Sims v. Ward

Full title: JOE ARTHUR SIMS, ET. AL. v. BARRY WARD, EL AL

Court: United States District Court, E.D. Louisiana

Date published: Sep 14, 2001

Civil Action No. 01-909 Ref (All Cases) Section "L" (2) (E.D. La. Sep. 14, 2001)

Opinion

Civil Action No. 01-909 Ref (All Cases) Section "L" (2)

September 14, 2001

ORDER AND REASONS

FALLON, Judge.

Before the Court is Plaintiffs' Motion to Remand the instant case in whole or in part to the 21st Judicial District Court for the Parish of Tangipahoa, State of Louisiana. For reasons set forth below the Plaintiff's Motion to Remand is GRANTED.

I. BACKGROUND

On February 28, 2001 Plaintiffs Joe and Julia Sims filed a civil suit for damages in the 21st District Court for the Parish of Tangipohoa against Defendants Barry Ward, a state police trooper, and the Louisiana Department of Public Safety and Corrections, Division of State Police (hereinafter "LDPSC"), alleging that Defendant Ward used excessive force in effecting the arrest of Joe Sims. On April 5, 2001 Defendant Ward filed a Notice of Removal with this Court. On May 23, 2001 this Court remanded the matter to state court finding that Plaintiff had not raised a federal claim in the state court proceeding. Following remand, Plaintiffs' filed an amended complaint on June 4, 2001 in the state court and for the first time plead violations of 42 U.S.C. § 1983. According to state court records, Defendants Ward and the LDPSC were served with the amended state court complaint on June 18, 2001 and June 15, 2001 respectively. On July 17, 2001 Defendant Ward filed a Notice of Removal with this Court. Defendant LDPSC did not join. in the Notice of Removal filed by Ward. On August 13, 2001 Plaintiffs filed a Motion to Remand arguing that because Defendant LDPSC did not join in Defendant Ward's Notice of Removal during the thirty-day removal period, the action must be remanded due to procedural defects in removal. Alternatively, Plaintiffs argue that Defendant LDPSC did not timely nor properly execute a waiver of its Eleventh Amendment immunity.

On August 16, 2001 Defendants Ward and LDPSC filed a Joint Motion for Leave of Court to File Amended Notice/Petition for Removal claiming that the original Notice of Removal (filed July 17, 2001) inadvertently failed to include as a factual allegation that LDPSC had consented to removal through its attorney. Included with the Joint Motion are affidavits by Daniel Avant (counsel for Defendant Ward) and D. Rex English (counsel for LDPSC) attesting that in a telephone conversation between the two counsel, Mr. English expressed his intent to join in the Notice of Removal to be filed by Mr. Avant. Plaintiffs claim that the amendment to the Notice of Removal sought by the Defendants is not permitted by law after the thirty-day removal period has expired. Additionally, Plaintiffs seek payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal under 28 U.S.C. § 1447 (c).

II. ANALYSIS

According to 28 U.S.C. § 1446 (b) notice of removal shall be filed within thirty days after the receipt by the defendant of the initial pleading or summons in which a removable issue is raised. The Fifth Circuit has long recognized that removal based on 28 U.S.C. § 1446 (b) requires that all defendants join in the removal petition. See Johnson v. Helmerich Payne, Inc., 892 F.2d 422, 423 (5^th Cir. 1990). This requirement can be satisfied if each defendant "consents" to removal by timely filing some written indication that it has actually consented to removal. Getty Oil, Div. of Texaco v. Insurance Co. of North America, 841 F.2d 1254, 1262 (5^th Cir. 1988). Because a petition for removal must be filed within thirty days after service is effected upon the first defendant in state court, the Fifth Circuit has held that all served defendants must join the petition or properly consent to removal within this same thirty-day period. Id. at 1263. The failure of all defendants who are properly served to join the petition renders the petition defective. Harris v. Edward Hyman Co., 664 F.2d 943, 944 n. 3 (5^th Cir. 1981).

At the time this case was removed by Defendant Ward, Defendant LDPSC had not filed with this court a written indication that it had consented to removal of the state proceeding to federal court. Even assuming that the failure of Defendant LDPSC to join in the notice of removal filed with this court on July 17, 2001 by Defendant Ward was due solely to "inadvertance" and further that the LDPSC did in fact intend to join in the removal, the formal requirements of 28 U.S.C. § 1446 (b) as interpreted by the Fifth Circuit were not satisfied in that LDPSC did not submit to this court in writing any manifestation of its intent to remove prior to the expiration of the thirty-day removal period. See Getty Oil, 841 F.2d at 1262-63; Harris, 664 F.2d at 945 n. 4. As a result, the Defendants did not properly remove their case to the federal court during the thirty-day period provided for in 28 U.S.C. § 1446 (b) and the case must be remanded to the 21^st Judicial District Court for the Parish of Tangipahoa, State of Louisiana.

Because remand is ordered due to non-compliance with 28 U.S.C. § 1446 (b), the Court need not reach the issue of whether the State of Louisiana properly waived its Eleventh Amendment immunity.

Regarding Plaintiffs' request for payment of costs and expenses, including attorney fees, under 28 U.S.C. § 1447 (c), such an award is committed to the discretion of the court. While 28 U.S.C. § 1447 (c) does not indicate how a court is to exercise its discretion in deciding whether to award costs and expenses, the Fifth Circuit Court of Appeals holds that the propriety of the Defendant's removal is central to this determination. See Miranti v. Lee, 3 F.3d 925, 928 (5th Cir. 1993). In particular, the court should consider the "weakness" of the removal question. Id. In this case Defendants offered a persuasive and meritorious argument, even though unsuccessful, as to how they fulfilled the requirements of 28 U.S.C. § 1446 (b). Furthermore, the 2 Court does not find that the removal by Defendants was frivolous or in bad faith. According the Plaintiffs' request for costs and expenses is DENIED.

III. CONCLUSION

For the foregoing reasons, Defendants' Joint Motion for Leave of Court to File Amended Notice/Petition for Removal is DENIED, and Plaintiff's Motion to Remand is GRANTED. IT IS ORDERED that the case be REMANDED to the 21st Judicial District Court for the Parish of Tangipahoa, State of Louisiana. Plaintiffs' request for payment of all costs and any actual expenses, including reasonable attorney fees, incurred as a result of the removal is DENIED.