one,”

Hart v. Bayer Corp., 199 F.3d

239, 246 (5th Cir. 2000), and defendants may not to run to
federal court every time a non-diverse plaintiff has failed to
dot his “i’s” and cross his “t’s.”

If, on remand, North American

succeeds in convincing the state court that the alleged
procedural failings warrant dismissal of plaintiff Earls from the
case, then it will have a proper opportunity for removal to this
court.

See 28 U.S.C. § 1446(b)(3) (“[I]f the case stated by the

initial pleading is not removable, a notice of removal may be
filed within 30 days after receipt by the defendant, through
service or otherwise, of a copy of an amended pleading, motion,

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order or other paper from which it may first be ascertained that
the case is one which is or has become removable.”).3
III. CONCLUSION
For the reasons set forth more fully above, I conclude that
removal was procedurally proper.

However, North American has

failed to establish that plaintiff Earls--who, on behalf of
decedent Schley, shares a New York residence with at least one of
the defendants--was fraudulently joined.

North American thus

lacked a basis for removal under diversity jurisdiction, and the
case presents no other basis for federal jurisdiction.

Removal

was therefore improper, and plaintiff’s motion to remand, Dkt.
No. 7, is GRANTED.

The case shall be REMANDED to Suffolk

Superior Court, where it was originally filed.

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

North American has also raised arguments pertaining to
personal jurisdiction and forum non conveniens which have no
bearing on the removal question, but may also be pursued before
the state court on remand.
3

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