Colon v. Ashby

• Decision Date: 08 June 2018
• Docket Number: Civil Action No. 17–1163 (DLF)
• Citation: 314 F.Supp.3d 116
• Parties: Nieves COLON, et al., Plaintiffs, v. Richard ASHBY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

314 F.Supp.3d 116

Nieves COLON, et al., Plaintiffs,

v.Richard ASHBY, et al., Defendants.

Civil Action No. 17–1163 (DLF)

United States District Court, District of Columbia.

Signed June 8, 2018

Ari Scott Casper, The Casper Firm, LLC, Baltimore, MD, for Plaintiffs.

Benjamin Alan Laufer, H. Kenneth Armstrong, Armstrong, Donohue, Ceppos, Vaughan & Rhoades, Chartered, Rockville, MD, for Defendants.

MEMORANDUM OPINION

DABNEY L. FRIEDRICH, United States District Judge

Before the Court is the plaintiffs' Motion to Remand. Dkt. 8. For the reasons that follow, the Court will grant the motion.

I. BACKGROUND

This suit arises from a professional boxing match between Prichard Colon and Terrel Williams. Compl. ¶¶ 1, 10, Dkt. 16 at 25–36. The match occurred on October 17, 2015 at Eagle Bank Arena in Fairfax, Virginia. Id. ¶ 10. According to the complaint, the 23–year-old Prichard was an undefeated professional boxer "considered by many in the sport to be a future world champion."Id. ¶ 5; see Pls.' Mem. at 1, Dkt. 8–1. During the initial rounds of the fight, Williams allegedly "rabbit punched" Prichard, i.e. , he violated boxing rules by striking Prichard on the back of the neck and head, which can cause severe injury to the brain

or spinal cord. Id. ¶ 27. In the sixth round, the referee warned Williams to stop hitting Prichard in the back of the head. Id. ¶ 30. In the seventh round, Williams allegedly punched Prichard in the back of the head again, and "Prichard fell to the canvas writhing in pain and holding the back of his head." Id. ¶ 32. The ringside doctor—Richard Ashby—then examined Prichard. Id. ¶¶ 32–35. According to the complaint, Prichard reported that he was dizzy and the back of his head hurt, which are symptoms of a brain bleed, but Dr. Ashby sent him back into the ring. Id. ¶¶ 34–36. Shortly after the fight, Prichard collapsed and was taken to the hospital. Id. ¶ 39. There, he was diagnosed with a large left-sided subdural hematoma, which required an emergent hemicraniectomy to relieve the brain swelling and evacuate the blood. Id. Tragically, Prichard never regained consciousness and he remained in a persistent vegetative state when this suit began. Id. ¶¶ 1, 40.

On May 3, 2017, the plaintiffs—Prichard's parents Nieves and Richard Colon, along with Sean Bogle as "legal guardian" of Prichard's property—filed suit in the Superior Court of the District of Columbia. Id. at 2. The complaint asserted negligence claims against four defendants: (1) the ringside physician Dr. Ashby; (2) Dr. Ashby's practice, Family Practices Medical Services, P.C.; (3) the fight promoter Headbanger's Promotions, Inc.; and (4) the fight promoter DiBella Entertainment, Inc. Id. at 1–2, ¶¶ 6–9, 41–49. Dr. Ashby and Family Practices filed an answer on June 12, 2017. Ashby Answer, Dkt. 16 at 14–24. In the answer, they "admit[ted] that Family Practices Medical Services, P.C. is a professional corporation through which Dr. Ashby operates a family medicine practice." Ashby Answer ¶ 7. On June 14, 2017, without the consent of Dr. Ashby and Family Practices, Headbangers filed a notice of removal because Headbangers incorrectly believed that Dr. Ashby and Family Practices had not been served and because Headbangers was unable to contact them. Notice of Removal ¶ 18, Dkt. 1; Suppl. to Notice of Removal ¶¶ 1–3, Dkt. 6. After discovering the error on June 15, 2017, Headbangers conferred with Dr. Ashby and Family Practices and obtained their oral consent to removal. Suppl. to Notice of Removal ¶¶ 2–3; Concurrence in Removal ¶¶ 1–2, Dkt. 10.

Following removal to this Court, Headbangers moved to dismiss the complaint, Dkt. 7, and the plaintiffs moved to remand, Dkt. 8. On the plaintiffs' request, see Dkt. 13, the Court stayed briefing on the motion to dismiss pending the resolution of the remand motion, see Minute Order of July 1, 2017. After the remand motion was fully briefed, Dr. Ashby and Family Practices moved on July 19, 2017 for leave to amend their answer. Dkt. 22. The case was reassigned to the undersigned judge on December 4, 2017. The Court then granted leave to amend the answer and ordered supplemental briefing on the remand motion. See Minute Order of January 18, 2018; Ashby Am. Answer, Dkt. 25.

II. LEGAL STANDARDS

"Ordinarily, the plaintiff is entitled to select the forum in which he wishes to proceed." Araya v. JPMorgan Chase Bank, N.A. , 775 F.3d 409, 413 (D.C. Cir. 2014). But a defendant may remove a civil action filed in state court to a federal district court that has original subject matter jurisdiction, including on the basis of diverse citizenship. 28 U.S.C. § 1441(a) ; see also id. § 1332(a). Under the forum-defendant rule, however, an "action otherwise removable solely on the basis of [diversity jurisdiction] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." Id. § 1441(b)(2) ; see Neal v. Brown , 980 F.2d 747, 747–48 (D.C. Cir. 1992) (" 28 U.S.C. § 1441(b)... permits removal when there is complete diversity of citizenship and no defendant properly joined and served is a citizen of the state in which the action is brought."). "Citizenship is determined at the date of filing." BGC Partners, Inc. v. Avison Young (Canada) Inc. , 115 F.Supp.3d 119, 125 (D.D.C. 2015) (citing Freeport–McMoRan, Inc. v. K N Energy, Inc. , 498 U.S. 426, 428, 111 S.Ct. 858, 112 L.Ed.2d 951 (1991) ).

The removing party bears the burden of showing that removal is proper. Walter E. Campbell Co. v. Hartford Fin. Servs. Grp., Inc. , 48 F.Supp.3d 53, 55 (D.D.C. 2014). When assessing a remand motion, "[c]ourts must strictly construe removal statutes, resolving any ambiguities regarding the existence of removal jurisdiction in favor of remand." Smith v. Hendricks , 140 F.Supp.3d 66, 70 (D.D.C. 2015) (citing Shamrock Oil & Gas Corp. v. Sheets , 313 U.S. 100, 107–09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941) ); see also Steward v. Goldman Sachs Mortg. Co. , 206 F.Supp.3d 131, 134 (D.D.C. 2016) ("Any uncertainty about the existence of subject matter jurisdiction should be resolved in favor of remand."). And the court "must assume all of the facts set forth by plaintiff to be true and resolve all uncertainties as to state substantive law in favor of the plaintiff." Id. In support of a remand motion, a plaintiff may submit affidavits to supplement the factual allegations in the complaint. Id.

III. ANALYSIS

Under the forum-defendant rule, this action is not removable if any defendant "properly joined and served ... is a citizen of the [forum] in which such action is brought." 28 U.S.C. § 1441(b)(2). The plaintiffs initially filed in the Superior Court of the District of Columbia. Removal thus turns on whether any properly joined defendants are D.C. citizens. The plaintiffs argue that two corporate defendants—Family Practices and Headbangers—are D.C. citizens. See Pls.' Mem. at 2. The Court need only address Family Practices to resolve the remand motion.

A. Family Practices' Citizenship

A corporation is a citizen "of every State ... by which it has been incorporated and of the State ... where it has its principal place of business." 28 U.S.C. § 1332(c)(1). Family Practices was incorporated as a professional corporation in the District of Columbia in 1989, but it stopped filing required biennial reports and paying required fees after 2011, see Dkt. 1–2 at 18, 20, for which a corporation can be "administratively dissolved" by the District of Columbia, see D.C. Code § 29–106.01. Thus, Family Practices' articles of incorporation were revoked in 2013, well before the 2015 fight at issue here. See Ashby Am. Answer ¶¶ 4, 6; Revocation Certificate, Dkt. 17–2 at 1 (revoking Family Practices' articles as of September 16, 2013, but published on July 10, 2017).

Although Family Practices was no longer incorporated when this suit began, the plain language of the citizenship statute includes past incorporation: the statute deems a corporation a citizen of every state in which it "has been" incorporated, not in which it "is" incorporated.

28 U.S.C. § 1332(c)(1). The present perfect tense—"has been"—"denotes an act, state, or condition that is now completed or continues up to the present." Chicago Manual of Style § 5.132 (17th ed. 2017); see also Bryan A. Garner, Modern American Usage 802–03 (3d ed. 2009); McManus v. McManus Fin. Consultants, Inc. , No. 10-cv-0281, 2010 WL 4290866, at *3 (D. Nev. Oct. 20, 2010) ("The perfect tense in the English language indicates a completed action, regardless of the continuing vitality of the action. For example, ‘I have been to London’ says nothing of whether I am still in London today."). It is true that the present perfect tense "can in some cases imply continued vitality." McManus , 2010 WL 4290866, at *3. Here, however, it does not. The statutory provision uses the present tense right next door to the perfect tense, compare 28 U.S.C. § 1332(c)(1) ("has its principal place of business"), with id. ("has been incorporated"), and when a statute uses contrasting language in the very same provision, courts "presume that Congress intended a difference in meaning," Loughrin v. United States , ––– U.S. ––––, 134 S.Ct. 2384, 2390, 189 L.Ed.2d 411 (2014) (internal quotation marks and alteration omitted). Congress "easily could have" used the present tense, but it did not. Baker Botts LLP v. ASARCO LLC , ––– U.S. ––––, 135 S.Ct. 2158, 2166, 192 L.Ed.2d 208 (2015). Therefore, a dissolved corporation remains a citizen of its state of incorporation for purposes of removal.¹ Family Practices, having been incorporated in the District of Columbia, is a D.C. citizen.

Even if Family Practices' past incorporation does not make it a D.C. citizen, Family Practices is still a D.C. citizen because its principal place of business was the District of Columbia when this suit began. Following Hertz Corp. v. Friend , a corporation's principal place of business is its "nerve center," i.e. , ...