Spencer v. Joyce et al

Filing 51

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs Motion to Remand, [Doc. No.9], is granted. IT IS FURTHER ORDERED that this matter is remanded to the Circuit Court for the City of St. Louis, Missouri. Signed by District Judge Henry E. Autrey on 2/10/14. cc: City of St. Louis.(CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

FREDERICK SPENCER,
Plaintiff,
vs.
JENNIFER JOYCE, et al.,
Defendants.

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Case No. 4:12CV2317 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion to Remand, [Doc. No.
9] and Plaintiff’s Supplemental Motion to Remand, [Doc. No. 20]. Defendants St.
Louis Board of Police Commissioners, Richard Gray, Jerry Lee, Thomas Irwin,
Bettye Battle-Turner, Francis G. Slay, and Mark Lawson, (City Defendants),
object to the Motions. For the reasons set forth below, the Motion to Remand is
granted.
City Defendants removed this action on December 14, 2012 based on this
Court’s original jurisdiction over Plaintiff’s Section 1983 action for alleged
violations of Plaintiff’s civil rights. On December 26, 2012, Plaintiff filed his
“Filing of Objection to Extension of Time Request and Filing of Plaintiff’s Motion
to Remand, [Doc. No. 9]. In this pleading, Plaintiff objects to the removal because

Defendant Joyce did not consent to the removal on December 14, 2012.
Defendant Joyce filed her Consent to removal on January 15, 2013, wherein she
stated that she did not receive notice of the removal until January 11, 2013. On
January 23, 2013, Plaintiff filed his Supplemental Motion to Remand, [Doc. No.
20].
City Defendants oppose Plaintiff’s Motion to Remand for failure to timely
object, citing Plaintiff’s Supplemental Motion to Remand as the relevant pleading.
A closer examination of the filings herein, however, reveal that Plaintiff’s
pleading on December 26, 2012 was indeed a Motion to Remand to which none of
the defendants responded. This objection to the removal was timely filed.
Pursuant to 28 U.S.C. § 1446(b)(2)(A) provides:
When a civil action is removed solely under 1441(a), [original
jurisdiction,] all defendants who have been properly joined and
served must join in or consent to the removal of the action.
(Emphasis added).
Pursuant to 28 U.S.C. § 1447(c), provides, in pertinent part,:
A motion to remand the case on the basis of any defect other than
lack of subject matter jurisdiction must be made within 30 days after
the filing of the notice of removal under section 1446(a).
(Emphasis added). There is no dispute that Defendant Joyce was properly served
at the time of the removal. Likewise, there is no dispute that Defendant Joyce did
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not join in the removal or consent to the removal within 30 days after receipt of a
copy of the initial pleading. While City Defendants attempt to avoid Section
1447(c), by arguing a timing defect, their argument is misplace by reason of the
fact that Plaintiff filed his motion to remand on December 26, 2012, which was
clearly within the 30 time requirement.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand, [Doc. No.
9], is granted.
IT IS FURTHER ORDERED that this matter is remanded to the Circuit
Court for the City of St. Louis, Missouri.
Dated this 9th day of February, 2014.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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