City of Jefferson v. AT&T Corp.
| Decision Date | 22 September 2022 |
| Docket Number | 4:22-CV-313 SRW |
| Parties | CITY OF JEFFERSON, MISSOURI, Plaintiff, v. AT&T CORP., et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter comes before the Court on Plaintiff City of Jefferson Missouri's Motion to Remand to State Court (ECF No. 50) Defendants T-Mobile Central LLC, T-Mobile US, Inc., T-Mobile USA, Inc., Sprint Spectrum, LLC, and Sprint Communications LLC's Motion to Sever (ECF No. 52), Defendants AT&T Corp., AT&T Inc., AT&T Mobility LLC, Missouri RSA 11/12 LP, New Cingular Wireless PCS, LLC, and Southwestern Bell Telephone Company's Motion to Sever (ECF No. 68), Defendants Cellco Partnership, Bell Atlantic Mobile Systems LLC, GTE Wireless LLC, Verizon Americas LLC, Alltel Corporation, Missouri RSA 4 Limited Partnership, and St. Joseph CellTelCo's Motion to Sever (ECF No. 73), and Defendant Sho-Me Technologies' Motion to Sever (ECF No. 75). Based on the following, this Court finds it does not have subject matter jurisdiction and remands the entire case back to the state court.
Plaintiff City of Jefferson, Missouri (“Jefferson City”) filed a Petition, followed by a First Amended Petition, in the Circuit Court of St. Louis County asserting twenty-four counts against twenty-one Defendants which allegedly provide telephone or telecommunication services in Jefferson City. The First Amended Petition generally alleges Defendants have failed to pay a municipal license tax. Jefferson City brings Counts I-IV against the AT&T Defendants which includes AT&T Corp., AT&T Inc., AT&T Mobility LLC, Missouri RSA 11/12 LP, New Cingular Wireless PCS, LLC, and Southwestern Bell Telephone Company. Counts I-IV seek delinquent taxes, interest, and penalties (Count I); a violation of Missouri Revised Statute 392.350 (Count II); a declaratory judgment (Count III); and an accounting (Count IV). Counts VVIII allege the same causes of action against the Sprint Defendants which includes Sprint Spectrum, LLC, and Sprint Communications, LLC. Counts IX-XII allege the same causes of action against the T-Mobile Defendants which includes T-Mobile Central LLC, T-Mobile US, Inc., T-Mobile USA, Inc. Counts XIII-XVI allege the same causes of action against the U.S. Cellular Defendants which includes Telephone and Data Systems, Inc. and USCOC of Greater Missouri, LLC. Counts XVII-XX allege the same causes of action against the Verizon Defendants which includes Cellco Partnership, Bell Atlantic Mobile Systems LLC, GTE Wireless LLC, Verizon Americas LLC, Alltel Corporation, Missouri RSA 4 Limited Partnership, and St. Joseph CellTelCo. Counts XXI-XXIV allege the same causes of action against Defendant Sho-Me Technologies, LLC.
The T-Mobile and Sprint Defendants removed the matter to this Court on March 16, 2022, asserting the Court has diversity jurisdiction and federal question jurisdiction. The AT&T, Verizon, and U.S. Cellular Defendants all joined the removal, and asserted additional bases for removal. Jefferson City moved to remand the matter back to state court arguing this Court does not have diversity jurisdiction because there are nondiverse defendants, and federal question jurisdiction does not exist on the face of Jefferson City's First Amended Petition. Defendants have also filed various motions to sever arguing the Court should sever the cases and remand only those cases with nondiverse defendants.
The citizenship of the parties, as alleged in the Amended Petition and the various Notices of Removal is as follows:
A defendant may remove to federal court any state court civil action over which the federal court could exercise original jurisdiction. 28 U.S.C. § 1441(a). “The [removing] defendant bears the burden of establishing federal jurisdiction by a preponderance of the evidence.” In re Prempro Prod. Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010). “Federal courts are to resolve all doubts about federal jurisdiction in favor of remand and are strictly to construe legislation permitting removal.” Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d 965, 968 (8th Cir. 2007) (quotation marks omitted). However, when a federal court does have jurisdiction over a case properly before it, it has a “virtually unflagging obligation to exercise it.” Holbein v. TAW Enters., Inc., 983 F.3d 1049, 1060 (8th Cir. 2020) (en banc) (internal quotation marks omitted) (quoting Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013)).
In their Notices of Removal, Defendants assert a variety of grounds for the Court's subject matter jurisdiction, including diversity jurisdiction if the Court finds there is fraudulent misjoinder or fraudulent joinder, and federal question jurisdiction. In its Motion to Remand, Jefferson City argues (1) the Court does not have subject matter jurisdiction under either diversity or federal question jurisdiction, (2) all of the defendants did not consent to removal making removal improper, and (3) the Court should abstain from asserting any jurisdiction if it does in fact have jurisdiction. After reviewing the parties' arguments and the case law, the Court finds it does not have subject matter jurisdiction over this matter, and it must remand the case back to the state court. As the Court lacks subject matter jurisdiction, it will not rule on Defendants' Motions to Sever or any other pending motions.
When a defendant removes a case from state court to federal court, “all 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). This is called the rule of unanimity. Byrd v. Auto-Owners Ins. Co., 4:08-CV-1368 SNLJ, 2008 WL 5071105 at *2 (E.D. Mo. Nov. 24, 2008). Jefferson City asserts Sho-Me Technologies has not properly consented to removal of this action, and has, in fact, waived its ability to consent; therefore, Defendants have not complied with the removal statute and the Court should remand the matter.
While a codefendant does not need to sign the notice of removal itself, each codefendant must file a notice of consent after removal. Griffioen v. Cedar Rapids & Iowa City Ry. Co., 785 F.3d 1182, 1188 (8th Cir. 2015). The consent must be written and timely filed. Byrd, 2008 WL 5071105 at *2. A failure to file a written notice of consent on the part of each defendant requires remand. Id. In this case, while the other Defendants all filed memorandums in support of the notice of remand, Sho-Me Technologies did not. Sho-Me Technologies has not filed any written notice of its consent to the removal of this case.
Defendants argue Jefferson City never properly served or joined Sho-Me Technologies in the case so it did not need to consent to the removal. Section 1446(b)(2)(A) states, “all defendants who have been properly joined and served must join in or consent to the removal of the action.” The record of the state court docket does not show Jefferson City ever served Sho-Me Technologies. ECF No. 1-1, at 1-8. Sho-Me Technologies filed a motion to dismiss while the case was still in state court in which it argued there had been insufficient process and insufficient service of process. Jefferson City argues Sho-Me Technologies waived service of process by voluntarily entering an appearance and filing a motion to sever and transfer the case without mentioning the adequacy of the service of process. However, Sho-Me Technologies did not waive service of process because in Missouri a defending party who wishes to raise a defense of insufficiency of process or service of process “must do so in either a pre-answer motion or in the party's answer.” Worley v. Worley, 19 S.W.3d 127, 129 (Mo. 2000). Sho-Me Technologies raised the issue of insufficiency of process and service of process in a motion to dismiss filed on the same day as its motion to transfer, before filing an answer. ECF 1-1, at 3. Therefore, it has not waived service of process. Because Sho-Me Technologies is not a served defendant, it did not need to consent to the removal for the removal to be proper. The lack of consent by Sho-Me Technologies is not a basis for remand under these circumstances.
Next Jefferson City argues the Verizon and AT&T Defendants cannot assert grounds for removal they did not raise in a timely filed notice of removal. The Verizon and AT&T Defendan...
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