Opinion
C/A 9:21-cv-03337-RMG-MHC
01-14-2022
Paul Vernon Coffman and Stephanie Coffman, Plaintiffs, v. Town of Port Royal, Port Royal Police Department, Chief Alan Beach, Peter Bunting, Kimberly Carter, John Griffith, Ron Wekenmann, John Does and Joshua Lee Smith, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Plaintiffs, represented by counsel, filed this action in the Court of Common Pleas of Beaufort County, South Carolina, alleging various causes of action arising under state law, as well as a federal claim pursuant to 42 U.S.C. § 1983 for violation of Plaintiff Paul Coffman's civil rights. ECF No. 1-1. Defendants Town of Port Royal, Port Royal Police Department, Chief Alan Beach, Peter Bunting, Kimberly Carter, John Griffith, Ron Wekenmann, and John Does (the “Removing Defendants”) removed the case to this Court on October 13, 2021. ECF No. 1.
Presently before the Court is Plaintiffs' Motion to Remand. ECF No. 9. All pretrial proceedings in this matter were referred to the undersigned pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2) (D.S.C.). For the reasons set forth below, the undersigned recommends that the Motion to Remand be granted.
BACKGROUND
The Removing Defendants were served with the Summons and Complaint on September 13, 2021, and removed the case thirty days later, on October 13, 2021, on the basis of federal question jurisdiction. ECF No. 1. In their Notice of Removal, the Removing Defendants did not make any representations about whether the remaining Defendant, Joshua Lee Smith, consented to removal. See ECF No. 1. Five days later, on October 18, 2021, Defendant Smith filed an Answer and Counterclaim in this Court. ECF No. 6.
Within thirty days after removal, Plaintiffs filed the instant Motion to Remand on November 12, 2021, arguing that the Notice of Removal was fatally flawed in that it did not contain Defendant Smith's consent. ECF No. 9 at 2. On November 17, 2021, Defendant Smith filed a Response opposing the Motion to Remand and stating that he “joins in and consents to the removal of this action to the U.S. District Court.” ECF No. 10. That same day, the Removing Defendants also filed a Response, arguing that at the time of removal, no affidavit of service on Defendant Smith had been filed, such that the Removing Defendants “did not know whether and when the other co-Defendant had been served and whether that service was proper in the first place as required by section 1446.” ECF No. 11 at 2. They also noted that Defendant Smith consents to removal, implicitly suggesting that any defect has been cured. See Id. at 1-2.
In their Reply, Plaintiffs argue that Defendant Smith's consent is untimely, as it was filed after the time provided for the removal procedure. ECF No. 12 at 2. Plaintiffs attach an Affidavit of Service showing that Defendant Smith was served with the Summons and Complaint on September 13, 2021, the same day as the Removing Defendants. ECF No. 12-1. Plaintiffs argue that the deadline for Defendant Smith to remove the case or consent to removal was October 13, 2021, and that his belated consent filed on November 17, 2021, cannot cure the defect. ECF No. 12 at 3-4.
The Affidavit of Service was notarized on October 14, 2021, one day after this case was removed to federal court.
LEGAL STANDARD
Pursuant to 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants.” 28 U.S.C. § 1441(a). “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).
Federal courts are courts of limited jurisdiction, see Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994), and a district court is charged with ensuring that all cases before it are properly subject to such jurisdiction, In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). The burden of demonstrating jurisdiction resides with “the party seeking removal.” Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994). The court is “obliged to construe removal jurisdiction strictly because of the ‘significant federalism concerns' implicated.” Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004) (en banc) (quoting Mulcahey, 29 F.3d at 151). Doubts about the propriety of removal should be resolved in favor of remanding the case to state court. See id.; see also Hartley v. CSX Transp., Inc., 187 F.3d 422, 425 (4th Cir. 1999) (“[C]ourts should resolve all doubts about the propriety of removal in favor of retained state court jurisdiction.” (quotation marks omitted)).
DISCUSSION
Plaintiffs timely filed their Motion to Remand within thirty days after the case was removed to federal court. Upon consideration of the parties' arguments and the relevant law, the undersigned concludes that this case should be remanded to state court because the removal was procedurally defective, and Plaintiffs raised the deficiency in a timely manner.
The relevant procedure for removing a case to federal court is as follows:
(a) Generally. --A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending 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, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
(b) Requirements; generally.-(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
(2)(A) When 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.
(B) Each defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal.
(C) 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-served defendant did not previously initiate or consent to removal.28 U.S.C. § 1446(a)-(b)(2) (emphasis added).
“The Supreme Court has construed these statutes 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). The Fourth Circuit has recognized that “the rule of unanimity is consistent with [the court's] obligation to construe removal jurisdiction strictly because of the significant federalism concerns implicated.” Id. (internal quotation marks omitted). In a multiple-defendant case, “a notice of removal signed and filed by an attorney for one defendant representing unambiguously that the other defendants consent to the removal satisfies the requirement of unanimous consent for purposes of removal.” Mayo v. Bd. of Educ. of Prince George's Cty., 713 F.3d 735, 742 (4th Cir. 2013). However, “[w]hen a defendant does not timely join in a removal petition and the plaintiff does not waive the irregularity, the plaintiff is entitled to a remand.” Palmetto Automatic Sprinkler Co. v. Smith Cooper Int'l, Inc., 995 F.Supp.2d 492, 494 (D.S.C. 2014) (quoting Funchess v. Blitz U.S.A., Inc., 2010 WL 4780357, at *4 (D.S.C. Nov. 16, 2010)).
Here, all Defendants were served on September 13, 2021. However, there is no indication in the Notice of Removal, filed thirty days later, as to whether Defendant Smith consented to removal. See ECF No. 1. Thus, the Notice itself is not sufficient to satisfy the rule of unanimity. See Simon v. Regal Inv. Advisors LLC, No. 3:16CV00090, 2017 WL 1628436, at *4 (W.D. Va. Apr. 28, 2017) (“Because all of the defendants did not unambiguously join in the original notice of removal, that notice, by itself, is not sufficient to satisfy the rule of unanimity.”); Easter-Greene v. Verizon Maryland, LLC, No. CIV.A. MJG-14-1040, 2014 WL 3723228, at *4 (D. Md. July 23, 2014) (finding Notice of Removal defective where it failed to assert that served co-defendant joined in or consented to removal, nor did it “refer to, or explain, the absence of such consent”).
The Removing Defendants argue that they did not know at the time of removal “whether and when [Defendant Smith] had been served and whether that service was proper in the first place.” ECF No. 11 at 2. The undersigned construes this argument as an attempt to invoke one of the exceptions to the rule of unanimity recognized by federal courts. See Hartford Fire Ins. Co., 736 F.3d at 259; Palmetto Automatic Sprinkler Co., 995 F.Supp.2d at 495. Pursuant to these exceptions, a defendant need not join in or consent to removal if: “(1) [he] had not been served with process at the time the removal petition was filed; (2) [he] is merely a nominal or formal party defendant; or (3) the removed claim is independent of one or more nonremovable claims against the nonjoining defendants.” Palmetto Automatic Sprinkler Co., 995 F.Supp.2d at 495 (quoting Creekmore v. Food Lion, Inc., 797 F.Supp. 505, 508 (E.D. Va. 1992)). However, “lack of knowledge [as to whether a co-defendant has been served] cannot satisfy the service of process exception.” Id. Moreover, the evidence before the Court shows that Defendant Smith had been served with process at the time the Notice of Removal was filed, see ECF No. 12-1, such that the Removing Defendants have not sustained their burden of establishing this exception to the unanimity rule.
The Removing Defendants have not argued or shown that either the second or third exception applies to this case.
Pursuant to § 1446(b)(2), Defendant Smith had thirty days after he was served-i.e., until October 13, 2021-to file his own Notice of Removal or to consent to removal. 28 U.S.C. § 1446(b)(2)(B)-(C); see Gates at Williams-Brice Condo. Ass'n & Katherine Swinson v. Quality Built, LLC, No. 3:16-CV-02022-CMC, 2016 WL 4646258, at *7 (D.S.C. Sept. 7, 2016) (concluding that “the deadline for indicating consent of co-defendants is the later of when the notice of removal is due or within thirty days of when the consenting defendant was first served”). It is undisputed that he did not file a Notice of Removal. Moreover, his consent dated November 17, 2021, is insufficient to satisfy the rule of unanimity or cure the defective Notice of Removal, as it was filed after the deadline to consent and Plaintiffs timely raised the deficiency. See Simon, 2017 WL 1628436, at *7 (W.D. Va. Apr. 28, 2017) (concluding “that the removing defendants' failure to obtain timely unanimous consent is not a curable defect if the plaintiff raises the deficiency within thirty days of removal”); Gates, 2016 WL 4646258, at *8 (“[T]he court finds that there is no flexibility in the time allowed for consent so long as the party seeking remand raises the deficiency within thirty days of removal.”); Hurt v. D.C., 869 F.Supp.2d 84, 86 (D.D.C. 2012) (“A failure by defendants to obtain timely unanimous consent for removal is not a curable defect if the plaintiff objects to that removal within the thirty days granted under 28 U.S.C. § 1447(c).”). Because Defendant Smith did not timely join in the removal petition and Plaintiffs did not waive the irregularity, the undersigned concludes that Plaintiffs are entitled to a remand. See Gates, 2016 WL 4646258, at *8; Palmetto Automatic Sprinkler Co., 995 F.Supp.2d at 494.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Plaintiffs' Motion to Remand (ECF No. 9) be GRANTED.
The parties are referred to the Notice Page attached hereto.