Stewart v. Correctional Officer Waner et al

Filing 14

ORDER denying 9 Motion for Remand. Signed by Magistrate Keith Strong on 10/29/2013. Mailed to Stewart. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
MICHAEL JOHN STEWART,

CV 13-00081-GF-DLC-RKS

Plaintiff,
vs.

ORDER

WANER, FRINK, ROEHRIGE,
EMERSON, HODGES, KLOOS,
CHRISTIAENS, SHERRARD,
WANDLER, and CRANDLE,
Defendants.
Defendants Kloos, Frink, Sherrard, Crandall, Christianens, and Wandler
filed a Notice of Removal on September 26, 2013. (Doc. 1.) Plaintiff Michael
Stewart filed a Motion for Remand on October 18, 2013 arguing the federal claims
in the complaint were listed last and intended to be secondary to the alleged
violations of Montana state law and the Montana Constitution. In addition, Mr.
Stewart argues that Defendants’ Notice of Removal violated the rule of unanimity
in that all Defendants had not consented to the notice of removal. (Doc. 9.) The
motion for remand will be denied.
Regardless of whether Mr. Stewart intended his federal claims to be
secondary to his state law claims, it is undisputed that he presented federal claims

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in his Complaint. Removal to federal court is governed by 28 U.S.C. § 1441,
which in relevant part states 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 defendants.” Original jurisdiction may be based on diversity
or the existence of a federal question, as set forth in 28 U.S.C. §§ 1331 and 1332.
Here, Defendants base removal on the federal questions raised in Mr. Stewart’s
Complaint.
Under the well-pleaded complaint rule, “federal jurisdiction exists only
when a federal question is presented on the face of the plaintiff’s properly pleaded
complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 391 (1987). Mr. Stewart
has clearly plead claims under federal law. In his statement of claims, Mr. Stewart
lists Count 5 as an Eighth Amendment cruel and unusual punishment claim and
Count 6 as a Fourteenth Amendment due process claim. In his request for relief,
Mr. Stewart asks for a declaration that Defendants violated his rights under the
United States Constitution. (Doc. 6, p. 5, ¶ 6(1).) A federal question is clearly
presented on the face of the Complaint and removal is proper.
Mr. Stewart also argues that Defendants violated the rule of unanimity.
When a civil action has been removed solely based upon federal question
jurisdiction, under 28 U.S.C. § 1441(a), “all defendants who have been properly
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joined and served must join in or consent to the removal of the action.” 28 U.S.C.
§ 1446(b)(2)(A). “If this is not true when the notice of removal is filed, the district
court may allow the removing defendants to cure the defect by obtaining joinder of
all defendants prior to the entry of judgment.” Destifino v. Reiswig, 630 F.3d 952,
956-957 (9th Cir. 2011); citing Soliman v. Philip Morris Inc., 311 F.3d 966, 970
(9th Cir. 2002) (“[A] procedural defect existing at the time of removal but cured
prior to entry of judgment does not warrant reversal and remand of the matter to
state court.” (alteration in original and internal quotation marks omitted)).
Regardless of whether or not the original notice of removal was defective for not
indicating the consent of all the defendant, all Defendants have now filed Consent
to the Removal. The defect has been cured prior to entry of judgment and there is
no need to remand on this basis.
In cases filed in forma pauperis and cases filed by prisoners, federal courts
must engage in a preliminary screening of cases to assess the merits of the claims.
28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(a). Although Defendants have been
served in this matter, they filed a Waiver of Reply preserving their ability to raise
all defenses until after the Court has screened the Complaint pursuant to 28 U.S.C.
§§ 1915, 1915A. The Court must identify cognizable claims, or dismiss the
complaint, or any portion of the complaint, if the complaint is frivolous, malicious,
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or fails to state a claim upon which relief can be granted, or if the complaint seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2); 28 U.S.C. § 1915A. Mr. Stewart should await the Court’s preliminary
screening order prior to taking further action in this matter.
IT IS HEREBY ORDERED that Plaintiff’s Motion for Remand (Doc. 9) is
denied. Pursuant to Local Rule 3.3(a) all “[m]otions and other requests directed to
the state court are automatically terminated upon removal but may be refiled in this
Court.”
DATED this 29th day of October, 2013.

/s/ Keith Strong
Keith Strong
United States Magistrate Judge

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