Hurt v. District of Columbia , 869 F. Supp. 2d 84 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LAKISHA M. HURT,
Plaintiff,
v. Civil Action No. 11-2144 (JDB)
DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION & ORDER
Plaintiff Lakisha Hurt alleges she suffered severe and permanent injuries in February
2011 after employees of a Washington, D.C., nightclub escorted her outside and, joined by
officers of the Metropolitan Police Department, threw her down the steps at the club’s front
entrance. Hurt has sued the District of Columbia, MPAC (d/b/a The Scene nightclub), Officer
Marques McRae, and other unidentified Metropolitan Police Department officers for assault and
battery, intentional infliction of emotional distress, and violation of her Constitutional and
statutory rights.
Now pending before the Court are Hurt’s motion to remand the case to the Superior
Court of the District of Columbia, defendant District of Columbia’s motion to dismiss, and
Hurt’s motion to strike or reply to defendant MPAC’s opposition to remand. For the reasons
explained below, the Court will remand the case and deny the other motions as moot.
I. Motion for Remand
The District removed this case to this Court from Superior Court pursuant to 28 U.S.C.
§§ 1441 and 1446. Under those statutory provisions, causes of action “founded on a claim or
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right arising under the Constitution, treaties or laws of the United States” may be removed
regardless of parties’ residence or citizenship. Def.’s Notice of Removal (Dec. 1, 2011) [Docket
Entry 1] (“Def.’s Notice”). Plaintiff has now moved to remand the case back to the Superior
Court, on the ground that not all defendants served at the time of removal consented to the
District’s removal of the case. Pl.’s Mot. Remand (Jan. 3, 2012) [Docket Entry 6] (“Pl.’s Mot.”).
The District and MPAC have opposed remand. Def. D.C.’s Opp’n to Pl.’s Mot. Remand (filed
Jan. 3, 2012) [Docket Entry 8] (“D.C.’s Opp’n”); Def. MPAC’s Opp’n to Pl.’s Mot. Remand
(March 16, 2012) [Docket Entry 14] (“MPAC’s Opp’n”).
A. Timeliness of Filing
The District of Columbia contends that plaintiff’s motion for remand, dated January 3,
2012, was untimely because the period allotted for making it, which began with the filing of the
notice of removal on December 1, 2011, expired on January 2, 2012. D.C.’s Opp’n 2. To the
contrary, plaintiff’s motion for remand was timely filed. A motion for remand must be made
“within thirty days after the filing of the notice of removal.” 28 U.S.C. § 1447(c). The deadline
for such a filing extends to the earliest day that is neither a weekend nor a federal holiday. Fed.
R. Civ. P. 6(a). The thirty-day period for plaintiff’s response to the notice of removal thus ended
on January 3, 2012, as December 31, 2011, and January 1, 2012, were weekend days and January
2 was a federal holiday.
B. Rule of Unanimity
A notice of removal must be filed “within thirty days” after the defendant receives “a
copy of the initial pleading setting forth the claim for relief.” 28 U.S.C. § 1446(b). The District
satisfied this requirement by filing for removal on December 1, 2011, after being served with the
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complaint on November 14, 2011. Def.’s Notice; Pl.’s Mot. Remand ¶ 2 & Ex. A. Nonetheless,
removal to federal court additionally requires a timely demonstration of consent from all served
defendants within thirty days of service of the complaint, under the widely recognized “rule of
unanimity.” Balazik v. Cnty. of Dauphin, 44 F.3d 209, 213 (3d Cir. 1995) (citing Chicago R.I. &
P. Ry. Co. v. Martin, 178 U.S. 245, 247 (1900)); Russell Corp. v. Am. Home Assur. Co., 264 F.3d
1040, 1044 (11th Cir. 2001); Thorn v. Amalgamated Transit Union, 305 F.3d 826, 833 (8th Cir.
2002); Ok Yeon Cho v. Dist. of Columbia, 547 F. Supp. 2d 28, 29-30 (D.D.C. 2008); Williams v.
Howard Univ., 984 F. Supp. 27, 29 (D.D.C. 1997). 1 If that condition is not met, a plaintiff’s
timely motion for remand will generally be granted. See 28 U.S.C. 1447(c); Williams, 984 F.
Supp. at 29-30 (“This case must be remanded . . . because defendants did not unanimously seek
removal to this Court.”). 2
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). Henderson v. Raemisch, 10-CV-335-BBC, 2010 WL 3282803, at *2 (W.D. Wis. Aug.
19, 2010) (citing Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 516 (6th Cir. 2003)); Daniel v.
Anderson Cnty. Emergency & Rescue Squad, 469 F. Supp. 2d 494, 496 (E.D. Tenn. 2007). All
doubts about removal should be resolved in favor of remand. See Martin, 178 U.S. at 247.
MPAC was served on November 17, 2011. Pl.’s Mot. Ex. B. Yet it filed nothing with the
court until filing its answer to the complaint on February 16, 2012. MPAC did not file its consent
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Although different federal jurisdictions have varying interpretations of what specifically qualifies as
consent to removal, there is a general consensus that every defendant must somehow show agreement
within thirty days of being served. See, e.g., Christiansen v. W. Branch Cmty. Sch. Dist., 674 F.3d 927,
932 (8th Cir. 2012) (“In this circuit, it is not necessary for all defendants to actually sign the notice of
removal so long as there is some timely filed written indication from each served defendant . . . that the
defendant has actually consented.” (internal citation and quotation marks omitted)).
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In interpreting the deadline for consent to removal in a multi-defendant case, judges in this district have
applied the rule that each defendant has thirty days from being individually served to demonstrate
consent. See Ballard v. D.C., 813 F. Supp. 2d 34, 38 (D.D.C. 2011).
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to the case’s removal until March 16, 2012 (after plaintiff’s motion for remand was filed and
more than thirty days after MPAC was served). See MPAC’s Opp’n ¶ 3(b). 3 Hence, MPAC
failed to consent to the removal in a timely manner. There is no indication that MPAC requested
leave to extend the time to file, nor has MPAC alleged "excusable neglect," in so many words,
for its delays in filing. See Fed. R. Civ. P. 6(b)(1)(B). MPAC does state that it did not retain
counsel in time to file promptly, which resembles a claim of excusable neglect; but this fact is
insufficient to prevent remand. The removal statutes are strictly interpreted in favor of state
court jurisdiction. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 100-07 (1941);
Russell, 264 F.3d at 1050 (“There are several . . . bright line limitations on federal removal
jurisdiction . . . that some might regard as arbitrary and unfair. Such limitations, however, are an
inevitable feature of a court system of limited jurisdiction that strictly construes the right to
remove.”). The failure of a party to obtain counsel is an insufficient ground to overcome this
strict rule.
The District of Columbia errs in arguing that this case falls within two of the three
recognized exceptions to the rule of unanimity. The exceptions are: (1) where one or more of the
defendants has not yet been served with the initial pleading when the removal petition was filed;
(2) where a defendant is only a nominal or formal party-defendant; and (3) where the removed
claim is separate and independent under 28 U.S.C. § 1441(c). Ok Yeon Cho, 547 F. Supp. 2d at
30. While one defendant, McRae, had not yet been served at the time of removal, the rule
requires unanimity from those defendants who have been served. See LaPoint v. Mid-Atlantic
Settlement Servs., 256 F. Supp. 2d 1, 2 (D.D.C. 2003) (“In a multi-defendant case, removal
requires unanimous consent of all defendants served with the complaint.”). Moreover, the claim
providing the basis for removal is not “separate and independent” from the common law claims
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The Court here refers to the second of the two ¶ 3s listed in defendant’s filing.
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made in the complaint’s other two counts, as all three counts arose out of the same event. See
Neibuhr v. Nat’l R.R. Passenger Corp., 955 F. Supp. 135, 138-39 (D.D.C. 1997); see also
DiGirolamo v. Jillian’s Entm’t Corp., No. 02-656, 2002 U.S. Dist. LEXIS 4557, at *5 (E.D. Pa.
March 19, 2002) (unanimous consent for removal required where the various claims arose from a
“common nucleus of operative fact”).
III. Conclusion
Regardless of whether the District was implicated in the federal claim and thus had
authority to initiate removal as a served defendant, the removal was defective; hence, this Court
lacks jurisdiction to evaluate the merits of the case. Therefore, [3] defendant District of
Columbia’s motion to dismiss and [15] plaintiff’s motion to strike or reply to defendant MPAC’s
opposition to remand are moot, as the case cannot be adjudicated in this Court. Accordingly,
upon consideration of [6] plaintiff’s motion for remand, the memoranda filed by the parties, and
the entire record herein, and for the reasons stated above, it is hereby
ORDERED that [6] plaintiff’s motion for remand is GRANTED; it is further
ORDERED that [3] defendant District of Columbia’s motion to dismiss is DENIED AS
MOOT; it is further
ORDERED that [15] plaintiff’s motion to strike or reply to defendant MPAC’s
opposition to remand is DENIED AS MOOT.
This case is hereby remanded to the Superior Court of the District of Columbia for
further proceedings.
/s/
JOHN D. BATES
United States District Judge
Dated: June 22, 2012
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