J.H. v. CITY OF PHILADELPHIA et al
MEMORANDUM AND/OR OPINION SETTING FORTH THE REASONS WHY THE COURT IS DENYING PLAINTIFF'S MOTION TO REMAND (DOCKET N. 6) AND REMOVING THE CASE FROM STAYED STATUS. AN APPROPRIATE ORDER FOLLOWS. SIGNED BY HONORABLE GENE E.K. PRATTER ON 11/27/17. 11/2717 ENTERED AND COPIES E-MAILED.(rab, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CITY OF PHILADELPHIA et al.,
NOVEMBER 27, 2017
Alleging that a city police officer sexually assaulted her, plaintiff J.H. has sued four
defendants: the City of Philadelphia, Police Commissioners Charles Ramsey and Richard Ross,
and Officer Thomas O’Neill. Three of the four defendants removed the case to this Court. In
response, J.H. has filed a motion to remand. The Court must now decide whether removal was
proper and concludes that it was.
Before the suit was filed, an attorney for the City told counsel for J.H. that “the city will
be accepting service for Officer O’Neill” and admonished J.H.’s counsel, “[p]lease do not have
further contact with him.” Mot. Remand Ex. C.
Then, in quick succession, the complaint was filed in state court; the City Law
Department accepted service of process (ostensibly for all defendants: the City, Commissioners
Ramsey and Ross, and Officer O’Neill); and all defendants except for Officer O’Neill removed
the case to this Court on August 7, 2017. Officer O’Neill had retired a year earlier, and city
attorneys later sent him a letter informing him that the city would not be defending him and
instructing him to obtain his own counsel.
J.H. has filed a motion to remand, arguing that removal was improper because Officer
O’Neill did not consent to removal. In response, the removing defendants argue that Officer
O’Neill did not need to consent because he was never properly served.
LEGAL STANDARD FOR REMAND AND REMOVAL
A defendant may remove “any civil action brought in a State court of which the district
courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). Once a defendant
has removed an action, a plaintiff may seek a remand to state court. 28 U.S.C. § 1447. A district
court can remand a case for lack of subject matter jurisdiction or for a defect in the removal
procedure. PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir. 1993).
Under the unanimity rule, “when there is more than one defendant, all must join in the
removal petition.” Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985) (applying 28 U.S.C. §
1446). Removal is still proper where a non-joining defendant was not served at the time that the
notice of removal was filed. See Balazik v. Cty. of Dauphin, 44 F.3d 209, 213 n.4 (3d Cir. 1995).
J.H.’s motion to remand boils down to a single question: had Officer O’Neill been
properly served at the time of removal? If yes, then his failure to join in the removal petition
violated the unanimity rule. If no, then the removal was still proper.
Officer O’Neill was not properly served. Under the service-of-process rule most on
point, service may be made by delivering a copy of the summons and complaint “to an agent
authorized by appointment or by law to receive service of process.” Fed. R. Civ. P. 4(e)(2)(C).
Though the City claimed to have authority to accept service of process on behalf of Officer
O’Neill, that apparent authority is not enough. See U.K. LaSalle, Inc. v. Lawless, 618 A.2d 447,
450 (Pa. Super. 1992) (“An attorney may not, without express authority, accept or waive service
of original process . . . .”) (quoting Hopkins v. Hagenbuch, 50 D. & C. 2d 531, 534 (Chest.
There is no indication that Officer O’Neill gave the City express authority to accept
service. Indeed, parties on both sides struggled to reach Officer O’Neill until long after the case
was removed. See, e.g., Defs’ Resp. at 4 (recounting, as of September 14, 2017, that City agents
“attempted personal service with no success” and that “[t]here has been no indication that
[counsel for J.H.] has had any success in serving Mr. O’Neill”). Without express authority, the
City could not accept service on behalf of Officer O’Neill. In short, Officer O’Neill was not
served. Because Officer O’Neill had not been served when the other defendants filed their notice
of removal, he did not need to join in the removal.
J.H. argues that all “doubts about the existence of federal jurisdiction must be resolved in
favor of remand.” See Lumbermans Mut. Cas. Co. v. Fishman, No. 99-929, 1999 WL 744016, at
*1 (E.D. Pa. Sept. 22, 1999). That statement, though true, does not take J.H. very far. Failure to
join all defendants is a “defect in removal procedure,” and is “not deemed to be jurisdictional.”
Balazik, 44 F.3d at 213.
This outcome is admittedly harsh. Indeed, superficially it appears to reward the City for
decidedly low behavior. 1 J.H. had been told that the City would accept service of process for
Officer O’Neill and had respected the City’s request not to contact Officer O’Neill. J.H. did not
learn that service on O’Neill had been faulty until after the other defendants had removed the
case to this Court.
One unfortunate message from this case is that litigants and lawyers may be less likely in
the future to take City lawyers at their word.
Still, service-of-process rules exist not to make life easier for plaintiffs like J.H., nor to
protect co-defendants like the City, but to provide due process to defendants like Officer O’Neill.
These rules reflect the “principle of general application in Anglo-American jurisprudence that
one is not bound by a judgment” until one has been named and served. Ortiz v. Fibreboard
Corp., 527 U.S. 815, 846 (1999) (quoting Hansberry v. Lee, 311 U.S. 32, 40 (1940)). If one
defendant could accept service for another without the other’s express authority, then the absent
defendant could be subject to an adverse judgment without any notice — an outcome that
offends “our ‘deep-rooted historic tradition that everyone should have his own day in court.’”
Id. (quoting Martin v. Wilks, 490 U.S. 755, 762 (1989)). These longstanding principles compel
the conclusion that Officer O’Neill was not served at the time that the case was removed. And
because he was not served, removal was proper. 2
Long after removal, counsel for Officer O’Neill appeared on the docket and filed an
“Objection to Removal.” See Doc. No. 13. J.H. now argues that, under 28 U.S.C.
§ 1446(b)(2)(A), the Court must remand to state court. Section 1446(b)(2)(A) provides that “all
defendants who have been properly joined and served must join in or consent to the removal of
the action.” Even assuming (without deciding) that Officer O’Neill’s recent actions amount to a
waiver of or consent to service, § 1446(b)(2)(A)’s unanimity requirement applies only to those
defendants properly served at the time of removal. At the time this case was removed, Officer
O’Neill had not been served, and all then-served defendants did consent.
Instead, 28 U.S.C. § 1448 provides more guidance as to the effect of any action by
Officer O’Neill now. Section 1448 governs service of process for defendants added after
removal and further provides that “[t]his section shall not deprive any defendant upon whom
process is served after removal of his right to move to remand the case.” Thus, late-served
defendants like Officer O’Neill retain some ability to move to remand the case to state court.
But because Officer O’Neill has not filed a motion to remand, the Court need not decide the
scope of the right to remand preserved by § 1448.
For the foregoing reasons, J.H.’s motion to remand is denied. An appropriate order
BY THE COURT:
S/Gene E.K. Pratter
GENE E.K. PRATTER
UNITED STATES DISTRICT JUDGE
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