DAVIS et al v. YATES et al

Filing 18

OPINION. Signed by Judge Kevin McNulty on 7/20/2016. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

No. 15-cv-6943 (KM)(JBC)

DARRYL DAVIS and STEVEN GROHS,
Plaintiffs,

MEMORANDUM OPINION
V.

SHERRY YATES, SARAH DAVIS, NEW
JERSEY DEPARTMENT OF
CORRECTIONS, SCO JOHN DOE,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
The plaintiffs, Darryl Davis and Steven Grohs, brought this action for a
declaratory judgment and to recover damages arising out of the alleged
deprivation of rights under the Fourteenth Amendment to the United States
Constitution and Article 1 of the New Jersey Constitution relating to the
plaintiffs having been incarcerated in cold conditions. Plaintiffs filed their
complaint against the New Jersey Department of Corrections (“NJDOC”),
Sherry Yates and Sarah Davis (collectively, “Defendants”) in the Superior Court
of the State of New Jersey, Middlesex County, Law Division, on July 24, 2014.
Defendants removed the action to this Court on September 18, 2015. (Dkt. No.
1) Now before the Court is Plaintiffs’ motion to remand the action to state court
pursuant to 28 U.S.C.

§ 1447 (Dkt. No. 3).’ For the reasons set forth below, the

motion to remand is denied.
Due to confusion on the docket regarding whether Defendants had filed an
opposition to the motion to remand, by Order dated June 10, 2016, the Court set forth
a briefing schedule on the motion. (Dkt. No. 15) That order instructed Defendants to
file an opposition to remand within 21 days of the order and afforded Plaintiffs 14 days
thereafter to file a reply. On July 5, 2016, Defendants filed a letter indicating that they
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Defendants removed this case pursuant to the federal removal statute,
28 U.S.C.

§ 1441. Under § 144 1(a), a defendant may remove a civil action from

the state court if the case could have been brought originally in federal court.
Pursuant to 28 U.S.C.

§ 1331, a district court has original jurisdiction over

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cases that “arise under” federal law. “[T}he party asserting federal jurisdiction
in a removal case bears the burden of showing, at all stages of the litigation,
that the case is properly before the federal court.” Frederico v. Home Depot, 507
F.3d 188, 193 (3d Cir. 2007). Removal is strictly construed and all doubts are
resolved in favor of remand. See Samuel—Bassett v. Kia Motors Am., Inc., 357
F.3d 392, 396 (3d Cir. 2004).
The complaint in this action alleges violation of the Fourteenth
Amendment to the United States Constitution and parallel rights under the
New Jersey Constitution for the failure to provide proper heating and blankets
to two incarcerated individuals. This matter therefore arises under this Court’s
federal question jurisdiction as it presents a case which arises under federal
law, Of course, the plaintiff is master of his complaint, and a plaintiff may opt
to sue in State court only under the State constitution. But that is not what
plaintiffs have done here. In their state court complaint, they have asserted
claims for violation of the due process and equal protection clauses of the
Fourteenth Amendment to the United States Constitution.
Plaintiffs do not dispute that federal question jurisdiction exists. Instead,
Plaintiffs contend that removal was not timely filed and that consent of all

had previously filed an opposition (Dkt. No. 5) and stated that Defendants would rely
on the arguments submitted therein. (Dkt. No. 16) Plaintiffs then filed a motion for
sanctions and imposition of costs against Defendants, arguing that Defendants failed
to respond to this Court’s June 10, 2016 Order and requesting remand as the
appropriate remedy. (Dkt. No. 17) I find that Defendants properly responded to the
June 10, 2016 Order by letter dated July 5, 2016. Accordingly, sanctions would be
inappropriate and thus, Plaintiffs’ motion for sanctions and imposition of costs is
denied.
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There is no contention that the parties are of diverse citizenship. See 28 U.S.C.
§ 1332.
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named defendants was not obtained prior to Defendants having filed the Notice
of Removal.

§ 1446, a defendant has thirty days from the date of
service in which to file a notice of removal. 28 U.S.C. § 1446(b). However, the
Under 28 U.S.C.

statute also provides that
If 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-serviced defendant did not previously
initiate or consent to removal.
28 U.S.C.

§ 1446(b)(2)(C). This rule is referred to as the “last served defendant

rule.” Under the “last served defendant” rule, the defendant which was served
last may remove the entire case within thirty days of being served. See, e.g.,
Gelber v. Kirsch, 2015 WL 1471960, at *8 (D.N.J. Mar. 30, 2015) (citations
omitted). The last-served rule permits previously-served defendants to join in
on removal, even if their own time to remove has expired. See Delalla v.
Hanover Ins., 660 F.3d 180, 188 (3d Cir. 2011); DiLoreto v. Costigan, 351 F.
App’x 747, 752 (3d Cir. 2009).
Here, Defendant Davis was served on August 12, 2015, and NJDOC was
served on August 14, 2015. Defendant Yates was served on August 24, 2015.
Notice of removal was filed on September 18, 2015, within thirty days of service
on Yates. Under the last-served rule, therefore, removal was timely.
Furthermore, removal here satisfies the “rule of unanimity,” whereby, in
cases involving more than one defendant, all defendants are required to either
join in the removal or to consent to removal. See Levis v. Rego Co., 757 F.2d 66,
68 (3d Cir. 1985); 28 U.S.C.

§ 1446(b)(2)(A). Here, all served defendants are

jointly represented and collectively filed the Notice of Removal. (See Dkt. No. 1)
Accordingly, I find that the earlier-served defendants properly joined the
removal. Plaintiffs object on the grounds that the fourth named defendant,
“SCO John Doe,” has not joined in removal. There is, however, no indication
that this individual has been identified or served. “SCO John Doe” remains, at
this stage, a fictitious entity. The unanimity rule may be disregarded where a
non-joining defendant is an unknown or nominal party. See, e.g., Doughtery,
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*3
Clfford & Wadsworth, Corp. v. Magna Grp., Inc., 2007 WL 2579406, at
(D.N.J. June 19, 2007) (citations omitted). Accordingly, because “SCO John
Doe” has not been properly served in this action, the failure of that fictitious
entity to join or consent to removal does not undermine the efficacy of the
removal.

CONCLUSION
I find that removal was timely filed and that all properly-served
defendants joined in filing the Notice of Removal. Accordingly, I find removal
proper and will deny the motion to remand. An appropriate order follows.
Dated: July 20, 2015

/‘L.(
KEVIN MCNULTY
United States District Judge

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