Columbus Equip. Co. v. RKJ Enters., LLC

• Decision Date: 24 August 2015
• Docket Number: CASE NO. 5:14-cv-2389
• Court: U.S. District Court — Northern District of Ohio
• Parties: COLUMBUS EQUIPMENT COMPANY, PLAINTIFF, v. RKJ ENTERPRISES, LLC dba AT YOUR SERVICE, et al., DEFENDANTS.

COLUMBUS EQUIPMENT COMPANY, PLAINTIFF, v. RKJ ENTERPRISES, LLC dba AT YOUR SERVICE, et al., DEFENDANTS.

CASE NO. 5:14-cv-2389

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

August 24, 2015

JUDGE SARA LIOI

MEMORANDUM OPINION AND ORDER OF REMAND

This matter is before the Court on the motion of plaintiff Columbus Equipment Company ("Columbus Equipment") to remand this action to the Carroll County Court of Common Pleas, from where it was removed by defendant Access MLP Operating, LLC, referred to in the complaint as "Access Midstream" ("Access" or "Access Midstream"). (Doc. No. 10 ["Mot."].) Plaintiff's motion is fully briefed and ripe for decision. For the reasons contained herein, plaintiff's motion to remand is GRANTED.

I. BACKGROUND

According to the "Creditor's Bill and Complaint" filed by plaintiff in the Carroll County Court of Common Pleas, plaintiff recovered a judgment against defendants RKJ Enterprises, LLC ("RKJ") and Ryan Jones ("Jones") in the Franklin County Court of Common Pleas in the amount of $340,821.32, plus interest and fees. (Doc. No. 2-1 ["Compl."] ¶ 1.) RKJ and Jones have other judgments and lawsuits filed against them, and their obligations exceed their financial resources.¹ (Id. ¶ 2.) The complaint alleges that RKJ and/or Jones may have certain equitable or other interests in defendant Access "by way of a contract, breach of contract, and other claims, . . . including but not limited to retainage amounts." (Id. ¶ 3.) Plaintiff's prayer seeks: (1) the disclosure by defendants of "all of the property, real, personal, or mixed . . . which is in their possession or under their control in which Defendants RKJ and Jones have any interest, legal or equitable, or from which any money or property is due or becomes due to them;" and (2) the payment of all money due and owing to RKJ and Jones by Access into the court until plaintiff's judgment is satisfied. (Id. at 10.²)

Access removed this case on the basis of diversity jurisdiction pursuant to 28 U.S.C. §§ 1332, 1441 and 1446. (Doc. No. 1 (Notice of Removal ["Notice"]).) Plaintiff timely moved to remand on both procedural and jurisdictional grounds because: (1) Access did not obtain the consent of RKJ and Jones to remove this action; and (2) the amount of damages required for diversity jurisdiction under 28 U.S.C. § 1332 is not satisfied in this case. Access opposed the plaintiff's motion to remand (Doc. No. 13 ["Access Opp'n"]), and defendants RKJ and Jones filed a response to Access Midstream's opposition (Doc. No. 14 ["RKJ-Jones Resp."]). Plaintiff replied to Access Midstream's opposition. (Doc. No. 16 ["Reply"]).)

II. DISCUSSION

A. Standard of Review

A civil case filed in state court may be removed to federal court if the action could have been brought originally in federal court. 28 U.S.C. § 1441(a); Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987). As a court of limited jurisdiction, a district court is required to remand any case where federal subject matter jurisdiction is lacking. See 28 U.S.C. § 1447(c). The defendant bears the burden of establishing that removal is proper. Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir. 2000). "All doubts as to the propriety of removal are resolved in favor of remand." Coyne v. Am. Tobacco Co, 183 F.3d 488, 493 (6th Cir. 1999) (citation omitted).

B. 28 U.S.C. § 1446—Procedure for removal

Title 28 U.S.C. § 1446 governs the procedure for removal of civil actions, and provides in relevant part as follows:

(a) Generally.--A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

(b) Requirements; generally.--(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

(2)(A) When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.

(B) Each defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal.

(C) If defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal.

(3) Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

For purposes of resolving the pending motion, the procedural requirements of § 1446 may be briefly summarized as follows. A notice of removal must be filed in the appropriate district court, signed pursuant to Fed. R. Civ. P. 11, and contain a short and plain statement of the grounds for removal. 28 U.S.C. § 1446(a). The notice of removal must be filed within 30 days after service of the complaint or summons, 28 U.S.C. § 1446(b)(1), and that 30 day window applies to each defendant in an action, 28 U.S.C. § 1446(b)(2)(B). When a civil action is removed solely pursuant to 28 U.S.C. § 1441(a)—actions subject to the Court's original jurisdiction—all defendants who have been properly joined and served in the case must join in or consent to the removal of the action. 28 U.S.C. § 1446(b)(2)(A).

1. The rule of unanimity

"[T]here is a rule of unanimity that has been derived from the statutory language prescribing the procedure for removing a state action to federal court." Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 516 (6th Cir. 2003) (citing 28 U.S.C. § 1446). In Loftis, the Sixth Circuit joined the prevailing view of other circuits, holding that all defendants in an action must join in the removal petition or file their consent to removal, "in writing," within 30 days of receipt of a summons when the complaint demonstrates that the case is one that may be removed. Id. (citations omitted).

The Sixth Circuit has identified three ways to satisfy the rule of unanimity. All parties that have been properly served or otherwise properly joined may: (1) join in the removal; (2) file a written consent to removal; or (3) oppose a motion to remand. Molnar v. Shelby County Bd. of Educ., No. 2:14-CV-2544 STA-dkv, 2014 WL 7335331, at *1 (W.D. Tenn. Dec. 19, 2014) (quoting City of Cleveland v. Ameriquest Mort. Sec., Inc., 615 F.3d 496, 501 (6th Cir. 2010)). "Failure to obtain unanimous consent forecloses the opportunity for removing under Section 1446." Loftis, 342 F.3d at 516; City of Cleveland v. Duetsche Bank Trust Co, 571 F. Supp. 2d 807, 811 (N.D. Ohio 2008) (quoting Brierly v. Alusuiesse Flexible Packaging, Inc., 184 F.3d 527, 533-34 (6th Cir. 1999)); see Lindon v. Kakavand, Civil Action No. 5:13-26-DCR, 2013 WL 5441981, at *4 (E.D. Ky. Sept. 27, 2013) (failure of all defendants who have been served to join in the removal or file a written consent within 30 days creates a defect in removal procedure within the meaning of 28 U.S.C. § 1447(c)) (citing Balazik v. Cnty. of Dauphin, 44 F.3d 209, 213 (3d Cir. 1995) and Loftis, 342 F.3d at 516).

Because the timing of the consent of RKJ and Jones to the removal of this case is critical to the analysis of plaintiff's motion, the details of certain specific dates are necessary. Before this case was removed, the three defendants were served with the summons and complaint by certified mail on the following dates: (1) Access on October 8, 2014; (2) RKJ on October 9, 2014; and (3) Jones on October 9, 2014. Neither defendant has contested the adequacy of service, so there is no reason to doubt that RKJ and Jones were properly served on that date. Therefore, under the statute, RKJ and Jones had until November 10, 2014 to consent to removal by Access.

As required by § 1446, Access timely removed the case on October 27, 2014. Although they had been served, RKJ and Jones did not join in the removal, and there is no indication in the notice that RKJ and Jones consented to the removal by Access. (See Notice, Section IV, at 3.) Thereafter, Access filed a "Supplemental Notice of Removal" on November 11, 2014. (Doc. No. 7 ["Supp. Notice"].) The supplemental notice contains a sentence in Section IV that was not present in the original notice: "All co-defendants have consented to this removal." (Supp. Notice at 32.)

Plaintiff argues that removal of this action is fatally flawed because RKJ and Jones did not join in the removal or timely file their written consent as required by § 1446 and the rule of unanimity. (Mot. at 47-48.) The Court agrees.

2. Access Midstream's opposition to remand

Typically, the Court would simply summarize the basis for Access Midstream's opposition. But in this case, the Court will provide direct quotations from Access Midstream's brief because the specific language is relevant to the analysis.

In opposing plaintiff's motion, Access states that when the initial notice of removal was filed on October 27, 2014, Access "inadvertently deleted the sentence stating...