DOE v. MONTGOMERY COUNTY BOARD OF EDUCATION, et al
Filing
37
MEMORANDUM OPINION AND ORDER, signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR. on 9/28/2016, that for the reasons set forth herein, that Plaintiff's Motion for Remand (Doc. 8 ) is GRANTED IN PART AND DENIED IN PART. Specifically, Plaintiff' s motion to remand the case to state court is GRANTED; Plaintiff's motion for costs and attorney fees is DENIED. This case, including Removing Defendants' Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. 10 ) and Removing Def endants' Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (2) (Doc. 12 ), is hereby REMANDED to The General Court of Justice, Superior Court Division, Montgomery County, North Carolina, for further disposition. FURTHER that Plainti ff's Motion to Amend the Prior Motion for Remand (Doc. 16 ) and Amended Motion for Remand (Doc. 19 ) are DENIED. FURTHER that the Clerk of Court is directed to send a certified copy of this Order to the Montgomery County Superior Court Clerk. (Butler, Carol) Modified on 9/28/2016 to remove unnecessary text. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JANE DOE,
through her GAL,
)
)
)
Plaintiff,
)
)
v.
)
)
THE MONTGOMERY COUNTY BOARD
)
OF EDUCATION, JULIUS RYAN,
)
individually and as an
)
employee of Montgomery County
)
Board of Education, DALE ELLIS, )
individually and as
)
Superintendent of the
)
Montgomery Board of Education, )
KEVIN LANCASTER, Deputy
)
Superintendent of Operations,
)
DONNA KENNEDY, individually
)
and as Principal of East
)
Montgomery High School,
)
HEATHER SEAWELL, individually
)
and as Principal of East
)
Montgomery High School,
)
STEVEN W. DEBERRY,
)
individually and as Chairman
)
of Board, TOMMY BLAKE,
)
individually and as Vice
)
Chairman of the Board,
)
BRYAN DOZIER, JESSE HILL,
)
ANN LONG; SANDRA MILLER, and
)
SHIRLEY THREADGILL,
)
)
Defendants.
)
1:15CV940
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before the court is a Motion for Remand filed by
Plaintiff Jane Doe, through her GAL (“Plaintiff”). (Doc. 8.)
Defendants The Montgomery County Board of Education, Dale Ellis,
Kevin Lancaster, Donna Kennedy, Heather Seawell, Steven W.
DeBerry, Tommy Blake, Bryan Dozier, Jesse Hill, Ann Long, Sandra
Miller, and Shirley Threadgill (hereinafter collectively
referred to as “Removing Defendants”) have responded. (Doc. 14.)
This court has carefully considered Plaintiff’s Motion and
Removing Defendants’ Response in opposition. For the reasons
stated fully below, Plaintiff’s motion for remand will be
granted in part and denied in part.
I.
BACKGROUND
Plaintiff commenced the present action in the Montgomery
County Superior Court Division of the General Court of Justice
of the State of North Carolina on September 10, 2015, against
Removing Defendants and Defendant Julius Ryan (“Ryan”).
(Complaint (“Compl.”) (Doc. 4).) Removing Defendants were served
with a copy of the Summons and Complaint on various days – the
earliest on October 12, 2015, and the latest on October 19,
2015. (Notice of Removal (“Removal Notice”) (Doc. 1) at 2.)
Defendant Ryan was served with a copy of the Summons and
Complaint on October 16, 2015. (Mot. to Remand (Doc. 8) ¶ 8.)
Removing Defendants filed a Notice of Removal to this court on
November 10, 2015, pursuant to federal question jurisdiction.
(Removal Notice (Doc. 1).) Defendant Ryan did not join in the
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notice of removal at the time of its filing and has not filed
his own notice of removal or a written consent to the notice of
removal filed by Removing Defendants. 1 Before the court is
Plaintiff’s motion to remand.
II.
ANALYSIS
A.
Generally All Defendants Must Join in the Removal of
an Action
Section 1441 of Title 28 grants the defendants the right to
remove a case from state to federal court where the federal
district court would have original jurisdiction over the matter.
28 U.S.C. § 1441(a). “The burden of establishing federal
jurisdiction is placed upon the party seeking removal. Because
removal jurisdiction raises significant federalism concerns,
[courts] must strictly construe removal jurisdiction. If federal
jurisdiction is doubtful, a remand is necessary.” Mulcahey v.
1
On March 8, 2016, Plaintiff, on behalf of Ryan, filed
Defendant Julius Ryan’s Notice of Objection to Removal (Doc.
25), which was deemed deficient by the court. (See Minute Entry
03/15/2016.) On March 24, 2016, Plaintiff filed a Notice of
Filing of Defendant Julius Ryan’s Notice of Objection to Removal
to remedy the deficiency with the previously filed notice of
objection. (Doc. 28.) However, Ryan’s objection to removal was
not filed within the time permitted by 28 U.S.C. § 1447(c) and
is, therefore, not being considered by this court in ruling on
Plaintiff’s motion to remand. See Metro Furniture Rental, Inc.
v. Alessi, 770 F. Supp. 198, 200 (S.D.N.Y. 1991).
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Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994)
(internal citations omitted).
The procedure to remove a civil action from state to
federal court is set forth in 28 U.S.C. § 1446, which provides
that the defendants desiring removal of an action must file,
within thirty days of service of the defendants, a notice of
removal signed pursuant to Rule 11 of the Federal Rules of Civil
Procedure and containing a short and plain statement of the
grounds for removal. 28 U.S.C. § 1446(a) & (b). Generally,
“[t]he Supreme Court has construed [§ 1446] to require all
defendants in a case to join in or consent to removal, creating
the so-called ‘rule of unanimity.’” Hartford Fire Ins. Co. v.
Harleysville Mut. Ins. Co., 736 F.3d 255, 259 (4th Cir. 2013)
(citing Mayo v. Bd. of Educ. of Prince George's Cnty., 713 F.3d
735, 741 (4th Cir. 2013)). Section 1446(b)(2)(A) specifically
provides “[w]hen a civil action is removed solely under section
1441(a), all defendants who have been properly joined and served
must join in or consent to the removal of the action.” The rule
of unanimity is consistent with this court’s obligation to
construe removal jurisdiction strictly. Hartford, 736 F.3d at
259.
In establishing consent by all defendants, the “rule of
unanimity” does not require the notice of removal to be signed
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by all defendants; “however, it does require that each defendant
officially and unambiguously consent to the notice of removal.”
Brodar v. McKinney, 378 F. Supp. 2d 634, 637 (M.D.N.C. 2005);
see Mayo, 713 F.3d at 742. If a defendant “does not consent to
removal, the party seeking removal has the burden of proving
that an exception to the rule of unanimity applies.” Palmetto
Automatic Sprinkler Co. v. Smith Cooper Int’l, Inc., 995 F.
Supp. 2d 492, 495 (D.S.C. 2014); see Hartford, 736 F.3d at 259
(stating the burden of demonstrating the propriety of removal
rests with the removing party). Here, Removing Defendants did
not allege any reason for Defendant Ryan’s failure to join in
their notice of removal nor any grounds demonstrating that an
exception applied to the requirement that all properly joined
and served defendants consent to the removal. Instead, Removing
Defendants argue that Plaintiff did not timely file a proper
motion to remand under the Local Rules of the Middle District.
(Removing Defs.’ Resp. to Mot. for Remand (“Resp. to Remand”
(Doc. 14).)
B.
Plaintiff Timely Filed a Motion to Remand
Pursuant to 28 U.S.C. § 1447, “[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).” 28 U.S.C. § 1447(c).
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The failure of all defendants to consent to a notice of removal
is not a jurisdictional defect and is waived unless it is timely
raised in accordance with § 1447. Payne ex rel. Estate of
Calzada v. Brake, 439 F.3d 198, 203 (4th Cir. 2006); Brodar, 378
F. Supp. 2d at 637.
On December 9, 2015, Plaintiff filed a Motion for Remand, 2
(Mot. to Remand (Doc. 8)), and on December 10, 2015, Plaintiff
filed a Brief in Support of Motion for Remand (Br. in Supp. of
Mot. for Remand (“Pl.’s Br.”) (Doc. 9)). Both of these pleadings
were filed within thirty days after Removing Defendants’ filing
of the Notice of Removal (Removal Notice (Doc. 1)). However,
Removing Defendants assert several arguments for why the
Plaintiff’s motion and brief should not be considered by this
court: (1) Plaintiff’s motion and brief failed to comply with
the Local Rules of the Middle District of North Carolina,
specifically LR7.2(a) and LR7.3(a); (2) Plaintiff’s motion
should be summarily denied under LR7.3(k) for failing to comply
2
On January 7, 2016, Plaintiff filed a Motion to Amend the
Prior Motion for Remand & Supporting Brief. (Doc. 16.) Because
Plaintiff’s motion for remand raises a procedural defect, the
objection had to be raised within thirty days, thus, the amended
motion cannot relate back to the original motion to remand for
purposes of complying with the time requirement. Therefore, the
amended motion is barred by the statutory limitations period.
See 28 U.S.C. § 1447(c); Locke v. Purdon, No. 294CV70-BO, 1995
WL 1945502, at *2 (N.D. Miss. Apr. 20, 1995).
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with the Local Rules; and (3) if Plaintiff’s motion is summarily
denied, the motion for remand is not timely and Plaintiff is
deemed to have waived the right to seek remand. (Resp. to Remand
(Doc. 14).)
LR7.3(a) states that “[a]ll motions, unless made during a
hearing or at trial, shall be in writing and shall be
accompanied by a brief . . . .” Removing Defendants argue that
“[i]n violation of Local Rule 7.3(a), Plaintiffs’ Motion for
Remand & Memorandum of Law filed on December 9, 2015 was not
accompanied by a Brief.” (Br. in Resp. to Motion for Remand
(“Removing Defs.’ Br.”) (Doc. 15) at 2-3.) However, a written
brief, (Pl.’s Br. (Doc. 9)), accompanying the motion, (Mot. to
Remand (Doc. 8)), was filed by Plaintiff (although separately on
the docket) as required by Local Rule 7.3(a). See Broadus v.
Delta Air Lines, Inc., 101 F. Supp. 3d 554, 558 (M.D.N.C. 2015)
(noting that an accompanying brief filed 15 days after the
relevant motion met the requirements of LR7.3(a)).
LR7.2(a) states that opening briefs filed with the court
shall contain:
(1)
(2)
(3)
A statement of the nature of the matter before
the Court.
A concise statement of the facts. Each statement
of fact should be supported by reference to a
part of the official record in the case.
A statement of the question or questions
presented.
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(4)
The argument, which shall refer to all statutes,
rules and authorities relied upon.
Removing Defendants argue that Plaintiff’s motion and brief did
not comply with LR7.2(a) because they did not contain all four
listed requirements. (Resp. to Remand (Doc. 14).) Plaintiff’s
brief does not strictly conform with the four enumerated
requirements listed in LR7.2(a), but Plaintiff’s motion and
brief, when read together, state the relevant facts, state the
question presented, and offer the argument with reference to
relevant statutes, rules and authorities relied upon.
“A district court has broad discretion to determine whether
to overlook a party's failure to comply with local court rules.”
Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001); see
LR83.4(b) (“The imposition of sanctions for violation of a local
rule is discretionary with the Court[, and] . . . the Court may
consider . . . whether other circumstances make the imposition
of sanctions inappropriate.”). Because Plaintiff’s motion and
brief state the relevant facts and issues together with an
argument supported by citations to relevant statutes and
authorities, this court will exercise its discretion in not
summarily denying Plaintiff’s motion. Nevertheless, this court
emphasizes the importance of compliance with the Local Rules,
and the duty of counsel to familiarize himself with those rules,
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and cautions counsel for Plaintiff to fully comply with the
Local Rules in the future to avoid possible sanctions.
Because Plaintiff’s motion to remand was timely filed and
because Removing Defendants’ notice of removal contains no
justification for the failure to join Defendant Ryan, the court
will grant Plaintiff’s Motion for Remand.
C.
Award of Attorney Fees is not Appropriate
Plaintiff also moves, pursuant to 28 U.S.C. § 1447(c), for
an award of costs and attorney fees incurred as a result of
these removal proceedings. (Mot. to Remand (Doc. 8) at 6.)
Section 1447(c) provides that “[a]n order remanding the case may
require payment of just costs and any actual expenses, including
attorney fees, incurred as a result of the removal.” 28 U.S.C.
§ 1447(c). Having found that remand is appropriate in the
present case, the court must determine whether Removing
Defendants should be required to pay Plaintiff's costs and fees
associated with the removal proceedings.
The Supreme Court has held that the standard for awarding
fees under 28 U.S.C. § 1447(c) “should turn on the
reasonableness of the removal.” Martin v. Franklin Capital
Corp., 546 U.S. 132, 141 (2005). “Absent unusual circumstances,”
if the removing party has any “objectively reasonable basis” for
seeking removal, it should not be required to pay the opposing
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party’s fees upon remand. Id. This general rule is based on “the
desire to deter removals sought for the purpose of prolonging
litigation and imposing costs on the opposing party, while not
undermining Congress' basic decision to afford defendants a
right to remove as a general matter.” Id. at 140.
The Complaint asserts at least two counts based entirely on
federal law. (Compl. (Doc. 4) at 10-16.) Plaintiff has not
provided any evidence that unusual circumstances apply in this
case or that Removing Defendants lacked an objectively
reasonable basis for seeking removal. Based on the face of the
Complaint, Removing Defendants possessed an objectively
reasonable basis for seeking removal, which precludes the award
of costs and attorney fees requested by Plaintiff. See Wood v.
Durham Cnty. Bd. of Educ., No. 1:10CV509, 2011 WL 723048, at *4
(M.D.N.C. Feb. 23, 2011). Accordingly, the court will deny
Plaintiff’s motion to the extent it requests costs and attorney
fees.
III. CONCLUSION
For the reasons set forth herein, IT IS HEREBY ORDERED that
Plaintiff’s Motion for Remand (Doc. 8) is GRANTED IN PART AND
DENIED IN PART. Specifically, Plaintiff’s motion to remand the
case to state court is GRANTED; Plaintiff’s motion for costs and
attorney fees is DENIED.
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This case, including Removing Defendants’ Motion to Dismiss
pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. 10) and Removing
Defendants’ Motion to Dismiss pursuant to Fed. R. Civ. P.
12(b)(1) and (2) (Doc. 12), is hereby REMANDED to The General
Court of Justice, Superior Court Division, Montgomery County,
North Carolina, for further disposition.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend the
Prior Motion for Remand (Doc. 16) and Amended Motion for Remand
(Doc. 19) are DENIED.
IT IS FURTHER ORDERED that the Clerk of Court is directed
to send a certified copy of this Order to the Montgomery County
Superior Court Clerk.
This the 28th day of September, 2016.
_______________________________________
United States District Judge
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