Opinion
Civ. No. 99-3554, SECTION: "C" (5).
January 25, 2000.
ORDER AND REASONS
This matter comes before the Court on plaintiffs' motion to remand. Having considered the record, the memoranda of counsel and the law, the Court has determined that remand is appropriate for the following reasons.
This is an action originally filed in the 21st Judicial District Court, in Tangipahoa Parish, against James G. Traylor, individually and in his capacity as coroner of Tangipahoa Parish, and the Tangipahoa Parish Council. The plaintiffs filed a petition for damages and injunctive relief as a result of their termination from employment in the Tangipahoa Parish Coroner's Office by the defendant Coroner, James G. Traylor. The plaintiffs' petition alleges that defendant Traylor fired the plaintiffs on October 29, 1999, for their political support of Traylor's opponent during the 1999 campaign for Tangipahoa Parish Coroner. The plaintiff's also sued the Tangipahoa Parish Council, because employees of the Coroner's Office were compensated in frill, benefits included, by the Parish Council.
The Plaintiffs' petition further alleges that the Tangipahoa Parish Council had the sole power and authority to approve the hiring and firing of employees of the Parish Coroner's Office. The plaintiffs urge that defendant Traylor did not obtain approval for their termination from the Parish Council prior to the date of termination.
This suit was filed on November 22, 1999. On November 23, 1999, defendant Traylor, acting independently, and without consent of co-defendant Tangipahoa Parish Council, filed a notice of removal to this Court based on federal question jurisdiction under 42 U.S.C. § 1983. The Tangipahoa Parish Council has evidenced its objection to removal in a December 15, 1999, correspondence to plaintiffs' counsel. Therefore, plaintiffs urge this Court to remand this action to the jurisdiction of the state court as the removal presented by the plaintiffs' is defective and improper because it does not meet the procedural requirements outlined under the removal statute.
Memorandum in Support of Motion to Remand, exhibit 1, R.Doc. 6.
Memorandum in Support of Motion to Remand, p. 2-4, R.Doc. 6.
Defendant Traylor argues that the plaintiffs' claims against him are separate and independent from the claims brought against the Tangipahoa Parish Council, and, because of the separate and independent nature of the claims, that failure of all defendants to join in the removal does not constitute improper removal.
Memorandum in Opposition to Motion to Remand, p. 1-2, R.Doc. 8.
The procedure for removal, as provided in 28 U.S.C. § 1446, requires that a defendant or defendants desiring to move any civil action shall file a notice of removal. The Fifth Circuit has previously held that the law clearly requires that under 28 U.S.C. § 1446(a), removal procedure requires that all defendants join in the removal petition. Doe v. Kerwood, 969 F.2d 165, 167 (5th Cir. 1992). This rule is based on § 1441(a) which provides that the "defendant or defendants" may remove the action. Id. The courts have read these words to mean that, if there is only one defendant then that defendant may remove the case; however, if there is more than one defendant, then the defendants must act collectively to remove the case. Id.
Defendant Traylor argues that the Tangipahoa Parish Council's consent was not required because the plaintiffs' claims against the two defendants are separate and independent. The Court finds this argument lacking. In general, all defendants who are properly joined and served must join in the removal petition, and failure to do so renders the petition defective. Getty Oil Corp., Div. Of Texaco, Inc. v. Insurance Co. of North America., 841 F.2d 1254, 1262 (5th Cir. 1988). There is an exception to this general rule, however. A significant number of courts have found that when a separate or independent claim that is removable under § 1441(c) is joined with other non-removable claims, only the defendants to the separate and independent claim need seek removal. 14C Wright, Miller Cooper, Federal Practice and Procedure § 3731 (3d ed. 1998).
The Eastern District of Louisiana has considered what constitutes a "separate and independent" claim. Where there is a single wrong to a plaintiff for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c).Lentz v. Applegate, 1997 WL 576396 (E.D.La.); Perrilloux v. E.I. Du Pont De Nemours Co., 593 F. Supp. 393, 394-5 (E.D. La. 1984). To determine whether a claim is separate and independent, the Court should ascertain whether the plaintiff seeks to enforce a right which is unique to the plaintiff and whether the claim seeks to redress a single wrong that occurred to the plaintiff, apart from other wrongs that occurred.
The Court finds that defendant Traylor has not made the requisite showing under Perrilloux that the plaintiffs' claims against Traylor and the Tangipahoa Parish Council are separate and independent as contemplated by § 1441(c). Traylor argues that the consent of the Tangipahoa Parish Council is not required for removal because the plaintiffs were never employed by the Council, but solely by Traylor, the coroner, and thus could not be sued based on an employment relationship. This distinction, however, is irrelevant for purposes of determining whether separate and independent actions exist. The Perrilloux standard is based on a single wrong for which relief is sought. In this case there is a single occurrence, termination from employment, for which the plaintiffs seek relief in the form of damages and injunctive relief from both Traylor and the Tangipahoa Parish Council. Further, the plaintiffs seek to enforce the right of protection against wrongful termination, a right unique to the plaintiffs in this situation. Therefore, because the removal was improper this case must be remanded in its entirety.
Memorandum in Opposition to remand, p. 2, R.Doc. 8.
The Court recognizes the alternative bases for remand urged in the plaintiffs' motion for remand and their memorandum is support of the motion to remand. The Court does not address the second basis of whether state law issues predominate. However, the third basis urged pursuant to the "Pullman Abstention" doctrine does not provide for remand in this case. Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496 (1941). The "Pullman Abstention" doctrine is generally viewed as an exception to the general rule of proper federal adjudicatory jurisdiction of a federal constitutional issue when a state law claim is being considered for its constitutionality. Such exceptional circumstances do not exist in this case in order for the "Pullman Abstention" doctrine to apply to this federal court.
IT IS ORDERED that the plaintiffs' motion to remand in GRANTED and this matter be hereby REMANDED to the state court for further proceedings.
IT IS FURTHER ORDERED that defendant Traylor's motion for sanctions is DENIED.
IT IS FURTHER ORDERED that the plaintiffs' motion for sanctions previously noticed for hearing on February 16, 2000, is DENIED. A hearing will not be held on February 16, 2000, with regard to this motion for sanctions.
The Court does not rule on defendant Traylor's motion to dismiss, which may be re-urged in state court, if appropriate.