Carr v. City of Yazoo City, Mississippi et al
Filing
19
ORDER denying 12 Motion to Remand Signed by Honorable David C. Bramlette, III on 04/21/2011 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
ALLEN CARR
PLAINTIFF
VS.
CIVIL ACTION NO. 5:10-cv-95
CITY OF YAZOO CITY, MISSISSIPPI, ET AL.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the Court on the plaintiff Allen Carr’s
motion to remand (docket entry 12).
Having carefully considered
the motion and the defendants’ response, the memoranda of the
parties and the applicable law, and being fully advised in the
premises, the Court finds as follows:
The plaintiff, Allen Carr, filed a complaint in the Circuit
Court of Yazoo County on May 4, 2010.
Defendants Yazoo City,
Hattie Williams, MacArthur Straughter, Roy Wilson (the Fire Chief
of Yazoo City), Jack Varner, and Clifton Jones were served with
process on May 10, 2010.
Defendant Sidney Johnson was served with
process on May 17, 2010.
Defendant Mickey O’Reilly was never
served with process.
On May 25, 2010, all named defendants in this action filed a
Notice of Removal.
The Notice incorrectly states that service of
process was made on defendant Mickey O’Reilly.
The Notice also
incorrectly states that service was made on defendant Sidney
Johnson on May 10, 2010.
The Notice of Removal incorrectly states
that “a copy of all process and pleadings served upon Defendants as
required by 28 U.S.C. § 1446(a) [is attached] as Exhibit ‘A’.”
No
copies of any process are attached. The plaintiff asserts that the
defendants’ failure to attach a copy of all process is a defect in
removal procedure which, if raised by a timely motion to remand,
requires remand of this action to the state court.
The plaintiff
filed a timely motion to remand.
The statute governing the procedure for removal states:
(a) A defendant or defendants desiring to remove any
civil action ... from a State court shall 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.
(b) The notice of removal of a civil action or proceeding
shall be filed within thirty days after the receipt by
the defendant, through service or otherwise, of a copy of
the initial pleading setting forth the claim for relief
upon which such action or proceeding is based, or within
thirty days after the service of summons upon the
defendant if such initial pleading has then been filed in
court and is not required to be served on the defendant,
whichever period is shorter.
28 USC § 1446(a)(b).
The right to remove is purely statutory.
757 F.2d 66, 68 (3rd Cir. 1985).
Lewis v. Rego Co.,
Most cases emphasize that the
procedural requirements for removal from state to federal court,
although not jurisdictional, are to be strictly construed and
enforced in favor of state court jurisdiction.
Shamrock Oil & Gas
Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); McManus v. Glassman's
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Wynnefield, Inc., 710 F.Supp. 1043, 1045 (E.D. Pa. 1989). There is
nothing in the removal statute that suggests that a district court
has “discretion” to overlook or excuse prescribed procedures.
Defective removal procedure is a proper ground for remand.
Foster
v. Chesapeake Ins. Co., Ltd., 933 F.2d 1207, 1215 (3rd Cir. 1991);
Employers Ins. of Wausau v. Certain Underwriters, 787 F.Supp. 165,
166 (W.D. Wis. 1992); Shamrock Oil & Gas, 313 U.S. at 108-09; Boyer
v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990) (stating
that “all doubts [about removal] should be resolved in favor of
remand.”), cert. denied, 498 U.S. 1085 (1991).
When there is doubt as to the right to removal in the first
instance, ambiguities are to be construed against removal.
Samuel
v. Langham, 780 F.Supp. 424, 427 (N.D. Tex. 1992); see also,
Fellhauer v. Geneva, 673 F.Supp. 1445, 1447 (N.D. Ill. 1987). “The
district court, in a challenged case, may retain jurisdiction only
where
its
authority
to
do
so
is
clear.”
Gorman
v.
Abbott
Laboratories, 629 F.Supp. 1196, 1203 (D. R.I. 1986). “The removing
party bears the burden of showing that removal was proper.”
Medical College of Wisconsin Faculty Physicians & Surgeons v.
Pitsch, 776 F.Supp. 437, 439 (E.D. Wis. 1991).
“This extends not
only to demonstrating a jurisdictional basis for removal, but also
necessary compliance with the requirements of the removal statute.”
Albonetti v. GAF Corporation-Chemical Group, 520 F.Supp. 825, 827
(S.D. Tex. 1981).
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Based on the presumption against removal jurisdiction, and the
Supreme
Court’s
instruction
that
removal
statutes
are
to
be
strictly construed, a number of courts have held that the failure
to attach copies of all process served upon the removing defendants
is a procedural defect requiring remand, if raised by the plaintiff
in a timely motion to remand.
See Transfirst, LLC v. Norris, 2010
WL 4736824 *1-*2 (D. Colo. Nov. 16, 2010), and cases cited therein.
However, in Covington v. Indemnity Ins. Co., 251 F.2d 930 (5th Cir.
1958), the Fifth Circuit found that the trial court properly
allowed the defendant to cure the omission of certain state court
papers from the removal notice because the defect was merely “modal
and formal,” not jurisdictional.
Id. at 932-33.
A more recent
case, Yellow Transp., Inc. v. Apex Digital, Inc., 406 F.Supp.2d
1213 (D. Kan. 2005), suggests that the decision whether to allow
the removing party to cure its failure to file state court records
within
the
required
time
period
discretion of the district court.
should
be
committed
to
the
Id. at 1218.
In Presnell v. Cottrell, Inc., 2009 WL 4923808 (S.D. Ill. Dec.
14, 2009), the district court approached the issue in light of the
purpose of the procedural requirement:
The omission of documents required to be filed with
the notice of removal does not require remand if the
Court is able to determine its jurisdiction from the
documents filed and the plaintiff is not prejudiced by
the omission. The requirement in 28 U.S.C. § 1446(a)
that the removing defendant file copies of all process,
pleadings and orders is “obviously intended to provide
the district court with the record materials necessary to
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enable the court and the litigants to delineate the
issues to be tried.” [Riehl v. National Mut. Ins. Co.,
374 F.2d 739, 742 (7th Cir. 1967).] If the filings are
sufficient to accomplish this purpose, the omission of a
copy of the summons from the notice of removal is a
curable, technical defect that does not require remand.
... Furthermore, the omission of a summons presumably
causes no prejudice to the plaintiff, who originally
prepared the summons and knows its content. ...
Id., *4 (additional citations omitted).
This Court finds, like the district court in Presnell, that
“the omission of the process from the Notice of Removal is a minor
defect in light of the purpose of the removal filing requirements
and the fact that there is no dispute over the timeliness of the
notice.”
Id. at *5.
The Court also agrees that “[t]o permit this
minor irregularity to defeat the District Court’s jurisdiction
would be to elevate form over substance.”
Riehl, 374 F.2d at 742.
The Court finds that the plaintiff was not prejudiced by the
defendants’ failure to attach copies of process to the Notice of
Removal.
On or about June 1, 2010, the plaintiff received the
summons returns for the six defendants who were served with
process, and filed the returns with the clerk of court on June 3,
2010, within the time period for removal and cure.
The fact that
the process was filed by the plaintiff and not the defendants is of
no consequence inasmuch as the plaintiff had the actual proofs of
service, and was not prejudiced.
The Court also finds that the erroneous statements that
service of process was made on defendant Mickey O’Reilly, and that
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service was made on defendant Sidney Johnson on May 10, 2010,
neither prejudiced the plaintiff nor misled the Court, and are of
no consequence.
The Court therefore finds that the plaintiff’s
motion to remand is not well taken.
Accordingly,
IT IS HEREBY ORDERED that the plaintiff Allen Carr’s
motion
to remand (docket entry 12) is DENIED.
SO ORDERED, this the 21st day of April, 2011.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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