Addison v. NC DEPT. OF CRIME, 4:93CV458.

• Decision Date: 21 April 1994
• Docket Number: No. 4:93CV458.,4:93CV458.
• Citation: 851 F. Supp. 214
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Danny F. ADDISON, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF CRIME AND PUBLIC SAFETY; Joseph W. Dean, individually and in his official capacity as the former Secretary of the North Carolina Department of Crime Control and Public Safety; Thurman Hampton, in his official capacity as Secretary of the North Carolina Department of Crime Control and Public Safety; and R.A. Barefoot, in his official capacity as the Commander of the North Carolina Highway Patrol, Defendants.

851 F. Supp. 214

Danny F. ADDISON, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF CRIME AND PUBLIC SAFETY; Joseph W. Dean, individually and in his official capacity as the former Secretary of the North Carolina Department of Crime Control and Public Safety; Thurman

Hampton, in his official capacity as Secretary of the North Carolina Department of Crime Control and Public Safety; and R.A. Barefoot, in his official capacity as the Commander of the North Carolina Highway Patrol, Defendants.

No. 4:93CV458.

United States District Court, M.D. North Carolina, Salisbury Division.

April 21, 1994.

John W. Gresham, Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., Charlotte, NC, for plaintiff.

Isaac T. Avery, III, Linda M. Fox, N.C. Dept. of Justice, Michael F. Easley, Atty. Gen., Raleigh, NC, for defendants.

ORDER

TILLEY, District Judge.

On March 24, 1994, the Recommendation of the United States Magistrate Judge was filed and notice was served on the parties pursuant to 28 U.S.C. § 636. Thereafter, the Court received defendants' objections to the Recommendation of the United States Magistrate Judge. Defendants also filed a motion to transfer the case to the Western District of North Carolina after filing their objections. However, this motion is not only tardy, but more importantly, lacks good cause for the reasons stated in the Recommendation.

The Court has appropriately reviewed defendants' objections de novo and finds they do not change the substance of the United States Magistrate Judge's rulings which are affirmed and adopted.

NOW, THEREFORE, pursuant to the Recommendation of the United States Magistrate Judge, it is ORDERED that plaintiff's motion to remand this action back to the Superior Court for Mecklenburg County is granted, that defendants' motion that this Court instead transfer the case to the federal court for the Western District of North Carolina is denied, and that this case be, and the same hereby is, remanded back to the state court.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ELLIASON, United States Magistrate Judge.

This matter comes before the Court on plaintiff's motion to remand this action back to the Superior Court for Mecklenburg County from which it was removed. Defendants claim that the action should remain in this district or at most it should be transferred to the Western District of North Carolina (which contains Mecklenburg County).

On May 17, 1993, plaintiff filed his complaint in the Superior Court of Mecklenburg County. The action alleges racially discriminatory treatment in employment actions with respect to plaintiff who was a North Carolina Highway Patrol Trooper. He sought relief under three separate causes of action. One alleged racial discrimination in violation of 42 U.S.C. §§ 1981, 1981a, and 1983. He also sought relief under North Carolina common law and directly under the North Carolina Constitution. Plaintiff alleged that he was a citizen and resident of Mecklenburg County at the time of the incidents and that defendants were and are residents and citizens of Wake County.

When defendants removed this action, they stated that plaintiff was a citizen and resident of Rowan County, North Carolina (which is within this district), at all times relevant to the complaint. Apparently as a consequence of this assumption, defendants removed this action to the Middle District of North Carolina even though it was then pending in the state court within the boundaries of the Western District of North Carolina. While defendants originally removed this action pursuant to both 28 U.S.C. § 1441 and § 1443, at a March 8, 1994 telephonic conference, defendants withdrew their removal pursuant to Section 1443.¹

The remaining removal section, i.e. Section 1441(a), provides in pertinent part:

any civil action brought in 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 such action is pending. (emphasis added).

Plaintiff points out that defendants did not remove this action to the district and division where the action was pending, which would have been the Western District of North Carolina, but instead took it upon themselves to remove and transfer the action to the Middle District. Consequently, plaintiff argues that the removal was improvident and, therefore, the case should be remanded back to state court. Defendants, on the other hand, concede that they failed to observe the literal terms of the statute but nevertheless request that this Court transfer the case to the Western District pursuant to 28 U.S.C. § 1404 for the convenience of the parties and witnesses.

As will be seen, the case law is not settled with respect to how to resolve the competing interests in this case. Therefore, the peculiar facts of the present case will have a large bearing on the decision. The only Fourth Circuit decision comes from a district court and it only involved removal within a district, but to the wrong division. In Heniford v. American Motors Sales Corp., 471 F.Supp. 328, 337 (D.S.C.1979), dismissed without opposition, 622 F.2d 584 (4th Cir.1980), the court held the case should not be remanded when it was filed in the wrong court division because of erroneous advice given by a deputy clerk. However, in Willingham v. Creswell-Keith, Inc., 160 F.Supp. 741, 743 (W.D.Ark.1958) (removal to wrong division), the court made a contrary ruling:

The removal statute specifically provides that cases may be removed "to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C.A. § 1441(a). See also 28 U.S.C.A. § 1446(a); Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 666, 73 S.Ct. 900, 902, 97 L.Ed. 1331; Buffington v. Vulcan Furniture Mfg. Corp., D.C.W.D.Ark., 94 F.Supp. 13, 15. A case removed to the wrong division or district should be remanded to the state court. Scarmardo v. Mooring, D.C.Tex., 89 F.Supp. 936; Gopcevic v. California Packing Corp., D.C.Cal., 272 F. 994.

Cases involving removal to the wrong division are also divided as to the correct result.

Plaintiff relies on Hoover v. Gershman Inv. Corp., 774 F.Supp. 60 (D.Mass.1991), which held that a defendant could not remove a state court action to a federal court sitting in a district and division other than where the state court action was pending. The court held that a defendant is simply without authority to remove a case to any district court other than that specified in Section 1441(a).

In Scarmardo v. Mooring, 89 F.Supp. 936 (S.D.Tex.1950), the court treated the improper removal to the wrong district court as a jurisdictional defect and, therefore, treated such a removal as improvident. See also Franchino v. Valenti, 347 F.Supp. 1020 (E.D.N.Y.1972); and 14A Charles A. Wright, Arthur R. Miller and Edward H. Cooper, Federal Practice and Procedure § 3739 at 586 (1985).

Defendants, on the other hand, cite Mortensen v. Wheel Horse Products, Inc., 772 F.Supp. 85 (N.D.N.Y.1991). In that case, the court for the Northern District of New York was faced with cross-motions by plaintiff and defendants. The underlying action was a product liability action based on diversity of citizenship. The proper district for removal would have been the Southern District of New York. Defendants acknowledged their removal procedure error. Defendants filed a motion to transfer the case pursuant to 28 U.S.C. § 1631 from the federal District Court for the Northern District to the Southern District of New York alternatively to cure a defect in the court's subject matter jurisdiction or else to transfer pursuant to 28 U.S.C. § 1404(a) to correct venue for the convenience of the witnesses and parties. Plaintiff, however, opposed the motion and only wanted a remand to the New York state court.

Plaintiff in that case argued that the court lacked subject matter jurisdiction because 28 U.S.C. § 1441(a) only permitted removal to a specific federal court and that it was not a mere venue provision. The court noted that prior cases were divided on the issue as to whether an improper removal to a wrong federal district court should be remanded or transferred. Id. 772 F.Supp. at 88. It noted that a remand would make it impossible for a party to timely remove the case to the correct federal district and seek transfer. The court decided to treat the improvident removal of a case to the wrong district court as one akin to an improper venue decision. Therefore, it ruled it had jurisdiction and could rule on a motion to transfer.

It is concluded that plaintiff's motion to remand should be granted. There is no question that 28 U.S.C. § 1441(a) requires that defendants should have removed this case to the Western District. Defendants argue that they merely saved time by removing the action to this district because plaintiff lived here during the pendency of the cause of action. This factual premise is not supported.² The complaint states that plaintiff was a citizen and resident of Mecklenburg County at the time of the incident alleged in the complaint. While defendants contend in their brief that personnel records show that plaintiff was assigned to live and work in Rowan County in this district, there is no evidence before the Court to support this assertion.

Even if defendants' residency argument were supported, their unilateral action should not be countenanced. Defendants' argument that they merely...