Ault v. CenturyLink et al
Filing
27
MEMORANDUM DECISION and ORDER denying 16 Motion to Remand to State Court. Signed by Judge Ted Stewart on 6/15/2015. (blh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
BRIAN AULT,
MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFF’S
MOTION TO REMAND TO STATE
COURT
Plaintiff,
v.
CENTURYLINK, QUEST
CORPORATION, COMMUNICATIONS
WORKERS OF AMERICA, AND VWA
LOCAL 7705.
Case No. 1:15-CV-2 TS
Judge Ted Stewart
Defendants.
This matter is before the Court on Plaintiff Brian Ault’s (“Plaintiff”) Motion to Remand
to State Court. Plaintiff seeks remand for procedural defects in Defendants’ CenturyLink, Quest
Corporation, Communications Workers of America, and CWA Local 7705’s (“Defendants”)
Notice of Removal. Plaintiff is proceeding pro se. The Court will deny Plaintiff’s Motion
because the errors are de minimis procedural defects or unrelated to the removal process.
I. BACKGROUND
Plaintiff brings claims against Defendants that arise under federal law and are governed
by Section 301 of the Labor Management Relations Act. Defendants timely removed the action
to this Court pursuant to 28 U.S.C. § 1441(a). 1 Plaintiff asks this Court to remand his action to
state court for procedural defects in Defendants’ Notice of Removal. He points to
(1) Defendants’ failure to attach a summons directed to Defendant CWA Local 7705 to the
original Notice of Removal, (2) Defendants’ typographical error in the Civil Cover Sheet (“cover
1
Docket No. 2.
1
sheet”), and (3) Defendants’ decision to identify CenturyLink as a Colorado corporation.
Plaintiff asks this Court to adopt the minority view for procedural defects in subject-matter
jurisdiction cases, that any defect, no matter how small, is not curable after a 30-day period, and
requires remand to state court. 2 Shortly after the 30-day period ended, Defendants attached the
summons, and clarified the typographical error. 3 Further, Defendants believe that “State of
Colorado” is the correct cover sheet entry. 4
II. DISCUSSION
A defendant may remove to this Court any civil action brought in state court over which
this Court has original jurisdiction. 5 The defendant’s notice of removal must contain a short and
plain statement of the grounds for removal, along with a copy of all process, pleadings, and
orders served upon the defendants in the action. 6 In a minority of jurisdictions, a moving party’s
failure to attach the required state papers to a notice of removal is a fatal defect that requires
remand. 7 However, in a majority of jurisdictions, including the Tenth Circuit, a moving party’s
failure to attach the required state papers is a curable procedural defect. 8 Consequently, removal
is proper and a motion to remand to state court should be denied if (1) the notice of removal
contains all the necessary state papers, or (2) any procedural defects are merely de minimis
errors.
2
Docket No. 16, at 3.
3
Docket No. 21.
4
Docket No. 22, at 2.
5
28 U.S.C. § 1441(a).
6
28 U.S.C. § 1446(a).
7
Countryman v. Farmers Ins. Exch., 639 F.3d 1270, 1272 (10th Cir. 2011).
8
Id.
2
A. Necessary State Papers
A notice of removal must contain a short and plain statement of the grounds for removal,
along with a copy of all process, pleadings, and orders served upon the defendants in the action. 9
Although Defendants mistakenly identified the federal statute they filed under in the cover sheet
as 28 U.S.C. 144(a) rather than 28 U.S.C. 1441(a), Defendants listed the statute correctly seven
times in their Notice of Removal. 10 Thus, Defendants’ Notice of Removal contains a short and
plain statement of the grounds for removal. On the other hand, Defendants failed to attach CWA
Local 7705’s summons to the initial Notice of Removal. 11 Because Defendants failed to attach
all the necessary state papers to their initial Notice of Removal, remand would be required,
unless this failure to attach a summons is considered a curable de minimis procedural defect.
B. Procedural Defects
Remand to state court is not required if procedural defects in a notice of removal are
simply curable de minimis errors. While there is a presumption against removal, and the Court
must strictly construe the removal statute, 12 the Tenth Circuit has determined that the type of
procedural defects Plaintiff identifies are curable. In Countryman v. Farmers Ins. Exch., the
defendants Farmers Insurance and Mid-Century filed a notice of removal with a copy of all
process, pleading, and orders, 13 except for the summons, which they neglected to attach to the
9
28 U.S.C. § 1446(a).
10
Docket No. 2.
11
Docket No. 16, at 2.
12
Fajen v. Foundation Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982).
13
28 U.S.C. § 1446(a).
3
removal. 14 The Tenth Circuit affirmed the majority view, that a removing party’s failure to
attach the necessary state court papers is a curable de minimis procedural defect. 15 Like
Countryman, Defendants failed to attach the summons directed to CWA Local 7705 to their
Notice of Removal. Like the insurers’ omission in Countryman, Defendants’ omission is a
curable de minimis procedural defect, either before or after the 30-day period. Defendants have
already cured this procedural defect by attaching the summons in a supplement to their Notice of
Removal. 16 Plaintiff has failed to show any prejudice by the error. Therefore, the Court holds
that the missing summons is a curable de minimis procedural defect.
Additionally, remand to state court is not required for minor errors in a notice of removal
cover sheet. The federal removal statute requires a removing party to attach all process,
pleading, and orders to its notice of removal. 17 However, the federal removal statute does not
require a cover sheet. That requirement is found in this Court’s local rules. 18 Although
Defendants mistakenly identified the federal statute they filed under in the cover sheet as 28
U.S.C. § 144(a) rather than 28 U.S.C. § 1441(a), Defendants listed the statute correctly seven
times in their Notice of Removal. 19 Thus, Defendants’ Notice of Removal contains a short and
plain statement of the grounds for removal, and the typographical cover sheet error is not a
procedural defect. Even if the typographical error is a procedural defect, Defendants have
14
Countryman, 639 F.3d at 1271.
15
Id. at 1272.
16
Docket No. 21.
17
28 U.S.C. § 1446(a).
18
See DUCivR 3–4.
19
Docket No. 2.
4
clarified their intent by including the correct federal statute in their supplemental brief. 20
Defendants cured their error and remand is not required.
Finally, when a party bases its grounds for removal on federal question jurisdiction,
diversity jurisdiction questions do not affect this Court’s subject-matter jurisdiction. Plaintiff
raises a diversity jurisdiction issue over Defendants’ choice to identify CenturyLink as a
Colorado corporation. Because Defendants base their grounds for removal on federal question
jurisdiction, rather than diversity jurisdiction, the issue Plaintiff raises does not affect subjectmatter jurisdiction and is not a procedural defect. Additionally, Defendants believe Colorado to
be the correct cover sheet entry, and Defendants’ principal place of business appears to be
Colorado. 21 Therefore, remand is not required on this ground.
III. CONCLUSION
It is therefore
ORDERED that Defendants’ Motion to Remand to State Court (Docket No. 16) is
DENIED.
DATED June 15, 2015.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
20
Docket No. 21.
21
Hertz v. Friend, 130 S. Ct. 1181, 1184–85 (2010).
5
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