Jones v. District of Columbia , 105 F. Supp. 3d 12 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
RICHARD D. JONES, JR., )
)
)
Plaintiff, )
)
v. ) Civil Action No. 14-cv-1584 (TSC)
)
DISTRICT OF COLUMBIA, et al., )
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Defendants. )
)
MEMORANDUM OPINION
Plaintiff Richard D. Jones, Jr. initially filed suit in D.C. Superior Court. The lawsuit was
removed to this Court on September 17, 2014. Plaintiff moved to remand on the bases that: 1)
the removal was untimely, and 2) Defendants failed to comply with the rule requiring all served
defendants to consent to removal. Defendants conceded that removal was improper under the
rule of unanimity (but did not concede the issue of timeliness) and did not contest the remand
motion. Currently before the court is Plaintiff’s motion for attorney’s fees pursuant to 28 U.S.C.
§ 1447(c), which authorizes the court to, after remand, “require payment of just costs and any
actual expenses, including attorney fees, incurred as a result of the removal.” Because the
Defendants’ removal was largely unreasonable, the court GRANTS the motion for attorney’s
fees.
I. LAW GOVERNING REMOVAL
The applicable provisions governing removal are fairly straightforward. A defendant
must file a notice of removal within 30 days of receipt, “through service or otherwise, of a copy
of the initial pleading setting forth the claim for relief upon which such action or proceeding is
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based.” 28 U.S.C. § 1446(b)(1). All defendants “who have been properly joined and served
must join in or consent to the removal of the action.” 28 U.S.C. § 1664(b)(2)(A). If the
defendants are served at different times, a later-served defendant may remove within the 30 day
window applicable to that defendant, and “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(b)(2)(C).
II. FACTUAL BACKGROUND
Plaintiff filed suit on June 20, 2014, alleging civil rights violations by the District of
Columbia and three officers of the D.C. Metropolitan Police Department (“MPD”). The District
of Columbia was served on July 18, 2014. (Pl. Ex. 1). Each of the officers was served on
August 18, 2014. (Pl. Ex. 2). On September 17, 2014, the District, acting solely on its own
behalf and through counsel from the D.C. Office of the Attorney General, filed a Notice of
Removal commencing this federal civil action. (ECF No. 1). It is undisputed that this was more
than 30 days after the District was served with the complaint. The next day, September 18,
2014, District counsel filed an errata which amended the notice of removal to be on behalf of the
District and one of the three MPD officers, Adam Shaatal. (ECF No. 2-1). September 18 was
the 31st day after Shaatal was served with the complaint. The amended notice of removal was
silent as to the two remaining defendants, Michael Littlejohn and Brandon Baldwin.
On September 22, 2014, counsel for Plaintiffs invited the Defendants to voluntarily
remand the matter to Superior Court as untimely removed. (Pl. Ex. 5). District counsel replied
that removal was timely in light of the amendment on behalf of Shaatal, who counsel erroneously
claimed was served in September. (Pl. Ex. 6). Plaintiff’s counsel disagreed that an amendment
filed on the 31st day after service could render the removal timely, and also noted that the
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remaining defendants had not been included in the removal. (Pl. Ex. 7). Counsel for the District
stated they had no record the remaining officers, Baldwin and Littlejohn, had actually been
served and maintained that removal was timely. (Pl. Ex. 8).
Plaintiff moved to remand on October 17, 2014, arguing that “subsequent amendment
[itself untimely] of an untimely notice does not make the original notice timely” and that failure
of all defendants to join the removal was independently fatal. (Pl. Remand Mot. at 3). On
November 3, 2014 Defendants consented to remand because, as of September 17 “counsel was
unaware that co-defendants [Littlejohn and Baldwin] had been properly served and did not
include these defendants in the notice of removal.” (Notice, ECF No. 6, at 1).
III. ANALYSIS
The Court is authorized to impose attorney fees and other costs when a Plaintiff prevails
in a motion to remand. 28 U.S.C. § 1447(c). Generally, “an award is appropriate only when the
nonremovability of the action is obvious.” Yazdani v. Access ATM, 457 F. Supp. 2d 36, 37
(D.D.C. 2006) (citing Ibrahim v. 1417 N St. Assocs., LP, 950 F. Supp. 406, 408 (D.D.C. 1997))
(internal quotations omitted); see also Ballard v. District of Columbia, 813 F. Supp. 2d 34, 39
(D.D.C. 2011) (“a district court may award attorney’s fees when remanding a removed case only
if the removing party lacked an objectively reasonable basis for seeking removal”) (internal
quotation omitted). Reasonableness is evaluated “at the time of removal, irrespective of the fact
that it might ultimately be determined that removal was improper.” Valdes v. Wal-Mart Stores,
Inc., 199 F.3d 290, 293 (5th Cir. 2000).
Ibrahim involved a dispute of law: whether the 30-day period began running when
service of the complaint was perfected or when the defendant received a copy of the complaint in
some manner. 950 F. Supp. at 407. In light of differing constructions of the statute as to that
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particular issue, and because the trial court found the removal was not frivolous or in bad faith,
the court declined to award attorney fees. Id. at 408. Similarly, Ballard involved a question of
statutory interpretation that had given rise to a Circuit split, on which the D.C. Circuit had not yet
opined. Given that Defendants had a reasonable argument that remand had been proper, the
court declined to award attorney fees. 813 F. Supp. 2d at 37-38; see also Jenkins v. District of
Columbia, No. 14-cv-1890, 2015 WL 546015, at *3 (D.D.C. Feb. 10, 2015) (where factual
record was “far from unambiguous” as to which defendants had not already been dismissed from
the action, attorney’s fees were not appropriate). By contrast, in Yazdani the defendant received
a copy of the removable amended complaint on February 21, 2006 but did not file a removal
notice until April 6, 2006, relying on the flawed memory of defendant’s president that it received
the complaint in mid-March. Finding that the late removal was the result only of “sloppy
lawyering,” the court awarded fees. 457 F. Supp. 2d at 38. Likewise in Johnson-Brown v. 2200
M St., LLC, 257 F. Supp. 2d 175, 181 (D.D.C. 2003) the court awarded attorneys’ fees where the
defendants presented arguments supporting removal that were “dubious at best, if not
disingenuous.”
Here, Plaintiff identified two defects in the Defendants’ attempted removal, and
Defendant conceded one defect. The Court examines each in term to determine whether the
Defendants acted reasonably or whether the grounds of nonremovability were obvious.
A. Untimely Removal
September 17, 2014 – the day the District filed its original notice of removal – was too
late for the District of Columbia to file for removal, as it was well beyond 30 days after service
on the District. This the parties do not dispute. The parties also appear to agree that if defendant
Shaatal had joined the notice of removal on September 17, 2014, the removal would have been
timely (though still deficient for failure to join Baldwin and Littlejohn). But, for reasons that the
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District has not explained to the court, which could range from error to a misunderstanding
(justified or otherwise) of fact or law, 1 Shaatal did not join that filing. Instead, one day later, the
District amended the filing to include Shaatal, but not the other MPD defendants. (ECF No. 2-
1). The District has not proffered a reason or explanation for why it took these actions on those
days. Instead, the District is resting on the argument that Plaintiff failed to “explain why this
amendment was ineffective or could not relate back to the original filing.” (Def. Opp’n at 4).
Plaintiff already met his burden: he succeeded in having this case remanded to the Superior
Court. It is the District which is now responsible for showing the Court it had an “objectively
reasonable” basis for believing an untimely amendment could render an equally untimely notice
timely – and it has not attempted to do so. 2 An order requiring the payment of costs and fees
would be proper in light of this failure.
B. Failure to Obtain Consent by All Defendants
In addition to the untimeliness of the removal, the notice was unquestionably defective
because it failed to include consent from all four defendants. The Defendants assert that on
September 17, 2015, District counsel was not aware that Baldwin and Littlejohn had been
properly served, and therefore reasonably excluded them from the removal notice. In support of
this assertion, the District makes much of the rule that reasonableness is evaluated at the time of
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There is some evidence in the record to suggest District counsel was mistaken about the date Shaatal was served,
since in an email to Plaintiff’s counsel about the timeliness of removal District counsel stated Shaatal had been
served in September (Pl. Ex. 6). Shaatal was served in August, according to the affidavit of service filed in Superior
Court. (Pl. Ex. 2).
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Defendants do proffer one admittedly creative but ultimately incorrect argument. They argue that because claims
against a government employee in his or her official capacity are deemed to merge with claims against the employer,
the District was in a position to consent on Shaatal’s behalf. (Def. Opp’n at 4, n.2). This argument is legally
flawed, as it ignores the distinction between suing a person in his or her “official capacity” and a suit arising of out
that person’s actions within the scope of their official conduct. See, e,g., Busby v. City of Orlando, 931 F.2d 764,
772 (11th Cir. 1991) (explaining distinction). More importantly, this is the first and only time Defendants have
raised this argument, suggesting that it did not form the basis of their actions but is instead an ex post justification.
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removal, and argues that based on the facts known to the District at the time of removal, removal
was reasonable.
The “at the time of removal” standard is invoked by courts to address situations where
there is an intervening change in law or fact. Valdes, 199 F.3d at 293-94 (pointing to arguable
change in state law which would affect fraudulent joinder arguments); Miranti v. Lee, 3 F.3d
925, 928-29 (5th Cir. 1993) (noting that it only became clear the amount in controversy threshold
was not crossed after defendants filed notice of removal). In this case, no facts changed between
September 17 and November 3; only the District’s knowledge of those facts did. Moreover, the
District has failed to explain why its limited and incorrect knowledge of the relevant facts on
September 17 was “objectively reasonable.” The District states that it “did not confirm that that
[sic] other defendant officers had been served until after Plaintiff filed his motion to remand,”
(Def. Opp’n at 6), without positing any explanation for why it did not do so, and why it took
more than three weeks to obtain that confirmation – particularly in light of Plaintiff’s post-
removal emails putting the District on, at the very least, inquiry notice as to whether all four
defendants had been served. See, e.g., Squillante v. Cigna Corp., No. 12-cv-6003, 2012 WL
5974074, at *4 (S.D.N.Y. Nov. 28, 2012) (holding that fees were proper in part because
defendants “declined to voluntarily remand to state court after being apprised by [plaintiff’s]
counsel of the controlling precedents laid out above” and after the court, at a hearing, informed
defendants their position was “unpersuasive”); Stein v. Am. Express Travel Related Servs., 813 F.
Supp. 2d 69, 74 (D.D.C. 2011) (where plaintiffs called controlling law rendering non-
removability obvious to the attention of defendants, fees were appropriate).
This case is similar to, but ultimately distinguishable from, Williams v. Int’l Gun-A-
Rama, 416 Fed. Appx. 97, 100 (2d Cir. 2011) where the court determined that fees would be
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improper. There, the “plaintiffs had not filed affidavits of service with the state court for served
co-defendants” at the time of removal, so the defendants may not have had constructive notice
that one of the co-defendants had in fact been served. In addition, the amended complaint lacked
an address for that co-defendant, which “theoretically imped[ed] removing defendants’ ability to
locate” that co-defendant and obtain consent. Moreover, removal was attempted prior to
expiration of that co-defendant’s 30-day window, and “removal could therefore have been
procedurally proper had his consent been subsequently and timely obtained.” 416 Fed. Appx. at
100; see also In re Village of Kiryas Joel, N.Y., No. 11-cv-8494, 2012 WL 1059395, at *6
(S.D.N.Y. Mar. 29, 2012) (“If the other defendants had subsequently provided this Court with
timely unambiguous written evidence of their consent, the Notice of Removal would have been
proper….Therefore, it was not objectively unreasonable for the Village to have removed the case
to this Court on November 22, 2011”).
The circumstances in this case, however, are different. Plaintiff did file affidavits of
service on the Superior Court docket, all on the same date, reflecting service on all defendants.
(Pl. Ex. 2). Indeed, the officer who accepted service on behalf of Shaatal also accepted service
on behalf of Baldwin. (Id.). Unlike in Williams, information about the service status of the
defendants was readily available to District counsel, which represents all defendants. And in
contrast to Williams, there was no opportunity to cure the failure, because even if removal was
timely (and, to be clear, it was not), there was no remaining time for any of the silent defendants
to consent to that removal.
IV. REASONABLENESS OF FEES CLAIMED
When awarding fees, the court is “duty-bound to ensure that such an award is
reasonable.” Yazdani v. Access ATM, 474 F. Supp. 2d 134, 135 (D.D.C. 2007). The court
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considers and assesses three factors to make that determination: the reasonableness of the hours
spent, the reasonableness of the hourly rate charged, and the propriety of the use of any
multiplier. Id. (citing Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995).
The court may, in its discretion, award fees for the time spent litigating plaintiff’s right to collect
those fees. Id.
Plaintiff’s counsel here seeks payment for 4.7 hours for “researching the issues
involved,” 2.5 hours for “drafting the motion to remand,” (Pl. Mot. at 4), and 2.5 hours spent
drafting the reply in support of its motion for fees. (Pl. Reply at 7). Plaintiff’s counsel seeks
compensation at the Leffey Matrix rate of $520.00 per hour (based on his 20+ years of
experience), for a total award of $5,044.00. In this District, the Leffey Matrix is used as the
“benchmark for reasonable fees.” Muldrow v. Re-Direct, Inc., 397 F. Supp. 2d 1, 3 (D.D.C.
2005). Defendants do not address or contest the reasonableness of the hours expended or the rate
claimed. Neither the amount of time expended nor the rate claimed appears to the court to be
unreasonable and the court will therefore grant the motion in full.
A corresponding order accompanies this opinion.
Dated: May 20, 2015
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