Vazquez Commercial Contracting, LLC v. Zieson Construction Company, LLC et al
ORDER granting 20 motion to remand; granting 25 motion to remand. Signed on November 20, 2020, by District Judge Greg Kays. (Law clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
Case No.: 4:20-cv-0486-DGK
ORDER GRANTING MOTIONS TO REMAND
This lawsuit arises from Plaintiff’s allegations of a civil RICO conspiracy to present two
“front” companies, Defendants Simcon Corp. and Zieson Construction Company, LLC, as
Service-Disabled Veteran-Owned Small Businesses (“SDVOSBs”) in order to obtain federal “set
aside” construction contracts reserved to minority- and veteran-owned businesses. Plaintiff is a
third-party SDVOSB contractor who claims to have lost a bid against Defendant Simcon Corp.
for a set-aside contract with the U.S. Army Corps of Engineers.
Now before the Court are Defendant Zurich American Insurance Company’s (“Zurich”)
Notice of Removal (Doc. 1), Plaintiff’s Motion to Remand (Doc. 20), and Defendant Patrick
Dingle’s Motion to Remand (Doc. 25). Finding that Plaintiff’s RICO claims did not trigger a
statutory exception to the default rule of unanimous consent for removal, and noting two
Defendants have not consented to removal, the motions to remand are GRANTED.
Plaintiff filed this case in the Circuit Court of Jackson County, Missouri, on May 1, 2020.
The Petition (Doc. 1-1) alleged three claims under the federal Racketeer Influenced and Corrupt
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Organizations Act (“RICO”), 18 U.S.C. § 1962, and six state law tort claims. Plaintiff served
Zurich on May 15, 2020.
Zurich filed its Notice of Removal (Doc. 1) on June 15, 2020, asserting the Court has
federal question jurisdiction under 28 U.S.C. § 1331 over the RICO claims and supplemental
jurisdiction under 28 U.S.C. § 1367(a) over the remaining state law claims, thus the case is
removable under 28 U.S.C. § 1441(c).
The Notice of Removal acknowledged that two
defendants, Michael Dingle and Rustin Simon, did not consent to removal. Zurich argued their
consent was not required for removal “because Plaintiff’s RICO claims triggered a statutory
exception [18 U.S.C. § 1965(a)] to the default rule of unanimous consent.” Notice of Removal
Plaintiff subsequently filed its motion to remand, which Defendant Dingle joined. 1 Both
request the Court remand this case to the Circuit Court of Jackson County, Missouri. Neither
seeks attorneys’ fees pursuant to 28 U.S.C. § 1447(c).
A state court action may be removed by the defendant to federal court if the case falls
within the original jurisdiction of the district court. 28 U.S.C. § 1441(a). Relevant to the present
case, when a lawsuit is removed under § 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). The
party seeking removal bears the burden of establishing federal jurisdiction. Altimore v. Mount
Mercy Coll., 420 F.3d 763, 768 (8th Cir. 2005). When ruling upon a motion to remand, the Court
resolves all doubts in favor of remand. Junk v. Terminix Int’l Co., 628 F.3d 439, 446 (8th Cir.
Defendant Dingle has not filed any briefing in support of his motion. He incorporates by reference Plaintiff’s
Suggestions in Support of its motion to remand.
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Plaintiff moves to remand, arguing that under 28 U.S.C. § 1446(b)’s unanimous consent
rule, all defendants must consent to removal, and two defendants did not. Hence, Zurich’s removal
was defective. Plaintiff also notes that Taffling v. Levitt, 493 U.S. 455, 458 (1990), established
that state courts have concurrent jurisdiction over civil RICO claims.
Zurich responds that the unanimous consent rule does not apply in civil RICO cases
because it would be contrary to the plain text of the statute. It notes that the section of the RICO
statute entitled “Venue and Process,” states “[a]ny civil action proceeding brought under [RICO]
against any person may be instituted in the district court of the United States for any district in
which such person resides, is found, has an agent, or transacts his affairs.” 18 U.S.C. § 1965(a).
Zurich argues that the structure, history, and purpose of the RICO statute “confirm that Congress
intended to confer an absolute right to invoke a federal forum on all parties in RICO actions.”
Notice of Removal ¶ 13. It contends that since “both RICO’s venue and civil remedies provisions
contemplate only federal court actions to enforce RICO claims,” and RICO’s civil enforcement
provision was patterned after the Clayton Act—which vests exclusive jurisdiction over all claims
in federal court—this “reflects a clear intent” by Congress “to permit any defendant at least to
remove an action to federal court where RICO claims are involved.” Id. at ¶¶ 14-16. Additionally,
Zurich suggests that the fact RICO’s venue statute provides for nationwide subpoena power over
witnesses and other parties in RICO cases confirms that Congress intended to override the default
rule of unanimous consent and allow any defendant in a RICO action to remove the case to federal
court. Id. at ¶¶ 19-20.
In reply, Plaintiff argues § 1965(a) is not a special removal statute. Congress knows how
to enact a special removal statute—by including clear language allowing for such removal—and
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it has not done so here. Plaintiff observes that Zurich’s reading of § 1965(a) would permit a single
defendant in a multi-defendant case to remove a RICO action to federal court, even if all the other
defendants did not consent.
The Court agrees with Plaintiff that Congress knows how to enact a removal statute. See
28 U.S.C. § 1441(a) (stating that “any civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may be removed by the defendant or the
defendants”); 28 U.S.C. § 1452 (bankruptcy removal statute stating “[a] party may remove any
claim or cause of action in a civil action . . . to the district court . . . .”); 12 U.S.C. § 1819(b)(2)(B)
(FDIC removal statute stating that the “Corporation may . . . remove any action, suit, or proceeding
from a State court to the appropriate United States district court”). If Congress wanted to give a
single defendant an absolute right to remove a RICO lawsuit to federal court, it would have
included clear language doing so. It did not. Zurich’s attempt to sew together an exception to the
rule of unanimous consent for RICO cases from a combination of statutory structure, history, and
purpose is creative, but unpersuasive.
For the reasons discussed above, Zurich’s removal of this case from state court was
defective because all Defendants who had been properly joined and served did not consent to
removal. The motions to remand (Docs. 20, 25) are GRANTED.
This case is remanded to the Circuit Court of Jackson County, Missouri. The Clerk of the
Court shall delay mailing a certified copy of this order to the Clerk of the Circuit Court of Jackson
County, Missouri, until December 4, 2020.
IT IS SO ORDERED.
Date: November 20, 2020
/s/ Greg Kays
GREG KAYS, JUDGE
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UNITED STATES DISTRICT COURT
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