Bostic v. Biggs et al

Filing 169

REPORT AND RECOMMENDATION: The Magistrate Judge RECOMMENDS that Metro Governments Motion to Remand (Doc. No. 128) be GRANTED and the action be remanded to the Circuit Court for Davidson County, Tennessee. The Magistrate Judge also recommends that Metro Governments Motion to Dismiss (Doc. No. 105) be DENIED AS MOOT. Signed by Magistrate Judge Alistair Newbern on 1/13/2017. (xc:Pro se party by regular and certified mail.)(eh)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILE DIVISION

JAMES E. BOSTIC,
Plaintiff,

No. 3:14-cv-01068

v.

JUDGE TRAUGER
MAGISTRATE JUDGE NEWBERN

SHARA BIGGS, ET AL.,
Defendants.

To:

The Honorable Aleta A. Trauger

REPORT AND RECOMMENDATION
The District Court referred this 42 U.S.C. § 1983 action to the undersigned Magistrate
Judge under 28 U.S.C. §§ 636(b)(1)(A) and (B) to dispose or recommend disposition of any
pretrial motions and to conduct further proceedings, if necessary, under Rule 72(b) of the Federal
Rules of Civil Procedure, and the Local Rules of Court. (Doc. No. 65.)
Pending before the Court are Defendant Metropolitan Government of Nashville and
Davidson County’s (Metro Government) Motion to Dismiss (Doc. No. 105) and Motion to
Remand (Doc. No. 128). Plaintiff James Bostic has responded in opposition to both motions. (Doc.
Nos. 107, 139.) For the following reasons, the undersigned recommends that the Motion to
Remand be GRANTED and the Motion to Dismiss be DENIED AS MOOT.

I.

Background
At the time Plaintiff James E. Bostic filed his Complaint, 1 he was an inmate in the custody

of the Davidson County Sheriff’s Office (DCSO). (Doc. No. 1.) The DCSO is a unit of Metro
Government that operates its jails. In his Complaint and Amended Complaint, Bostic alleges that,
while he was in the DCSO’s custody, Defendants denied him adequate medical care, showers,
recreational time, and mental health and related services. (Doc. Nos. 1, 51.) He brings claims
under the Eighth Amendment and the Americans with Disabilities Act of 1992. (Id.)
Bostic filed this action in the Circuit Court for Davidson County. (Doc. No. 1.) Defendant
Mental Health Cooperative (MHC) removed the case to this Court, asserting federal question
jurisdiction under 28 U.S.C. § 1331. (Id.) When MHC filed its Notice of Removal, no other
defendant had yet been served. (Id.)
The District Court considered the adequacy of Bostic’s Complaint in its March 13, 2015
Order granting in part and denying in part the Motion for Frivolity Review of Defendants Davidson
County Sheriff’s Office and Xyzeidria Ensley. (Doc. No. 43.) In that order, the District Court
instructed Bostic that the proper governmental defendant to his claims was Metro Government,
not the DCSO, because the DCSO “is an agency or unit of the Metropolitan Government of
Nashville and Davidson County . . . and is not a suable entity itself.” (Id. at PageID# 186–87
(quoting Abdulkarim v. Metro. Sheriff Dep’t, No. 3:15-cv-00040, 2015 WL 569868, at *2 (M.D.
Tenn. Feb. 11, 2015)).). In response to the District Court’s order (Doc. No. 43), Bostic filed a
motion to voluntarily dismiss the DCSO as a defendant (Doc. No. 50) and a motion to amend his
complaint (Doc. No. 51).

1

Bostic has been incarcerated at the Bledsoe County Correctional Complex since at least
November 28, 2016. (Doc. No. 163.)
2

Magistrate Judge Bryant granted both motions and substituted Metro Government for the
DCSO as a defendant on November 23, 2015, but did not order summonses issued to serve process
on Metro Government as a newly named defendant. (Doc. No. 89.) It appears from the record that
Metro Government was not served with that order. (Id.) Nor was it served with Bostic’s Amended
Complaint. (Doc. No. 92.)
On March 23, 2016, Metro Government filed a motion to dismiss for failure to state a claim
and insufficient service of process. (Doc. No. 105.) On July 1, 2016, Magistrate Judge Bryant
ordered service of process on Metro Government be executed by the U.S. Marshal Service on
Bostic’s behalf. (Doc. No. 122.) Metro Government was served on July 8, 2016. (Doc. No. 126.)
It filed its Motion to Remand on July 29, 2016. (Doc. No. 128.)

II.

Analysis
The rule of unanimity, now codified in the removal statute, requires that all defendants

“who have been properly joined and served” must agree to remove a case from state to federal
court to properly invoke federal jurisdiction. 28 U.S.C. § 1446(b)(2)(A); Loftis v. United Parcel
Serv., 342 F.3d 509, 516 (6th Cir. 2003). While section 1446 addresses defendants who have been
served at the time a removal notice is filed, the right to file a motion to remand is preserved by
statute for defendants upon whom process is served after removal. 28 U.S.C. § 1448; Murphy
Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 355 n.6 (1999); Getty Oil Corp. v. Ins.
Co. of N. Am., 841 F.2d 1254, 1263 (5th Cir. 1988) (citing Lewis v. Rego Co., 757 F.2d 66, 68–69
(3d Cir. 1985)).
Section 1448 does not specify a time period within which later-served defendants must
move to remand. However, section 1447 requires that a motion to remand be made “within 30 days

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after the filing of the notice of removal under section 1446(a).” 28 U.S.C. § 1447(c). The analogous
timeframe for a later-named defendant is 30 days from the date of service. See, e.g., Star Multi
Care Servs., Inc. v. Empire Blue Cross Blue Shield, 6 F. Supp. 3d 275, 279 (E.D.N.Y. 2014)
(“[T]he statute places the burden on the later-served defendants to make a motion to remand within
30 days of service if they do not consent.”).
MHC removed this case on April 25, 2014. (Doc. No. 1.) Metro Government was not
served until July 8, 2016. (Doc. No. 126.) Metro Government moved to remand the case on July
29, 2016, twenty-one days after service, asserting its right not to consent to removal. (Doc. Nos.
128, 129.)
While Metro Government apparently had knowledge of Bostic’s Amended Complaint at
the time it filed its Motion to Dismiss, section 1448 preserves the right of “any defendant upon
whom process is served after removal . . . to move to remand the case.” 28 U.S.C. § 1448 (emphasis
added); see also 28 U.S.C. § 1446(b)(2)(A) (“[A]ll defendants who have been properly joined and
served must join in or consent to the removal of the action.”) (emphasis added). Thus, because
Metro Government moved to remand within thirty days after it was served, its Motion to Remand
is timely, despite its earlier filing.
Because Metro Government’s motion defeats unanimity among Defendants, remand is
required. 28 U.S.C. § 1446(b)(2)(A); Loftis, 342 F.3d at 516 (“Failure to obtain unanimous consent
forecloses the opportunity for removal under Section 1446.”). A procedural defect in removal is
not a jurisdictional issue such that a court may address it sua sponte if not raised by the parties.
Page v. City of Southfield, 45 F.3d 128, 133 (6th Cir. 1995). However, the unanimity rule, like all
rules governing removal, is to be strictly interpreted with ambiguities “resolved in favor of remand
to the state courts.” Graiser v. Visionworks of Am., Inc., 819 F.3d 277, 283 (6th Cir. 2016) (quoting

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Holston v. Carolina Freight Carriers Corp., No. 90-1358, 1991 WL 112809, at *3 (6th Cir. June
26, 1991)); Russell Corp. v. Am. Home Assurance Co., 264 F.3d 1040, 1049 (11th Cir. 2001);
Zipline Logistics, LLC v. Powers & Stinson, Inc., No. 2:15-cv-693, 2015 WL 4465323, at *4 (S.D.
Ohio July 21, 2015), adopted by Zipline Logistics, LLC v. Powers & Stinson, Inc., No. 2:15-00693,
2015 WL 5139084 (S.D. Ohio Sept. 2, 2015). “This is because removal jurisdiction encroaches on
state jurisdiction, and the interests of comity and federalism require that federal jurisdiction be
exercised only when it is clearly established.” Holston, 1991 WL 112809, at *3. Such jurisdictional
concerns counsel that the Court address Metro Government’s Motion to Remand before resolving
other substantive motions. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94–95 (1998).
For this reason, the undersigned recommends that Metro Government’s Motion to Remand
(Doc. No. 128) be granted and its Motion to Dismiss (Doc. No. 105) denied as moot. See Credit
One Bank, N.A. v. Sneed, No. 3:11-0563, 2011 WL 6749033, at *1 (M.D. Tenn. Dec. 20, 2011).

III.

Recommendation
In light of the foregoing, the Magistrate Judge RECOMMENDS that Metro Government’s

Motion to Remand (Doc. No. 128) be GRANTED and the action be remanded to the Circuit Court
for Davidson County, Tennessee. The Magistrate Judge also recommends that Metro
Government’s Motion to Dismiss (Doc. No. 105) be DENIED AS MOOT.
Any party has fourteen (14) days from the receipt of this Report and Recommendation in
which to file any written objections to it with the District Court. Any party opposing said objections
has fourteen (14) days from receipt of any objections filed in which to file any response. Fed. R.
Civ. P. 72(b)(2). Failure to file specific objections within fourteen (14) days of receipt of this
Report and Recommendation can constitute a waiver of further appeal of this Recommendation.

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Thomas v. Arn, 474 U.S. 140 (1985); Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004) (en
banc).
Entered this 13th day of January, 2017.

____________________________________
ALISTAIR E. NEWBERN
United States Magistrate Judge

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