Christiansen v. West Branch Cmty. Sch. Dist.

• Citation: 279 Ed. Law Rep. 43,674 F.3d 927,33 IER Cases 932,95 Empl. Prac. Dec. P 44453
• Decision Date: 22 March 2012
• Docket Number: No. 11–1904.,11–1904.
• Parties: Terry CHRISTIANSEN, Appellant, v. WEST BRANCH COMMUNITY SCHOOL DISTRICT; Board of Directors of West Branch Community School District; Craig Artist, Individually and as Superintendent of West Branch Community School District; Kristopher Kober; Teresa Kober; Sara Oswald, Individually and as Middle School Principal of West Branch Community School District; Kathy Knoop, Individually and as a Member of the Board of West Branch Community School District; H.M.K., A Minor, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

279 Ed. Law Rep. 43

33 IER Cases 932

674 F.3d 927

95 Empl. Prac. Dec. P 44,453

Terry CHRISTIANSEN, Appellant,

v.WEST BRANCH COMMUNITY SCHOOL DISTRICT; Board of Directors of West Branch Community School District; Craig Artist, Individually and as Superintendent of West Branch Community School District; Kristopher Kober; Teresa Kober; Sara Oswald, Individually and as Middle School Principal of West Branch Community School District; Kathy Knoop, Individually and as a Member of the Board of West Branch Community School District; H.M.K., A Minor, Appellees.

No. 11–1904.

United States Court of Appeals, Eighth Circuit.

Submitted: Oct. 26, 2011.Filed: March 22, 2012.

Michael J. Pitton, argued, Iowa City, IA, for appellant.

Terry J. Abernathy, argued, Nicholas J. Kilburg, on the brief, Cedar Rapids, IA, for appellee West Branch Community School District.

Thomas D. Hobart, on the brief, Coralville, IA, for appellees Kristopher Kober, Teresa Kober, and H.M.K.

Before RILEY, Chief Judge, WOLLMAN, and BEAM, Circuit Judges.

BEAM, Circuit Judge.

Plaintiff Terry Christiansen, a licensed Iowa educator, filed suit in Iowa state court against his employer, school officials, and private citizens following his termination, alleging various state-law claims as well as violations of his procedural and substantive due process rights under 42 U.S.C. § 1983. The case was removed to federal district court ¹ where the court denied Christiansen's motion to remand, dismissed the § 1983 claims, and remanded the state-law claims to state court. Christiansen appeals the denial of his motion to remand and the dismissal of his § 1983 claims. We affirm.

I. BACKGROUNDA. Substantive Facts

At this juncture, we accept as true the following well-pleaded facts alleged in Christiansen's complaint. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). West Branch Community School District, located in West Branch, Iowa, employed Christiansen as a teacher, coach and bus driver between 2003 and February 2009. On September 19, 2008, student H.M.K. was being disruptive on Christiansen's bus. Christiansen asked H.M.K. to exit the bus but H.M.K. refused and made an offensive gesture. After Christiansen approached H.M.K., H.M.K. exited the bus and falsely accused Christiansen of improper physical contact. H.M.K. proceeded to tell his parents, Kristopher and Teresa Kober, and unnamed third parties that Christiansen had physically assaulted him. The Kobers relayed H.M.K.'s accusation to Kathy Knoop, a member of the school board, and unnamed third parties. Knoop, who had a “personal relationship” with Teresa Kober, passed along H.M.K.'s accusation to the West Branch Police Department and others.

Sara Oswald, principal of the West Branch middle school, initiated an investigation into H.M.K.'s accusation and generated a report. Upon the recommendation of Craig Artist, superintendent of the school district, the school board held a hearing to terminate Christiansen's employment. As a result of that hearing, Christiansen's contract was terminated by notice dated February 12, 2009. Artist and H.M.K., through his parents, then submitted complaints with the Iowa Board of Educational Examiners based on H.M.K.'s accusations.

Criminal assault charges were also filed against Christiansen based on H.M.K.'s accusations but Christiansen was acquitted by a jury following thirty minutes of deliberation. The school board terminated Christiansen before the jury returned its verdict.

B. Procedural Facts

In September 2010, Christiansen filed a complaint in Iowa state court against the West Branch Community School District, the school board, several school officials in their individual and official capacities (collectively, “West Branch”), and H.M.K. and his parents (collectively, the “Kobers”). The complaint alleged various state-law causes of action as well as substantive and procedural due process claims under 42 U.S.C. § 1983. The Kobers were served process on October 13, 2010. On October 19, West Branch filed a notice of removal, removing the case to federal district court on the basis of federal question jurisdiction. The Kobers did not sign the notice of removal.

On October 27, West Branch filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), asserting that Christiansen's complaint failed to state a claim upon which relief can be granted because Christiansen did not exhaust state remedies prior to filing suit. West Branch's brief in support of its motion to dismiss also stated, “[Christiansen] alleges a violation of 42 U.S.C. § 1983 in his [complaint], making removal pursuant to 28 U.S.C. § 1441(a) appropriate under federal question jurisdiction.” On November 5, the Kobers likewise filed a Rule 12(b)(6) motion to dismiss, asserting the same grounds as West Branch. In the motion's accompanying brief, the Kobers expressly “rel[ied] upon” West Branch's brief in support of its motion to dismiss. On November 12, Christiansen filed a motion to remand, asserting that removal was not proper because the Kobers failed to consent to removal within thirty days of service. The Kobers filed a “Consent to Removal” on November 16, formally expressing their consent to removal and contending that their motion to dismiss had already manifested such consent. West Branch filed a resistance to Christiansen's motion to remand on November 26, likewise asserting that the Kobers' motion to dismiss sufficiently conveyed consent to removal.

In March 2011, the district court ruled on Christiansen's motion to remand as well as the defendants' motions to dismiss. In its order, the court denied the motion to remand, holding that the Kobers' motion to dismiss and its accompanying brief sufficiently and timely manifested the Kobers' consent to removal. The court also dismissed Christiansen's procedural due process claims as unexhausted and his substantive due process claims as insufficiently pled. Finally, having dismissed all of Christiansen's federal claims, the district court declined to exercise supplemental jurisdiction over the remaining state-law claims and remanded them to state court. Christiansen appeals the denial of his motion to remand and the dismissal of his procedural and substantive due process claims.

II. DISCUSSIONA. Motion to Remand

Christiansen appeals the district court's denial of his motion to remand for lack of unanimous consent to removal. We review de novo the district court's denial of Christiansen's motion to remand. McLain v. Andersen Corp., 567 F.3d 956, 963 (8th Cir.2009). “Removal is authorized by 28 U.S.C. § 1441 and governed by [28 U.S.C.] § 1446.² Where there are multiple defendants, all must join in a [notice] to remove within thirty days of service.” Thorn v. Amalgamated Transit Union, 305 F.3d 826, 833 (8th Cir.2002). Although this so-called “unanimity requirement” is applied across federal jurisdictions, there is inter-jurisdictional disagreement regarding how a non-removing co-defendant must express consent to removal. 16 Georgene Vairo, Moore's Federal Practice–Civil § 107.11[1][c] (3d ed. 2011). 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 to the removal.” Pritchett v. Cottrell, Inc., 512 F.3d 1057, 1062 (8th Cir.2008) (internal quotations omitted).

Here, the parties dispute whether the Kobers filed a timely written indication of their consent to removal. As stated above, the Kobers were served on October 13, 2010, West Branch filed a notice of removal on October 19, and the Kobers filed a motion to dismiss on November 5. The Kobers' brief in support of their motion to dismiss expressly incorporated West Branch's congruent brief, which stated, “[Christiansen] alleges a violation of 42 U.S.C. § 1983 in his [complaint], making removal pursuant to 28 U.S.C. § 1441(a) appropriate under federal question jurisdiction.” On November 16, 2010—more than thirty days after service—the Kobers filed a formal “Consent to Removal” in response to Christiansen's motion to remand. The parties dispute whether the Kobers' motion to dismiss and its accompanying brief sufficiently conveyed consent to removal and, if not, whether the Kobers' untimely “Consent to Removal” cured any defect in removal procedure.

Relying on precedent from various federal district courts, Christiansen contends that “a non-removing defendant's filing of motions or pleadings in the federal court, without explicitly indicating consent to or joinder in the removal, is insufficient to satisfy the [unanimity requirement].” Hicks v. Emery Worldwide, Inc., 254 F.Supp.2d 968, 975 (S.D.Ohio 2003). In response, West Branch and the Kobers rely on Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72 (1st Cir.2009), and Harper v. AutoAlliance Int'l, Inc., 392 F.3d 195 (6th Cir.2004). In Esposito, the First Circuit recognized that removal statutes should be “narrowly construed,” but refused to create a “wooden rule” that puts “form before function.” 590 F.3d at 76–77. With these guideposts in mind, the court held that the unanimity requirement was satisfied where the non-removing defendant filed an answer within thirty days of service and subsequently opposed the plaintiff's motion to remand. Id. at 77. In Harper, the Sixth Circuit ruled that the unanimity requirement was satisfied where the defendant's answer, filed within thirty days of service, stated that the federal district court was the “proper jurisdiction and venue” for the case. 392 F.3d at 202.

We hold that the unanimity requirement was satisfied under the circumstances presented in this case. Like the First Circuit, we are disinclined to apply the unanimity requirement in a “hypertechnical and unrealistic manner.” Bradley v. Maryland Cas. Co., 382 F.2d 415, 419 (8th Cir.1967). In federal district court, the Kobers filed a motion to...