Doe et al v. McGuire et al
Filing
50
Judge William G. Young: ORDER entered. MEMORANDUM OF DECISION.(Gaudet, Jennifer)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_________________________________
)
)
)
)
Plaintiffs,
)
)
v.
)
)
JEAN MCGUIRE, Executive Director, )
METCO, Inc.; METCO, Inc. Board of )
Directors, in their Individual and )
Official Capacity; JESSICA MURPHY, )
Director of Special Education, in )
her Individual and Official
)
Capacity; AARON JONCAS, METCO,
)
Inc., METCO Director, Town of
)
Concord, in his Individual and
)
Official Capacity; DIANA FROST
)
RIGBY, Superintendent, Concord
)
Public Schools, in her Individual )
and Official Capacity; and JOEL
)
KRAKOW, PRS Specialist,
)
Massachusetts Department of
)
Elementary and Secondary Education )
(DOE), in his Individual and
)
Official Capacity,
)
)
Defendants.
)
_________________________________ )
A. DOE, minor child; and S. DOE,
parent of minor child, A. DOE,
CIVIL ACTION
NO. 17-11750-WGY
YOUNG, D.J.
January 31, 2018
MEMORANDUM OF DECISION
I.
INTRODUCTION
A. Doe, a minor child, and his parent S. Doe, on behalf of
herself and A. Doe (collectively, the “Does”), filed this action
in the Massachusetts Superior Court alleging discrimination
against A. Doe on the basis of his race and disability.
Three
defendants removed the action to this Court, and the Does moved
to remand.
On December 12, 2017, this Court heard argument on
the motion to remand and granted the motion.
This memorandum
explains that ruling.
II.
FACTUAL & PROCEDURAL BACKGROUND
This action originated in the Massachusetts Superior Court
sitting in and for the County of Suffolk, where the Does filed a
complaint against the Board of Directors of the Metropolitan
Council for Educational Opportunity, Inc. (the “METCO Board of
Directors”)1 and Executive Director Jean McGuire (“McGuire”);
school officials Jessica Murphy (“Murphy”), Aaron Joncas
(“Joncas”), and Diana Frost Rigby (“Rigby”)2; and Massachusetts
On October 26, 2017, the Does voluntarily dismissed the
action as against the METCO Board of Directors. See Pls.’ Mot.
Vol. Dismissal, ECF No. 19.
2 The Defendants assert that because Rigby is no longer the
Superintendent of the Concord Public Schools, the current
Superintendent Laurie Hunter is automatically substituted as a
party to this complaint pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure. Defs. Murphy, Joncas, Rigby’s Mem.
Supp. Mot. Dismiss Pls.’ First Am. Compl. (“Defs.’ Mot.
Dismiss”) 1 n.2, ECF No. 22. That rule, however, provides for
substitution only when a public officer is a “party in an
official capacity.” Fed. R. Civ. P. 25(d). Laurie Hunter is
thus substituted for Rigby in her official capacity, but because
Rigby was named in an individual capacity as well, it would
appear that she remains a party in this action. In any event,
this issue now falls within the province of the Massachusetts
Superior Court and Massachusetts rules of procedure.
1
[2]
Department of Education official Joel Krakow (“Krakow,” and
collectively, the “Defendants”).
The Does allege that the
Defendants deliberately discriminated against A. Doe on the
basis of race and disability by denying him access to the public
school system of Concord, Massachusetts, and they assert causes
of action under 42 U.S.C. § 1983, the Americans with
Disabilities Act, Section 504 of the Rehabilitation Act of 1973,
and Title VI of the Civil Rights Act of 1964, in addition to
various state and common law claims.
First Am. Compl. ¶¶ 45-88,
ECF No. 1-1.
Murphy, Joncas, and Rigby (the “Removing Defendants”) were
served with the complaint on September 11, 2017.
See State Ct.
R. 3, ECF No. 6; Defs.’ Opp’n Pls.’ Mot. Remand (“Defs.’ First
Opp’n”) 3, ECF No. 15.
On September 14, they removed the case
to federal court under its federal question jurisdiction.
Defs.’ Notice Removal, ECF No. 1.
McGuire, Krakow, and the
METCO Board of Directors were served on September 14, September
22, and October 3, respectively.
No. 12.
See State Ct. R. 3; Exs., ECF
The Does moved to remand, Pls.’ Req. Remand (“Pls.’
Mot. Remand”), ECF No. 8, and four of the Defendants moved to
dismiss, Defs.’ Mot. Dismiss, ECF No. 21; see also Def. Krakow’s
Mot. Dismiss Pls.’ First Am. Compl., ECF No. 32.
At oral argument, this Court first heard the motion to
remand, as such motions may implicate the Court’s subject matter
[3]
jurisdiction.
Because it ruled that the case ought be remanded,
it did not address (and presently expresses no view on) the
motion to dismiss.
See, e.g., Gomes v. Midland Funding, LLC,
839 F. Supp. 2d 417, 420 (D. Mass. 2012) (Gorton, J.) (denying
defendant’s motion to dismiss as moot upon granting plaintiffs’
remand motion); Pinnacle Serv. Sols. Grp., Inc. v. AXA Equitable
Life Ins. Co., 831 F. Supp. 2d 523, 528 (D. Mass. 2011)
(Collings, M.J.) (reserving motion to dismiss for state court
after granting motion to remand).
III. DISCUSSION
The Does claim that removal under 28 U.S.C. § 1441(a) was
improper because (i) the Defendants did not all consent to the
removal and (ii) the Court lacks subject matter jurisdiction.
Pls.’ Mot. Remand 1-3.
Because the Defendants have not
satisfied their burden of demonstrating compliance with the
unanimity requirement, the Court need not address whether it
otherwise has subject matter jurisdiction over the claims.
A.
Standard of Review
Pursuant to 28 U.S.C. § 1446, a defendant wishing to remove
an action to federal court must file a notice of removal within
30 days of the defendant’s receipt of the initial pleading or
summons.
Where a complaint names multiple defendants, all of
the defendants must consent to the removal.
See 28 U.S.C. §
1446(b)(2)(A) (“When a civil action is removed solely under
[4]
section 1441(a), all defendants who have been properly joined
and served must join in or consent to the removal . . . .”);
Chicago, Rock Island and Pac. Ry. Co. v. Martin, 178 U.S. 245,
248 (1900).
Defendants generally “are not required to join in
the petition,” however, “if they have not yet been served with
process at the time the petition is filed.”
Karpowicz v. Blue
Cross & Blue Shield of Mass., Inc., Civ. A. No. 96-10050-MLW,
1996 WL 528372, at *3 (D. Mass. Aug. 19, 1996) (Wolf, J.).
While “[t]he defect in the removal process resulting from a
failure of unanimity is not considered to be a jurisdictional
defect” and thus may be waived, a plaintiff has thirty days in
which to object and move to remand based on the procedural
defect.
Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 75
(1st Cir. 2009); see also 28 U.S.C. § 1447(c).
Once a plaintiff
so moves, “the burden is upon the removing party to show . . .
that removal is proper.”
78 (D. Mass. 1995).
Therrien v. Hamilton, 881 F. Supp. 76,
In making such determinations, courts ought
bear in mind “the principle that removal statutes are to be
narrowly construed.”
B.
Esposito, 590 F.3d at 76.
Consent to Removal
Only three of the six named defendants -- the three
Removing Defendants -- joined the notice of removal filed on
[5]
September 14, 2017.3
See Defs.’ Notice Removal.
The Removing
Defendants claim, however, that the exclusion of McGuire,
Krakow, and the METCO Board of Directors4 from the notice of
removal is immaterial because these parties had not yet been
served.
Defs.’ First Opp’n 3.
Though they recognize that
McGuire was in fact served on September 14, the same day as the
notice of removal was filed, the Removing Defendants maintain
that they did not need to obtain her consent because there was
no proof of service on file with the Suffolk County Superior
Court at the time of removal.
Defs.’ Opp’n Mot. File Am. Mot.
Remand (“Defs.’ Second Opp’n”) 1-2, ECF No. 16.
They further
submit that because an attorney for Krakow filed an appearance
in federal court on October 16, before the expiration of
Krakow’s thirty-day period, Krakow can be deemed to have timely
consented.
Id. at 2.
The Removing Defendants’ argument relies on the common
exception to the unanimity rule that defendants who have not yet
been served at the time the removal notice is filed need not
consent to the removal.
This exception stems from the language
of section 1446(b)(2)(A), which states that “all defendants who
The Removing Defendants were also the only defendants to
file an opposition to the motion to remand, though attorneys for
Krakow and McGuire appeared at oral argument.
4 Though the METCO Board of Directors is no longer a party
to this action, see supra note 1, it was a named defendant at
the time of removal.
3
[6]
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) (emphasis
added); see Karpowicz, 1996 WL 528372 at *3.
Though the
Removing Defendants’ interpretation of this exception is
generally correct, their argument fails for several reasons.
First, courts in the First Circuit have consistently ruled
that the consent requirement ought not be waived if all of the
defendants were served within thirty days of one another –- that
is, if the removing defendant had the opportunity to consult
with its codefendants before filing notice of removal.
See,
e.g., Karpowicz, 1996 WL 528372 at *7; Hill v. Phillips,
Barratt, Kaiser Eng’g Ltd., 586 F. Supp. 944, 946 (D. Me. 1984).
For example, Judge Wolf in Karpowicz held that the removal of a
case was invalid because the defendant “had more than 10 days to
persuade [a codefendant] to agree to removal” before the
codefendant’s 30-day time limit under section 1446 expired.
Karpowicz, 1996 WL 528372 at *7.
Though these cases involve
situations where a later-served defendant failed to obtain the
consent of an earlier-served defendant, the logic ought still
apply where an earlier-served defendant removes the action so
needlessly early that it deprives defendants served only days
later of the opportunity to reject the removal.
Here, the defendants were all served within thirty days of
one another.
Given the timing of service on their codefendants,
[7]
the Removing Defendants had 27 days to procure McGuire’s consent
before the expiration of their removal window on October 11; 19
days to obtain Krakow’s consent; and 8 days to obtain consent
from the METCO Board of Directors.
Instead, they chose to file
the notice of removal three days after receiving the complaint,
without consulting any other codefendant.
Under these
circumstances, excusing unanimity would deviate from the
longstanding principle that each defendant has the right to
exercise an “absolute veto over removal.”
Garside v. Osco Drug,
Inc., 702 F. Supp. 19, 21 (D. Mass. 1988) (Tauro, J.).
Second, even assuming that the appearance of an attorney on
behalf of Krakow constitutes a sufficient manifestation of
consent within Krakow’s thirty-day removal window (which itself
is questionable given that “courts typically require some type
of writing that evinces consent,” Esposito, 590 F.3d at 76), the
Removing Defendants needed the consent of McGuire, which they do
not claim to have obtained.
Strict construal of the removal
statutes compels the conclusion that the Removing Defendants
were required to obtain McGuire’s consent because she was served
on the same day as the notice of removal was filed.
The removal
statute does not require the consent of “all defendants whose
proof of service is on file”; rather, it requires the consent of
“all defendants who have been properly joined and served.”
U.S.C. § 1446(b)(2)(A).
28
Allowing defendants to use proof of
[8]
service as a proxy for actual service would be particularly illadvised in Massachusetts, where “[f]ailure to make proof of
service . . . ‘does not affect the validity of the service.’”
Sindi v. El-Moslimany, Civ. A. No. 13-10798-GAO, 2014 WL
1281522, at *1 (D. Mass. Mar. 26, 2014) (O’Toole, J.) (quoting
Mass. R. Civ. P. 4(f)).5
Basic dictates of fairness also suggest that McGuire’s
right to object to removal should not be vitiated merely because
the Removing Defendants saw no proof of service on the docket.
This Court agrees with the conclusions of other courts
confronting similar situations that a removing defendant must
exercise reasonable diligence, beyond a glance at the docket, in
attempting to discern the status of service on codefendants and
obtain unanimous consent.
See, e.g., Aqua-Gulf Transp., Inc. v.
Twin Cty. Transp., No. Civ. A. 06-1952(JLL), 2006 WL 3591291, at
*4 (D.N.J. Dec. 11, 2006) (“Even where . . . no counsel has made
an appearance . . . and no proof of service has been filed with
respect to that named defendant, the removing defendant
It also bears mentioning that proof of service was filed
on September 18, see State Ct. R. 3, and thus the Removing
Defendants had ample opportunity to obtain McGuire’s consent and
cure this defect within their thirty-day window or even outside
of it. See Esposito, 590 F.3d at 77 (concluding that defendant
expressed consent and cured unanimity defect by joining
opposition to plaintiff’s remand motion). They failed to avail
themselves of this option and do not claim to have made an
effort to do so.
5
[9]
nevertheless has the duty to insure that such named defendant
has consented to the removal.”); Pianovski v. Laurel Motors,
Inc., 924 F. Supp. 86, 87 (N.D. Ill. 1996) (“A phone call to the
Clerk and an instruction to a docketing employee are
insufficient to demonstrate diligence.”); Prowell v. West Chem.
Prod., Inc., 678 F. Supp. 553, 555 (E.D. Pa. 1988); cf. Milstead
Supply Co. v. Casualty Ins. Co., 797 F. Supp. 569, 573 (W.D.
Tex. 1992) (excusing lack of unanimity where, among other
reasons, the removing defendant had been “more than reasonably
diligent” in attempting to ascertain whether codefendant had
been served).
Thus, McGuire’s lack of consent renders the
Defendants’ notice of removal fatally defective.
Third, even if the Removing Defendants were not required to
obtain any other defendant’s consent, their removal notice is
still defective.
Though the First Circuit does not seem to have
spoken to this issue, other circuits have held that when a
defendant files a notice of removal without obtaining the
consent of all codefendants, the defendant must explain the
absence of unanimous consent in the notice of removal.
See,
e.g., Northern Ill. Gas Co. v. Airco Indus. Gases, 676 F.2d 270,
273 (7th Cir. 1982) (“[A] petition filed by less than all of the
named defendants is considered defective if it fails to contain
an explanation for the absence of co-defendants.”); Wright v.
Missouri Pac. R. Co., 98 F.2d 34, 36 (8th Cir. 1938) (reversing
[10]
retention of federal jurisdiction where removal petition failed
to allege the ground on which consent of a codefendant was
unnecessary).
The Removing Defendants here fail to make any
mention of the unanimity requirement in their notice of removal.
See Defs.’ Notice Removal.
Moreover, they seem not to have
undertaken any effort to amend the notice of removal.
Consequently, even if the Removing Defendants did not need the
consent of the three other defendants, the case should be
remanded on the basis that the notice of removal is defective.
Finally, the Removing Defendants incorrectly assert that it
was necessary to file this motion without the consent of the
other parties because they otherwise would have forfeited their
right to remove under the “first-served defendant rule.”
First Opp’n 3.
Defs.’
It is worth noting that this Court has rejected
the first-served defendant rule, see BCCTC Assocs., Inc. v.
Summerdale/AAHFI, L.P., 656 F. Supp. 2d 208, 213 (D. Mass.
2009), but more importantly, the 2011 amendments to section 1446
all but abrogated this rule, 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 earlierserved defendant did not previously initiate or consent to
removal.”).
Even if the first-served defendant rule were still
in effect, however, it would not excuse the Removing Defendants’
[11]
noncompliance with the unanimity requirement.
This judicially
crafted rule provides only that a “first-served defendant [who]
fails to file the notice of removal during his thirty day period
. . . definitively forfeits his right to remove.”
Assocs., 656 F. Supp. 2d at 213.
BCCTC
Though it relates to the issue
of consent, the rule was developed to resolve claims of
untimeliness, where later-served defendants filed a notice of
removal after the removal period for earlier-served defendants
had expired.
See id.; Gorman v. Abbott Labs., 629 F. Supp.
1196, 1201 (D.R.I. 1986); Hill, 586 F. Supp. at 946.
In other words, the Removing Defendants appear to be
confusing their obligation to remove on a timely basis with
their obligation to obtain unanimous consent.
In BCCTC
Associates, this Court observed that timely notice by one group
of defendants “does not guarantee removal because the consent of
all other defendants is required,” recognizing that “[i]t is
crucial to distinguish the ability to file the notice and the
ability to consent.”
Id. at 214 & n.4.
Here, though the first-
served Removing Defendants’ notice of removal was timely,
removal was improper because they made no attempt to obtain the
consent of the latter-served defendants, despite having the
opportunity to do so within their thirty-day removal window.
This conclusion strikes a fair compromise between the interest
of the first group to preserve their right to remove and the
[12]
interest of the second group to participate in “[this] matter of
trial strategy.”
IV.
Garside, 702 F. Supp. at 21.
CONCLUSION
For the foregoing reasons, this Court on December 12, 2017
granted the Does’ motion to remand and remanded this case to the
Massachusetts Superior Court sitting in and for the County of
Suffolk.
See ECF No. 47, No. 48.
/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE
[13]
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?