Sullivan v. Sarpy County Jail et al

Filing 13

MEMORANDUM AND ORDER that Plaintiff's "Counter Motion to Strike" 10 and "Objection and Reply to Defendants['] Notice of Consent to Removal" 11 are denied to the extent they seek remand of this case to the state district court. Defendants' Motion to Strike or Motion to Dismiss 5 remains pending. Ordered by Judge John M. Gerrard. (JSF) Modified on 4/8/2015 to indicate copy mailed to pro se party (JSF).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL A. SULLIVAN,

)
)
Plaintiff,
)
)
v.
)
)
SARPY COUNTY JAIL, JEFF
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DAVIS, Sheriff, GREG LONDON,
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Captain, JUNE WESTLAND, Nurse, )
PAMELA REINKE, Nurse, and
)
DOCTOR DREESEN, Jail Physician, )
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Defendants.
)

4:15CV3014

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff Michael Sullivan’s (“Plaintiff”)
“Counter Motion to Strike” (Filing No. 10) and “Objection and Reply to
Defendants[’] Notice of Consent to Removal” (Filing No. 11). Plaintiff argues in his
motions that removal of this case from state court to this court was improper. For the
reasons that follow, the court finds removal to this court was proper.
I. BACKGROUND
Plaintiff commenced a cause of action under 42 U.S.C. § 1983 and state law in
the District Court of Sarpy County, Nebraska (“state district court”) on October 24,
2012. Defendant Pamela Reinke (“Reinke”), with the consent of the other properlyserved Defendants, removed the case to this forum pursuant to 28 U.S.C. §§ 1441 and
1446 on February 5, 2015. (Filing No. 1.)
Reinke asserts in her notice of removal that on February 2, 2015, Plaintiff filed
a pleading entitled “Verified Amended Petition-in-Complaint for Declaratory,
Monetary and Equitable Relief” in the state district court proceedings, which added
her and one other party—Dr. Dreessen—as defendants. She also asserts that she filed

her notice of removal within 30 days of receiving notice of being made party to this
action. (Id. at CM/ECF p. 3.) Finally, the notice of removal provides that all named
and properly served Defendants, including Reinke, are represented by the same
defense counsel and consented to removal. (Id. at CM/ECF p. 5.)
Plaintiff opposed the removal notice with a “Counter Motion to Strike” (Filing
No. 10) and “Objection and Reply to Defendants[’] Notice of Consent to Removal”
(Filing No. 11). Plaintiff argues removal is improper because, among other reasons,
the notice is “dilatory, phlegmatic, and pretentious, and lacking the merit and
prerequisites needed to overcome [28 U.S.C. §§ 1331, 1441, 1443, and 1445].”
(Filing No. 11 at CM/ECF p. 1.) He also argues removal is improper because there
is “pending litigation yet in the State District Court who [sic] acquired from the outset
general and continuing jurisdiction, as a matter of law.” (Filing No. 10 at CM/ECF
p. 2.) Reinke argues removal is proper because later named and served defendants in
a pending state court action have an independent right to remove within 30 days of
being served if the existing defendants who have been served consent to such removal.
(Filing No. 1 at CM/ECF p. 3.)
II. DISCUSSION
A.

Federal Subject Matter Jurisdiction

The court must determine whether jurisdictional grounds exist for removal of
the case. Under 28 U.S.C. § 1441(a), “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, to the district court of the United States
for the district and division embracing the place where such action is pending.” The
plaintiff may challenge the removal by filing a motion to remand the action to state
court. 28 U.S.C. § 1447(c). In cases removed to federal court, the defendant bears the
burden of proving the court has jurisdiction, with all doubts as to the propriety of
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exercising federal jurisdiction resolved in favor of remand. Central Iowa Power
Co-op. v. Midwest Independent Transmission System Operator, Inc., 561 F.3d 904,
912 (8th Cir. 2009).
In this case, there is no question federal subject matter jurisdiction exists and
removal was permissible. Plaintiff’s claims are based extensively on 42 U.S.C.
§ 1983 and the Eighth and Fourteenth Amendments to the Constitution of the United
States. Such claims clearly implicate federal subject matter jurisdiction. Proper
grounds for removal were present.
B.

Timeliness of Removal

Under 28 U.S.C. § 1446, a defendant seeking to remove a civil action to federal
court must file a notice of removal. “The notice of removal of a civil action or
proceeding shall be filed within 30 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.” 28 U.S.C. § 1446(b)(1). Such notice
may also be filed “within 30 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.” Id. Section 1446(b)(2)(C) provides that
“[i]f 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 earlier-served defendant did not previously initiate or consent to removal.”
In this case, there is no question that Reinke, a newly-added defendant, filed a
notice of removal within 30 days of being made a party to this suit, and that existing
defendants who have been served consented to removal. Having obtained the consent
of the existing defendants who have been served, Reinke was entitled to remove this
action to this forum.

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IT IS THEREFORE ORDERED that:
1.
Plaintiff’s “Counter Motion to Strike” (Filing No. 10) and “Objection and
Reply to Defendants[’] Notice of Consent to Removal” (Filing No. 11) are denied to
the extent they seek remand of this case to the state district court.
2.
Defendants’ Motion to Strike or Motion to Dismiss (Filing No. 5)
remains pending.
DATED this 8th day of April, 2015.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

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