Patterson v. Hanses ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RONALD PATTERSON,
Civil Action No. 19-392 (BAH)
Plaintiff,
Chief Judge Beryl A. Howell
v.
STEVEN HANSES and V.A. MEDICAL
CENTER,
Defendants.
MEMORANDUM AND ORDER
Pro se plaintiff Ronald Patterson brought this action in the Superior Court of the District
of Columbia, alleging that defendants Steven Hanses and the Veterans’ Administration Medical
Center committed medical malpractice. See Notice of Removal, Supplement, ECF No. 1-1. The
complaint and summons from Superior Court are both dated January 7, 2019. Id. On February
14, 2019, the defendants removed this case, under 28 U.S.C. §§ 1442(a)(1), 1446 from the
plaintiff’s chosen forum to this Court. See Notice of Removal, ECF No. 1. The notice of
removal is the last docket entry from either party.
Under 28 U.S.C. § 1446(b)(1), the defendants had 30 days from “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 30 days from “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,” to file the notice of
removal. Section 1446 applies to cases such as this one removed under 28 U.S.C. § 1442. See
28 U.S.C. § 1446(b) (creating general rule that “[t]he notice of removal of a civil action or
proceeding shall be filed within 30 days after the receipt by the defendant”); id. § 1446(g)
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(creating a carve out from 28 U.S.C. § 1446(b)’s 30-day requirement for the subset of cases
“removable under section 1442(a) . . . in which a judicial order for testimony or documents is
sought or issued or sought to be enforced”). Thus, based on the supplement to the notice of
removal, containing the documents from the Superior Court record, the defendants appeared to
have until February 6, 2019 to file the notice of removal in this Court, making the February 14,
2019 notice of removal untimely.
Section 1446’s 30-day deadline is not jurisdictional. Wasserman v. Rodacker, 557 F.3d
635, 638 n.2 (D.C. Cir. 2009); see also Brown v. Allied Home Mortgage Capital Corp., 588 B.R.
271, 276 (D.D.C. Aug. 8, 2018) (“[A] procedural defect in removal . . . does not affect the
federal court’s subject matter jurisdiction.”). Still, “[c]ourts in this circuit have construed
removal jurisdiction strictly, favoring remand where the propriety of removal is unclear.”
Ballard v. District of Columbia, 813 F. Supp. 2d 34, 38 (D.D.C. 2011); Peeters v. Mlotek, No.
15-cv-835 (RC), 2015 WL 3604609, at *1 (D.D.C. June 9, 2015) (“Because federal courts are
courts of limited jurisdiction, the removal statute is to be strictly construed.”).
On March 19, 2019, the defendants were ordered to show cause, by March 26, 2019, why
this case should not be remanded for failure to file a timely notice of removal. In addition, the
defendants were ordered to show cause why they failed to comply with Federal Rule of Civil
Procedure 81(c), which dictates that, if the defendants in a removed action did not respond to the
plaintiff’s complaint prior to removal, the defendants must answer the plaintiff’s complaint
within the longest of three time periods: (1) “21 days after receiving—through service or
otherwise—a copy of the initial pleading stating the claim for relief”; (2) “21 days after being
served with the summons for an initial pleading on file at the time of service”; or (3) “7 days
after the notice of removal is filed.” Under that rule, the defendants had until February 21, 2019
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to answer the plaintiff’s complaint, which would have been seven days after the notice of
removal was filed.
Compounding the defendants’ apparent failure to file a timely notice of removal and
apparent failure to timely answer the plaintiff’s complaint, the defendants have ignored the
Court’s order to show cause why the defendants’ actions have been timely. Without any
response explaining why the defendants’ notice of removal is timely, the Court must enforce 28
U.S.C. § 1446(b) strictly so that this pro se plaintiff may proceed with this action in his chosen
forum.
For the foregoing reasons, it is hereby
ORDERED that this case be remanded to the Superior Court of the District of Columbia.
SO ORDERED.
DATE: April 1, 2019
BERYL A. HOWELL
Chief Judge
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