City of University City v. At & T Wireless Service
| Decision Date | 24 May 2002 |
| Docket Number | No. 4:02CV249ERW.,4:02CV249ERW. |
| Citation | 229 F.Supp.2d 927 |
| Court | U.S. District Court — Eastern District of Missouri |
| Parties | CITY OF UNIVERSITY CITY, Missouri, et al., Plaintiffs, v. AT & T WIRELESS SERVICES, INC., et al., Defendants. |
John F. Mulligan, Jr., Mulligan Law Office, Clayton, MO, for City of University City.
John F. Mulligan, Jr., Mulligan Law Office, Clayton, MO, Robert K. McDonald, Cochran and Oswald, Blue Springs, MO, for City of Blue Springs.
John F. Mulligan, Jr., Mulligan Law Office, Clayton, MO, W. Eric Cunningham, Office of the City Attorney, Cape Girardeau, MO, for City of Cape Girardeau.
Douglas R. Beach, Beach and Stewart, St. Louis, MO, John F. Mulligan, Jr., Mulligan Law Office, Clayton, MO, for City of Chesterfield.
Yewell G. Lawrence, Jr., Lawrence Law Office, Dexter, MO, John F. Mulligan, Jr., Mulligan Law Office, Clayton, MO, for City of Dexter.
Donald Kenneth Anderson, Jr., St. Louis, MO, John F. Mulligan, Jr., Mulligan Law Office, Clayton, MO, for City of Ellisville.
John F. Mulligan, Jr., Mulligan Law Office, Clayton, MO, Richard C. Bresnahan, Lang Law Office, St. Louis, MO, for City of Ferguson.
John F. Mulligan, Jr., Mulligan Law Office, Clayton, MO, for City of Florissant, City of Kirkwood, City of Maplewood, City of O'Fallon.
John F. Mulligan, Jr., Mulligan Law Office, Clayton, MO, David A. Ramsay, Gladstone, MO, for City of Gladstone.
John F. Mulligan, Jr., Mulligan Law Office, Clayton, MO, William B. Moore, Independence, MO, for City of Independence.
John F. Mulligan, Jr., Mulligan Law Office, Clayton, MO, Lloyd E. Eaker, St. Louis, MO, for City of Jennings.
Patrick R. Gunn, Gunn and Gunn, St. Louis, MO, John F. Mulligan, Jr., Mulligan Law Office, Clayton, MO, for City of Manchester.
John F. Mulligan, Jr., Mulligan Law Office, Clayton, MO, Howard Paperner, Devoto Law Offices, St. Louis, MO, for City of Maryland Heights, City of Winchester.
Thomas M. Flach, Lampin and Kell, St. Peters, MO, John F. Mulligan, Jr., Mulligan Law Office, Clayton, MO, for City of Northwoods.
John F. Mulligan, Jr., Mulligan Law Office, Clayton, MO, Lisa Robertson, Timothy J. Kissock, Office of the City Attorney, St. Joseph, MO, for City of St. Joseph.
John F. Mulligan, Jr., Mulligan Law Office, Clayton, MO, Marc S. Kramer, St. Louis, MO, for City of Vinita Park.
Marvin O. Young, Gallop and Johnson, Clayton, MO, John F. Mulligan, Jr., Mulligan Law Office, Clayton, MO, for City of Warson Woods.
John F. Mulligan, Jr., Mulligan Law Office, Clayton, MO, Dorothy L. White-Coleman, Susie M. McFarlind, White Coleman and Associates, LLC, St. Louis, MO, for City of Wellston.
Juan D. Keller, Mark B. Leadlove, Bryan Cave LLP, St. Louis, MO, Edward F. Downey, Bryan Cave, Jefferson City, MO, for AT&T Wireless, AT&T Wireless PCS, Inc, Voicestream Wirelss Corp., Voicestream Wireless Corp., II, Telecorp Communications, Inc.
Gerard T. Noce, Hilary R. Huffman, Noce and Buckley, St. Louis, MO, for Alltell Communications, Inc.
Jeffrey J. Kalinowski, Michelle W. Alvey, Blackwell Sanders Peper Martin, LLP, St. Louis, MO, Kimball R. Anderson, David E, Koropp, Giel Stein, Catherine L. Crisham, Winston and Strawn, Chicago, IL, for Cellco Partnership, Verizon Wireless Services, LLC, Verizon Wireless (VAW), LLC.
Todd W. Ruskamp, Kevin D. Mason, Shook and Hardy, Kansas City, MO, Jay Simpson, Eric Mikkelson, Shook and Hardy, Kansas City, MO, for Cingular Wireless, LLC, Southwestern Bell Mobile Systems, Inc.
Mark J. Bremer, Kohn and Shands, St. Louis, MO, Frederick H. Cohen, David J. Chizewer, Lincoln Schroth, Terry F. Moritz Goldberg and Kohn, Chicago, IL, for Nextel West Corp.
Stephen Robert Clark, Polsinelli and Shalton, St. Louis, MO, Timothy J. Sear, Polsinelli and Shalton, Overland Park, KS, for Sprint Intern. Communications Corp., Sprint Spectrum, L.P.
Rocco E. Testani, Russell S. Bonds, W. Scott Wright, Sutherland and Asbill, Atlanta, GA, Alexander X. Jackins, Washington, DC, John R. Munich, Sutherland and Asbill, Chesterfield, MO, for MCI Worldcom Communications, Inc.
This matter is before the Court on Plaintiffs' Motion to Remand [doc. # 60]. Plaintiffs argue that remand is appropriate for the following reasons: (1) the notice of removal failed to allege sufficient grounds for removal; (2) Defendant Verizon Wireless Services, LLC ("Verizon") failed to comply with the procedure for removal; and (3) abstention is appropriate based on the issues in the case.
Federal courts are courts of limited jurisdiction. Absent the existence of diversity of citizenship, a case is properly before this Court only if there exists a federal question. Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). A federal question arises only in "those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). Removal of a state court action to federal court is only "appropriate if the suit could have been brought in federal district court, as `founded on a claim or right arising under the Constitution, treaties or laws of the United States.'" Nahas & Co., Inc. v. First National Bank of Hot Springs, 930 F.2d 608, 611 (8th Cir.1991) (quoting 28 U.S.C. § 1441(b)). "[T]he propriety of removal to federal court depends on whether [plaintiff's] claim comes within the scope of the federal court's subject matter jurisdiction." Baker Electric v. Otter Tail Power Co., 116 F.3d 1207, 1213 (8th Cir.1997) (quoting Peters v. Union Pacific R.R. Co., 80 F.3d 257, 260 (8th Cir.1996)).
Generally speaking, the party asserting federal jurisdiction bears the burden of establishing that federal jurisdiction exists. See In re Business Men's Assurance Co. of America, 992 F.2d 181, 183 (8th Cir.1993). The Court is "required to resolve all doubts about federal jurisdiction in favor of remand." Id.
Plaintiffs are twenty-two Missouri cities who filed a class-action petition in state court on December 31, 2001, seeking declaratory and injunctive relief, an accounting, and back taxes from eighteen Defendants who are wireless telephone service providers. Plaintiffs allege that they and numerous other Missouri cities, many of which are small with limited resources, have ordinances imposing a business or occupation license tax on any person engaged in the business of supplying or furnishing telephone service or who is otherwise engaged in a telephone business. Plaintiffs have requested declaratory judgment relief concluding Defendants supply or furnish telephone service or are otherwise engaged in a telephone business within the meaning of the ordinances; an accounting of all money Defendants owe Plaintiffs under the ordinances; a judgment in favor of each Plaintiff and against each Defendant for the back taxes, interest and penalties due each Plaintiff from each Defendant; an injunction restraining the Defendants from violating the tax ordinances; and attorneys' fees.
As noted supra, Plaintiffs have alleged several grounds in support of their Motion to Remand. Plaintiffs have alleged defects exist within the notice of removal. Defendants claim that they cured the defects by filing an amended notice of removal.1 Plaintiffs also argue that the Court should abstain from hearing this case even if jurisdiction is proper.
With respect to the defects claimed to exist in the notice of removal, Plaintiffs apparently concede in their Reply to Defendants' Response to Plaintiffs' Motion to Remand that the First Amended Notice of Removal, filed by Defendants, cured most of the defects. However, Plaintiffs allege that some defects remain. Plaintiffs claim that the notice of removal does not contain proof that all Defendants consented to the notice of removal. "Under the rule of unanimity, ordinarily all defendants must join in a notice of removal or the case will be remanded." Marano Enterprises of Kansas v. Z-Teca Restaurants, 254 F.3d 753, 754 n. 2 (8th Cir.2001) (citations omitted). The Eighth Circuit in Marano held that later-served defendants in a case have thirty days after receiving service "to file a notice of removal, regardless of when — or if — previously served defendants had filed such notices." Id. at 756. However, Marano Id. at 757 n. 6.
Plaintiffs argue that remand is appropriate where Defendants failed to provide proof of consent of all Defendants to the removal. The Court concludes that remand is not appropriate based on this defect. Because the Defendants' counsel averred that all Defendants consented to the removal, the failure to provide proof of such consent was a technical defect. If there was no averment by counsel that all parties consented to the removal, then remand would be appropriate. See Ross v. Thousand Adventures of Iowa, Inc., 163 F.Supp.2d 1044, 1049-50 (S.D.Iowa 2001) ().
Plaintiffs also argue that remand is appropriate because Defendants (1) failed to allege in the notice of removal that diversity of citizenship existed as of the date the action was commenced in state court; and (2) Defendants failed to allege that each putative class member has a claim that exceeds $75,000.00 against each Defendant. Defendants have, as noted supra, filed a Motion to Amend the First Amended Notice of Removal in order to address these defects. The failure by Defendants to allege diversity of citizenship in the notice of removal as of the date the action was commenced may be cured by...
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