Ballard v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
EDWARD D. BALLARD, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 10-1907 (RWR)
)
THE DISTRICT OF COLUMBIA, et )
al., )
)
Defendants. )
_____________________________ )
MEMORANDUM OPINION AND ORDER
Plaintiffs, the family of decedent Yiana-Michelle Ballard,
have moved to remand to the Superior Court of the District of
Columbia this wrongful death action originally filed there
against the District of Columbia (“D.C.”), Detective Charles
Hilliard, and D.C. Child and Family Services Agency employees
Kenneth Frazier and William Johnson.1 The defendants oppose the
motion under the “last-served” rule governing deadlines for
consent to removal, arguing that all defendants consented within
thirty days of service of the complaint upon the last-served
defendant. Because the equities counsel in favor of remand
whether the “last-served,” “first-served,” or “intermediate” rule
is applied, the motion will be granted.
1
All individual defendants were named in their
individual and official capacities. (Notice of Removal
(“Notice”), Ex. 2 at ¶¶ 8-10.)
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BACKGROUND
Plaintiffs filed suit in Superior Court on October 7, 2010.
(See Notice of Removal (“Notice”), Ex. 1 at 1.) The D.C.
Attorney General’s office has represented all defendants at all
times relevant to this action. On October 8, 2010, the
plaintiffs served the complaint upon defendant D.C. (Notice, Ex.
4 at 1; Pls.’ Mem. in Supp. of Mot. to Remand (“Pls.’ Mem.”) at
1.) The plaintiffs served the complaint on Johnson on
October 21, 2010, on Frazier on October 27, 2010, and on Hilliard
on November 3, 2010. (Notice, Ex. 6 at 1, Ex. 5 at 1; Pls.’ Mem.
at 1; Defs.’ Opp’n at 2-3.)
On November 5, 2010, D.C. filed a notice of removal in this
court. (Notice at 2-3.) An amended notice of removal reflecting
Hilliard’s consent was filed on December 3, 2010. (Am. Notice of
Removal (“Am. Notice”) at 2.) The amended notice also asserted
Frazier’s and Johnson’s consent to removal. (Am. Notice, Ex. 4
at 3.) On November 12, 2010, between the filing of the original
and the amended notices of removal, all defendants moved for an
extension of time to respond to the complaint. (Defs.’ Mot. for
an Extension of Time to Respond to the Compl. (“Defs.’ Mot.”) at
1.)
The plaintiffs have moved to remand the case to the Superior
Court, challenging as untimely Johnson’s and Frazier’s consent to
removal and requesting reimbursement of attorney’s fees and costs
incurred as a result of the remand. (Pls.’ Mem. at 3.) The
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defendants oppose the motion. They argue that Johnson and
Frazier “impliedly consented to removal” by joining the
defendants’ November 12, 2010 motion for an extension of time
within thirty days of service upon them.2 (Defs.’ Opp’n at 3.)
The defendants also argue, consistent with the “last-served” rule
described below, that Johnson and Frazier expressed timely,
independent, and unambiguous consent to removal in Hilliard’s
amended notice. (Id. at 7.)
DISCUSSION
I. REMAND
A state court defendant may seek to remove an eligible
matter to the federal district court for the district in which
the action is pending. 28 U.S.C. § 1441(a); accord Lindsay v.
Gov’t Emps. Ins. Co., 448 F.3d 416, 422 (D.C. Cir. 2006). Within
thirty days after service of the complaint, the defendant must
file a notice of removal. 28 U.S.C. § 1446(b). Where there are
multiple defendants, “removal requires the unanimous [and
unambiguous] consent of all [served] defendants[.]”3 Ficken v.
2
The defendants offer no authority for the theory of
implied consent to removal, or for the proposition that joining a
motion constitutes the unambiguous consent required by the
statute governing removal, 28 U.S.C. §1446(b).
3
“[N]ominal or formal party-defendant[s]” are excepted
from the unanimity rule. Cho, 547 F. Supp. 2d at 30 (citing 28
U.S.C. § 1441(c)). Because Johnson, Frazier, and Hilliard were
sued in their official and individual capacities, the analysis of
the defendants’ consent to removal is confined to their filings
in their individual capacities.
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Golden, 696 F. Supp. 2d 21, 26 (D.D.C. 2010); Ok Yeon Cho v.
D.C., 547 F. Supp. 2d 28, 30 (D.D.C. 2008). Courts in this
circuit have construed removal jurisdiction strictly, favoring
remand where the propriety of removal is unclear. See, e.g.,
Queen v. Schmidt, Civil Action No. 10-2017 (RMU), 2011 WL
4101117, at *1 (D.D.C. Sep. 14, 2011) (citing Shamrock Oil & Gas
Corp. v. Sheets, 313 U.S. 100, 107-09 (1941)). However, the D.C.
Circuit has not yet determined “when the time to obtain consent
to removal runs” in multiple-defendant cases. See Williams v.
Int’l Gun-A-Rama, 416 F. App’x 97, 100 n.2 (2nd Cir. 2011).
Other circuits have split on the issue, announcing “first-
served,” “last-served,” and “intermediate” rules.4 Barbour v.
Int’l Union, 640 F.3d 599, 605-13 (4th Cir. 2011). The Fifth
Circuit has adopted the first-served rule, under which “all
served defendants must consent to removal no later than thirty
days from the day on which the first defendant was served.”
Williams, 416 F. App’x at 100 n.2 (internal citation and
quotation marks omitted). “[T]he Sixth, Eighth, and Eleventh
Circuits follow the last-served defendant rule, which allows each
defendant to remove within thirty days of receiving service[]”
even where “the first-served defendants failed to effect a timely
removal.” Id. (internal citations omitted); Princeton Running,
4
The Eleventh Circuit has noted that “the trend in
recent caselaw favors the last-served defendant rule.” Bailey v.
Janssen Pharm. Inc., 536 F.3d 1202, 1205-06 (11th Cir. 2008).
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Co., Inc. v. Williams, Civil Action No. 05-1461 (PLF), 2006 WL
2557832, at *2 (D.D.C. Sept. 5, 2006) (citing Brierly v.
Alusuisse Flexible Packaging, Inc., 184 F.3d 527 (6th Cir.
1999)). Finally, in the Fourth Circuit, the “[i]ntermediate
[r]ule requires a notice of removal to be filed within the first-
served defendant’s thirty-day window, but gives later-served
defendants thirty days from the date they were served to join the
notice of removal.” Barbour, 640 F.3d at 607 (citing McKinney v.
Bd. of Tr. of Mayland Cmty. Coll., 955 F.2d 924 (4th Cir. 1992)).
Judges in this court have applied the intermediate rule. See,
e.g., Elkalibe v. Ibiza Nightclub DC, LLC, Civil Action No. 10-
2186 (ESH), 2011 WL 1395262, at 2 n.3 (D.D.C. April 13, 2011)
(citing Princeton Running, 2006 WL 2557832, at *2); Phillips v.
Corr. Corp. of Am., 407 F. Supp. 2d 18, 21 (D.D.C. 2005).
There is no need to decide which rule applies here because
under any rule, the defendants failed to consent timely,
unanimously, and unambiguously to removal. Under the first-
served rule, all defendants would have had to consent to removal
within thirty days of the date of service upon D.C. See Getty
Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262-63 (5th Cir.
1988). Plaintiffs served D.C. with the complaint on October 8,
2010. While the first-served rule would require all defendants
to have petitioned for or consented to removal by November 8,
2010, none of the individually-named defendants consented until
December 3, 2010. Defendants likewise find no recourse in the
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last-served rule, which “allows each defendant to remove within
thirty days of receiving service[]” even if the notice of removal
is not filed within thirty days of service upon the first-served
defendant. Williams, 416 F. App’x at 100 n.2. (See also Pls.’
Reply at 11-12.) Defendants D.C. and Hilliard each complied with
this thirty-day deadline. (Defs.’ Opp’n at 2-3; but see Pls.’
Reply at 4-5 (stating that Hilliard’s “right to remove was waived
by his [earlier-served] co-defendants” for their failure to meet
their thirty-day deadlines).) Defendants Johnson and Frazier
concededly did not (see Defs.’ Opp’n at 3, 7), and their joining
a motion for an extension to respond to the complaint was not an
unambiguous statement of removal. The two were served with the
complaint on October 21 and 27, 2010, respectively, and neither
unambiguously consented to removal until December 3 of that year.
(Pls.’ Reply at 4.) Finally, the defendants failed to satisfy
the intermediate rule, under which each later-served defendant
has thirty days -- from the date of service upon him –- to
consent to removal, so long as the first-served defendant has
petitioned for removal within thirty days of receiving service.
Princeton Running Co., 2006 WL 2557832, at *2-*3. As has been
noted, Johnson and Frazier failed to consent to removal within
that thirty-day window.
In deciding which rule to apply, courts often consider the
equities —- or inequities –- that “flow from” it. See, e.g.,
Barbour, 640 F.3d at 613. Indeed, courts created the last-served
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rule “based upon equitable concerns of fairness[.]” Ballard
Nursing Ctr., Inc. v. GF Health Prods., Inc., No. 07-C-5715, 2007
WL 3448731 (N.D. Ill. Nov. 14, 2007.) Here, all defendants were
at all times relevant to this action represented by the D.C.
Attorney General. From the moment of service upon D.C. on
October 8, 2010, the Attorney General would have known to
calculate the deadlines for all defendants to file notice of or
consent to removal. The defendants have demonstrated no reason
for the failure to comply with the removal statute and the cases
in this court interpreting it. That presents a procedural defect
fatal to removal. See, e.g., Loftis v. United Parcel Serv., 342
F.3d 509, 516 (6th Cir. 2003) (“Failure to obtain unanimous
consent forecloses the opportunity for removal under Section
1446.”). (See also Pls.’ Reply at 5.) Concerns of equity and
fairness therefore warrant a remand to the Superior Court.
II. ATTORNEYS’ FEES
“Under 28 U.S.C. § 1447(c), a district court may require
payment of just costs and any actual expenses including attorney
fees, incurred as a result of the removal.” Nat’l Consumers
League v. Gen. Mills, Inc., 680 F. Supp. 2d 132, 141 (D.D.C.
2010) (internal citation and quotation marks omitted). “Absent
unusual circumstances, 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.” Knop v.
Mackall, 645 F.3d 381, 382 (D.C. Cir. 2011) (quoting Martin v.
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Franklin Capital Corp., 546 U.S. 132, 141 (2005)). “Conversely,
when an objectively reasonable basis exists, fees should be
denied.” Williams, 416 F. App’x at 99 (internal citation and
quotation marks omitted). “Objective reasonableness is evaluated
based on the circumstances as of the time that the case was
removed.” Id. (internal quotation marks and citations omitted).
In this circuit, costs and expenses associated with removal are
awarded “[w]here non-removability is obvious or contrary to
well-settled law[.]” Nat’l Consumers League, 680 F. Supp. 2d at
141.
The defendants argue that “based on [the] [p]laintiffs’
claims under 42 U.S.C. § 1983[,] . . . the [d]efendants . . . had
an objectively reasonable basis for removal.” (Defs.’ Opp’n at
8.) The plaintiffs’ reply does not address or rebut that
argument. A civil action filed in the Superior Court of which
the federal district court has original jurisdiction, such as an
action founded on a claim arising under a federal statute, is
removable. 28 U.S.C. § 1441(a), (b). Plaintiffs’ 42 U.S.C.
§ 1983 claim did provide an objectively reasonable basis for
removal, even though the plaintiffs’ failure to achieve removal
in full compliance with the removal statute doomed the success of
their effort. The defendants have satisfied the objectively
reasonable basis for removal standard sufficiently to block an
award to plaintiffs of fees and costs.
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CONCLUSION
The defendants’ procedurally faulty removal efforts failed
to satisfy the requirements of the removal statute, and the
equities favor remand. The plaintiffs’ motion to remand this
action to the Superior Court will be granted. All remaining
motions will be left for decision by the Superior Court.
Accordingly, it is hereby
ORDERED that the plaintiffs’ motion [4] to remand be, and
hereby is, GRANTED. The Clerk is directed to remand this case to
the Superior Court of the District of Columbia.
SIGNED this 22nd day of September, 2011.
/s/
RICHARD W. ROBERTS
United States District Judge