Umc Development, LLC v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UMC DEVELOPMENT, LLC and
JACKSOPHIE GSCH, LLC,
Plaintiffs,
v. Civil Action No. 13-899 {GK)
DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs UMC Development, LLC ("UMC") and Jacksophie
GSCH, LLC ( "Jacksophie") (collectively, "Plaintiffs") bring this
action against the District of Columbia and its Mayor, Vincent
Gray (collectively, the "District Defendants") , Specialty
Hospital of Washington-GSE Holdings, LLC ("SHW-GSE") I CMC
Realty, LLC ("CMC"), and Not-for-Profit-Hospital, Corporation
("NFPHC") (collectively, "Defendants") for wrongful foreclosure,
breach of contract, and related claims.
This matter is before the Court on Plaintiffs' Motion to
Remand the case to the District of Columbia Superior Court [Dkt.
No. 6]. Upon consideration of the Motion, the District
Defendants' Opposition [Dkt. No. 7], Plaintiffs' Reply [Dkt. No.
8], NFPHC's Notice of Consent to Accept Service of Process [Dkt.
No. 10], the District Defendants' Sur-Reply [Dkt. No. 13],
Plaintiffs' Response to Docket Nos. 10, 11, and 13 and in
Support of Plaintiffs' Motion to Remand [Dkt. No. 15] 1
Plaintiffs' Evidentiary Objections to Docket No. 11-1 [Dkt. No.
14], NFPHC' s Opposition to Plaintiffs' Motion to Remand [Dkt.
No. 20], and NFPHC's Notice of Joinder in Removal [Dkt. No. 24],
and the entire record herein, and for the reasons set forth
below, the Motion to Remand is granted as to Plaintiffs'
District of Columbia claims and denied as to Plaintiffs' federal
claims.
1
I . BACKGROUND
This action arises out of a 2007 public-private development
project between the District, Specialty Hospitals of America,
LLC ("SHA"), and various SHA entities, which was aimed at
rescuing the District's Greater Southeast Community Hospital
("Hospital") from financial insolvency. Compl. ~~ 1, 16, 17.
As part of this undertaking, the District entered into a limited
partnership agreement with Defendant SHW-GSE, a subsidiary of
SHA, 'pursuant to which the District invested $49 million for the
purpose of refinancing the Hospital and redeveloping its
surrounding property. Compl. ~~ 20-25. Another SHA subsidiary,
Defendant CMC, was created to own and manage the real property
containing and surrounding the Hospital. Compl. ~ 13. SHW-GSE
1
The facts and procedural background are taken from the
Complaint ("Compl.") [Dkt. No. 1-1] and the undisputed facts set
forth in the parties' submissions.
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and CMC then entered into a joint venture with Plaintiff
Jacksophie through which Plaintiff UMC was to acquire some of
the land surrounding the Hospital from CMC, along with related
development rights. Compl. ~~ 29, 30, 32.
Despite the infusion of more than $50 million of public
funds into the refinancing and redevelopment project, the
Hospital's financial condition continued to deteriorate. Compl.
~~ 46-59. In 2010, the District declared the parent developer
in default of various loan agreements, and foreclosed on the
land containing and surrounding the Hospital, including the lots
to be acquired by UMC. Compl. ~~ 60-71. Defendant CMC sued the
District to prevent foreclosure, but dropped its case in 2011
after settling with the District. Compl. ~~ 69, 73; see CMC
Realty, LLC v. Dist. of Columbia, No. 2010 CA 004571 (D.C.
Super. Ct.) (the "Foreclosure Action").
On May 31, 2013, Plaintiffs filed this action in the
Superior Court for the District of Columbia bringing claims for,
inter alia, wrongful foreclosure, breach of contract, specific
performance, restitution, unjust enrichment, breach of fiduciary
duty, tortious interference with prospective economic advantage,
and violations of the Due Process Clause and the Takings Clause
of the Fifth Amendment. See Compl. ~~ 76-147.
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On June 14, 2013, the District Defendants removed the case
to this Court pursuant to 28 U.S.C. §§ 1441(a) and 1446. See
Notice of Removal, ~~ 2-3 [Dkt. No. 1] . 2 The Notice of Removal
stated that Defendant NFPHC consented to removal,., id. at 1, but
did not indicate whether Defendants SHW-GSE and CMC also
consented.
On July 12, 2013, Plaintiffs moved to remand the case to
Superior Court, arguing that the District Defendants' removal
was procedurally defective because they had not obtained SHW-
GSE' s and CMC' s timely consent to removal. [Dkt. No. 6] . On
July 26, 2013, the District Defendants filed an Opposition to
the Motion ("Dist. Defs.' Opp'n") [Dkt. No. 7]. On July 30,
2013, Plaintiffs filed a Reply ("Pls.' Reply") [Dkt. No. 8]. On
August 5, 2013, the District Defendants filed a Sur-Reply
( "Dist. Defs.' Sur-Reply") [Dkt. No. 13] .
Separately, on August 2, 2013, NFPHC, who had not
previously appeared in the action, filed an appearance along
with a Notice of Consent to Accept Service of Process Rendering
Plaintiffs' Motion to Remand Moot ("NFPHC's Notice") [Dkt. No.
2
The District Defendants' Notice of Removal mis-cites 28 U.S.C.
§ 1441 (b) as the basis for removal, apparent;ly based on the
version of that provision in existence prior to December 7,
2011. See Dist. Defs.' Notice of Removal ~ 3. There is no
dispute, however, that removal is premised on the Court's
federal question jurisdiction, rather than diversity
jurisdiction. See Dist. Defs.' Opp'n at 5-6; Pls.' Reply at 2.
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10] . NFPHC' s Notice indicated that it also sought removal of
the action, and contended, therefore, that even if the District
Defendants' removal was procedurally defective, its own timely
removal rendered the basis of Plaintiffs' Motion to Remand moot.
NFPHC's Notice was accompanied by the written consent to removal
of all Defendants. [Dkt . No . 10 -1] . On August 9, 2013,
Plaintiffs filed a Response to NFPHC' s Notice and the District
Defendants' Sur-Reply ("Pls.' Sur-Sur-Reply") [Dkt. No. 15] and
a Notice of Evidentiary Objections to the exhibit to the
District Defendants' Sur-Reply [Dkt. No. 14] . On August 15,
2013, NFPHC filed an Opposition to Plaintiffs' Motion to Remand
( "NFPHC' s Opp' n") [Dkt. No. 20] . Plaintiffs did not file a
further response. 3
II. STANDARD OF REVIEW
Under the federal removal statute "any civil action brought
in a State court of which the district courts of the United
States have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of the United
States for the district and division embracing the place where
3
On August 28, 2013, NFPHC also filed a Notice of Joinder in
Removal Petition Filed by [the District Defendants] or,
Alternatively, Removal by [NFPHC] [Dkt. No. 24]. This
submission appears to have been filed for the purpose of
formally declaring NFPHC's intent to remove the action, although
its August 2 Notice [Dkt. No. 10] also conveyed that intent.
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such action is pending." 28 U.S.C. § 1441(a). Where the case
stated by the plaintiff's initial complaint is removable, a
defendant must file its notice of removal within 30 days of the
time it is formally served with the summons and the complaint.
See 28 U.S.C. § 1446(b) (1); Murphy Bros., Inc. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344, 347-48 (1999).
Where, as here, an action has been removed solely pursuant
to 28 U.S. C. § 1441 (a), "ail defendants who have been properly
joined and served must join in or consent to the removal of the
action." 28 U.S.C. § 1446 (b) (2) (A). Courts in this District
have construed this provision to require that each defendant
consent to removal within 30 days of the time that defendant is
served. See Ballard v. Dist. of Columbia, 813 F. Supp. 2d 34,
38 (D.D.C. 2 011) (citing cases); see
-----
also 28 U. S . C. §
1446 (b) (2) (B) .
If a defendant's notice of removal is procedurally
defective, a plaintiff may, within 30 days of such removal, move
the court to remand the case back to state court. See 28 U.S.C.
§ 1447 (c). Because federal courts are courts of limited
jurisdiction, the removal provisions are strictly construed, and
any doubts about removal should be resolved in favor of remand.
See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 104-09
(1941); Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996).
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III. ANALYSIS
Plaintiffs' primary contention is that the District
Defendants' Notice of Removal was defective because it was not
accompanied by the timely consent of SHW-GSE and CMC. See Pls.'
Mem. at 2-5. The District Defendants argue that they were not
required to obtain the consent of SHW-GSE and CMC because SHW-
GSE and CMC had not yet been served when the case was removed.
Dist. Defs.' Opp'n at 2-4.
Although the parties spend the better part of their papers
debating these points, the Court need not reach them. Section
1446 (b) provides that "[i] f defendants are served at different
times, and a later-served defendant files a notice of removal,
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) (emphasis
added) . As discussed, NFPHC' s August 2 Notice conveyed its
independent intent to remove the case with the consent of all
Defendants. See NFPHC's Notice & Exhibit B (emails dated August
1, 2013) [Dkt. Nos. 10, 10-1]. Accordingly, NFPHC' s removal
renders any oefect in the District Defendants' removal moot, so
long as it was timely.
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A. NFPHC's Removal Was Timely
Plaintiffs contend that NFPHC's removal was not timely
because it was filed more than 30 days after Plaintiffs
purportedly served NFPHC by mailing a copy of the summons,
Complaint and initial order to the Mayor and the District of
Columbia Office of the Attorney General. Pls.' Sur-Sur-Reply at
6.
In response, NFPHC points out that Plaintiffs' counsel's
own affidavit establishes that she never attempted to serve
NFPHC through the Mayor and the Attorney General, but instead
endeavored to effect service through the District of Columbia's
Superintendent of Corporations. NFPHC's Opp'n at 5-6; see also
Affidavit of Heather H. Martin ~ 4 [Dkt. No. 8-1] NDPHC also
maintains that it would make no difference if Plaintiffs had
served NFPHC through the Mayor and Attorney General because
NFPHC could not be served through those offices; instead, it was
required to be served through its chief executive officer
pursuant to Rule 4 (j) (2) of the D.C. Superior Court Rules of
Civil Procedure. NFPHC' s Opp' n at 2-4. Accordingly, NFPHC
contends that it was not properly served, and the 30-day time
period for removal not triggered, until its counsel consented to
accept service on July 30, 2013. Id. at 2-3. The Court agrees.
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The Supreme Court has held that the 30-day period for
removal under 28 U.S.C. § 1446(b) does not run until a defendant
is brought under the court's authority by formal service of
process (or waiver of such service). See Murphy Bros. , Inc. ,
526 u.s. at 347-48. This is true even if the defendant knows
about the suit earlier and has obtained a copy of the complaint.
Id. at 348; see also Quality Loan Serv. Corp. v. 24702 Pallas
Way, Mission Viejo, CA 92691, 635 F.3d 1128, 1133 (9th Cir.
2011) ("[A]ctual notice of the action is insufficient [to
trigger the 3 0 -day removal period] ; rather, the defendant must
be 'notified of the action, and brought under a court's
authority, by formal process,' before the removal period begins
to run.") (citation omitted).
District of Columbia law controls as to when effective
service occurred. See City of Clarksdale v. Bell South
Telecomm., Inc., 428 F.3d 206, 210 n.6 (5th Cir. 2 005)
(explaining that a court "look [s] to state law to verify that
service of process effectively brought the defendant within the
state court's jurisdiction") (citing Lambert Run Coal Co. v.
Baltimore & Ohio R.R., 258 U.S. 377, 382 (1922)). The parties
agree that D.C. Superior Court Civil Rule 4 ( j) governs service
on NFPHC because it is an "instrumentality" of the District of
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Columbia. See Pls.' Sur-Sur-Reply at 6 [Dkt. No. 15]; NFPHC's
Opp'n at 2-4.
The parties disagree, however, as to whether subsection 1
or 2 of Rule 4 (j) applies. Plaintiffs argue that the Court
should apply Rule 4(j) (1), which governs service on the District
of Columbia and its officers and agencies, and requires delivery
of the summons, complaint, and initial order to the offices of
the Mayor and Corporation Counsel, and, if applicable, the
officer or agency at issue. See D.C. Super. Ct. Civ. R.
4(j)(1). NFPHC maintains, on the other hand, that the Court
should apply Rule 4(j) (2), which governs service on any "state,
municipal corporation, or other governmental organization
subject to suit," and requires delivery of the summons,
complaint, and initial order to the entity's chief executive
officer. See D.C. Super. Ct. Civ. R. 4 (j) (2) . 4
The Council of the District of Columbia created NFPHC as
"an instrumentality of the District" with a "separate legal
existence within the District government," and the power to sue
and be sued in its own corporate name. See D.C. Code §§ 44-
951.02, 44-951.06. By contrast, the D.C. Court of Appeals has
4
As an alternative, Rule 4 (j) (2) also permits service in the
manner prescribed by the State to which the entity belongs, but
since, as discussed below, NFPHC is an entity of the District of
Columbia, there is no relevant alternative in this case.
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"consistently found" that agencies and noncorporate departments
within the District of Columbia government generally cannot be
sued in their own name. See D.C. Metro. Police Dep't v.
Fraternal Order of Police/Metro. Police Dep't Labor Comm., 997
A.2d 65, 74 (D.C. 2010) (observing that a "noncorporate
department within the District government" is presumptively not
a "separate suable entity") (citations and quotation marks
omitted) . Accordingly, NFPHC is not an "agency" of the District
of Columbia subject to service under Rule 4 (j) (1), but is an
"other governmental organization," which is subject to service
under Rule 4 (j) (2).
Plaintiffs argue that Rule 4(j) (2) does not apply because
it "mirrors" an analogous provision in the Federal Rules of
Civil Procedure, and since the federal provision does not apply
to instrumentalities of the United States, the D.C. provision
does not apply to instrumentalities of the District of Columbia.
Pls.' Sur-Sur-Reply at 7. Plaintiffs ignore the fact that the
federal rule applies to "other state-created governmental
organization[s]" whereas the D.C. rule applies to "other
governmental organization[s] ." Compare Fed. R. Civ. P. 4(j) with
D.C. Super. Ct. Civ. R. 4(j) (2) (emphases added). Because the
federal rule explicitly narrows its application to "state-
created" instrumentalities, whereas the D.C. rule does not and
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because state law must be looked to for the purpose of verifying
that service of process effectively brought the defendant within
the state court jurisdiction, the two provisions need not
operate in precisely the same manner.
In any event, the debate between Rule 4 ( j) ( 1) and (2) is
academic because Plaintiffs failed to satisfy either provision
when they sent NFPHC' s summons to the District of Columbia's
Superintendent of Corporations rather than to the Mayor and the
Corporation Counsel, or to NFPHC's chief executive officer. See
Affidavit of Heather Martin ~ 4 [Dkt. No. 8-1] . 5 Accordingly,
NFPHC was not properly served until its counsel consented to
accept service on July 30, 2013.
NFPHC filed its notice of removal on August 2, well within
thirty days of July 30. [Dkt. Nos. 10, 10-1]. Therefore, its
removal was timely, and there is no justification for remanding
the case because of any defect in the removal procedure.
5
Plaintiffs did serve the Mayor and the District of Columbia as
defendants in this case, but such service could not achieve
jurisdiction over NFPHC because separate service is required for
each defendant. See, e.g., Manago v. Dist. of Columbia, 934
A.2d 925, 926 (D.C. 2007) (noting a plaintiff's "obligation to
timely serve each defendant with a summons and a copy of the
complaint") (emphasis added) (citing Super. Ct. Civ. R. 4(c),
(e) , ( j ) , ( 1 ) , and (m) ) .
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B. The Court Declines to Exercise Supplemental
Jurisdiction Over Plaintiffs' D.C. Claims
Plaintiffs also ask the Court to exercise its discretion
under 28 U.S.C. § 1367(c) to remand their D.C. law claims to the
Superior Court. Pls.' Mem. at 9-10. In support of this
request, Plaintiffs maintain that their D.C. claims
substantially predominate over their federal claims, and that,
under the doctrine of constitutional avoidance, their federal
claims need not be reached if they prevail on their D.C. claims.
Id. at 9-10. In addition, Plaintiffs argue that judicial
economy favors remanding their D.C. claims to Superior Court
because the "D.C. Superior Court is right now adjudicating
closely related claims in a parallel suit, Capital Behavioral
Health, LLC v. Dist. of Columbia, 2011 CA 009881 B (D.C. Super.
Ct.)." Id. at 10; see also Pls.' Reply at 5.
Defendants oppose remand of the D.C. claims, but they have
not addressed Plaintiffs' contention that such claims
predominate over the federal claims. Instead, they argue that
the Court is compelled to exercise jurisdiction because "section
1367(a) authorizes a district court to exercise its supplemental
jurisdiction in mandatory language." Dist. Defs.' Opp' n at 5
(emphasis added by District Defendants) (citing Lindsay v. Gov' t
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Employees Ins. Co., 448 F.3d 416, 421 (D.C. Cir. 2006)); see
also NFPHC's Opp'n at 7-8.
There is no dispute that the Court has original
jurisdiction over Plaintiffs' constitutional law claims, and the
authority to exercise supplemental jurisdiction over the D.C.
claims, which arise out of the same series of transactions as
the constitutional claims. See Pls.' Reply at 2, 5; 28 U.S.C.
§§ 1331, 1367 (a) Defendants are correct that our Court of
Appeals has held that where, as here, supplemental jurisdiction
is authorized under 28 U.S.C. § 1367, a district court cannot
decline to exercise it unless there is a specific basis for
doing so under the supplemental jurisdiction statute. Lindsay,
448 F.3d at 421, 424.
However, section 1367 (c) expressly grants district courts
the discretion to decline to exercise supplemental jurisdiction
over a claim where: " ( 1) the claim raises a novel or complex
issue of State law, (2) the claim substantially predominates
over the claim or claims over which the district court has
original jurisdiction, (3) the district court has dismissed all
claims over which it has original jurisdiction, or (4) in
exceptional circumstances, there are other compelling reasons
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for declining jurisdiction." 28 U.S.C. § 1367(c) . 6 Our Court of
Appeals has recognized that these exceptions render supplemental
jurisdiction
a doctrine of discretion, not of plaintiff 1 s right.
Its justification lies in considerations of judicial
economy, convenience and fairness to litigants; if
these are not present a federal court should hesitate
to exercise jurisdiction over state claims
Needless decisions of state law should be avoided both
as a matter of comity and to promote justice between
the parties, by procuring for them a surer-footed
reading of applicable law.
Women Prisoners of D.C. Dep 1 t of Corr. v. Dist. of Columbia, 93
F.3d 910, 920 (D.C. Cir. 1996) (quoting United Mine Workers of
America v. Gibbs, 383 U.S. 715, 726 (1966)) (quotation marks
omitted) .
Two statutory grounds for declining supplemental
jurisdiction support Plaintiffs 1 position. First, Plaintiffs,
D.C. claims are four times as numerous as their federal claims,
and provide a far broader basis for relief. The D.C. claims
present contract, property, tort, fiduciary duty, and equitable
theories, whereas the two federal claims invoke relatively
narrow grounds for relief under the Fifth Amendment. Further,
Plaintiffs are correct that, under the doctrine of
constitutional avoidance, success on their D.C. claims may
6
The term "State" in Section 1367(c) includes the District of
Columbia. 28 U.S.C. § 1367(e).
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negate the need to reach the constitutional claims at all. See
Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445
(1988) ("A fundamental and longstanding principle of judicial
restraint requires that courts avoid reaching constitutional
questions in advance of the necessity of deciding them.")
(citation omitted) .
Second, Plaintiffs' D.C. claims raise novel and complex
issues of D.C. law. As already discussed, NFPHC, which was
created by the District to acquire and operate the Hospital's
assets after foreclosure, is a special governmental
instrumentality with its own authorizing legislation under the
D.C. Code. See D.C. Code § 44-951.01, et seq. Similarly, the
public-private partnership between the District of Columbia and
SHA to revive the ailing Hospital derives from specific District
of Columbia legislation, namely, the "East of the River Hospital
Revitalization Emergency Amendment Act of 2007," Compl. ~ 19,
and specific quasi-public, quasi-private transactions authorized
pursuant to such legislation. There is little case law
addressing the unique character of these entities and
transactions, and therefore, resolving Plaintiffs' claims would
inevitably require this Court to venture into uncharted legal
territory, with potentially significant consequences.
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For example, the District Defendants have already moved to
dismiss all of the claims against them on grounds of sovereign
immunity. See Dist. Defs.' Mot. to Dismiss All Claims in the
Complaint Against Them at 13-22 [Dkt. No. 1 7] . . Whether the
District Defendants are immune from tort liability in this case
turns on whether their actions involved "the permissible
exercise of policy judgment[,]" a question the D.C. Court of
Appeals has acknowledged "is not always an easy task" to answer.
Aguehounde v. Dist. of Columbia, 666 A.2d 443, 447-48 (D.C.
1995). The answer turns solely on D.C. law. See e.g., Owen v.
City of Independence, 445 U.S. 622, 649 (1980) (discussing the
traditional "rationale underlying the common-law immunity for
'discretionary' functions" of municipalities) (emphasis added);
Aguehounde, 666 A. 2d at 447 ("Under the common law, a
municipality is immune from suit for decisions made pursuant to
the exercise of discretion, but not for actions which are
ministerial.") (emphasis added; citations omitted).
Because the D.C. courts have not yet interpreted the
statutory and contractual authority creating the East of the
River Hospital Revitalization Project, this Court would have
little to guide it in determining whether the District's
decision to foreclose on the land surrounding the Hospital was a
permissible exercise of policy judgment. Accordingly, such an
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issue is more appropriately addressed by the District of
Columbia courts. See Women Prisoners of D.C. Dep't of Corr., 93
F. 3d at 922 ("The Supreme Court has counseled that 'the proper
function of [a] federal court is to ascertain what the state law
is, not what it ought to be, ' and we have observed that 'a
federal court should be reluctant to retain pendent jurisdiction
over a question for which state jurisprudence gives inadequate
guidance.'") (citations and quotation marks omitted).
Separately, determining whether Plaintiffs are entitled to
equitable relief in the event that the legal remedies they seek
are denied, will involve a nuanced balancing of public and
private interests. As with the question of immunity, there is
no direct guidance from the District of Columbia courts as to
how this Court should weigh the public and private interests in
this case, a consideration that favors remand. Cf. id. at 921-
22 (agreeing "that the novelty of appellees' request for
equitable relief precluded the exercise of supplemental
jurisdiction").
The District of Columbia courts are better equipped to
address Plaintiffs' D.C. claims, not only because they present
novel and complex legal issues, but also because they implicate
distinctly local policy interests, and may affect the District's
ability to enter into similar public-private ventures in the
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future. See id. at 923 ("'In general, principles of comity and
the desirability of surer-footed reading of applicable law
support the determination of state claims in state court.
Moreover, the district court should not retain jurisdiction
because this case directly implicates the processes by which a
locality governs itself.'") (emphasis in original) (quoting
Grano v. Barry, 733 F.2d 164, 169 (D.C. Cir. 1984)).
Further, although it is not an express consideration under
28 U.S.C. § 1367(c), the Court notes that judicial economy will
be served by remanding the state claims to Superior Court
because that court is presently presiding over a related case,
and has presided over several related cases, including the
Foreclosure Action. See CBH v. Dist. of Columbia, 2011 CA 9880
(D.C. Super. Ct.); CMC Realty, LLC v. Fenty, 2010 CA 004571 B
(D.C. Super. Ct.); UMC Development, LLC v. Specialty Hasp. of
Washington-GSE Holdings, LLC, 2009 CA 9233 (D.C. Super. Ct.).
Accordingly, the Court declines to exercise supplemental
jurisdiction over Plaintiffs D.C. claims pursuant to 28 U.S.C. §
13 6 7 ( c) ( 1 ) and ( 2 ) . Such claims shall be severed from this case
and remanded to the Superior Court for resolution. The
remaining Constitutional claims shall be dismissed without
prejudice.
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IV. CONCLUSION
For the foregoing reasons, Plaintiffs' Motion to Remand is
granted in part. An Order shall accompany this Memorandum
Opinion.
October 8, 2013 /s/
Gladys Kessler
United States District Judge
Copies to: attorneys on record via ECF
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