Schaefer v. Fu et al
Filing
37
Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDER.For the foregoing reasons, the motion for remand by plaintiff Alicia Schaefer (Docket No. 31 ) is DENIED. Counts I, II, III and IV against defendant Yongie Fu a/k/a Thomas Fu are hereby severed and remanded to state court.So ordered. (Franklin, Yvonne)
Case 1:17-cv-10238-NMG Document 37 Filed 06/21/18 Page 1 of 7
United States District Court
District of Massachusetts
Alicia Schaefer,
Plaintiff,
v.
Yongjie Fu and Trustees of
Boston University,
Defendants.
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Civil Action No.
17-10238-NMG
MEMORANDUM & ORDER
GORTON, J.
This case arises out of a physical altercation between two
students at Boston University (“BU” or “defendant”).
Plaintiff
Alicia Schaefer (“plaintiff” or “Schaefer”) alleges that
defendant Yongjie, a/k/a Thomas, Fu (“Fu”) assaulted her
resulting serious physical injuries and emotional harm to Ms.
Schaefer.
Pending before the Court is plaintiff’s motion to remand
this case to state court.
I.
Background
In the 2012 fall semester, Thomas Fu and Alicia Schaefer
became acquainted with each other after enrolling in the same
lecture course at Boston University.
According to Schaefer, Fu
took a seat close to Schaefer but she subsequently moved her
seat to avoid him.
Fu was purportedly disruptive during
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lectures and Schaefer was told by one of her friends that Fu had
attempted to force himself on the friend at a party.
During the spring and fall semesters of 2013, Fu exhibited
aggressive behavior toward Schaefer that made her uncomfortable.
For example, Fu was allegedly loud and confrontational during
class and he often attempted to sit close to Schaefer.
He
talked to her on numerous occasions and at one point told her
that she should be a Bose headphones model.
Schaefer spoke to
two of her professors regarding Fu’s classroom behavior and at
least one of the professors indicated that she was familiar with
Fu’s antics.
On or about October 29, 2013, Schaefer was waiting in line
at Breadwinners, a campus dining hall, when Fu stood behind her.
Fu attempted to place his order first but when Schaefer told him
that it was not his turn, he allegedly began swearing at her.
Sometime thereafter, Schaefer picked up her sandwich and
attempted to walk away from Fu.
When she did so, Fu body-
checked her from behind, knocking her down and causing her to
sustain a concussion.
Schaefer was later diagnosed with post-
traumatic stress disorder as a result of the incident.
In October, 2016, plaintiff filed a complaint in the
Massachusetts Superior Court for Suffolk County.
That complaint
was amended in January, 2017 and the following month, BU removed
the case to federal court on federal question and supplemental
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jurisdiction grounds.
Fu did not and has not consented to
removal.
Plaintiff’s eight-count amended complaint includes four
counts against Fu and four counts against BU.
Plaintiff alleges
intentional or reckless infliction of emotional distress (Count
I), negligent infliction of emotional distress (Count II),
battery (Count III) and assault (Count IV) against Fu.
She
alleges a violation of Section 504 of the Rehabilitation Act, 29
U.S.C. §794 (Count V), a violation of Title IX, 20 U.S.C. §1681
(Count VI), a violation of M.G.L. c.214, §1(C) (Count VII) and
negligence (Count VIII) against BU.
In August, 2017, this Court
allowed the motion of defendant Trustees of Boston University to
dismiss with respect to Counts VI and VII but denied that motion
with respect to Count VIII. See Schaefer v. Yongjie Fu, 272 F.
Supp. 3d 285 (D. Mass. 2017).
II.
Motion to remand
Schaefer asserts that the removal was improper because
defendant Fu did not consent to it.
Boston University responds
that plaintiff has waived her right to object to removal and
that the University did not need to obtain the consent of Fu
prior to removing the case.
Unless expressly prohibited by a federal statute,
any civil action brought in a State court of which the
district courts of the United States have original
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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).
Where there are multiple defendants, however, removal is
subject to the “unanimity requirement.” See Chicago, Rock Island
& Pac. Ry. Co. v. Martin, 178 U.S. 245, 247-48 (1900).
In a
multi-defendant civil action that is removed solely on the basis
of § 1441(a), “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).
A motion to remand “on the basis of any defect other than
lack of subject matter jurisdiction must be made within 30 days”
of the filing of the notice of removal. 28 U.S.C. § 1447(c).
Failure to satisfy the unanimity requirement is not a
“jurisdictional defect, and unless a party moves to remand based
on this defect, the defect is waived.” Esposito v. Home Depot
U.S.A., Inc., 590 F.3d 72, 75 (1st Cir. 2009) (citations
omitted).
After the 30-day period expires, “only if the
district court lacks subject matter jurisdiction” must the case
be remanded to state court. Samaan v. St. Joseph Hosp., 670 F.3d
21, 27 (1st Cir. 2012) (quoting 28 U.S.C. § 1447(c)).
Here, Boston University filed its notice of removal on
February 14, 2017.
Schaefer did not move to remand until
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December 29, 2017, more than nine months after the time allotted
for doing so had expired.
In the meantime, Schaefer has
participated in this litigation by opposing BU’s motion to
dismiss and appearing at a scheduling conference.
This Court has federal question jurisdiction over
plaintiff’s claim for violation of Section 504 of the
Rehabilitation Act (Count V) and exercises its supplemental
jurisdiction over plaintiff’s claim for negligent hiring,
supervision and retention (Count VIII).
Accordingly, this Court
possesses subject matter jurisdiction over plaintiff’s surviving
claims against Boston University and she has waived any alleged
failure to satisfy the unanimity requirement by not objecting
thereto within the statutorily required 30-day period. See id.
Plaintiff’s motion to remand will be denied.
Because the Court has found that plaintiff has waived her
right to object to removal, it declines to address the issue of
whether Fu’s consent was required.
III. Severance of claims against defendant Fu
Boston University contends that the Court lacks
supplemental jurisdiction over the state law claims against Fu
and requests that this court sever and remand those claims to
state court.
Schaefer maintains that the Court should exercise
supplemental jurisdiction over those claims because they share a
common nucleus of fact with the pending claims against Boston
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University.
Fu submits that he did not consent to removal in
the first place and therefore the claims against him properly
remain in the Massachusetts court system.
A “district court shall sever . . . and shall remand the
severed claims to the state court” all claims not within the
original or supplemental jurisdiction of the court. 28 U.S.C.
§ 1441(c)(2).
Plaintiff’s four common law claims against
defendant Fu are not within this Court’s original jurisdiction.
Accordingly, this Court must sever and remand those claims
unless they fall within the supplemental jurisdiction of the
court.
With limited exceptions, a district court exercising its
original jurisdiction has supplemental jurisdiction over state
law claims so integrally related to the original action “that
they form part of the same case or controversy under Article III
of the United States Constitution.” 28 U.S.C. § 1367(a).
Such a
state law claim must arise under the same “common nucleus of
operative fact” as a federal claim. Global Naps, Inc. v. Verizon
New England, 603 F.3d 71, 86 (1st Cir. 2010) (citation omitted).
The claims against Fu and Boston University do not arise
out of the same nucleus of operative facts.
The four claims
against Fu arise out of an October, 2013, incident at a Boston
University dining facility during which Fu allegedly assaulted
Schaefer.
The Section 504 claim against BU, by contrast,
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concerns requests for accommodations plaintiff made after the
incident.
It is unclear why there would be over-lapping
testimony or discovery with respect to the two incidents.
The
facts necessary to prove Schaeffer’s state law claim are not
“practically the same” as those necessary to prove her Section
504 claim. See Pueblo Int’l, Inc. v. De Cardona, 725 F.2d 823,
826 (1st Cir. 1984).
Accordingly, this Court declines to
exercise supplemental jurisdiction over plaintiffs’ four state
law claims against defendant Fu.
Because the four claims against defendant Fu are neither
within this Court’s original nor supplemental jurisdiction, this
Court will sever and remand those claims to state court.
ORDER
For the foregoing reasons, the motion for remand by
plaintiff Alicia Schaefer (Docker No. 31) is DENIED.
Counts I,
II, III and IV against defendant Yongie Fu a/k/a Thomas Fu are
hereby severed and remanded to state court.
So ordered.
/s/ Nathaniel M. Gorton_____d
Nathaniel M. Gorton
United States District Judge
Dated June 21, 2018
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